Loading...
R-79-225 - 7/12/1979RESOLUTION NO. gol 5 R WHEREAS, the City of Round Rock has pressing need for a new garbage truck to continue to adequately serve the citizens of Round Rock,•and _ E WHEREAS, the City has advertised for bids for a new garbage truck, and WHEREAS, PAK -MOR Manufacturing Company submitted the lowest and best bid; which bid was accepted by the City, and WHEREAS, PAK -MOR has submitted a proposed contract for the delivery of the garbage truck, and WHEREAS, the City Council wishes to enter into said contract with PAK -MOP. for the delivery of the garbage truck, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, THAT The mayor of the City of Round Rock, Texas, is hereby authorized and directed to execute on behalf of the City, a contract with PAK - MOR, a copy of such contract being attached hereto and incorporated herein for all purposes. RESOLVED this Ja day of ` �/f , 1979. ATTEST; JOANNE LAND, City Secretary Y L. TffNN, Mayor City of Round Rock, Texas THE STATE OF TEXAS COUNTY OF THIS AGREEMENT made and entered into a municipal corporation, of Williamson County, 'CITY" and sometimes called "BUYER', and PAK -MOR hereinafter called "SELLER", W I T N E S S E T H: 11. The Fonsideration of the foregoing sale is the sum. thousand and no /100 dollars ($25,000.00). between the CITY OF ROUND ROCK, TEXAS Texas hereinafter sometimes called MANUFACTURING COMPANY, a corporation, 1. SELLER has sold and delivered or will deliver to BUYER and BUYER has purchased from SELLER the following described equipment or vehicles: One (1) 28 cubic yard "H" Model PAK -MOR Side spading Machine, Serial No. 28 77443, mounted on 1977 International Model 1800 truck chassis, Serial No. D0532GHB28687, with walk -in cab. of twenty -five paid and to be paid by BUYER to SELLER or to SELLER'S assignee as follows, to -wit: 20% dawn payment, or $5000.00, due at time of delivery. Balance to be financed over 48 month period at 7 -1/2% simple interest. Forty -seven consecutive payments of $480.00 due and payable on 1st day of each month, be on August 1, 1979, and continuing through June 1, 1983. Forty - eighth and final payment due on July 1, 1983 in the amount of $675.36. See schedule of payments attached for complete breakdown. Provided nevertheless that BUYER may at its option on or before the stated date for the second or third payment above stipulated, and not being in default in the making of any payment theretofore becoming due, discharge its entire obligation under this agreement by surrendering up and delivering to SELLER or to SELLER'S assignee, as the case may be, all and sundry the equipment referred to in numbered Section I hereof in good operating order and condition, reasonable wear and tear thereof only excepted, by which delivery all title thereto will pass out of CITY. By its execution hereof, BUYER represents to SELLER that it has lawfully provided out of its current funds and revenues for the year now current the amount required to cover the initial payment above stipulated, but makes known to SELLER that under provisions of the Charter of the City of Round Rock,Texasthe CITY not having made any provision at this time for any of the further payments may not unconditionally obligate itself to make any of the further payments stipulated, but can and by this instrument does obligate itself that it will either make such payments on or before the respective dates stipulated or will so surrender up the equipment as above provided. -2- In the event the CITY'S obligation under this agreement is discharged by it surrendering up the equipment or if SET becomes entitled to possession thereof hereunder or by order of a court of competent jurisdiction, none of the moneys thereto- fore paid by CITY shall be refunded or recpverable by it; but the parties hereto agree for themselves and for their respective assigns that the amount paid by the CITY shall be the value to the CITY of the use and enjoyment by it of the equipment during its possession thereof. If title certificates have been furnished the City in connection with any of said equipment as contemplated by numbered Section VI hereof, and CITY elects to surrender up the equipment instead of completing payment therefor, CITY further obligates itself that at the time of such surrender, it will surrender up also the title cer- tificates appropriately endorsed to permit the handling thereof by SELLER or SELLER'S assignee and will render full co- operation and execute all appropriate papers to assist SELLER or SELLER'S assignee in procuring the issuance of title certificate and license receipt in their name or as they may elect. III. There is made a part of this agreement as fully as if here set forth at length or attached hereto SELLER'S bid or bids received by the City Council for the furnishing to the City of the several items of equipment hereinabove referred to, together with every specification and other exhibit thereto attached or therein re- ferred to. SELLER represents that the several items of equipment covered by this agreement will be delivered to the CITY within the respective times set forth in such bid.' It is agreed that upon delivery of such equipment to the CITY it will have a reasonable time to inspect the same and make such tests thereof, if any, as are contemplated by the said specifications and, based upon the results of such tests, to either accept or reject the same,• depending upon whether the equipment meets the specifications therefor; provided, however, that for the assurance of an assignee to whom SELLER may assign the payments to be received by it hereunder CITY will, upon -3- upon completion of its tests and inspection and the acceptance by it of any particular item or items of the equipment, execute an appropriate memorandum to the effect that it has received such item of equipment and has accepted the same as being in apparent compliance with the terms of this agreement and with the specifications on which the same was bought but no such acceptance shall relieve SELLER of any of its obligations with respect to such equipment arising from the warranties or guaranties, express or implied, on which the same was sold. After acceptance by the CITY of any particular item of such equipment, SELLER shall not be obligated (except to the extent contemplated by it warranties or guaranties or otherwise contemplated by the specifications on which the equipment was sold) to incur or pay any tax or charge or any expense of any kind or character during the entire term hereof by reason of or in connection with said equipment IV. Title to said equipment is retained by SELLER: but upon payment by the CITY of all of the amounts hereinabove stipulated to be paid by it, full and complete title thereto will vest in the CITY without the necessity of any further writing or act on the part of SELLER. It is a condition of this entire agreement that SELLER shall have the right to take and resume possession thereof in the event of failure of any of the following, which are express conditions to the CITY'S right to continue in possession thereof, to -wit: (1) That the CITY will take the same care of said equipment as a reason- ably prudent person would take of his own property; (2) That the CITY will keep said equipment in good repair and condition, subject only to such normal wear and tear as may not be kept down and remedied by good repair and maintenance; (3) That if any of said equipment is lost, taken or destroyed, or rendered unfit for further use by extraordinary wear and tear or by fire, theft, windstorm, public disaster, act of God, or any other casualty or cause whatsoever, the CITY will at its cost replace such items of said equipment with a similar piece of new equipment or will pay as an advance payment upon the last maturing installment or installments of the agreed purchase price an amount equivalent to the pro rata unpaid price of the piece of equipment in question, said amount to be computed based upon SELLER'S bid on which this sale is based and giving proportionate credit or part or parts of the payment or payments theretofore made by the CITY under this entire agreement; and -4- (4) That the equipment shall be used exclusively in the service of the CITY, and CITY will not sell or dispose of any thereof (except upon making a pro- portionate advance payment against the unpaid balance of the price as here immediately above contemplated). PROVIDED CITY shall be entitled to thirty (30) days within which to comply with any such condition after receipt by it of written notice to it or noncompliance therewith; and in any such event shall have the option within such 30 - day period of paying off and discharging the entire balance of the purchase price to the date of such payment, whereupon as elsewhere in this instrument provided the title to all of such equipment will be deemed to have vested fully in the CITY. V . In the event of failure on the part of CITY on or before any of the payment dates stipulated in Section II hereof to either pay the amount there stipulated or to surrender up the possession and title to the equipment to SELLER or to SELLER'S assign - SETJ ER or its assignee ee /shall have the right to take and resume possession thereof with without process of law. In the event SELLER or SELLER'S assignee has under this section hereof or under the provisions of Section IV hereof resumed possession or become entitled to take and resume possession of said equipment, SELLER or SELLER'S assignee have the further right of declaring all of the unpaid balance of said purchase price due and payable and shall have the further right of selling the said equipment at public or private sale at any time thereafter, with or without notice to BUYER, and SELLER or SELLER'S assignee may become the purchaser thereof; provided that in the event of any such default SELLER or SELLER'S assignee shall look solely to the said equipment or to the proceeds of the sale thereof for the enforcement of payment of any balance hereunder, and the said equipment and the proceeds of any such sale thereof shall be full satis- faction of all the CITY'S obligations under this instrument. VI. To the end that the CITY may procure registration and licenses in its name (for which it is necessary that the CITY exhibit to the licensing authority a manu- facturer's certificate or a title certificate in its name pursuant to the provisions of the Texas betor Vehicle Title Law), SELLER will cause to be delivered to the CITY a separate manufacturer's certificate duly assigned to the CITY covering each item of the foregoing equipment for which a title certificate is required under such law, showing the City of mound Ruck as the owner or.last,,transferee or assignee of the vehicle, and which may show a lien in favor of or assignee to whom the deferred payments herein provided may have beenassigned,by SELLER, which lien shall be shown . _ ,J in the amount of the proportionate part of the stated purchase price which remains unpaid after the initial payment based upon the schedule of payments provided in Section II of this agreement. Notwithstanding the delivery of such certificate, it is expressly agreed that the CITY shall not be entitled to require a release of the lien so indicated, except upon paying the balance of the entire purchase price of all of the equipment herein referred to. In every respect in which the respective rights and obligations of the CITY, or SELLER or of SELLER'S assignee as indicated or sug- gested by such certificate might appear to be different than their respective rights or obligations as stated in this instrument, the provisions of this instrument shall control. The CITY further agrees in this connection that in the event of any further assignment of the payments to be made by it hereunder it will, upon appropriate request but without cost to it, procure the reissuance of a title certificate to evidence the transfer of the lien to such further assignee; provided always that the original title certificate shall come and remain into the possession of the City o£Imund since it is unable to procure the issuance to it of tax exempt license plates without having the original title certificate in its possession. VII. The initial payment and all subsequent payments herein stipulated shall be made by the CITY to SELLER: provided if SELLER has, by executing the form of assignment attached hereto, assigned all or any of such payment. to another, the CITY will make the payments so assigned to such named assignee. All of the unpaid payments under this contract may at any time from time to time be assigned or reassigned in whole but not in part, by an assignment substantially to the effect of the form of assignment appended hereto. No assignment of any of the unpaid payments under this contract will be recognized by or be binding upon the CITY unless it be by a written assignment, signed on behalf of the assignor and the assignee, and executed original thereof delivered to the City Controller of the City of Round Rock, Texas. VIII. This agreement may not be changed, varied or altered except by instrument in writing duly executed on behalf of CITY and by SELLER and also by SELLER'S assignee, if any of the payments to be made hereunder by CITY have been assigned by SELLER. Failure on the part of SELLER or of SELLER'S assignee to exercise any remedy given in the event of breach of covenant or condition on the part of the CITY -6- shall not constitute a waiver of such breach nor impair the right of SELLER or SELLER'S assignee to exercise such right or remedy at any time thereafter while such breach or default continues; provided the acceptance by SELLER or SELLER'S assignee of a payment hereunder after the date it is due shall constitute a waiver of delay in making of such payment. IX. Every obligation of or arising from this agreement shall be performable in Williamson County, Texas. SELLER covenants and agrees that the CITY, making the payments herein contemplated to be made by it and performing all covenants and conditions on its part herein contained in the manner and within the times herein provided, shall and may peaceably and quietly have, hold and enjoy the possession and use of the equipment herein referred to, and that SELLER will defend CITY in the title and peaceable possession of said equipment. The CITY covenants and agrees that it will not until all payments herein contemplated to be made by it have been made suffer, commit or permit any waste of or damage to the said equipment or to any thereof. IN TESTIMONY OF WHICH, this instrument in duplicate originals of equal force has been executed on behalf of SELLER on the 24th day of July A. D. 197 and has been executed on behalf of the CITY by its Mayor, attested by its City Secretary pursuant to authorization by ordinance of its City Council, on the day of , A. D. 19 79 , and has been countersigned by the City Controller of the City of Round Rock , Texas ATTEST: oanne Land, City Secretary APPROVED: Sr. i Assistant City Attorney Treasurer Asst: corporate Secretary Jane Thurmond Gregory .x. -7- CITY OF ROCK, TEXAS dor . arry L. T rn, Mayor COUNTERSIGNED: City Controller PAK -MOR MANUFACTURIN COMPANY BY NYJCi ee.a> !/- toAr 4J (/Jimmie V. Thurmond President