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HomeMy WebLinkAboutMaster Lease Agreement, Amendment No. 1 to Lease Agreement, and Lease Proposal – Dell Financial Services LLC`11 1316 COUNTY —CITY BUILDING �C PHONE 574/ 235-925I � 227 W. JEFFERSON BOULEVARD PEACE FAx 574/ 235-9171 SOI ITH BEND_ INDIANA 46601-1930 �" re I�'da5 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARDU LIC WORKS January 14, 2020 Records MS RRIDF-28 Dell Financial Services, LLC. One Dell Way Round Rock, TX 78682 RE: Master Lease Agreement, Amendment No. 1 to Lease Agreement, and Lease Proposal To Whom It May Concern: The Board of Public Works, at its meeting held on January 14, 2020, approved the above referenced agreements for the master lease and an amendment that addresses the city's self- insurance and the financing of eleven (11) laptops for Water Works in the amount of $33,000. Enclosed please find the original of the agreements for your signature. Please sign and return the original agreement to our office and retain a copy for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, t Linda M. Martin, Clerk Enclosure GARY A. GILOT ELIZABETH A. MARADIK THERESE J. DORAU JORDAN V. GATHERS JOSEPH R. MOLNAR LESSOR:Dell Financial Services L.L.C. WIan9,Addr : ONE DELL WAY Round Rock, TX 78682 This Master Lease Agreement ("Agreement"), effective as of the Effective Date set forth above, is between the Lessor and Lessee named above. Capitalized terms have the meaning set forth in this Agreement. 1. LEASE. Lessor hereby leases to Lessee and Lessee hereby leases the equipment ("Products"), Software (defined below), and services or fees, where applicable, as described in any lease schedule ("Schedule"). Each Schedule shall incorporate by reference the terms and conditions of this Agreement and contain such other terms as are agreed to by Lessee and Lessor. Each Schedule shall constitute a separate lease of Products ("Lease"). In the event of any conflict between the terms of a Schedule and the terms of this Agreement, the terms of the Schedule shall prevail. Lessor reserves all rights to the Products not specifically granted to Lessee in this Agreement or in a Schedule. Execution of this Agreement does not create an obligation of either party to lease to or from the other. 2. ACCEPTANCE DATE; SCHEDULE. (a) Subject to any right of return provided by the Product seller ("Seller'), named on the Schedule, Products are deemed to have been irrevocably accepted by Lessee upon delivery to Lessee's ship to location ("Acceptance Date"). Lessee shall be solely responsible for unpacking, inspecting and installing the Products. (b) Lessor shall deliver to Lessee a Schedule for Products. Lessee agrees to sign or otherwise authenticate (as defined under the Uniform Commercial Code, "UCC") and return each Schedule by the later of the Acceptance Date or five (5) days after Lessee receives a Schedule from Lessor. If the Schedule is not signed or otherwise authenticated by Lessee within the time provided in the prior sentence, then upon written notice from Lessor and Lessee's failure to cure within five (5) days of such notice. Lessor may require the Lessee to purchase the Products by paying the Product Cost charged by the Seller, plus any shipping charges, Taxes or Duties (defined below) and interest at the Overdue Rate accruing from the date the Products are shipped through the date of payment. If Lessee returns any leased Products in accordance with the Seller's return policy, it will notify Lessor. When Lessor receives a credit from the Seller for the returned Product, the Schedule will be deemed amended to reflect the return of the Product and Lessor will adjust its billing records and Lessee's invoice for the applicable Lease. In addition, Lessee and Lessor agree that a signed Schedule may be amended by written notice from Lessor to Lessee provided such notice is (1) to correct the serial (or service tag) number of Products or (ii) to adjust the related Rent (defined below) on the Schedule (any increase up to 15% or any decrease) caused by any change made by Lessee in Lessee's order with the Seller. 3. TERM. The initial term (the "Primary Term") for each Lease shall begin on the date set forth on the Schedule as the Commencement Date (the "Commencement Date"). The period beginning on the Acceptance Date and ending on the last day of the Primary Term, together with any renewals or extensions thereof, is defined as the "Lease Term". The EFFECTIVE DATE: December 2, 2019 MASTER LEASE AGREEMENT NO. 1844711999-60992 LESSEE:CITY OF SOUTH BEND, INDIANA r n ip 1. Address: 227 WEST JEFFERSON BLVD. SOUTH BEND, IN 46601 Lease is noncancelable by Lessee, except as expressly provided in Section 5. 4. RENT; TAXES; PAYMENT OBLIGATION. (a) The rental payment amount ("Rent") and the payment period for each installment of Rent ("Payment Period") shall be stated in the Schedule. A prorated portion of Rent calculated based on a 30-day month, 90-day quarter or 360-day year (as appropriate) for the period from the Acceptance Date to the Commencement Date shall be added to the first payment of Rent. All Rent and other amounts due and payable under this Agreement or any Schedule shall be paid to Lessor in lawful funds of the United States of America at the payment address for Lessor set forth above or at such other address as Lessor may designate in writing from time to time. Whenever Rent and other amounts payable under a Lease are not paid when due, Lessee shall pay interest on such amounts at a rate equal to the lesser of 1 % per month or the highest such rate permitted by applicable law ("Overdue Rate"). Rent shall be due and payable whether or not Lessee has received an invoice showing such Rent is due. Late charges and reasonable attorney's fees necessary to recover Rent and other amounts owed hereunder are considered an integral part of this Agreement. The rate factors used for the calculation of the payment are based in part on similar or like term swap or T-bill rates as published by the US Federal Reserve Board. In the event the applicable rates change between Lessor initially providing the rate factors and the commencement of a Schedule. Lessor reserves the right to change the applicable rate factor commensurate with the change in the applicable rates. (b) EACH LEASE SHALL BE A NET LEASE. In addition to Rent, Lessee shall pay sales, use, excise, purchase, property, added value or other taxes, fees, levies or assessments lawfully assessed or levied against Lessor or with respect to the Products and the Lease (collectively 'Taxes"), and' customs, duties or surcharges on imports or exports (collectively, "Duties"), plus all expenses incurredin connection with Lessor's purchase and Lessee's use of the Products, including but not limited to shipment, delivery, installation, and insurance. Unless Lessee provides Lessor with a tax exemption certificate acceptable to the relevant taxing authority prior to Lessor's payment of such Taxes, Lessee shall pay to Lessor all Taxes and Duties upon demand by Lessor. Lessor may, at its option, invoice Lessee for estimated personal property tax with the Rent Payment. Lessee shall pay all utility and other charges incurred in the use and maintenance of the Products. (c) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5, LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER AMOUNTS WHEN DUE AND TO OTHERWISE PERFORM AS REQUIRED UNDER THIS AGREEMENT AND EACH SCHEDULE SHALL BE ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM, INTERRUPTION, DEFERMENT OR RECOUPMENT FOR ANY REASON WHATSOEVER WHETHER ARISING OUT OF ANY CLAIMS BY LESSEE AGAINST LESSOR, LESSOR'S ASSIGNS, THE SELLER, OR THE SUPPLIER OR MANUFACTURER OF THE PRODUCTS, TOTAL OR PARTIAL LOSS OF THE PRODUCTS OR THEIR USE OR POSSESSION, OR OTHERWISE. If any Product is unsatisfactory for any Reference: 184471199M O99 2 Master Lease Agreement -Public NOV201 6 reason, Lessee shall make its claim solely against the Seller of such Product (or the Licensor in the case of Software, as defined below) and shall nevertheless pay Lessor or its assignee all amounts due and payable under the Lease. 5. APPROPRIATION OF FUNDS. (a) Lessee intends to continue each Schedule for the Primary Term and to pay the Rent and other amounts due thereunder. Lessee reasonably believes that legally available funds in an amount sufficient to pay all Rent during the Primary Term can be obtained and agrees to do all things lawfully within its power to obtain and maintain funds from which the Rent and other amounts due may be paid. (b) Lessee may terminate a Schedule in whole, but not in part by giving at least sixty (60) days notice prior to the end of the then current Fiscal Period (as defined in the Lessee's Secretary/Clerk's Certificate provided to Lessor) certifying that: (1) sufficient funds were not appropriated and budgeted by Lessee's governing body or will not otherwise be available to continue the Lease beyond the current Fiscal Period; and (2) that the Lessee has exhausted all funds legally available for payment of the Rent beyond the current Fiscal Period. Upon termination of the Schedule, Lessee's obligations under the Schedule (except those that expressly survive the end of the Lease Term) and any interest in the Products shall cease and Lessee shall surrender the Products in accordance with Section 8. Notwithstanding the foregoing, Lessee agrees that, without creating a pledge, lien or encumbrance upon funds available to Lessee in other than its current Fiscal Period, it will use its best efforts to take all action necessary to avoid termination of a Schedule, including making budget requests for each Fiscal Period during each applicable Lease Term for adequate funds to meet its Lease obligations and to continue the Schedule in force. (c) Lessor and Lessee intend that the obligation of Lessee to pay Rent and other amounts due under a Lease constitutes a current expense of Lessee and is not to be construed to be a debt in contravention of any applicable constitutional or statutory limitation on the creation of indebtedness or as a pledge of funds beyond Lessee's current Fiscal Period, 6. LICENSED MATERIALS. Software means any operating system software or computer programs included with the Products (collectively, "Software"). "Licensed Materials" are any manuals and documents, end user license agreements, evidence of licenses, including, without limitation, any certificate of authenticity and other media provided in connection with such Software, all as delivered with or affixed as a label to the Products. Lessee agrees that this Agreement and any Lease (including the sale of any Product pursuant to any purchase option) does not grant any title or interest in Software or Licensed Materials. Any use of the terms "sell," "purchase," "license," "lease," and the like in this Agreement or any Schedule with respect to Software shall be interpreted in accordance with this Section 6. 7. USE; LOCATION; INSPECTION. Lessee shall: (a) comply with all terms and conditions of any Licensed Materials; and (b) possess and operate the Products only (i) in accordance with the Seller's supply contract and any service provider's maintenance and operating manuals, the documentation and applicable laws; and (ii) for the business purposes of Lessee. Lessee agrees not to move Products from the location specified in the Schedule without providing Lessor with at least 30 days prior written notice, and then only to a location within the continental United States and at Lessee's expense. Without notice to Lessor, Lessee may temporarily use laptop computers at other locations, including outside the United States, provided Lessee complies with the United States Export Control Administration Act of 1979 and the Export Administration Act of 1985, as those Acts are amended from time to time (or any successor or similar legislation). Provided Lessor complies with Lessee's reasonable security requirements, Lessee shall allow Lessor to inspect the premises where the Products are located from time to time during reasonable hours after reasonable notice in order to confirm Lessee's compliance with its obligations under this Agreement. 6. RETURN. At the expiration or earlier termination of the Lease Term of any Schedule, and except for Products purchased pursuant to any purchase option under the Lease, Lessee will (a) remove all proprietary data from the Products and (b) return them to Lessor at a place within the contiguous United States designated by Lessor. Upon return of the Products, Lessee's right to the operating system Software in returned Products will terminate and Lessee will return the Products with the original certificate of authenticity (attached and unaltered) for the original operating system Software. Lessee agrees to deinstall and package the Products for return in a manner which will protect them from damage. Lessee shall pay all costs associated with the packing and return of the Products and shall promptly reimburse Lessor for all costs and expenses for missing or damaged Products or operating system Software. If Lessee fails to return all of the Products at the expiration of the Lease Term or earlier termination (other than for non -appropriation) in accordance with this Section, the Lease Term with respect to the Products that are not returned shall continue to be renewed as described in the Schedule. 9. RISK OF LOSS; MAINTENANCE; INSURANCE. (a) From the date the Products are delivered to Lessee's ship to location until the Products are returned to Lessor's designated return location or purchased by Lessee, Lessee agrees: (i) to assume the risk of loss or damage to the Products; (ii) to maintain the Products in good operating condition and appearance, ordinary wear and tear excepted; (iii) to comply with all requirements necessary to enforce all warranty rights; and (iv) to promptly repair any repairable damage to the Products. During the Lease Term, Lessee at its sole discretion has the option to purchase a maintenance agreement from the provider of its choice (including, if it so chooses, to self -maintain the Products) or to forgo such maintenance agreement altogether; regardless of Lessee's choice, Lessee will continue to be responsible for its obligations as stated in the first sentence of this Section. At all times, Lessee shall provide the following insurance: (x) casualty loss insurance for the Products for no less than the Stipulated Loss Value (defined below) naming Lessor as loss payee; and (y) liability insurance with respect to the Products for no less than an amount as required by Lessor, with Lessor named as an additional insured; and (z) such other insurance as may be required by law which names Lessee as an insured and Lessor as an additional insured. Upon Lessor's prior written consent, Lessee may provide this insurance pursuant to Lessee's existing self insurance policy or as provided for under state law. Lessee shall provide Lessor with either an annual certificate of third party insurance or a written description of its self insurance policy or relevant law, as applicable. The certificate of insurance will provide that Lessor shall receive at least ten (10) days prior written notice of any material change to or cancellation of the insurance policy or Lessee's self- insurance program, if previously approved by Lessor. If Lessee does not give Lessor evidence of insurance in accordance with the standards herein, Lessor has the right, but not the obligation, to obtain such insurance covering Lessor's interest in the Products for the Lease Term, including renewals. If Lessor obtains such insurance, Lessor will add a monthly, quarterly or annual charge (as appropriate) to the Rent to reimburse Lessor for the insurance premium and Lessor's then current insurance administrative fee. (b) If the Products are lost, stolen, destroyed, damaged beyond repair or in the event of any condemnation, confiscation, seizure or expropriation of such Products ("Casualty Products"), Lessee shall promptly (i) notify Lessor of the same and (ii) pay to Lessor the Stipulated Loss Value for the Casualty Products. The Stipulated Loss Value is an amount equal to the sum of (a) all Rent and other amounts then due and owing (including interest at the Overdue Rate from the due date until payment is received) under the Lease, plus (b) the present value of all future Rent to become due under the Lease during the remainder of the Lease Term, plus (c) the present value of the estimated in place Fair Market Value of the Product at the end of the Primary Term as determined by Lessor; plus (d) all other amounts to become due and owing during the remaining Lease Term. Unless priced as a tax-exempt Schedule, each of (b) and (c) shall be calculated using the federal funds rate target reported in the Wall Street Journal on the Commencement Date of the applicable Schedule. The discount rate applicable to tax-exempt Schedules shall be federal funds rate target reported in the Wall Street Journal on the Commencement Date of the applicable Schedule less 100 basis points. Reference: 1844711999-60992 Master Lease Agreement - Public_NOV2018 Page 2 of 5 10. ALTERATIONS. Lessee shall, at its expense, make such alterations to Products during the Lease Term as are legally required or provided at no charge by Seller. Lessee may make other alterations, additions or improvements to Products provided that any alteration, addition or improvement shall be readily removable and shall not materially impair the value or utility of the Products. Upon the return of any Product to Lessor, any alteration, addition or improvement that is not removed by Lessee shall become the property of Lessor free and clear of all liens and encumbrances. 11. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee represents, warrants and covenants to Lessor and will provide to Lessor at Lessor's request all documents deemed necessary or appropriate by Lessor, including Certificates of Insurance, financial statements, Secretary or Clerk Certificates, essential use information or documents (such as affidavits, notices and similar instruments in a form satisfactory to Lessor) and Opinions of Counsel (in substantially such form as provided to Lessee by Lessor and otherwise satisfactory to Lessor) to the effect that, as of the time Lessee enters into this Agreement and each Schedule that: (a) Lessee is an entity duly organized and existing under and by virtue of the authorizing statute or constitutional provisions of its state and is a state or political subdivision thereof as described in Section 103(a) of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder as in effect and applicable to the Agreement or any Schedule, with full power and authority to enter into this Agreement and any Schedules and perform all of its obligations under the Leases; (b) This Agreement and each Schedule have been duly authorized, authenticated and delivered by Lessee by proper action of its governing board at a regularly convened meeting and attended by the requisite majority of board members, or by other appropriate official authentication, as applicable, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement against Lessee; (c) This Agreement and each Schedule constitute the valid, legal and binding obligations of Lessee, enforceable in accordance with their terms; (d) No other approval, consent or withholding of objection is required from any federal, state or local governmental authority or instrumentality with respect to the entering into or performance by Lessee of the Agreement or any Schedule and the transactions contemplated thereby; (e) Lessee has complied with such public bidding requirements and other state and federal laws as may be applicable to the Agreement and any Schedule and the acquisition by Lessee of the Products; (f) The entering into and performance of the Agreement or any Schedule will not (i) violate any judgment, order, law or regulation applicable to Lessee; (ii) result in any breach of, or constitute a default under, any instrument to which the Lessee is a party or by which it or its assets may be bound; or (iii) result in the creation of any lien, charge, security interest or other encumbrance upon any assets of the Lessee or on the Products, other than those created pursuant to this Agreement; (g) There are no actions, suits, proceedings, inquiries or investigations, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting Lessee, nor to the best of Lessee's knowledge and belief is there any basis therefor, which if determined adversely to Lessee will have a material adverse effect on the ability of Lessee to fulfill its obligations under the Agreement or any Schedule; (h) The Products are essential to the proper, efficient and economic operation of Lessee or to the services which Lessee provides to its citizens. Lessee expects to make immediate use of the Products, for which it has an immediate need that is neither temporary nor expected to diminish during the applicable Lease Term. The Products will be used for the sole purpose of performing one or more of Lessee's governmental or proprietary functions consistent within the permissible scope of Lessee's authority; and (i) Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds to make all Rent payments and other obligations under this Agreement and any Schedule during the current Fiscal Period, and such funds have not been expended for other purposes. 12. WARRANTY ASSIGNMENT; EXCLUSION OF WARRANTIES; LIMITATION OF LIABILITY; FINANCE LEASE. (a) Provided no Event of Default has occurred and is continuing, Lessor assigns to Lessee for the Lease Term the benefit of any Product warranty and any right of return provided by any Seller. (b) LESSEE ACKNOWLEDGES THAT LESSOR DID NOT SELECT, MANUFACTURE, SUPPLY OR LICENSE ANY PRODUCT AND THAT LESSEE HAS MADE THE SELECTION OF PRODUCTS BASED UPON ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE ON STATEMENTS MADE BY LESSOR OR ITS AGENTS. LESSOR LEASES THE PRODUCTS AS -IS AND MAKES NO WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. LESSEE HEREBY WAIVES ANY CLAIM IT MIGHT HAVE AGAINST LESSOR OR ITS ASSIGNEE FOR ANY LOSS, DAMAGE OR EXPENSE CAUSED BY OR WITH RESPECT TO ANY PRODUCTS. (c) IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY ACTUAL, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY SCHEDULE OR THE SALE, LEASE OR USE OF ANY PRODUCTS EVEN IF LESSOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES AND EVEN IF LESSEE ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. (d) Lessee agrees that it is the intent of both parties that each lease qualify as a statutory finance lease under Article 2A of the UCC. Lessee acknowledges either (1) that Lessee has reviewed and approved any written supply contract covering the Products purchased from the Seller for lease to Lessee or (ii) that Lessor has informed or advised Lessee, in writing, either previously or by this Agreement, that Lessee may have rights under the supply contract evidencing the purchase of the Products and that Lessee should contact the Seller for a description of any such rights. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A OF THE UCC. 13. EVENTS OF DEFAULT. It shall be an event of default hereunder and under any Schedule ("Event of Default") if: (a) Lessee fails to pay any Rent or other amounts payable under this Agreement or any Schedule within 15 days after the date that such payment is due; (b) Any representation or warranty made by Lessee to Lessor in connection with this Agreement, any Schedule or any other Document is at the time made materially untrue or incorrect; (c) Lessee fails to comply with any other obligation or provision of this Agreement or any Schedule and such failure shall have continued for 30 days after notice from Lessor; (d) Lessee (i) is generally not paying its debts as they become due or (ii) takes action for the purpose of invoking the protection of any bankruptcy or insolvency law, or any such law is invoked against or with respect to Lessee or its property and such petition is not dismissed within 60 days; or (e) Any provision of this Agreement ceases to be valid and binding on Lessee, is declared null and void, or its validity or enforceability is contested by Lessee or any governmental agency or authority whereby the loss of such provision would materially adversely affect the rights or security of Lessor, or Lessee denies any further liability or obligation under this Agreement; or Reference: 1844711999-60992 Master Lease Agreement - Public_NOV2018 Page 3 of 5 (f) Lessee is in default under any other lease, contract, or obligation now existing or hereafter entered into with Lessor or Seller or any assignee of Lessor, 14. REMEDIES; TERMINATION (a) Upon an Event of Default under any Schedule all of Lessee's rights (including its rights to the Products), but not its obligations thereunder, shall automatically be cancelled without notice and Lessor may exercise one or more of the following remedies in its sole discretion: (i) require Lessee to return any and all such Products in accordance with Section 8, or if requested by Lessor, to assemble the Products in a single location designated by Lessor and to grant Lessor the right to enter the premises where such Products are located (regardless of where assembled) for the purpose of repossession; (ii) sell, lease or otherwise dispose of any or all Products (as agent and attorney -in -fact for Lessee to the extent necessary) upon such terms and in such manner (at public or private sale) as Lessor deems advisable in its sole discretion (a "Disposition"); (III) declare immediately due and payable as a pre -estimate of liquidated damages for loss of bargain and not as a penalty, the Stipulated Loss Value of the Products in lieu of any further Rent, in which event Lessee shall pay such amount to Lessor within 10 days after the date of Lessor's demand; or (iv) proceed by appropriate court action either at law or in equity (including an action for specific performance) to enforce performance by Lessee or recover damages associated with such Event of Default or exercise any other remedy available to Lessor in law or in equity. (b) Lessee shall pay all costs and expenses arising or incurred by Lessor, including reasonable attorney fees, in connection with or related to an Event of Default or the repossession, transportation, re -furbishing, storage and Disposition of any or all Products ("Default Expenses"). In the event Lessor recovers proceeds (net of Default Expenses) from its Disposition of the Products, Lessor shall credit such proceeds against the owed Stipulated Loss Value. Lessee shall remain liable to Lessor for any deficiency. With respect to this Section, to the extent the proceeds of the Disposition (net of Default Expenses) exceed the Stipulated Loss Value owed under the Lease, or Lessee has paid Lessor the Stipulated Loss Value, the Default Expenses and all other amounts owing under the Lease, Lessee shall be entitled to such excess and shall have no further obligations with respect to such Lease. All rights of Lessor are cumulative and not alternative and may be exercised by Lessor separately or together. 15. QUIET ENJOYMENT. Lessor shall not interfere with Lessee's right to possession and quiet enjoyment of Products during the relevant Lease Term, provided no Event of Default has occurred and is continuing. Lessor represents and warrants that as of the Commencement Date of the applicable Schedule, Lessor has the right to lease the Products to Lessee. 16. INDEMNIFICATION. To the extent permitted by law, Lessee shall indemnify, defend and hold Lessor, its assignees, and their respective officers, directors, employees, representatives and agents harmless from and against, all claims, liabilities, costs or expenses, including legal fees and expenses (collectively, "Claims"), arising from or incurred in connection with this Agreement, any Schedule, or the selection, manufacture, possession, ownership, use, condition, or return of any Products (including Claims for personal injury or death or damage to property, and to the extent Lessee is responsible, Claims related to the subsequent use or Disposition of the Products or any data in or alteration of the Products. This indemnity shall not extend to any loss caused solely by the gross negligence or willful misconduct of Lessor. Lessee shall be responsible for the defense and resolution of such Claim at its expense and shall pay any amount for resolution and all costs and damages awarded against or incurred by Lessor or any other person indemnified hereunder; provided, however, that any person indemnified hereunder shall have the right to participate in the defense of such Claim with counsel of its choice and at its expense and to approve any such resolution. Lessee shall keep Lessor informed at all times as to the status of the Claim. 17. OWNERSHIP; LIENS AND ENCUMBRANCES; LABELS. As between Lessor and Lessee, title to Products (other than any Licensed Materials) is and shall remain with Lessor. Products are considered personal property and Lessee shall, at Lessee's expense, keep Products free and dear of liens and encumbrances of any kind (except those arising through the acts of Lessor) and shall immediately notify Lessor if Lessor's interest is subject to compromise. Lessee shall not remove, cover, or alter plates, labels, or other markings placed upon Products by Lessor, Seller or any other supplier. 18. NONPERFORMANCE BY LESSEE. If Lessee fails to perform any of its obligations hereunder or under any Schedule, Lessor shall have the right but not the obligation to effect such performance and Lessee shall promptly reimburse Lessor for all out of pocket and other reasonable expenses incurred in connection with such performance, with interest at the Overdue Rate. 19. NOTICES. All notices shall be given in writing and, except for billings and communications in the ordinary course of business, shall be delivered by overnight courier service, delivered personally or sent by certified mail, return receipt requested, and shall be effective from the date of receipt unless mailed, in which case the effective date will be four (4) Business Days after the date of mailing. Notices to Lessor by Lessee shall be sent to: Dell Financial Services L.L.C., Attn. Legal Department, One Dell Way, Round Rock, TX 78682, or such other mailing address designated in writing by Lessor. Notice to Lessee shall be to the address on the first page of this Agreement or such other mailing address designated in writing by Lessee. 20. ASSIGNMENT. (a) LESSEE MAY ASSIGN THIS AGREEMENT OR ANY SCHEDULE, OR SUBLEASE ANY PRODUCT(S) WITH THE PRIOR WRITTEN CONSENT OF LESSOR (SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD). LESSOR, AT ITS SOLE DISCRETION, MAY ASSESS AN ADMINISTRATIVE FEE FOR ANY APPROVED ASSIGNMENT OR SUBLEASE. No assignment or sublease shall in any way discharge Lessee's obligations to Lessor under this Agreement or Schedule. (b) Lessor may at any time without notice to Lessee, but subject to the rights of Lessee, transfer, assign, or grant a security interest in any Product, this Agreement, any Schedule, or any rights and obligations hereunder or thereunder in whole or in part. Lessee hereby consents to such assignments, agrees to comply fully with the terms thereof, and agrees to execute and deliver promptly such acknowledgments, opinions of counsel and other instruments reasonably requested to effect such assignment. (c) Subject to the foregoing, this Agreement and each Schedule shall be binding upon and inure to the benefit of Lessor, Lessee and their successors and assigns. 21. GOVERNING LAW; JURISDICTION AND VENUE; WAIVER OF JURY TRIAL. THIS AGREEMENT AND EACH SCHEDULE SHALL BE GOVERNED BY INDIANA LAW WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND, TO THE EXTENT APPLICABLE, THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. LESSEE CONSENTS TO THE JURISDICTION OF ANY FEDERAL COURT LOCATED IN ST JOSEPH COUNTY, INDIANA, AND WAIVES ANY OBJECTION TO VENUE IN SUCH COURT, AND FURTHER WAIVES ANY RIGHT TO A TRIAL BY JURY. 22. MISCELLANEOUS. Reference: 1844711999.60992 Page 4 of 6 Masler Lease AorP.P.nIP.nt • Puhlic Nnv7n1R (a) The headings used in this Agreement are for convenience only and shall have no legal effect. This Agreement shall be interpreted without any strict construction in favor of or against either party. (b) The provisions of Sections 6, 8, 11, 12(b), 12(c), 12(d), 16, 21 and 22 shall continue in full force and effect even after the term or expiration of this Agreement or any Schedule, (c) Failure of Lessor at any time to require Lessee's performance of any obligation shall not affect the right to require performance of that obligation. No term, condition or provision of this Agreement or any Schedule shall be waived or deemed to have been waived by Lessor unless it is in writing and signed by a duly authorized representative of Lessor. A valid waiver is limited to the specific situation for which it was given. (d) Lessee shall furnish such financial statements of Lessee (prepared in accordance with generally accepted accounting principles) and other information as Lessor may from time to time reasonably request. (e) If any provision(s) of this Agreement is deemed invalid or unenforceable to any extent (other than provisions going to the essence of this Agreement) the same shall not in any respect affect the validity, legality or enforceability (to the fullest extent permitted by law) of the remainder of this Agreement, and the parties shall use their best efforts to replace such illegal, invalid or unenforceable provisions with an enforceable provision approximating, to the extent possible, the original intent of the parties. (f) Unless otherwise provided, all obligations hereunder shall be performed or observed at the respective party's expense. (g) Lessee shall take any action reasonably requested by Lessor for the purpose of fully effectuating the intent and purposes of this Agreement or any Schedule. If any Lease is determined to be other than a true lease, Lessee hereby grants to Lessor a first priority security interest in the Products and all proceeds thereof. Lessee acknowledges that by signing this Agreement, Lessee has authorized Lessor to file any financing statements or related filings as Lessor may reasonably deem necessary or appropriate. Lessor may file a copy of this Agreement or any Schedule in lieu of a financing statement. (h) This Agreement and any Schedule may be signed in any number of counterparts each of which when so executed or otherwise authenticated and delivered shall be an original but all counterparts shall together constitute one and the same instrument. To the extent each Schedule would constitute chattel paper as such term is defined in the UCC, no security interest may be created through the transfer or control or possession, as applicable, of a counterpart of a Schedule other than the original in Lessor's possession marked by Lessor as either "Original" or "Counterpart Number 1". (1) This Agreement and the Schedules hereto between Lessor and Lessee set forth all of the understandings and agreements between the parties and supersede and merge all prior written or oral communications, understandings, or agreements between the parties relating to the subject matter contained herein. Except as permitted herein, this Agreement and any Schedule may be amended only by a writing duly signed or otherwise authenticated by Lessor and Lessee. 0) If Lessee delivers this signed Master Lease, or any Schedule, amendment or other document related to the Master Lease (each a "Document") to Lessor by facsimile transmission, and Lessor does not receive all of the pages of that Document, Lessee agrees that, except for any pages which require a signature, Lessor may supply the missing pages to the Document from Lessor's database which conforms to the version number at the bottom of the page. If Lessee delivers a signed Document to Lessor as an e-mail attachment, facsimile transmission or by U.S. mail, Lessee acknowledges that Lessor is relying on Lessee's representation that the Document has not been altered. Lessee further agrees that, notwithstanding any rule of evidence to the contrary, in any hearing, trial or proceeding of any kind with respect to a Document, Lessor may produce a tangible copy of the Document transmitted by Lessee to Lessor by facsimile or as an e-mail attachment and such signed copy shall be deemed to be the original of the Document. To the extent (if any) that the Document constitutes chattel paper under the Uniform Commercial Code, the authoritative copy of the Document shall be the copy designated by Lessor or its assignee, from time to time, as the copy available for access and review by Lessee, Lessor or its assignee. All other copies are deemed identified as copies of the authoritative copy. In the event of inadvertent destruction of the authoritative copy, or corruption of the authoritative copy for any reason or as the result of any cause, the authoritative copy may be restored from a backup or archive copy, and the restored copy shall become the authoritative copy. At Lessor's option, this electronic record may be converted into paper form. At such time, such paper copy will be designated or marked as the authoritative copy of the Document. below, to be y the undersigned on the dates set forth ffectie as of the Effective Date. CITY OF SOUTH BEND, INDIANA „Lessee" AIV, MUNW 3ofAr 4)f 11114,lic Worlig BY: NAME: TITLE: ,.e.._ DATE: Dell Financial S "rvice , L C. . " "Lessor" BY: NAME: TITLE: DATE: Reference: 1844711999-60992 Master Lease Agreement - Public NOV2018 Page 5 of 5 AMENDMENT NO. 1 DATED DECEMBER 2, 2019 TO THE MASTER LEASE AGREEMENT DATED DECEMBER 2, 2019 BETWEEN CITY OF SOUTH BEND, INDIANA AND DELL FINANCIAL SERVICES L.L.C. This Amendment is made part of and modifies the Master Lease Agreement 1844711999-60992 and any subsequent amendments thereto (hereinafter referred to as the "Agreement") between CITY OF SOUTH BEND, INDIANA ("Lessee") and DELL FINANCIAL SERVICES L.L.C. ("Lessor"). Terms not defined otherwise herein shall have the meaning ascribed to them in the Agreement. To the extent of any conflict or inconsistency between this Amendment and the terms and conditions of the Agreement, this Amendment will prevail. The Agreement is hereby modified as follows: Section 4 "bent° Taxes Pa m en Obli ation", Add the following new Subsection 4(d): "In no event wily the exercise of any right or remedy or performance under this Agreement or any Schedule result in a violation of applicable law, or regulation or in either party's (or its assignee's) unjust enrichment or double recovery of amounts owed. Except as otherwise agreed in writing, each party retains all rights and remedies available at law or in equity. The parties agree to perform and enforce obligations under this Agreement using commercially reasonable standards of good faith and fair dealing." 2. Section 9 "Risk of Loss` Maintenancei Insurance". Restate Subsection 9(a) as follows: "From the time the Products are delivered to Lessee's ship to location until the Products are returned to Lessor's designated return location or purchased by Lessee, Lessee agrees: (i) to assume the risk of loss or damage to the Products; (ii) to maintain the Products in good operating condition and appearance, ordinary wear and tear excepted, (iii) to comply with all requirements necessary to enforce all warranty rights; and (iv) to promptly repair any repairable damage to the Products. During the Lease Term, Lessee at its sole discretion has the option to purchase a maintenance agreement from the provider of its choice (including, if it so chooses, to self -maintain the Products) or to forgo such maintenance agreement altogether; regardless of Lessee's choice, Lessee will continue to be responsible for its obligations as stated in the first sentence of this Section. At all times Lessee shall provide casualty loss and liability insurance with coverage in an amount not less than required by City Ordinance No. 6657-79, pursuant to Indiana Code 34-13-3-4, as amended from time to time. Lessee shall provide to Lessor at least ten (10) days prior written notice of a material change or cancellation of such insurance." Add the following new final sentence in Subsection 9(b): "In no event will Lessee's performance under this Section 9 result in Lessor's (or its assignee's) unjust enrichment or double recovery of amounts owed." Except as amended hereby, the Agreement is restated and shall remain in full force and effect. IN WITNESS WHEREOF, this Amendment has been duly executed by each party as of the day and year first above written. LESSOR: LESSEE: DELL FINANCIAL SERVICES L.L.C. CITY OF SOUTH BEND, INDIANA ,x vtol? 3vram By: Title114 Tiller Dated City of South Bend IN - DFS MLA Arasd_ I_rqs.docx X ,..,,... .., .2-Dec-19 pr L Financial Services DELL FINANCIAL SERVICES LEASE PROPOSAL CITY OF SOUTH BEND December 23, 2019 Thank you for the opportunity to provide leasing information to you on the proposed acquisition of Dell product. Dell Financial Services (DFS) is a leasing institution fully integrated into Dell Computers' systems and operations allowing you to benefit from one stop shopping for all your hardware, software, peripherals, service, support, and financing needs. The lease quote provided below outlines only a few of the options available to you through DFS programs, If the information does not meet your needs, please let us know and we will work with you to tailor a lease program that does. Should the attached lease quote meet to your satisfaction, the next step is to issue a purchase order for the equipment, Please refer to the "Purchase Order' section and fax in your PO. Once your order(s) is entered by your Dell Hardware Representative, I will fax you the lease contract, It is the returned and signed lease contract that sends the orders into production. If you have any questions or comments, please don't hesitate to call me a512-724- 5095. Thank you for your interest in Dell Financial Services, Sincerely, Missy Totten Dell Financial Services LEASE PROGRAM: 1 Buyout Tax Exempt Lease Purchase Total payment Lease Term Lease Rate Lease Quote# Equipment Unit Price Qty. Amount c,���, A Frequency (months) Factor Payments ............. 3000052768490.1 Latitude 12 Rugged Extreme 7214 $3,000,00 11 $ 33,000,00 Pis irria0 GO0.22859 $ 7,543.47 END OF LEASE OPTIONS: 1 BUYOUT LEASE OPTION O tion available to lessee upgn completion of the base Iggse term are as follows: Exercise the o12JjQn to PUrdlase the products for $1,00. LEASE QUOTE: The Lease Quote is exclusive of interim rental, shipping costs, maintenance fees, filing fees, licensing fees, property or use taxes, insurance premiums and similar items which shall be for Lessee's account Lessee will pay Payments and all other amounts without set-off, abatement or reduction for any reason whatsoever. Additionally, Lessee shall declare and pay all sales, use and personal property taxes to the appropriate taxing authorities. IfV911 areoles tax exempt. please fax a copy of your Exemption Certificate with the Lease Contract. PURCHASE ORDER: The Purchase Order will be made out to Dell Financial Services, One Dell Way, RR3 / MS8468, Round Rock, TX 78682. The Purchase Order will include the quote number, quantity and description of the equipment, Please be sure to indicate that the PO is for a lease order and shows the type of lease, the term length, and payment frequency, The date of the lease quote referenced should be included. Please be sure to include any applicable shipping costs as a line item. Please include your address as the SHIP TO destination. APPROPRIATION COVENANT: The Lease shall contain an appropriation of funds clause, The Lessee will covenant that it shall do all things legally within its power to obtain and maintain funds from which the payments may be paid and Lessee will not give priority or parity in the application of funds to any functionally similar equipment, DOCUMENTATION: Duly executed Agreement and other appropriate documents, including, opinions of counsel, UCC financing statements, audited financials and such other documentation as is reasonably requested by Lessor. PROPOSAL VALIDITYIAPPROVALS: This is a proposal based upon market conditions and il valid fq o A01 rl z d^., is subject to final credit approval, review of the economics of the transaction, and execution of mutually acceptable documentation. A quote for your consideration. Based on your business needs, we put the following quote together to help with your purchase decision. Below is a detailed summary of the quote we've created to help you with your purchase decision. To proceed with this quote, you may respond to this email, order online through your Premier page, or, if you do not have Premier, use this Quote to Order. Quote No. 3000052768490.1 Total $33,000.00 Customer # 1854633 Quoted On Dec. 23, 2019 Expires by Jan. 22, 2020 Deal ID 17496800 Message from your Sales Rep Sales Rep Jonathan Lehmann Phone (800) 456-3355, 5138929 Email Jonathan_ Lehmann@Dell.com Billing To ACCTS PAYABLE CITY OF SOUTH BEND 227 W JEFFERSON BLVD RM 120ON SOUTH BEND, IN 46601-1830 Please contact your Dell sales representative if you have any questions or when you're ready to place an order. Thank you for shopping with Dell! Regards, - Jonathan Lehmann Shipping Group Shipping To SUE GERLACH CITY OF SOUTH BEND WATER WORKS 227 W JEFFERSON BLVD SOUTH BEND, IN 46601 (574) 245-6209 Product Shipping Method Standard Delivery Latitude 12 Rugged Extreme 7214 Unit Price Qty Subtotal $3,000.00 11 $33,000.00 Subtotal: $33,000.00 Shipping: $0.00 Non -Taxable Amount: $33,000.00 Taxable Amount: $0.00 Estimated Tax: $0.00 Total: $33,000.00 Special lease pricing may be available for qualified customers and offers. Please contact your DFS Sales Representative for details. Shipping Group Details Shipping To Shipping Method SUE GERLACH Standard Delivery CITY OF SOUTH BEND WATER WORKS 227 W JEFFERSON BLVD SOUTH BEND, IN 46601 (574) 245-6209 City Subtotal Latitude 12 Rugged Extreme 7214 $3,000.00 11 $33,000.00 Estimated delivery if purchased today: Jan. 14, 2020 Contract # 99AGZ Customer Agreement # MHEC-07012015 Description SKU Unit Price Qty Subtotal Dell Latitude 7214 Rugged Extreme, XCTO 210-AJRS 11 Intel Core i5-63000 Processor (3MB Cache, 2.40 GHz) 338-BJKC 11 Win 10 Pro 64 English, French, Spanish 619-AHKN 11 No AutoPilot 340-CKSZ - 11 Microsoft(R) Office 30 Days Trial 658-BCSB - 11 Dell Encryption Enterprise, Digital Delivery 421-9983 11 ProSupport for Software, Dell Encryption Enterprise, 5 Years 954-3471- Intel vPro Technologys Advanced Management Features 631-AAZC 11 8GB (1x8GB) DDR4 2133MHz Memory 370-ACDD 11 - 128GB Mobility Solid State Drive 400-ANIN 11 Intel [R] Integrated HD Graphics 520 490-BBTM 11 29.5cm (11.6") HD (1366x768) Touch Display with Microphone Camera with Privacy Shutter 391-BCSF 11 Regulatory Label, W/GS, No Rubber coating 389-BKMY 11 Sealed internal RGB Backlit English Keyboard 580-ABYR 11 - No Mouse 570-AADK 11 Intel Dual -Band Wireless -AC 8260 Driver 555-BCZH - 11 Intel Dual -Band Wireless -AC 8260 Wi-Fi + BT 4.1 Wireless Card (2x2) 555-BCXB 11 - Regulatory Label,WAN,GS/NGS, C2 389-BKOT - 11 Antenna Handle, LTE, 7214 395-BBBK - 11 DW5808E Gobi5000 4G/LTE Wireless WAN Card for AT&T (Windows 10/8.1) 556-BBPI 11 4-cell (56Wh) Lithium Ion Battery With ExpressCharge 451-BBWO 11 65W AC Adapter, 3-pin 492-BBEM 11 - Fingerprint Reader 346-BBXX 11 No FGA 817-BBBB - 11 US Power Cord 450-AAEJ 11 - Safety/Environment and Regulatory Guide (English/French 340-AGIK 11 Multi -language) Quick Setup Guide (English) 340-BEXO - 11 No ENERGY STAR Qualified 387-BBCE Shipping Box Shuttle for DAO 328-BBMU 11 - System Shipment 340-AAFC 11 US Order 332-1286 Regulatory label 389-BKKW 11 - BTO Standard Shipment (M) 800-BBGS 11 - No Option Included 340-ACQQ 11 No Stand included 575-BBCH 11 No Carrying Case 460-BBEX 11 Intel Core i5 Vpro Processor Label 389-BJUF 11 Dell Power Manager 340-ADFZ 11 Dell Data Protection Security Tools Digital Delivery/NB 422-0007 11 - SupportAssist 525-BBCL 11 Dell(TM) Digital Delivery Cirrus Client 640-BBLW 11 System Driver, Dell Rugged Extreme 12 640-BBQC 11 Dell Client System Update (Updates latest Dell Recommended 658-BBMR 11 BIOS, Drivers, Firmware and Apps) Waves Maxx Audio Royalty 658-BBNF - 11 Dell Developed Recovery Environment 658-BCUV No Optical Drive 429-AAYP - 11 No UPC Label 389-BDCE 11 No Media 620-AAOH - 11 8-in-1 Memory Card Reader 540-BBRB 11 Bottom Camera with Flash 319-BBEB 11 No Option Included 340-ACQQ 11 - No Option Included 340-ACQQ - 11 ProSupport Plus: Next Business Day Onsite, 2 Year Extended 804-0512 11 - ProSupport Plus: Next Business Day Onsite, 3 Years 804-0513 11 Dell Limited Hardware Warranty Extended Year(s) 975-3461 - 11 Dell Limited Hardware Warranty Initial Year 997-6988 - 11 ProSupport Plus: Accidental Damage Service, 5 Years 997-7015 11 ProSupport Plus: Keep Your Hard Drive, 5 Years 997-7016 11 - ProSupport Plus: 7x24 Technical Support, 5 Years 997-7038 11 - Thank you for choosing Dell ProSupport Plus. For tech support, visit www.dell.com/contactdelI or call 1-866-516-3115 997-8367 11 - Subtotal: $33,000.00 Shipping: $0.00 Estimated Tax: $0.00 Total: $33,000.00 Important Notes Terms of Sale This Quote will, if Customer issues a purchase order for the quoted items that is accepted by Supplier, constitute a contract between the entity issuing this Quote ("Supplier") and the entity to whom this Quote was issued ("Customer"). Unless otherwise stated herein, pricing is valid for thirty days from the date of this Quote. All product, pricing and other information is based on the latest information available and is subject to change. Supplier reserves the right to cancel this Quote and Customer purchase orders arising from pricing errors. Taxes and/or freight charges listed on this Quote are only estimates. The final amounts shall be stated on the relevant invoice. Additional freight charges will be applied if Customer requests expedited shipping. Please indicate any tax exemption status on your purchase order and send your tax exemption certificate to Tax_Department@dell.com or ARSalesTax@emc.com, as applicable. Governing Terms: This Quote is subject to: (a) a separate written agreement between Customer or Customer's affiliate and Supplier or a Supplier's affiliate to the extent that it expressly applies to the products and/or services in this Quote or, to the extent there is no such agreement, to the applicable set of Dell's Terms of Sale (available at http://www.dell,com/terms or www.dell.com/oemterms); and (b) the terms referenced herein (collectively, the "Governing Terms"). Different Governing Terms may apply to different products and services on this Quote. The Governing Terms apply to the exclusion of all terms and conditions incorporated in or referred to in any documentation submitted by Customer to Supplier. Supplier Software Licenses and Services Descriptions: Customer's use of any Supplier software is subject to the license terms accompanying the software, or in the absence of accompanying terms, the applicable terms posted on www.Dell.com/eula. Descriptions and terms for Supplier -branded standard services are stated at www.dell.com/servicecontracts/global or for certain infrastructure products at www.dellemc.com/en-us/customer-services/product-warranty-and-service-descriptions. htm Offer -Specific, Third Party and Program Specific Terms: Customer's use of third -party software is subject to the license terms that accompany the software. Certain Supplier -branded and third -party products and services listed on this Quote are subject to additional, specific terms stated on www.dell.com/offeringspecificterms. In case of Resale only: Should Customer procure any products or services for resale, whether on standalone basis or as part of a solution, Customer shall include the applicable software license terms, services terms, and/or offer -specific terms in a written agreement with the end - user and provide written evidence of doing so upon receipt of request from Supplier. In case of Financing only: If Customer intends to enter into a financing arrangement ("Financing Agreement") for the products and/or services on this Quote with Dell Financial Services LLC or other funding source pre -approved by Supplier ("FS"), Customer may issue its purchase order to Supplier or to FS. If issued to FS, Supplier will fulfill and invoice FS upon confirmation that: (a) FS intends to enter into a Financing Agreement with Customer for this order; and (b) FS agrees to procure these items from Supplier. Notwithstanding the Financing Agreement, Customer's use (and Customer's resale of and the end -user's use) of these items in the order is subject to the applicable governing agreement between Customer and Supplier, except that title shall transfer from Supplier to FS instead of to Customer. If FS notifies Supplier after shipment that Customer is no longer pursuing a Financing Agreement for these items, or if Customer fails to enter into such Financing Agreement within 120 days after shipment by Supplier, Customer shall promptly pay the Supplier invoice amounts directly to Supplier. Customer represents that this transaction does not involve: (a) use of U.S. Government funds; (b) use by or resale to the U.S. Government; or (c) maintenance and support of the product(s) listed in this document within classified spaces. Customer further represents that this transaction does not require Supplier's compliance with any statute, regulation or information technology standard applicable to a U.S. Government procurement. For certain products shipped to end users in California, a State Environmental Fee will be applied to Customer's invoice. Supplier encourages customers to dispose of electronic equipment properly. Electronically linked terms and descriptions are available in hard copy upon request. "Dell Business Credit (DBC): OFFER VARIES BY CREDITWORTHINESS AS DETERMINED BY LENDER, Offered by WebBank to Small and Medium Business customers with approved credit. Taxes, shipping and other charges are extra and vary. Minimum monthly payments are the greater of $15 or 3% of account balance. Dell Business Credit is not offered to government or public entities, or business entities located and organized outside of the United States. CLERK CERTIFICATE I, Linda M. Martin, do hereby certify that: (i) I am the duly qualified and acting Clerk of the City of South Bend, Indiana, Board of Public Works (the "Public Entity"). (ii) Each of the persons whose name, title, and signature appear below is a duly authorized representative of the Public Entity and holds on the date of this Certificate the formal title set forth opposite his or her name and the signature appearing opposite each such person's name is his or her name and the signature appearing opposite such person's name is his or her genuine signature: NAME OF AUTHORIZED SIGNATORY Gary Gilot Therese Dorau Elizabeth Maradik Uoe,e p h (iv) (v) (vi) TITLE OF AUTHORIZED SIGNATORY President Member Member Member Member Together, a majority of the above representat of the Public Entity to execute and deliver that certain Master Lease No. 1844711999- SIGNATURE OF AUTHORIZED SIGNATORY i� ., 60992 (the "Agreement") and any related Lease Schedules from time to time thereunder (the "Schedules") between the Public Entity and Dell Financial Services L.L.C., a Delaware limited liability company or its assignee (collectively, "Lessor"), and all agreements, documents, and instruments in connection therewith, including, without limitation, schedules, riders, and certificates of acceptance. The execution and delivery of any such Agreement and/or Schedule and all agreements, documents, and instruments in connection therewith for and on behalf of the Public Entity are not prohibited by or in any manner restricted by the terms of the document by which it is organized or of any loan agreement, indenture, or contract to which the Public Entity is a party or by which it or any of its property is bound. The Pub li EnfLiid, at a duly called regular meeting of the Public Entity held on /O�'approve the general financing terms of the Agreement, which approval has not been altered or rescinded by the Public Entity. No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default (as such term is defined in the Agreement) exists at the date hereof. All insurance required in accordance with the Agreement, or as otherwise agreed to or acknowledged between the parties, is currently maintained by the Public Entity. (viii) The Public Entity has, in accordance with the requirements of law, fully budgeted and approved sufficient funds for the current budget year to make the Rent payments scheduled to come due during the first Fiscal Period and to meet its other obligations for the first Fiscal Period (as such terms are defined in the Agreement) and such funds have not been expended for other purposes. (ix) The Fiscal Period of the Public Entity is January 1 to December 31. IN WITNESS WHEREOF, I have hereunto set my hand this day of i,4LA 20 .2U Linda M. Martin, Clerk City of South Bend, Board of Public Works STATE OF INDIANA ) )SS: ST. JOSEPH COUNTY ) Subscribed and sworn before me this 1 day of fl,VILI 20 * w Notary Public: tl JULIE ANNE 11 WISNER Notary Public - Seal Porter County - State of Indiana My Commission Expires: , V'\ ,i�° MyQlrnrr is onNumber702018 - Corm rou�ssPon PMwe Jun 25, 2025