~. Y1~'~i
LEASE
LEASE NUMBER: 9533-0462
LEASE made this day of 1995, by and between ADVANCED
TEL-COM SYSTEMS d,b,a. KERRVILLE TELEPHONE BUSINESS SYSTEMS, a
Texas corporation, located at 955 Water Street, Kerrville, Texas,
hereinafter referred to as Lessor, and RERR COUNTY (LAW
ENFORCEMENT CENTER), located at 700 Main Street, Kerrville,
Texas, referred to as the Lessee.
Lessor and Lessee are referred
"parties". In consideration of
herein, the parties hereto agree
to collectively herein as the
the mutual promises contained
as follows:
ARTICLE 1. EQUIPMENT LEASED
The Lessor hereby leases to the Lessee and Lessee hereby leases
and hires from the Lessor, all the telecommunications equipment
and other property described in:
1) The Schedule of Equipment in Exhibit "A" hereto incorporated
into this lease as if it were recited verbatim herein, signed by
the parties concurrently herewith or hereafter and made a part of
hereof.
2) Any schedule or schedules in Exhibit A hereinafter executed
by the parties hereto and made a part of hereof.
All said telecommunications equipment in Exhibit A, and all other
property in Exhibit A described in all said schedules are
hereinafter called "equipment" and all said schedules in Exhibit
A are hereinafter collectively called the "schedule".
ARTICLE 2. TERM
The term of this lease respecting each item of equipment in
Exhibit "A" commences on the date that the item is installed on
the Lessee's premise. The term of this Lease shall be for the
period shown on Exhibit "A", and ending on the date set out in
Exhibit A. Upon expiration of the primary term of this lease, the
lease may be continued month to month as provided in Exhibit
"A". In such event, the lease is terminable by either party upon
one month's notice to the other party.
ARTICLE 3. LEASE PAYMENTS
Amount
3.01 The monthly lease payment for all items of equipment
described in the Schedule in Exhibit A shall be the amount set
out in the said schedule. The Lessee shall pay such amounts
within thirty (30) days of date of billing, in the amounts and at
the times set forth in the schedule in Exhibit A, at the sales
office of Kerrville Telephone Business Systems, 955 Water Street,
Kerrville, Texas, 78028.
Security Deposit
3.02 As security for the prompt and full payment of the rent,
and the faithful and timely performance of all provisions of this
lease, and any extension or renewal thereof, to be performed on
its part, the Lessee has pledged and deposited with the Lessor
the amount set forth in the schedule in Exhibit A. In the event
any default shall be made in the performance of any of the
covenants on the part of the Lessee herein contained with the
respect to any item of equipment, the Lessor shall have the
right, but shall not be obligated, to apply said security deposit
to the curing of said default. Any such application by the
Lessor shall not be a defense to any action by the Lessor arising
out of said default, and, on demand, the Lessee shall restore
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5.1\lease.ats\farm\071693
said security deposit to the full amount set forth in the schedule
in Exhibit A. On the expiration of this lease or any extension or
renewal thereof, provided the Lessee has paid all of the rent
herein called for and fully performed all of the other provisions
of this Lease to be performed on its part, the Lessor will return
to the Lessee any then remaining balance of said security deposit.
Default
3.03 If the Lessee with regard to any item or items of equipment
fails to pay any rent or other amount herein provided within thirty
days of the bill date, or if any execution or any writ of process
shall be issued in any action or proceeding against the Lessee
whereby said equipment may be seized, taken, or distrained, or if
a proceeding in bankruptcy, receivership, or insolvency shall be
commenced by Lessee voluntarily, or involuntarily against Lessee,
or if Lessee shall enter into any arrangement or composition with
his creditors, or if Lessee, with regard to any item of equipment,
fails to observe, keep, or perform any other provision of this
Lease required to be observed, kept or performed by the Lessee, the
Lessor shall, if such default shall continue for ten days after
written notice thereof to Lessee have the right and option to
exercise any or all of the following remedies:
1) To terminate this Lease and Lessee's rights under this Lease as
to all items of property.
2) To declare the unpaid balance of the lease as of such date, as
well as all other charges of any kind required of Lessee under the
Lease, to be due and payable immediately, in which event Lessor
shall be entitled to the balance due, together with interest at the
highest rate per month legally permitted by applicable law, from
the date of notification of default to the date of payment. In
this regard, it is acknowledged by Lessee that the equipment leased
hereunder has been specially ordered and acquired by Lessor for
Lessee hereunder, and that the leased equipment will have no
determinable lease value for lease to parties other than Lessee.
It is therefore agreed between the parties hereto, that portion of
the amount due from Lessee under this Sub-paragraph following a
breach by Lessee which constitutes the unpaid rentals due and
payable for items of equipment leased up to the date of Lessee's
breach, and all unpaid rentals due or to become due to Lessor under
this Lease from the date of Lessee's breach to the end of the term
of this Lease as if Lessee had not breached this Lease, are
liquidated damages.
3) To take possession of any or all items of equipment leased to
Lessee hereunder, without further demand or notice, wherever the
same may be located, without any court order or other process of
law. Lessee agrees that, upon default and notice as set out above,
Lessor or its agents, may without breach of the peace, enter upon
any premises where the equipment may be located, and repossess and
remove it. Lessee specifically waives any right of action Lessee
might otherwise have arising out of the entry and repossession, and
hereby releases Lessor form any claim for trespass or damage caused
by reason of the entry, repossession or removal. Any said taking
of possession shall not constitute a termination of the Lease as to
any or all items of equipment unless the Lessor expressly so
notifies the Lessee in writing.
4) To pursue any other remedy at law or in equity.
Notwithstanding any said repossession, or any other action which
the Lessor may take, the Lessee shall be and remain liable for the
full performance of all obligations to be performed by the Lessee
under the Lease.
All such remedies are cumulative to the extent permitted by law,
and may be exercised concurrently or separately. The exercise of
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one or more remedies shall not be deemed to preclude the exercise
of any other remedy.
Offset
3.04 The Lessee agrees to pay the rent, and other amounts
hereunder regardless of any claim, defense, or offset which may be
asserted by the Lessee or on its behalf.
No Waiver
3.05 Any failure or delay or forbearance on the part of Lessor to
exercise any remedy, privilege or right under this Lease shall not
operate as a waiver of Lessor's right to exercise any such right or
remedy hereunder, but to the contrary, all such rights, remedies
and privileges shall continue in effect as if no failure, delay or
forbearance had occurred. Acceptance by Lessor of rent or other
payment made by Lessee after default and notice shall not be deemed
a waiver of Lessor's rights and remedies arising from Lessee's
default. No covenant or condition of this Lease may be waived
except by written consent of Lessor, and such written waiver of any
term of this Lease shall be affective only in the specific instance
and for the specific purpose given.
ARTICLE 4. USE
4.01 During the term hereof, Lessee shall have the right to use,
operation and possession of the equipment leased hereunder,
provided that Lessee be not in default if any of the provisions of
the Lease. Lessee shall have absolute control, supervision and
responsibility over an operators or users of the property, subject
to the restrictions set out hereinafter.
4.02 Lessee shall use the leased equipment in a careful and proper
manner, and agrees not to permit any leased property to be operated
or used in violation of any applicable federal, state or local
statute, law, ordinances, rule or regulation. Lessee agrees to
reimburse Lessor in full for all damages to the equipment arising
from any misuse or negligent act by Lessee, its agent or employees.
4.03 Lessee represents and warrants to Lessor as a part of the
consideration herefor, that the leased equipment will be used for
commercial or business purposes only.
ARTICLE 5. INSPECTION
The Lessor shall, at any and all reasonable times, have the right
to enter into and on the premises where the equipment may be
located for the purpose of inspecting the same and observing it
use. The Lessee shall give the Lessor immediate notice of any
attachment or other judicial process affecting any item of
equipment and shall, whenever requested by the Lessor, advise the
Lessor of the exact location of the equipment.
ARTICLE 6. ALTERATIONS
Without prior written consent of the Lessor, the Lessee shall not
make any alterations, additions or improvements to the equipment.
All additions and improvements of whatsoever kind or nature made to
the equipment shall belong to and become the property of the Lessor
on the termination of the Lease.
ARTICLE 7. LOSS and DAMAGES
7.01 The Lessee hereby assumes and shall bear the entire risk of
loss and damage to the equipment from any and every cause from the
time any such equipment is delivered to Lessee's premises, whether
or not installed by Lessor at the time of any such loss.
7.02 In the event of loss or damage of any kind to any item of
equipment, the Lessee, at the option of the Lessor shall:
1) Place the same in good repair, condition, and working order; or
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2) Replace the same with like equipment in good repair, condition,
and working order.
3) Pay to Lessor the replacement cost thereby.
ARTICLE 8. SURRENDER ON TERMINATION
On the expiration of the term hereof or upon earlier termination of
this Lease if permitted by or in accordance with the terms hereof,
with respect to each item of leased equipment, the Lessee shall
return. the same to the Lessor in good repair, condition, and
working order iordinary wear and tear resulting from proper use
thereof excepted) in the following manner as may be specified by
the Lessor:
I) By delivering each such item of equipment at the Lessee's cost
and expense to such place as the Lessor shall specify within the
city or county in which it was delivered to the Lessee or to which
it was moved with the written consent of the Lessor; or
2) By loading the item of equipment at the Lessee's cost and
expense on board such carrier as the Lessor shall specify and
shipping the same, freight collect, to the destination specified by
the Lessor.
ARTICLE 9. INSURANCE and TAXES
Insurance
9.01 The Lessee shall keep the equipment insured against all risks
of loss or damage from every cause whatsoever for not less than the
full replacement value thereof as determined by the Lessor. The
Lessee shall carry public liability and property damage insurance
covering the equipment. All said insurance shall be in the form
and amount and with companies approved by the Lessor, and shall be
in the joint names of the Lessor and Lessee. The Lessee shall pay
the premiums therefore and shall deliver said policies, or
duplicates thereof, to the Lessor. Each insurer shall agree, by
endorsement on the policy issued by it or by independent instrument
furnished to the Lessor, that it will give the Lessor thirty days
written notice before the policy in question shall be altered or
canceled. The proceeds of such insurance, at the option of the
Lessor, shall be applied toward the replacement, restoration, or
repair of the equipment.
Liens and Taxes
9.02 The Lessee shall keep the equipment free and clear of all
levies, liens, and encumbrances and shall pay all license fees,
registration fees, assessments, charges, and taxes which may now or
hereafter be imposed on the leasing, renting, sale, possession, or
use of the equipment, excluding, however, all taxes on or measured
by the Lessor's income, or ad valorem taxes levied by reason of
ownership of the equipment.
Lessor's Payment
9.03 In case of failure of the Lessee to procure or maintain said
insurance or to pay said fees, assessments, charges, and taxes as
hereinbefore specified, the Lessor shall have the right, but shall
not be obligated, to obtain such insurance, or pay such fees,
assessments, charges, and/or taxes, as the case may be. In such
event, the cost thereof shall be repayable to the Lessor by Lessee
with the next lease payment, and failure to repay the same shall
carry with it the same consequences as failure to pay any monthly
lease or other payment due hereunder.
ARTICLE 10. PERSONAL PROPERTY
This equipment is, and shall at all times be and remain, personal
property, notwithstanding that the equipment or any part thereof
may now be, or hereafter become, in any manner affixed or attached
to, or embedded in, or permanently resting on, real property or any
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building thereon or, attached in any manner to that which is
permanent as by means of cement, plaster, nails, bolts, screws, or
otherwise.
ARTICLE 11. OWNERSHIP
The equipment is, and shall at all times be and remain, the sole
and exclusive property of the Lessor. The Lessee shall have no
right, title, or interest therein, except as expressly set forth in
the Lease.
ARTICLE 12. ASSIGNMENT
12.01 Without prior written consent of the Lessor, the Lessee
shall not:
1) Assign, transfer, pledge, or hypothecate this Lease, the
equipment or any part of it, or any interest in it; or
2) Sublet or lend the equipment or
equipment or any part of it to be
Lessee or the Lessee's employees.
any part of it, or permit the
used by anyone other than the
Consent by the Lessor to any of these prohibited acts applies only
in the given instance, and is not a consent to any subsequent like
act by the Lessee or any other person. Lessor's consent to these
prohibited acts shall not be unreasonably withheld.
Lessor's Assignment
12.02 All rights of the Lessor under this Lease may be assigned,
pledged, mortgaged, transferred, or otherwise disposed of, either
in whole or in part, without notice to the Lessee. If the Lessor
assigns this Lease or the rentals due or to become due hereunder or
any other interest herein, whether as security for any of its
indebtedness or otherwise, the same shall not constitute a breach
or default by the Lessor hereunder or pursuant to any provision
hereunder. Any assignee of Lessor shall be obligated to perform
any duty, covenant, or condition required to be performed by the
Lessor under the terms of this Lease, and shall have all of the
rights, powers, privileges and remedies of Lessor set forth in this
Lease. In the event of assignment, Lessee shall be obligated to
assignee following written notice of such assignment.
ARTICLE 13. INDEMNITY
The Lessee shall indemnify the Lessor and its employees,
shareholders, officers, directors and agents against, and shall
hold them harmless from any and all claims, actions, suits,
proceedings, cost, expenses, damages, and liabilities, including
attorney's fees, arising out of, connected with, or resulting from
the use or possession of the leased equipment, including, without
limitation, the selection, delivery possession, use operation, or
return of the equipment.
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ARTICLE 14. WARRANTY
Nature of Warranty
14.01 Lessor warrants title to the equipment being leased in
Exhibit A and also for a period of five years from the date of this
lease agreement warrants such goods and materials listed in Exhibit
A to be merchantable, and free of defects in workmanship and
material. Lessor also warrants that the leased equipment be
installed in a professional manner using good installation
practices and shall be free of defects in workmanship.
No Other Warranty
14.02 THE WARRANTY EXPRESSED IN PARAGRAPH 14.01 ABOVE IS IN LIEU
OF ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR
PURPOSE, AND CONSTITUTES THE ONLY WARRANTY OF LESSOR WITH RESPECT
TO THE EQUIPMENT IN EXHIBIT "A".
Notification and Compliance
14.03 If within one year from the date of the installation of the
equipment described in Exhibit A, Lessee discovers that any item
was not as warranted in paragraph 14.01, Lessee shall be obligated
to notify Lessor thereof in writing. Thereafter, if Lessor finds
such non-conformance to exist, Lessor shall remedy such
nonconformance by, at Lessor's option, adjustment, repair or
replacement of the item or any affected part of the equipment
described in Exhibit A,, which shall be Lessor's sole obligation
hereunder with respect to such nonconformance.
Expiration Date
14.04 The warranties expressed in 14.01 shall cease entirely, and
no warranties of any kind with respect to the leased equipment,
shall be in existence after five years following the installation
of the equipment.
No Consequential Damages
14.05 IN NO EVENT SHALL THE LESSOR OR ITS SUPPLIERS BE LIABLE,
WHETHER IN CONTRACT OR IN TORT OF ANY OTHER LEGAL THEORY, FOR LOSS
OF USE, REVENUE OR PROFITS, OR FOR COSTS OF CAPITAL OR OF
SUBSTITUTE USE OR PERFORMANCE, OR FOR INCIDENTAL, INDIRECT,
SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS FOR OR
COST OF SIMILAR TYPE, OR FOR CLAIMS BY LESSEE FOR DAMAGES OF LESSEE
OR LESSEE'S CUSTOMERS ARISING OUT OF THE USE OF THE LEASED
EQUIPMENT OR BY REASON OF THE FAILURE OF SUCH EQUIPMENT, OR FROM
ANY OTHER CAUSE WHATSOEVER.
Likewise, Lessor shall not, under any circumstances be liable for
acts of god, acts of governmental bodies or agencies, or for the
fault, negligence, or wrongful acts of the Lessee's employees, or
Lessee's other contractors or suppliers.
ARTICLE 15. GENERAL PROVISIONS
Lessor's Expenses
15.01 The Lessee shall pay the Lessor all reasonable costs and
expenses, including reasonable attorney's fees, incurred by the
Lessor in exercising any of its rights or remedies hereunder or
enforcing any of the terms, conditions, or provision hereof due to
Lessee's breach.
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Concurrent Remedies
15.02 No right or remedy herein conferred on or reserved to the
Lessor is exclusive of any other right or remedy herein or by law
or equity provided or permitted; but each shall be cumulative of
every other right or remedy given hereunder or now or hereafter
existing at law or in equity or by statue or otherwise, and may be
enforced concurrently therewith or from time to time.
Nonwaiver
15.03 No covenant or condition of this Lease may be waived except
by written consent of the Lessor and Lessee. Forbearance or
indulgence by the Lessor in any regard whatsoever shall not
constitute a waiver of the covenant or condition to be performed by
the Lessee to which the same may apply, and until complete
performance by the Lessee of any covenant or condition, the Lessor
shall be entitled to invoke any remedy available to the Lessor
under this Lease or by law or in equity despite said forbearance or
indulgence.
Entire Agreement
15.04 This Lease constitutes the entire agreement between the
Lessor and Lessee and supersedes any prior understanding or written
or oral agreements between the parties respecting the within
subject matter. It shall not be amended, altered, or changed
except by a written agreement signed by the parties hereto.
Notices
15.05 Service of all notices under this Lease shall be sufficient
if given personally or mailed to the party involved at its
respective address hereinabove set forth, or at such address as
such party may provide in writing from time to time. Any such
notice mailed to such address shall be effective when deposited in
the United States mail, duly addressed, and with postage prepaid.
Gender; Number
15.06 Whenever the context of this Lease requires, the masculine
gender includes the feminine or neuter and the singular number
includes the plural. Whenever the word "Lessor" is used herein, it
shall include all assignees of the Lessor. If there is more than
one Lessee named in this Lease, the liability of each shall be
joint and several.
Time
15.07 Time is of the essence in this Lease and in each and all of
it provisions.
Texas Law to Apply
15.08 This Lease shall be construed under and in accordance with
the laws of the State of Texas, Uniform Commercial Code Sales and
Secured Transactions, and all performable in Kerr County, Texas.
Parties Bound
15.09 This Lease shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns where
permitted by this Lease.
Legal Construction
15.10 If any one or more of the provisions contained in the Lease
shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions thereof and
this Lease shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
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Prior Orders
15.11 The terms and conditions of this Lease shall prevail not-
withstanding any variance with the terms and conditions of any
purchase order submitted by the Lessee.
Government Contracts
15.12 The Lessor will comply with all provisions required to be
inserted in the Lessee's purchase orders in accordance with the
terms of any applicable Federal Statue, ONLY IF LESSOR SO INDICATES
BY EXECUTING A GOVERNMENT CONTRACT ADDENDUM AND ATTACHING IT
HERETO.
Patent Infringement
15.13 The Lessee shall hold the Lessor harmless against any
expense or loss resulting from infringement of patents or
trademarks arising form Lessee's independent acts, or from
compliance with the Lessee's requested design or specifications or
instructions.
Prompt Payment
15.14 Lessor shall be entitled to prompt payment of all sums due
hereunder. Without limiting Lessor's other rights and remedies for
any failure of the Lessee to make prompt payment, when payment is
not made as scheduled, Lessor shall be entitled to charge and bill
the Lessee a late payment charge of $10.00 plus interest at the
highest rate permitted by law per month on the due and unpaid lease
payment or payments. The Lessee shall promptly pay all such fees
and interest when billed. In addition, Lessee shall pay all
collection costs and reasonable attorney's fees involved in
collecting any defaulted or late payment.
Notices
15.15 Any notice to a party pursuant to this Agreement shall be in
writing and, if mailed, postage prepaid and addressed as provided
herein, shall be deemed to be received by the addressee no later
than the third day after the notice is deposited with the U.S.
Postal Service from a location inside the State of Texas. The
proper addresses for the parties are as follows:
Lessor: Lessee:
Kerrville Telephone Business Systems Kerr County
P O Box 1128 700 Main St.
Kerrville, Tx 78029-1128 Kerrville, Tx 78028
or such other address as either party shall give in writing to the
other.
Agreed to this 1'T ~ day o 995.
LESSOR:
Kerrville hone Business Systems
J. Hart
siness Systems Manager
LESSEE:
rr County
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SCHEDULE "A"
to
Equipment Lease Agreement
Check if this is an Amended Schedule A.
Date of Amendment
LEASE NO:
CUSTOMER:
ADDRESS:
9533-0462
Kerr County
700 Main Street
LIST OF LEASED EQUIPMENT:
1 - ICS OX32 w/Rel.l/T1 Software
1 - 3 Cartridge Trunk Module
3 - 4 CO Analog Trunk Cartridges
1 - DID Trunk Cartridge
1 - 16 Station Module
1 - Power Bar
2 - M3724 Attd Consoles w/KLMs
12 - M7310 Feature Phones
6 - Busy Lamp Fields
30 - M7100 Extension Phones
1 - APC450
1 - Miscellaneous
TERM OF LEASE: 60 Months
Beginning ending
MONTHLY LEASE PAYMENT (excluding tax)
ADVANCE PAYMENT REQUIRED:
(first and last months payment in advance)
APPLICABLE TAXES:
TOTAL DUE IN ADVANCE:
SECURITY DEPOSIT: N/A
Lessee Options at end of Primary Term:
$ 575.00
$ 1,150.00
$ TAX EXEMPT
$ 1,150.00
1. Continue the lease on a month to month basis at the
monthly lease rate in effect at the end of the Primary Term of this
lease, as referenced in Section 1.2 and 1.7 this lease.
2. Surrender the leased equipment as provided in Section "A"
of this lease agreement.
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