1994-34739-Resolution No. 94-095 Recorded 9/2/1994WHEREAS, in 1992, the County purchased a ballot reader and
software; and
WHEREAS, growth in voter registration has resulted in a need to
upgrade the County Clerk's capability to read ballots using an
automated vote counting system; and
WHEREAS, the County has a significant investment in programming
for the current ballot reader; and
WHEREAS, the vendor who supplied the original ballot reader has
proposed to replace the original ballot reader with an upgrade, provide
an additional ballot reader, supply a new software package and provide
a $35,000 trade-in for the current ballot reader; and
WHEREAS, purchasing two readers in the proposed package will
result in a cost savings to the County of $19,500; and
WHEREAS, the Board finds a lack of bids will not result in
favoritism or substantially diminish competition in the awarding of
this contract; and
WHEREAS, the exemption will result in substantial cost savings
over purchasing a new ballot reader system; now, therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES
COUNTY, OREGON, as follows:
Section 1. The equipment purchase/software license agreement
proposed by American Information Systems, Inc., to Deschutes County,
Oregon, a copy of which is attached hereto and by this reference
incorporated herein, be approved, and the County Clerk is authorized to
proceed to purchase the equipment, software, installation and services
set forth in the proposal.
}CE±P1.1ID
PAGE 1 - RESOLUTION 94-095 (8-31-94) 99r�
r �,
YID
94;34739
L 4
COUNSEL
BEFORE THE BOARD
OF COUNTY COMMISSIONERS FOR DESCHUTES
COUNTY,
OREGON
Pursuant to
Deschutes County
Code Section
4.04.040, Declaring
an Exemption
from competitive *
.�
bidding for
a ballot reader *
-"
upgrade.
RESOLUTION NO. 94-095
WHEREAS, in 1992, the County purchased a ballot reader and
software; and
WHEREAS, growth in voter registration has resulted in a need to
upgrade the County Clerk's capability to read ballots using an
automated vote counting system; and
WHEREAS, the County has a significant investment in programming
for the current ballot reader; and
WHEREAS, the vendor who supplied the original ballot reader has
proposed to replace the original ballot reader with an upgrade, provide
an additional ballot reader, supply a new software package and provide
a $35,000 trade-in for the current ballot reader; and
WHEREAS, purchasing two readers in the proposed package will
result in a cost savings to the County of $19,500; and
WHEREAS, the Board finds a lack of bids will not result in
favoritism or substantially diminish competition in the awarding of
this contract; and
WHEREAS, the exemption will result in substantial cost savings
over purchasing a new ballot reader system; now, therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES
COUNTY, OREGON, as follows:
Section 1. The equipment purchase/software license agreement
proposed by American Information Systems, Inc., to Deschutes County,
Oregon, a copy of which is attached hereto and by this reference
incorporated herein, be approved, and the County Clerk is authorized to
proceed to purchase the equipment, software, installation and services
set forth in the proposal.
}CE±P1.1ID
PAGE 1 - RESOLUTION 94-095 (8-31-94) 99r�
r �,
0137-0103
Section 2. The lease -purchase agreement for the equipment with
MDC Leasing, Inc., a copy of which is attached hereto, is hereby
approved and the Clerk is authorized to sign all documents on behalf of
the County.
DATED this 31st day of August, 1994.
BOARD OF COUNTY COMMISSIONERS
OF/'DESCHUTXS'-�COUNTY,jOREGON
- V-r�
Y PjtE SC GEN, Chair
ATT T: TO THROO1#, C issioner
' 2D�11,6e-A_Z 0, 1 S�� h
Recording Secre ary BARRY H. SLAUGHTER1, Commiss
PAGE 2 - RESOLUTION 94-095 (8-31-94)
r
013'7-0104
EQUIPMENT PURCHASE/SOFTWARE LICENSE AGREEMENT
This Agreement is made and entered into by and between American Information Systems, Inc., a Delaware corporation, having its principal office at 11208 John Galt
Blvd., Omaha, Nebraska 68137 (hereinafter referred to as "AIS") and Deschutes County, Oregon (hereinafter referred to as 'Buyer" or "Licensee").
In consideration of the mutual promises and agreements set forth in this Agreement, AIS and Buyer agree as follows:
I. PURCHASE OF EQUIPMENT
1. Sale. AIS agrees to sell, and Buyer agrees to purchase, the equipment described below (the "Equipment"), subject to the terms and conditions set forth in this
Agreement:
QUANTITY
MODEL
DESCRIPTION
UNIT
PRICE
TOTAL
PRICE
1
AIS -550
OMR Ballot Reader With ERS
$54,750.00
$54,750.00
1
AIS -550
OMR Ballot Reader
$44,750.00
$44,750.00
2
AIS -550
Scanner Tables
425.00
850.00
2
AIS -550
Waterproof/Dust Covers
125.00
250.00
1
AIS
Trade In Of AIS -315
(35,000.00)
(35,000.00)
1
AIS
Serial Broadcast Unit
500.00
500.00
Total Price for Equipment
Initial Software License Fee
State and Local Taxes
AIS Delivery and Installation Charge*
Total Purchase Price,
Less:
NET AMOUNT DUE AIS
$66,100.00
$ 1,500.00
$67,600.00
$67,600.00
*Additional delivery charge for will be separately billed.
Specific Terms and Conditions. The purchase of the Equipment is subject to the following specific terms and conditions:
* Includes the latest ERS and Scanner related software and future upgrades.
* Deschutes County can enter into a lease/purchase agreement at 8% annual interest rate.
1
013'7-0105
2. Payment of Purchase Price. The Total Purchase Price for the Equipment, as stated above, including applicable sales or use taxes, if any, shall be due upon delivery of
the Equipment to Buyer. In the event the Total Purchase Price is not paid in full within thirty (30) days after delivery of the Equipment, AIS reserves the right to charge
Buyer interest on the unpaid balance, until the unpaid balance is paid in full.
3. Delivery, Installation and Training. AIS will cause the Equipment to be delivered to a carrier for delivery to Buyer's premises on a date mutually convenient to AIS
and Buyer. An AIS representative will install the Equipment at a mutually agreed upon date. A delivery and installation charge shall be paid by Buyer as set forth in 1.
above. AIS will provide operational training to Buyer and on-site support at the first election for which the Equipment is used. AIS will supply at no additional charge all
normal documentation and operator's manuals applicable to the Equipment purchased under this Agreement.
4. Warranty and Remedies.
(a) AIS Scanning Equipment. AIS warrants that any AIS scanning equipment purchased under this Agreement will conform to the performance specifications stated
in the AIS documentation and operator's manuals for such scanning equipment and that such scanning equipment will be free from manufacturing and material defects for
the applicable periods as follows: AIS 150 Optical Mark Reader -two (2) years; AIS 550 Optical Mark Reader - five (5) years. Any AIS scanning equipment purchased
under this Agreement which becomes defective during the applicable warranty period for such equipment will, at AIS' sole and absolute discretion, be repaired or replaced
at Buyer's site or AIS' plant at AIS' expense. Buyer acknowledges and agrees that the warranty provided by this Paragraph 4(a) for AIS scanning equipment purchased
under this Agreement is contingent upon, and subject to, Buyer's proper use of the AIS scanning equipment and the requirement that Buyer use only ballot code stock
provided or approved by AIS in the AIS scanning equipment. Buyer further acknowledges and agrees that the warranty for AIS scanning equipment does not cover AIS
scanning equipment:
(1) hich has been modified in any manner without AIS' prior written consent and approval;
(2) which has been used in conjunction with any other equipment, device, software, paper product, or data which has not been approved or supplied by AIS;
(3) which has been subjected to unusual physical or electrical stress;
(4) which has been used in any manner other than for ordinary use; or
(5) which has had the original identification marks and/or numbers removed or altered in any manner.
(b) All Other Equipment. Buyer acknowledges and agrees that, except for the warranty provided in subparagraph (a) above for AIS scanning equipment, AIS does
not provide any other warranties on the Equipment and that the Equipment is supplied to Buyer on an as -is basis as between AIS and Buyer. AIS shall assign to Buyer the
warranties and indemnities, if any, provided by the manufacturer(s) of the Equipment (other than AIS scanning equipment), to the extent they are assignable by AIS;
provided, however, Buyer's sole and exclusive remedy for the breach of any such warranty or indemnity shall be against the person offering the warranty or indemnity and
not against AIS.
(c) Limitations. Buyer represents that it accepts sole responsibility for the selection of the Equipment to achieve Buyer's intended results. OTHER THAN AS
PROVIDED IN THIS SECTION 5, THERE ARE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE
EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
2. Title, Security Interest, Risk of Loss and Default. Buyer shall acquire title to the Equipment upon the later of delivery of the Equipment to Buyer or acceptance of this
Agreement by Buyer. AIS shall retain a security interest in the Equipment until the Total Purchase Price is paid in full, and Buyer agrees to execute any documents that may
be necessary or appropriate to perfect AIS' security interest in the Equipment. Buyer appoints AIS as its attorney-in-fact to prepare, sign and file of record for Buyer, in
Buyer's name, any such documents. AIS or its insurers shall bear the risk of loss of, or damage to, the Equipment only until such time as the Equipment is delivered to
Buyer. After delivery of the Equipment to Buyer, all risk of loss of, or damage to, the Equipment shall be home exclusively by Buyer.
3. Proprietary Rights. Buyer acknowledges and agrees that the design specifications for the AIS scanning equipment, the AIS system, and any and all names, documents,
logos, information and materials used therewith is proprietary property of AIS. Buyer further acknowledges and agrees that AIS' sale of any Equipment or other
accompanying items hereunder does not grant to or invest in Buyer any right, title or interest in and to said proprietary property. All patents or trademarks, whether now
owned or hereafter acquired by AIS with respect to the AIS scanning equipment, are the sole and absolute property of AIS and no interest thereto is being vested in Buyer by
the execution of this Agreement or by the sale of the Equipment or the AIS system to Buyer. Buyer shall have no authority or right to copy, modify, license or otherwise
transfer any rights in and to any proprietary property of AIS as outlined in this section or otherwise, without the prior express written consent of AIS. The provisions of this
section shall survive the termination ofthis Agreement.
0137-0106
II. SOFTWARE LICENSE
1. Grant of License. AIS hereby grants to Buyer (referred to in this Section II as "Licensee") and Licensee hereby accepts from AIS, a personal, nonexclusive and
nontransferable license ("License") to use the AIS SCS including any new releases, enhancements and modifications ("Software"). Buyer acknowledges and agrees
that the Software may only be used on a single computer, or on a subsequent computer but not an additional computer. If Licensee desires to use the Software on more than
one computer, an additional license must be obtained from AIS or a multi -use license secured from AIS. The License herein granted to Licensee shall be effective on the date
the Software is first installed on Licensee's computer equipment and shall remain in force for the term of the License unless earlier terminated in accordance with this
Agreement.
2. License Fee. The initial fee for the License herein granted to Licensee ("License Fee") plus applicable sales or use taxes if any. An annual License Fee of _
will be charged for each renewal term of the License. IS will invoice Licensee for the annual License Fee not less than thirty (30) days prior to the
renewal anniversary date. The annual License Fee shall be due and payable on or prior to such date.
3. Term of License. The term of the License shall be for a period of one year. The License shall automatically renew for additional one-year terms on each anniversary
date of this Agreement until the earlier to occur of (i) a breach of this Agreement which has not been cured by the breaching party after thirty (30) days written notice from the
nonbreaching party (except a breach as provided in (iii) below which will require no notice), (ii) any anniversary date of this Agreement where written notice of nonrenewal
has been given thirty (30) days in advance of any such one-year renewal date by either party to the other party, or (iii) Licensee's failure to pay the annual License Fee within
sixty (60) days of the date of the annual License Fee invoice. Upon termination of the License, Licensee shall immediately return to AIS the Software (including any and all
copies of it), together with all related documentation. Termination of the License pursuant to this provision is in addition to any other remedies available to AIS at law or in
equity.
4. Delivery, Training and Documentation. AIS will deliver the Software and related equipment described in Section I.1. above on a date mutually convenient to AIS and
Licensee. The Software shall be deemed accepted upon delivery of the Software and related equipment. AIS will provide user -level documentation for the Software and
operational training prior to the first election for which the Software will be used. Charges for additional training or support services shall be invoiced to Licensee at AIS'
then -current hourly rates, plus travel, communications and other expenses.
5. Use and Protection of Software. The Software shall be used only with AIS authorized computer system(s). The Software may only be used by Licensee and its
authorized employees, including consultants under contract to Licensee working solely for the benefit of Licensee who agree in writing to be bound by the terms of this
Agreement. The Software shall be used only for processing the Licensee's own data and Licensee shall not permit or provide the transfer of the Software, or any portion
thereof, to any other party or to any other computer, by physical or electronic means, unless specifically authorized by AIS in an addendum hereto. Licensee shall not make
or allow others to make copies or reproductions of the Software or related documentation in any form without the prior written consent of AIS. Distribution or disclosure of
the Software or related documentation, including derivative works, modifications or adaptions, without AIS' prior written consent is expressly prohibited. Except as expressly
stated herein or in an addendum hereto, Licensee may not alter, modify or adapt the Software or related documentation including, but not limited to, translating, reverse
engineering, decompiling, disassembling or creating derivative works, and it may not take any other steps intended to produce a source language statement of the Software or
any part thereof without AIS' prior express written consent.
6. Warranty and Remedies. AIS warrants that the Software will perform substantially in accordance with the then -current operating documentation for the Software
during the term of the License, provided that: (a) the Software is not modified, changed or altered by anyone other than AIS, unless authorized by AIS in writing; (b) there is
no change by anyone other than AIS in the computer equipment (including operating system software) on which AIS installed the Software; (c) the computer equipment is in
good operating order and is installed in a suitable operating environment; (d) the error or defect is not caused by Licensee, its agents, servants, employees, or contractors, or
any third party; (e) Licensee promptly notifies AIS of the error or defect after it is discovered; and (f) all fees due to AIS under this Agreement have been paid in full. THERE
ARE NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR ANY SERVICES PROVIDED
BY AIS TO LICENSEE IN CONNECTION WITH THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Licensee represents that it accepts sole responsibility for (a) the selection of the Software to
achieve Licensee's intended results; (b) its use; and (c) the results obtained from the Software. Licensee's SOLE AND EXCLUSIVE REMEDY and AIS's only obligation
under this warranty is to use commercially reasonable efforts to cause the Software to operate substantially in accordance with the then -current operating documentation for
the Software.
7. Proprietary Rights. Licensee acknowledges and agrees that: (i) the Software, together with any related documentation supplied by AIS to Licensee pursuant to this
Agreement, is the property of AIS and remains so even after delivery to Licensee; (ii) the Software and any related documentation supplied by AIS to Licensee, in machine
readable form or otherwise, are confidential and proprietary trade secrets of AIS, protected by law, and of substantial value to AIS, and their use and disclosure must be
carefully and continuously controlled; and (iii) the Software is protected by the Copyright Laws of the United States. Licensee agrees to keep all property of AIS free and
clear of all claims, liens and encumbrances. The Software licensed under this Agreement shall be used by Licensee only to process its own data and shall not be used for, or
on behalf of, others. The Software may not be installed or used on more than one central processing unit and its associated peripheral units located on Licensee's premises.
Licensee shall not, directly or indirectly, permit others to: copy, duplicate or furnish to others any physical or magnetic version of the Software; remove any copyright or
other notice contained or included in any material provided by AIS; create or attempt to create the source computer programs or any part of them from the operational object
program licensed under this Agreement; change or modify the Software or create derivative works from them; or reverse engineer or attempt to reverse engineer the Software.
Licensee shall notify AIS immediately of the unauthorized possession, use or knowledge of any item supplied to Licensee pursuant to this Agreement. Licensee agrees not to
challenge AIS's rights in and to the Software, including, but not limited to, the copyrights in it. In the event Licensee breaches or attempts to breach any of the provisions of
this paragraph, AIS shall have the right, in addition to such other remedies that may be available to it, to injunctive relief enjoining such breach or attempt to breach, it being
acknowledged that legal remedies are inadequate. The provisions of this paragraph shall survive the termination of this Agreement.
0137-010
III. GENERAL TERMS AND CONDITIONS
1. This Agreement shall not be binding upon or enforceable against AIS until this Agreement is accepted and executed by a duly authorized agent of AIS at AIS' principal
office. If this Agreement is accepted and executed by a duly authorized agent of AIS before the Agreement is accepted and executed by Buyer, AIS' acceptance shall
terminate and this Agreement shall become null and void without any further notice to either party if the Agreement is not accepted and executed by Buyer and returned to
AIS' principal office within forty-five (45) days after the day the Agreement was accepted and executed by AIS. Once this Agreement is accepted and executed by both
parties, this Agreement shall be binding upon both parties and their respective successors and assigns. Acceptance of this Agreement by AIS is expressly contingent upon the
absence of any mathematical error or deviation from AIS' current prices with regard to the price quotation in Section I.1. above.
2. If AIS is delayed or prevented from performing this Agreement due to any cause beyond its reasonable control, including delays caused by the manufacturer(s) of the
Equipment, the delay shall be excused during the continuance of, and to the extent of, such cause, and the period of performance shall be extended to the extent necessary to
allow performance after the cause of delay has been removed.
3. Notwithstanding anything to the contrary contained in this Agreement, AIS shall not be liable for any indirect, incidental, punitive, exemplary, special, or
consequential damages of any kind whatsoever sustained as a result of any breach of warranty or of this Agreement, the delivery, performance, installation, or maintenance of
the Equipment and/or Software, or any delay relating to any of the foregoing. Under no circumstances shall AIS be liable for loss, cost, expense or damage to Buyer in an
amount exceeding payments actually made under this Agreement for the particular unit of Equipment or the Software at issue. Any action by buyer for breach of this
Agreement shall be commenced within one (1) year after the cause of action has accrued.
4. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and shall supersede and replace any or all other prior agreements
and understandings between the parties dealing with the subject matter hereof. Any modifications, revisions or amendments to this Agreement must be set forth in a writing
signed by a duly authorized agent of both parties to this Agreement.
5. This Agreement is nonassignable by Buyer without the prior written consent of a duly authorized agent of AIS, and any attempt to assign any rights, duties or
obligations under this Agreement by Buyer shall be null and void without said consent.
6. All rights and remedies to which AIS may be entitled under this Agreement shall be cumulative and may be exercised by AIS either individually or concurrently. No
consent or waiver, express or implied, by either party to or of any violation or breach of any term, covenant or condition of this Agreement shall be construed as a consent to
or waiver of any subsequent violation or breach of any term, covenant or condition of this Agreement.
7. This Agreement shall be governed by and construed in accordance with the laws of the State of Nebraska.
The above and foregoing Agreement is accepted by AIS at its principal office in Omaha, Nebraska, this 19th day of August, 1994.
MERICANJNI?r�XTION SYSTEMS, INC.
By: ^'� �1� i
(Signature)
Richard Jablonski, Chief Financial Officer
(Printed Name and Title)
The above and foregoing Agreement is accepted by Buyer this 31ST day of AUGUST 19 9 4
DESCHUTES COUNTY
(Buyer)
By: -vA
(S afore)
NANCY POPE SCHLANGEN, CHAIR
(printed Name and Title)
4
. 0137-0108
EQUIPMENT PURCHASE/SOFTWARE LICENSE AGREEMENT
This Agreement is made and entered into by and between American Information Systems, Inc., a Delaware corporation, having its principal office at 11208 John Galt
Blvd., Omaha, Nebraska 68137 (hereinafter referred to as "AIS") and Deschutes County, Oregon (hereinafter referred to as 'Buyer" or "Licensee").
In consideration of the mutual promises and agreements set forth in this Agreement, AIS and Buyer agree as follows:
I. PURCHASE OF EQUIPMENT
1. Sale. AIS agrees to sell, and Buyer agrees to purchase, the equipment described below (the "Equipment"), subject to the terms and conditions set forth in this
Agreement:
QUANTITY
MODEL
DESCRIPTION
UNIT
PRICE
TOTAL
PRICE
1
AIS -550
OMR Ballot Reader With ERS
$54,750.00
$54,750.00
1
AIS -550
OMR Ballot Reader
$44,750.00
$44,750.00
2
AIS -550
Scanner Tables
425.00
850.00
2
AIS -550
Waterproof/Dust Covers
125.00
250.00
1
AIS
Trade In Of AIS -315
(35,000.00)
(35,000.00)
1
AIS
Serial Broadcast Unit
500.00
500.00
Total Price or Equipment
Initial Software License Fee
State and Local Taxes
AIS Delivery and Installation Charge*
Total Purchase Price,
Less:
NET AMOUNT DUE AIS
*Additional delivery charge for will be separately billed.
Specific Terms and Conditions. The purchase of the Equipment is subject to the following specific terms and conditions:
* Includes the latest ERS and Scanner related software and future upgrades.
* Deschutes County can enter into a lease/purchase agreement at 8% annual interest rate.
1
$66,100.00
$ 1,500.00
$67,600.00
$67,600.00
013'7-0109
2. Payment of Purchase Price. The Total Purchase Price for the Equipment, as stated above, including applicable sales or use taxes, if any, shall be due upon delivery of
the Equipment to Buyer. In the event the Total Purchase Price is not paid in full within thirty (30) days after delivery of the Equipment, AIS reserves the right to charge
Buyer interest on the unpaid balance, until the unpaid balance is paid in full.
3. Delivery, Installation and Training. AIS will cause the Equipment to be delivered to a carrier for delivery to Buyer's premises on a date mutually convenient to AIS
and Buyer. An AIS representative will install the Equipment at a mutually agreed upon date. A delivery and installation charge shall be paid by Buyer as set forth in 1.
above. AIS will provide operational training to Buyer and on-site support at the first election for which the Equipment is used. AIS will supply at no additional charge all
normal documentation and operator's manuals applicable to the Equipment purchased under this Agreement.
4. Warranty and Remedies.
(a) AIS Scanning Equipment. AIS warrants that any AIS scanning equipment purchased under this Agreement will conform to the performance specifications stated
in the AIS documentation and operator's manuals for such scanning equipment and that such scanning equipment will be free from manufacturing and material defects for
the applicable periods as follows: AIS 150 Optical Mark Reader - two (2) years; AIS 550 Optical Mark Reader - five (5) years. Any AIS scanning equipment purchased
under this Agreement which becomes defective during the applicable warranty period for such equipment will, at AIS' sole and absolute discretion, be repaired or replaced
at Buyer's site or AIS' plant at AIS' expense. Buyer acknowledges and agrees that the warranty provided by this Paragraph 4(a) for AIS scanning equipment purchased
under this Agreement is contingent upon, and subject to, Buyer's proper use of the AIS scanning equipment and the requirement that Buyer use only ballot code stock
provided or approved by AIS in the AIS scanning equipment. Buyer further acknowledges and agrees that the warranty for AIS scanning equipment does not cover AIS
scanning equipment:
(1) hich has been modified in any manner without AIS' prior written consent and approval;
(2) which has been used in conjunction with any other equipment, device, software, paper product, or data which has not been approved or supplied by AIS;
(3) which has been subjected to unusual physical or electrical stress;
(4) which has been used in any manner other than for ordinary use; or
(5) which has had the original identification marks and/or numbers removed or altered in any manner.
(b) All Other Equipment. Buyer acknowledges and agrees that, except for the warranty provided in subparagraph (a) above for AIS scanning equipment, AIS does
not provide any other warranties on the Equipment and that the Equipment is supplied to Buyer on an as -is basis as between AIS and Buyer. AIS shall assign to Buyer the
warranties and indemnities, if any, provided by the manufacturer(s) of the Equipment (other than AIS scanning equipment), to the extent they are assignable by AIS;
provided, however, Buyer's sole and exclusive remedy for the breach of any such warranty or indemnity shall be against the person offering the warranty or indemnity and
not against AIS.
(c) Limitations. Buyer represents that it accepts sole responsibility for the selection of the Equipment to achieve Buyer's intended results. OTHER THAN AS
PROVIDED IN THIS SECTION 5, THERE ARE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE
EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
2. Title Security Interest, Risk of Loss and Default. Buyer shall acquire title to the Equipment upon the later of delivery of the Equipment to Buyer or acceptance of this
Agreement by Buyer. AIS shall retain a security interest in the Equipment until the Total Purchase Price is paid in full, and Buyer agrees to execute any documents that may
be necessary or appropriate to perfect AIS' security interest in the Equipment. Buyer appoints AIS as its attorney-in-fact to prepare, sign and file of record for Buyer, in
Buyer's name, any such documents. AIS or its insurers shall bear the risk of loss of, or damage to, the Equipment only until such time as the Equipment is delivered to
Buyer. After delivery of the Equipment to Buyer, all risk of loss of, or damage to, the Equipment shall be home exclusively by Buyer.
3. Proprietary Rights. Buyer acknowledges and agrees that the design specifications for the AIS scanning equipment, the AIS system, and any and all names, documents,
logos, information and materials used therewith is proprietary property of AIS. Buyer further acknowledges and agrees that AIS' sale of any Equipment or other
accompanying items hereunder does not grant to or invest in Buyer any right, title or interest in and to said proprietary property. All patents or trademarks, whether now
owned or hereafter acquired by AIS with respect to the AIS scanning equipment, are the sole and absolute property of AIS and no interest thereto is being vested in Buyer by
the execution of this Agreement or by the sale of the Equipment or the AIS system to Buyer. Buyer shall have no authority or right to copy, modify, license or otherwise
transfer any rights in and to any proprietary property of AIS as outlined in this section or otherwise, without the prior express written consent of AIS. The provisions of this
section shall survive the termination of this Agreement.
013'7-0110
II. SOFTWARE LICENSE
1. Grant of License. AIS hereby grants to Buyer (referred to in this Section II as "Licensee") and Licensee hereby accepts from AIS, a personal, nonexclusive and
nontransferable license ("License") to use the AIS F_R s including any new releases, enhancements and modifications ("Software"). Buyer acknowledges and agrees
that the Software may only be used on a single computer, or on a subsequent computer but not an additional computer. If Licensee desires to use the Software on more than
one computer, an additional license must be obtained from AIS or a multi -use license secured from AIS. The License herein granted to Licensee shall be effective on the date
the Software is first installed on Licensee's computer equipment and shall remain in force for the term of the License unless earlier terminated in accordance with this
Agreement.
2. License Fee. The initial fee for the License herein granted to Licensee ("License Fee") plus applicable sales or use taxes if any. An annual License Fee of _
will be charged for each renewal term of the License. IS will invoice Licensee for the annual License Fee not less than thirty (30) days prior to the
renewal anniversary date. The annual License Fee shall be due and payable on or prior to such date.
3. Terni of License. The term of the License shall be for a period of one year. The License shall automatically renew for additional one-year terms on each anniversary
date ofthis Agreement until the earlier to occur of (i) a breach ofthis Agreement which has not been cured by the breaching party after thirty (30) days written notice from the
nonbreaching party (except a breach as provided in (iii) below which will require no notice), (ii) any anniversary date of this Agreement where written notice of nonrenewal
has been given thirty (30) days in advance of any such one-year renewal date by either party to the other party, or (iii) Licensee's failure to pay the annual License Fee within
sixty (60) days ofthe date ofthe annual License Fee invoice. Upon termination ofthe License, Licensee shall immediately return to AIS the Software (including any and all
copies of it), together with all related documentation. Termination of the License pursuant to this provision is in addition to any other remedies available to AIS at law or in
equity.
4. Delivery, Training and Documentation. AIS will deliver the Software and related equipment described in Section I.I. above on a date mutually convenient to AIS and
Licensee. The Software shall be deemed accepted upon delivery of the Software and related equipment. AIS will provide user -level documentation for the Software and
operational training prior to the first election for which the Software will be used. Charges for additional training or support services shall be invoiced to Licensee at AIS'
then -current hourly rates, plus travel, communications and other expenses.
5. Use and Protection of Software. The Software shall be used only with AIS authorized computer system(s). The Software may only be used by Licensee and its
authorized employees, including consultants under contract to Licensee working solely for the benefit of Licensee who agree in writing to be bound by the terms ofthis
Agreement. The Software shall be used only for processing the Licensee's own data and Licensee shall not permit or provide the transfer of the Software, or any portion
thereof, to any other party or to any other computer, by physical or electronic means, unless specifically authorized by AIS in an addendum hereto. Licensee shall not make
or allow others to make copies or reproductions ofthe Software or related documentation in any form without the prior written consent of AIS. Distribution or disclosure of
the Software or related documentation, including derivative works, modifications or adaptions, without AIS' prior written consent is expressly prohibited. Except as expressly
stated herein or in an addendum hereto, Licensee may not alter, modify or adapt the Software or related documentation including, but not limited to, translating, reverse
engineering, decompiling, disassembling or creating derivative works, and it may not take any other steps intended to produce a source language statement ofthe Software or
any part thereof without AIS' prior express written consent.
6. Warranty and Remedies. AIS warrants that the Software will perform substantially in accordance with the then -current operating documentation for the Software
during the term ofthe License, provided that: (a) the Software is not modified, changed or altered by anyone other than AIS, unless authorized by AIS in writing; (b) there is
no change by anyone other than AIS in the computer equipment (including operating system software) on which AIS installed the Software; (c) the computer equipment is in
good operating order and is installed in a suitable operating environment; (d) the error or defect is not caused by Licensee, its agents, servants, employees, or contractors, or
any third party; (e) Licensee promptly notifies AIS ofthe error or defect after it is discovered; and (f) all fees due to AIS under this Agreement have been paid in full. THERE
ARE NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR ANY SERVICES PROVIDED
BY AIS TO LICENSEE IN CONNECTION WITH THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Licensee represents that it accepts sole responsibility for (a) the selection of the Software to
achieve Licensee's intended results; (b) its use; and (c) the results obtained from the Software. Licensee's SOLE AND EXCLUSIVE REMEDY and AIS's only obligation
under this warranty is to use commercially reasonable efforts to cause the Software to operate substantially in accordance with the then -current operating documentation for
the Software.
7. Proprietary Rights. Licensee acknowledges and agrees that: (i) the Software, together with any related documentation supplied by AIS to Licensee pursuant to this
Agreement, is the property of AIS and remains so even after delivery to Licensee; (ii) the Software and any related documentation supplied by AIS to Licensee, in machine
readable form or otherwise, are confidential and proprietary trade secrets of AIS, protected by law, and of substantial value to AIS, and their use and disclosure must be
carefully and continuously controlled; and (iii) the Software is protected by the Copyright Laws ofthe United States. Licensee agrees to keep all property of AIS free and
clear of all claims, liens and encumbrances. The Software licensed under this Agreement shall be used by Licensee only to process its own data and shall not be used for, or
on behalf of, others. The Software may not be installed or used on more than one central processing unit and its associated peripheral units located on Licensee's premises.
Licensee shall not, directly or indirectly, permit others to: copy, duplicate or furnish to others any physical or magnetic version of the Software; remove any copyright or
other notice contained or included in any material provided by AIS; create or attempt to create the source computer programs or any part ofthem from the operational object
program licensed under this Agreement; change or modify the Software or create derivative works from them; or reverse engineer or attempt to reverse engineer the Software.
Licensee shall notify AIS immediately ofthe unauthorized possession, use or knowledge of any item supplied to Licensee pursuant to this Agreement. Licensee agrees not to
challenge AIS's rights in and to the Software, including, but not limited to, the copyrights in it. In the event Licensee breaches or attempts to breach any ofthe provisions of
this paragraph, AIS shall have the right, in addition to such other remedies that may be available to it, to injunctive relief enjoining such breach or attempt to breach, it being
acknowledged that legal remedies are inadequate. The provisions ofthis paragraph shall survive the termination ofthis Agreement.
3
s "
0137-0111
III. GENERAL TERMS AND CONDITIONS
1. This Agreement shall not be binding upon or enforceable against AIS until this Agreement is accepted and executed by a duly authorized agent of AIS at AIS' principal
office. If this Agreement is accepted and executed by a duly authorized agent of AIS before the Agreement is accepted and executed by Buyer, AIS' acceptance shall
terminate and this Agreement shall become null and void without any further notice to either party if the Agreement is not accepted and executed by Buyer and returned to
AIS' principal office within forty-five (45) days after the day the Agreement was accepted and executed by AIS. Once this Agreement is accepted and executed by both
parties, this Agreement shall be binding upon both parties and their respective successors and assigns. Acceptance of this Agreement by AIS is expressly contingent upon the
absence of any mathematical error or deviation from AIS' current prices with regard to the price quotation in Section I.1. above.
2. If AIS is delayed or prevented from performing this Agreement due to any cause beyond its reasonable control, including delays caused by the manufacturer(s) of the
Equipment, the delay shall be excused during the continuance of, and to the extent of, such cause, and the period of performance shall be extended to the extent necessary to
allow performance after the cause of delay has been removed.
3. Notwithstanding anything to the contrary contained in this Agreement, AIS shall not be liable for any indirect, incidental, punitive, exemplary, special, or
consequential damages of any kind whatsoever sustained as a result of any breach of warranty or of this Agreement, the delivery, performance, installation, or maintenance of
the Equipment and/or Software, or any delay relating to any of the foregoing. Under no circumstances shall AIS be liable for loss, cost, expense or damage to Buyer in an
amount exceeding payments actually made under this Agreement for the particular unit of Equipment or the Software at issue. Any action by buyer for breach of this
Agreement shall be commenced within one (1) year after the cause of action has accrued.
4. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and shall supersede and replace any or all other prior agreements
and understandings between the parties dealing with the subject matter hereof. Any modifications, revisions or amendments to this Agreement must be set forth in a writing
signed by a duly authorized agent of both parties to this Agreement.
5. This Agreement is nonassignable by Buyer without the prior written consent of a duly authorized agent of AIS, and any attempt to assign any rights, duties or
obligations under this Agreement by Buyer shall be null and void without said consent.
6. All rights and remedies to which AIS may be entitled under this Agreement shall be cumulative and may be exercised by AIS either individually or concurrently. No
consent or waiver, express or implied, by either party to or of any violation or breach of any term, covenant or condition of this Agreement shall be construed as a consent to
or waiver of any subsequent violation or breach of any term, covenant or condition of this Agreement.
7. This Agreement shall be governed by and construed in accordance with the laws of the State of Nebraska.
The above and foregoing Agreement is accepted by AIS at its principal office in Omaha, Nebraska, this 19th day of August, 1994.
AMERICAN INFORMATION SYSTEMS, INC.
By: l,,�
i� (Signature)
Richard Jablonski, Chief Financial Officer
(Printed Name and Title)
The above and foregoing Agreement is accepted by Buyer this 31ST day of AUCllST 19 94
DESCHUTES COUNTY
(Buyer)
By:
/ V —
(Signature)
NANCY POPE SCHLANGEN, CHAIR
(Printed Name and Title)
4
0137-0112
TERMS AND CONDITIONS OF LEASE - PURCHASE
Name and Address
of Lessee:
Name and Address
of Lessor:
Deschutes County,
Deschutes County
1130 NW Harriman
Bend, OR 97701
MDC Leasing, Inc.
1125 South 103rd
Omaha, Nebraska
Telephone: (800)
Oregon
Courthouse
Street, Suite 450
68124
237-1980
Initial Term: One Year
Rent Payments: $16,930.86 due September 1, 1995, 1996
1997, 1998 and 1999
Equipment Location: Deschutes County, Oregon
Lease Commencement Date: September 1, 1994
Lessor hereby leases to Lessee, and Lessee hereby leases from
Lessor, the personal property described in the Invoice which
is attached hereto and incorporated herein (herein called
"Equipment") upon the following terms and conditions:
1. EQUIPMENT PURCHASE. Lessee has agreed to purchase
election equipment from American Information Systems
(A.I.S.) of Omaha, Nebraska. Lessee has chosen to lease
the Equipment described in the Invoice under the terms
and conditions of this Lease -Purchase rather than making
full payment upon delivery.
2. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee
represents and warrants and, so long as this Lease is in
effect or any part of Lessee's obligations to Lessor
remain unfulfilled, shall continue to warrant at all
times that:
(a) Lessee is a state, a territory or a possession of
the United States, the District of Columbia or a
political subdivision of any of the foregoing within that
meaning of Section 103 (a) of the Internal Revenue Code
of 1986, as amended, and Treasury Regulations and Rulings
related thereto and will continue to be so.
(b) Lessee has been duly authorized by the constitution
and laws of the applicable jurisdiction and by a
resolution of its governing body (which resolution, if
requested by Lessor, is attached hereto) to execute and
deliver this Lease and to carry out its obligations
hereunder.
0137-0113
(c) All requirements have been met, and procedures
have occurred, in order to insure the enforceability of
this Lease, and Lessee had complied with such public
bidding requirements, if any, as may be applicable to the
transactions contemplated by this Lease.
(d) The Equipment will be used by Lessee only for the
purpose of performing one or more governmental or
proprietary functions of Lessee consistent with the
permissible scope of Lessee's authority and will not be
used in a trade or business of any persons or entity
other than Lessee.
(e) This Lease constitutes a valid, legal and binding
obligation of Lessee enforceable against Lessee in
accordance with the respective terms hereof.
(f) This Lease is not an arbitrage bond for purposes
of Section 148 of the Internal Revenue Code of 1986, as
amended.
(g) Lessee shall maintain records relating to the
Lessor and its assigns sufficient to comply with the
registration requirements of Section 149 of the Internal
Revenue Code of 1986, as amended. Lessor shall furnish
lease ownership information as necessary to comply.
(h) The Lessee designates this Lease as a qualified
tax exempt obligation for purposes of Section 265(b)(3)
of the Internal Revenue Code of 1986, as amended. In
compliance with Sections 265 (b) (3) (C) & (D) of the Code,
the Lessee does not reasonably anticipate issuing tax-
exempt obligations (not including "private activity
bonds" as defined in Section 141 of the Code) in the
aggregate amount in excess of Ten Million and no/100
Dollars ($10,000,000.00) during the calendar year in
which this Lease term commences, nor will the Lessee
designate more than Ten Million and no/100 Dollars
($10,000,000.00) of obligations issued by the Lessee as
tax-exempt obligations in the calendar year in which this
Lease is executed and delivered.
(i) This Lease is not and shall not become a "private
activity bond" within the meaning of Section 141 of the
Internal Revenue Code of 1986, as amended, and the Lessee
shall comply with all provisions of the Code which are
necessary to preserve the tax-exempt status of the
interest component of the payments made and to be made
under this Lease.
2
0137-0114
3. LESSEE'S STATEMENT. With respect to the AIS equipment
leased under this agreement, Lessee represents that it
has:
(a) acknowledged receipt of said item in good condition
and repair, and
(b) accepted it as satisfactory in all respects for the
purpose of this Lease. If Lessor so requests, Lessee
shall furnish Lessor a written statement (i) setting
forth the matters stated in "(a)" and "(b)", and
(ii) approving the invoice for said item.
4. TERM. The "Initial Term" specified on page 1 of the
lease includes an Original Term beginning on the Lease
Commencement date and ending on the last day of Lessee's
current fiscal year, and four (4) one year Renewal Terms
co -terminus with Lessee's fiscal year. The lease will
automatically renew at the end of the Original Term and
the subsequent Renewal Terms unless Lessee gives written
notice to Lessor not less than sixty days prior to the
end of the term then in effect of Lessee's intention to
terminate this agreement.
Lessee intends to continue the lease term through the
Original Term and all Renewal Terms, and reasonably
believes that legally available funds sufficient to make
Rent payments during the Original Term and each Renewal
Term can be obtained. Lessee shall do all things
lawfully within its power to obtain appropriations of
funds sufficient to make all such Rent payments,
including but not limited to, inclusion of the amount of
rent in each annual budget and to exhaust all available
review and appeals in the event such portion of the
budget is not approved.
Not withstanding the foregoing, if sufficient funds are
not appropriated for payment of Rent payments required to
be paid in a subsequent Renewal Term, and if Lessee has
no other funds available to legally make such payments,
Lessee shall give Lessor not less than sixty days notice
prior to the expiration of the term then in effect, and
this lease shall terminate on the last day of such term.
5. RENT. Lessee agrees to pay the "Rent" payments shown
above during the term of this Lease. The first Rent
payment shall be due as shown above. Subsequent rent
payments shall be due on the same date each year (or
other calendar period as indicated above) thereafter.
Rent shall be due whether or not Lessee has received any
notice that such payments are due. All rent shall be
paid to Lessor at its address set forth above or as
otherwise directed by Lessor in writing. A portion of
3
U137-0115
each rent payment is paid as, and represents payment of,
interest and principal, respectively. Attached is a
payment schedule that sets forth the interest component
and the principal component of each Rent Payment during
the lease term.
Obligations for payment of rent shall continue without
regard to problems of Equipment or any breach of warranty
given by Lessor as to Equipment.
6. TITLE. Title to the Equipment shall remain in Lessor
until the payment by Lessee to Lessor of all rent
payments due for the Original Term and all Renewal Terms
and the exercise by Lessee of the Purchase Option set
forth at Section 11 hereof; Provided, however, that
Lessee at its expense shall protect and defend the title
and keep it free of all claims and liens created by or
arising through Lessee. The Equipment shall remain
personal property regardless of its attachment to realty,
and Lessee agrees to take such action at its expense as
may be necessary to prevent any third party from
acquiring any interest in the Equipment as a result of
its attachment to realty.
7. SECURITY AGREEMENT; FURTHER ASSURANCES. To secure the
performance of all Lessee's obligations hereunder, Lessee
hereby grants to Lessor a security interest constituting
a first lien on the Equipment and on all additions,
attachments, repairs, replacements and modifications
thereto or therefore, including all after-acquired
Equipment of Lessor, and on any proceeds therefrom.
Lessee agrees to execute or deliver such additional
documents, including, without limitation, financing
statements, opinions of counsel, notices and similar
instruments, in form satisfactory to Lessor, which Lessor
deems necessary or appropriate to establish and maintain
its security interest in the Equipment or for the
confirmation or perfection of this Lease and Lessor's
rights hereunder. Lessor is hereby authorized to file
financing statements signed only by Lessor in accordance
with the Uniform Commercial Code or signed by Lessor as
Lessee's attorney in fact.
8. LOCATION; INSPECTION; LABELS. The Equipment shall be
delivered to and shall not be removed from the "Equipment
Location" shown above, or if none is specified, Lessee's
address shown above, without Lessor's prior written
consent. Lessor shall have the right to inspect the
Equipment at any reasonable time.
4
01007-°0.1
9. REPAIRS; USE; ALTERATIONS. Lessee, at its own cost and
expense, shall keep the Equipment in good repair,
condition and working order; shall use the Equipment
lawfully; and shall not alter the equipment without
Lessor's prior written consent.
10. SURRENDER. Upon the expiration or earlier termination of
this Lease, unless all payments are made pursuant to this
Lease or upon demand by Lessor made pursuant to Section
18 hereof, Lessee, at its expense, shall return Equipment
by delivering it in the same condition as when delivered
to Lessee, reasonable wear and tear excepted, to such
place or on board such carrier, packed for shipping, as
Lessor may specify. Lessee shall pay all transportation
and other expenses relating to such delivery.
11. PURCHASE OPTION. Provided Lessee is not then in default
hereunder, title to the Equipment will be transferred by
Lessor to Lessee at the expiration of the Lease term, for
a consideration of One Dollar ($1.00) provided that
Lessee has made all rental payments required to be paid
hereunder.
12. LOSS OR DAMAGE. Lessee shall bear the entire risk of
loss, theft, destruction or damage of Equipment or any
item thereof (herein "Loss or Damage") from any cause
whatsoever. No Loss or Damage shall relieve Lessee of
the obligation to pay rent or of any other obligation
under this Lease. In the event of Loss or Damage,
Lessee, at the option of Lessor, shall:
(a) Place the same in good condition and repair; or
(b) Replace the same with like equipment in good
condition and repair with clear title thereto in Lessor;
or
(c) Pay to Lessor the total of the Prepayment Schedule
amount referred to in Section 25 herein.
13. INSURANCE. Lessee shall provide, maintain and pay for:
(a) insurance against the loss or theft of or damage to
the Equipment, for the full replacement value thereof
with loss payable to Lessor, or
(b) If Lessee shall insure similar properties by self-
insurance, Lessee will insure the Equipment by means of
an adequate insurance fund.
5
013"-011 r
14. LAWS; LIENS. Lessee shall comply with all laws and
regulations relating to the Equipment and its use. Lessee
shall keep the equipment free and clear of all levies, liens
and encumbrances.
15. LESSOR'S PAYMENT. If Lessee fails to provide or maintain
said insurance, to pay said charges and taxes, or to
discharge said levies, liens and encumbrances, Lessor
shall have the right, but shall not be obligated, to
obtain such insurance, pay such charges and taxes, or
effect such discharge. In that event, Lessee shall repay
to Lessor the cost thereof with the next payment of rent
together with interest at the highest legal rate.
16. ASSIGNMENT. Without Lessor's prior written consent,
Lessee shall not
(a) assign, transfer, pledge, hypothecate or otherwise
dispose of this Lease, Equipment, or any interest
therein, or
(b) sublet or lend Equipment or permit it to be used by
anyone other than Lessee or Lessee's employees.
Lessor may assign its rights, but not its obligations
hereunder, and may encumber or transfer title to the
Equipment or do both without notice to the Lessee.
Lessee agrees that it will not assert or pursue any
remedies or claims it may have arising out of this
agreement or the Equipment against any such assignee but
will assert such claims solely against the Lessor,
notwithstanding the assignment. Lessee covenants that it
will not assert or pursue any claim or exercise any
defense, counterclaim or set off against any such
assignee.
Lessee is obligated to make all payments due hereunder to
any such assignee as may be instructed by Lessor without
regard to any claim or defense it may have against
Lessor. Nothing herein shall be limited or waive any
claim or defense which Lessee may have against Lessor,
all of which shall survive assignment but shall lie
solely against Lessor. Notwithstanding any such
assignment, Lessor warrants that Lessee shall quietly
enjoy use of the Equipment subject to the terms and
conditions of this Lease. Subject to the foregoing, this
Lease inures to the benefit of and is binding upon the
successors and assigns of the parties hereto.
17. SERVICE CHARGE AND INTEREST. If Lessee fails to pay when
due any rent or other amount required herein to be paid
to Lessor, Lessee shall pay to Lessor a service charge of
five percent (5%) of each installment or part thereof for
2
0137-01-118
which said rents or other amounts shall be delinquent,
but in any event not more than permitted by applicable
law.
18. DEFAULT.
(a) If Lessee fails to pay when due any rent or other
amount required herein to be paid by Lessee, or if
Lessee fails to perform any other provision hereof
within ten (10) days after Lessor shall have demanded
in writing performance thereof, or if a petition is
filed by Lessee under the Bankruptcy Act, Lessor shall
have the right to exercise any one or more of the
following remedies;
(i) Lessor may recover from Lessee all rent and
other amounts then due and as they shall
thereafter become due hereunder:
(ii) Lessor may take possession of any or all
items of Equipment, wherever same may be located,
without demand or notice, without any court order
or the process of law and without liability to
Lessee for any damages occasioned by such taking of
possession. Any such taking of possession shall
not constitute a termination of this lease.
(iii) Lessor may recover from Lessee, with respect
to any and all items of Equipment, and with or
without repossessing Equipment, the total amount
referred to in the Section 25 Prepayment Schedule
provided, however, that upon repossession or
surrender of Equipment, Lessor may sell or
otherwise dispose of Equipment, with or without
notice and on public or private bid, and apply the
net proceeds thereof (after deducting all expenses,
including attorney's fees, incurred in connection
therewith), to subparagraphs (i) and (iii) herein.
In the event Lessor is unable to sell or otherwise
dispose of Equipment within a reasonable time,
Lessor may recover from Lessee an amount not less
than the sum of the rent and other amounts as set
forth above and all expenses, including attorney's
fees, incurred in taking possession of Equipment.
(iv) Lessor may pursue any other remedy at law or
in equity.
(b) No right or remedy herein conferred upon or reserved
to Lessor is exclusive of any 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
7
0137-0119
or now or hereafter existing at law or in equity or by
statute or otherwise, and may be enforced concurrently
therewith or from time to time.
19. LESSOR'S EXPENSE. Lessee shall pay Lessor all costs and
expenses, including reasonable attorney's fees, the fees
of the collection agencies, and other expenses such as
telephone and telegraph charges, incurred by Lessor in
enforcing any of the terms, conditions or provisions
hereof.
20. NOTICES. Services of all notices under this Lease shall
be sufficient if given personally or mailed to the party
involved at its respective address set forth above, or at
such other address as said party may provide in writing
from time to time. Any such notice mailed to said
address shall be effective when deposited in the United
States mail, duly addressed and with postage prepaid.
21. CONTINGENCIES. The terms and conditions of this
agreement, including but not limited to, the Rent, are
based upon certain applications of the provisions of the
Internal Revenue Code and the regulations issued pursuant
thereto. In the event that such applications are
determined to be erroneous, or unallowable, or such
provisions are amended or modified, the Rent herein
provided for shall be adjusted so that the net after tax
return to the Lessor on the actual "total cost" of the
Equipment shall remain the same as though said
applications were allowable or such provisions had not
been amended or modified.
22. NET LEASE AND UNCONDITIONAL OBLIGATION. This lease is a
completely net lease and Lessee's obligation under
Paragraph 5 to pay the rent and amounts payable by Lessee
under Sections 12 and 18 is unconditional and not subject
to any abatement, reduction, setoff or defense of any
kind except as expressly provided herein.
23. INDEMNITY. Lessee hereby indemnifies and agrees to save
Lessor harmless for any and all liability and expense
arising out of the ordering, ownership, use, condition or
operation of each item of Equipment during the term of
this Lease, including liability for death or injury to
persons, strict liability under the laws or judicial
decisions of any state or the United States, and legal
expenses in defending any claim brought to enforce any
such liability or expense.
24. NONCANCELLABLE LEASE. This Lease cannot be cancelled or
terminated except as expressly provided herein.
8
0137-0120
25. PREPAYMENT SCHEDULE. A prepayment schedule is available
upon request.
26. SURVIVAL OF INDEMNITIES. Lessee's obligations under
Sections 14 and 23 shall survive termination of this
Lease.
27. MISCELLANEOUS. No provisions of this Lease can be waived
except by the written consent of Lessor. If Lessor so
requests, Lessee shall execute such documents as Lessor
shall require for filing or recording.
Any provision of this Lease which is unenforceable in any
jurisdiction shall, as to jurisdiction, be ineffective to the
extent of such unenforceability without invalidating the
remaining provisions of this Lease, and any such
unenforceability in any jurisdiction shall not render
unenforceable such provision in any other jurisdiction. This
Lease shall in all respects be governed by, and construed in
accordance with, the substantive laws of the state in which
Lessee is located.
DATED as of
19
(LESSOR)
By: MDC Leasing, Inc.
Title
Signature
(LESSEE)
Deschutes County, Oregon
By: (Title) JANcy POPE SCMANGEN, dHAIR
Authorized Signatur 1
Employer Identification Number C? 3- to
W
•. 311 12.89
rorT 8038 -GC
(Rev October 1989)
Department of the Treasury
Internal Revenue Service
0137-0121
3497-5
Consolidated Information Return for Small Tax -Exempt
Governmental Bond Issues, Leases and Installment Sales OMB No .545.0720
► Under Section 149(e) ► For calendar year ending 19.9 . Expires 05:31; 92
(Use Form 8038-G if the issue price of the issue is $100.000 or more.)
1 Issuer's name
Deschutes County Oregon
3 Number and street
1130 N.W. Harriman
4 :.!y or town, state. and ZIP code
Bend, OR 97701
Description of Oblieations
Check box if Amended Return ►
z issuer s empwyer wentmcatwn numoer
93- (000 '�_)aq.2-
5 Total issue price of all small tax-exempt governmental obligations issued during the calendar year . . .
6 Check the box that most nearly approximates the weighted average maturity of the obligations:
a ❑ Less than 5 years
b Q From 5 to 10 years
c ❑ More than 10 years
7 Check the box that most nearly approximates the weighted average interest rate on the obligations:
a ❑ Less than 5%
b Q From 5% to 10%
c ❑ More than 10%
8 Total issue price of the obligations reported on line 5 that are:
5 1 67 , 600 100
a Obligations issued in the form of a lease or installment sale . . . . . . . . . . . . . . . 82 167,600 0 0
b Obligations designated by the issuer under section 265(bX3XBXiXll1) . . . • . . . . . . Sb 67,600 00
c Obligations issued to refund prior issues . . . . . . . . . . . . . . . . . . . . . F=
d Loans made from the proceeds of another tax-exempt obligation . . . . . . . . 1841
Under r`a'ges of pert declare that I h examined this return and accompanying schedules and statements. and to the best of my knowledge and bei:ef.
Please they a true, correct, rw c pkte.
Sign
Here 31 1994 ' NANCY POPE SCHLANGEN, CHAIR
nature of off i er I Date Type or print name and tale
General Instructions
(Section references are to the Internal
Revenue Code unless otherwise noted.)
Paperwork Reduction Act Notice
We ask for this information to carry out the
Internal Revenue laws of the United States.
We need it to ensure that you are complying
with these laws. You are required to give us
this information.
The time needed to complete and file this
form varies depending on individual
circumstances. The estimated average time
is:
Recordkeeping . . . 3 hrs., 21 min.
Learning about the
law or the form . . . . .1 hr., 34 min.
Preparing the form . . . 2 hrs., 37 min.
Copying, assembling, and
sending the form to IRS . . . .16 min.
If you have comments concerning the
accuracy of this time estimate or
suggestions for making this form more
simple, we would be happy to hear from
you. You can write to either the Internal
Revenue Service. Washington, OC 20224,
Attention: IRS Reports Clearance Officer,
T:FP; or the Office of Management and
Budget. Paperwork Reduction Project
(1545-0720), Washington, DC 20503.
Item You Should Note
A governmental unit is required to file this
form for all small tax-exempt governmental
obligations on which it pays interest. These
obligations include bonds, leases and
installment sales.
Purpose of Form
Form 8038 -GC is to be used by issuers of
tax-exempt governmental obligations to
provide IRS with the information required by
section 149(e) and to monitor the
requirements of sections 141 through 150.
Who Must File
Each issuer must file Form 8038 -GC for all
tax-exempt governmental bonds, leases and
installment sales issued during the calender
year, with an issue price of less than
$100,000. Form 8038-G is filed to report
each issue of governmental obligations with
issue prices of 5100,000 or more.
When To File
File Form 8038 -GC on or before February
15th after the close of the calendar year in
which the issue is issued. Form 8038 -GC
must be completed based on the facts as of
the close of the calendar year.
Late filing.—A Form 8038 -GC filed after
the due date may be granted an extension
of time to file under section 3 of Rev. Proc.
88.10. 1988.1 C.B. 635, if it is determined
that the failure to file in a timely manner is
not due to willful neglect. A late Form
3497-6
„311 :-21-89
Form 8038 -GC (Rev :0-89) Page L
8038 -GC should be sent to: Internal
Revenue Service. Philadelphia Service
Center. Statistics of Income Unit, P:DA:
Unit F -S01. Philadelphia. PA 19255. Stop
*335. Type or print at the top of the form,
'This Statement Is Submitted in
Accordance with Rev. Proc. 88.10.' Attach
to the Form 8038 -GC a letter briefly setting
forth the reasons why Form 8038 -GC was
not submitted to the IRS on time, and also
indicating whether the obligation in
question is under examination by the IRS.
Do not submit copes of any bond
documents, leases or installment sale
documents.
Where To File
File Form 8038 -GC with the Internal
Revenue Service Center, Philadelphia, PA
19255.
Definitions
e A tax-exempt obligation is not limited to
the formal issuance of bonds. It also
includes installment purchase agreements
and financial leases.
• A tax-exempt governmental obligation
is a tax-exempt obligation that is not a
private activity bond.
e A private activity bond is generally an
obligation issued as part of an issue of
which: (1) More than 10% of the proceeds
are to be used for any private business use;
and (2) More than 10% of the payment of
principal or interest of the issue is either
secured by an interest in property to be
used for a private business use (or
payments in respect of such property), or is
to be derived from payments in respect of
property (or borrowed money) used for a
private business use. An obligation is also
considered a private activity bond if the
amount of the proceeds to be used to make
or finance loans (other than loans described
in section 141(cX2)) to certain persons
exceeds the lesser of 5% of the proceeds, or
$5.000,000. Private activity bonds should
be reported on Form 8038, Information
Return for Tax -Exempt Private Activity Bond
Issues.
e Issue —Generally, separate obligations
should not be treated as part of the same
issue if the obligations are not issued by the
same issuer, on the same date, and
pursuant to a single transaction (or series of
related transactions). With respect to
draw -down loans, all amounts reasonably
expected to be advanced within 3 years of
the date of the first draw may be treated as
part of the same issue if the draws are
equally and ratably secured by the same
loan agreement and are pursuant to a
common financing arrangement. All
obligations that are issued pursuant to a
single finance lease or installment
purchase agreement may be treated as
part of the same issue if all of the property
covered by that agreement is reasonably
expected to be delivered within 3 years of
the date of issue of the first obligation.
Specific Instructions
Part 1.—Reporting Authority
Amended Return.—If you are filing an
amended Form 8038 -GC, check the
amended return box and complete Part I
and only those parts of Form 8038 -GC you
are amending by entering the correct
information. Do not file an amended Form
8038 -GC to amend estimated amounts you
previously reported once the actual
amounts are determined. (See the Part II
instruction, below.)
Una 1.—The issuer's name is the name of
the entity issuing the obligations, not the
name of the entity receiving the benefit of
the financing. In the case of a lease or
installment sale, the issuer is the lessee or
purchaser.
Una 2—Issuer's employer Identification
number (EIN).—If the issuer does not have
an employer identification number, enter
'none" and attach a completed Form SS4,
Application for Employer Identification
Number, to Form 8038 -GC. If, however, the
issuer has previously applied for such a
number, attach a statement giving the date
of the application and the office where it
was submitted.
Part II.—Description of Obligations
This part may be completed based on
Information readily available to the issuer
at the close of the calendar year,
supplemented by estimates made In good
faith. All entries may be based on good
faith approximations.
Una 5.—Enter the total issue price of all
small tax-exempt governmental obligations
issued during the calendar year. Small
governmental obligations means those with
an issue price of less than 5100.000. If the
obligations are reoffered to the public by an
intermediary, the issue price is the
reoffering price (excluding accrued
interest).
The issue price of an obligation means
the principal amount due on the obligation
and does not include interest paid or to be
paid. Therefore line 5 should include only
the principal amount due on obligations
sold during the calendar year. For example,
only the purchase price of an asset acquired
pursuant to a lease should be included on
Line 5 and only in the year such lease is
entered into. A lease or installment sale is
treated as issued on the date interest starts
to accrue.
Una 6.—The weighted average maturity is
the average maturity on the obligations.
With respect to bonds, each bond .should be
weighted to its par value. For a lease or
installment sale, enter the total number of
years the lease or installment sale will be
outstanding.
Una 7.— The weighted average interest
rate is the average interest rate on the
obligations. Each bond should be weighted
in proportion to its par value and its length
of maturity.
Una 8.—Enter the total issue price of the
,obligations reported on line 5 that are
described on lines 8a, 8b, 8c, and 8d. More
than one line may apply to a particular
obligation. For example, obligations issued
to refund prior issues which were
designated by the issuer under section
265(bX3XBXiXIII) should be reported on
line 8b and line 8c.
Signature
Form 8038 -GC must be signed by an
authorized representative of the issuer. Also
print the name and title of the person
signing the Form 8038 -GC.
08-23-94
Deschutes County, Oregon
Loan Amount: $ 67,600.00
Term of Loan: 5
Amortization Method: Normal, 360 D/Y
Loan Date: 09-01-1994
Annual Interest Rate: 8.000
Interest Compounded: Annual
PMT
Due Date
Payment Amount
Interest
Principal
---------------
Balance
----
1
--------
09-01-95
------------------------------
16,930.86
---------------
5,408.00
11,522.86
56,077.14
2
09-01-96
16,930.86
4,486.17
12,444.69
43,632.45
3
09-01-97
16,930.86
3,490.60
13,440.26
30,192.19
4
09-01-98
16,930.86
2,415.38
14,515.48
15,676.71
5
09-01-99
16,930.85
1,254.14
15,676.71
0.00
Grand totals
--------------- ---------------
$ 84,654.29 $
---------------
17,054.29 $
67,600.00
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