Loading...
HomeMy WebLinkAboutAgenda - 11-18-2008 - 4hORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: November 18, 2008 Action Agenda Item No. 4 - h SUBJECT: Bid Award: Truck Lease for Solid Waste DEPARTMENT: Purchasing Department PUBLIC HEARING: (Y/N) No and Solid Waste Management ATTACHMENT(S): Bid Tabulation Draft Lease Agreement INFORMATION CONTACT: Pam Jones, 245-2652 Gayle Wilson, 968-2885 PURPOSE: To consider awarding a bid to TranSource, Inc. for the lease of one (1) truck for use by the Recycling Division of the Department of Solid Waste Management. BACKGROUND: The proposed truck, which is typically used to pull large over-the-road trailers, will be used to haul loads of commingled containers (mixed cans and bottles) to amerchant-operated recycling processing facility as described in detail in the report to the Board on June 3, 2008. As described in the report, initiating the transfer of cans and bottles to a third party processor will significantly increase operating efficiencies of the drop-off, commercial, multifamily and rural curbside recycling programs and will enable enhancements and improvements to a variety of recycling programs operated by Orange County. Leasing of the truck provides the advantage of enabling the efficient and cost-effective hauling of recyclables today while allowing for the greatest flexibility in three to five years time. Leasing enables a quick delivery time when compared to direct purchase, which typically requires a vehicle be ordered from the factory and requires the purchaser to delay receipt of the vehicle for approximately six months while the vehicle is being built. Delivery time of the truck is critical to the implementation of the transition to commingled containers for the drop-off and commercial recycling programs and also to the timing of the wide array of recycling program enhancements described in the June 3~d report and planned for this fiscal year. Leasing also provides greater flexibility in the future when equipment needs may change. Bids were solicited from eleven vendors on Orange County Bid number 1557. Pursuant to the attached bid tabulation, TranSource, Inc. of Colfax, North Carolina submitted the lowest responsible bid that was responsive at a delivered cost per month for 36 months. This truck will be fully certified by the EPA, and meets all reduced emission requirements and will operate on bio-diesel. 2 FINANCIAL IMPACT: Total cost of this action, if approved by the Board, would be $2,135 per month for thirty six months. Funds are allocated in the Solid Waste Management Department FY 2008-09 operating budget. RECOMMENDATION(S): The Manager recommends that the Board award bid number 1557 to TranSource, Inc. at a delivered cost of $2,135 per month; and authorize the Purchasing Director to execute the necessary paperwork subject to final review by staff and the County Attorney. BID TABULATION BID # 1557 BID FOR: ROAD TRACTOR BID AWARDED TO: Tran Source, Inc. CLOSING DATE: 10-15-08 BID PRICE: $2,135 ger month CLOSING TIME: 3:00 PM BUDGETED AMOUNT: VENDOR Vehicle 36 Month Lease Monthl Pa ment Salem Leasin ,Durham, NC 2009 Frei htliner Columbia $2,826.53 Tran Source, Colfax, NC 2008 Mack CHU 613 $2,135.00 3q t E A 5 1 N 6 S T S T E •' MACK LEASING SYSTEM NET LEASE AGREEMENT THIS NET LEASE AGREEMENT, made this day of , 20 ,between TranSource, Inc., with offices at 8700 Triad Drive, Colfax, NC 27235 ("Lessor"), and, ,a (Corporation, partrrership, or inAivitluap ~ f ("Customer"). with its primary office at (Street) (City) (State) (Zip) WITNESSETH: 1. LEASED PROPERTY AND TERM. Lessor hereby agrees to lease to Customer, and customer hereby agrees to lease from Lessor, under the terms and conditions hereinafter set forth in any and all Schedule(s) A and in this Net Lease Agreement (collectively, "Lease Agreement"), the vehicle(s), including any accessories (hereinafter individually or collectively called the "Property"), described on Schedule A and on such additional Schedule(s) A as from time to time hereafter may be executed by Lessor and Customer. Each Schedule A shall be deemed a separate lease agreement with respect to the vehicle(s) described therein, and each Schedule A shall be deemed to incorporate by reference the. terms and provisions of this Net Lease Agreement. This Lease Agreement shall become effective with respect to each vehicle as of the date the Property comes under the physical control of Customer or its agent (hereinafter called the "Date In Service") and shall continue for the term of the Lease Agreement specified in Schedule A, unless sooner terminated as hereinafter provided. Acceptance of the Property by Customer shall constitute an acknowledgment by Customer that the Property is in good order and condition and complies with Customer's specifications. Title to and ownership of the Property at all times shall be and remain in Lessor, notwithstanding the use thereof by Customer under this Lease Agreement. Customer shall not by these presents acquire any ownership rights in the Property. 4 Customer shall not make any change, alteration, addition, or modification to the Property without the prior written consent of Lessor. Any such action by Customer shall be deemed a material breach of this Lease Agreement. 2. PAYMENT OF LEASE CHARGES. Customer hereby agrees to pay to Lessor any and all charges set forth in Schedule A. Such charges shall be payable within ten (10) days after date of Lessor's invoice therefore without deduction or setoff. Such charges shall be invoiced on a weekly or monthly basis, as specified on Schedule A, and shall include the fixed rental for the ensuing calendar period in advance and the mileage charge for the preceding calendar period. With respect to invoices not paid within ten (10) days of the date hereof, Customer shall pay to Lessor a late charge of one and one half percent (1.5%) per month, not to exceed the maximum amount permitted under applicable law, on the amount of default until the same shall be paid in full. Customer agrees to cause its driver to record the time, mileage readings, and states in which Property is operated and to sign a trip report form on a daily basis (or such other periodic basis as requested by Lessor) at check- outand check-in of the Property. From this information Customer shall furnish to Lessor by Monday of each week a complete record of the hours, miles and states driven for the Property for the week ending the preceding Sunday. If the mileage device of any Property fails to function, or if Customer fails to report the mileage as provided herein, the mileage for any day, days or fraction of a day will be determined by computing the daily average mileage of the Property based upon a minimum of the previous twenty one (21) days of recorded mileage and multiplying that daily average by the number of days or fractions of a day during which the actual mileage was unavailable to Lessor. If Customer requires a Mileage Rate only and no Fixed Charge is shown on Schedule A, then Customer represents that the Mileage Guarantee shown on Schedule A is the average realistically estimated and guaranteed annual mileage for the Property shown on Schedule A. Settlement of the annual Mileage Guarantee will be made each six (6) months during the term of the Lease Agreement. If the actual mileage for the Property during the preceding six (6) month period is less than one-half of the annual Mileage Guarantee, Customer will be billed by Lessor and Customer shall pay within ten (10) days of the invoice date an amount equal to the difference between the actual mileage and one-half of the 5 annual Mileage Guarantee, multiplied by the Deficiency Rate per Mile specified on Schedule A. This adjustment shall be prorated in the event of termination, based on the actual amount of time the Property was under lease during the relevant six (6) month period. Customer will be responsible for all costs related to: (1) damage to Property tires, other than normal wear and tear; (2) mired Property; (3) damage due to operation of Property off a paved road; (4) damage to Property resulting from Customer's failure to check and maintain adequate fluid and lubricant levels daily; (5) damage or liability resulting from Customer's failure to properly operate or maintain any trailer or special equipment not maintained by Lessor under this Lease Agreement or other agreement between Customer and Lessor; (6) damage resulting from Customer's failure to plug in engine block heaters in a properly operating electrical outlet when temperature drops below freezing; and (7) overloading, or other abusive or negligent operation of the Property. The foregoing charges are exclusive of any sales or use taxes now or hereafter imposed on the use or operation of the Property, which taxes Customer agrees to pay in addition to the charges specified hereunder. 3. OPERATION OF THE PROPERTY. The Property shall be used by Customer only in the normal and customary course of. Customer's business, not in violation of any applicable law, rule, or regulation, including legal weight limitations, and shall be kept free of liens and encumbrances. Customer shall indemnify and hold harmless .Lessor from and against any and all fines, forfeitures, seizures, confiscations, and penalties whatsoever arising out of any such violation, other than a violation caused by Lessor's failure to perform its obligations hereunder. Customer agrees to cause the Property to be operated only by safe, careful, properly licensed drivers, at least twenty one (21) years of age, who shall be employees or agents of Customer, paid by Customer and subject to Customer's exclusive direction and control. Upon receipt of a written complaint from Lessor, specifying reckless, careless, abusive or incompetent operation of the Property, or other breach of this Lease Agreement, by a driver, and requesting the driver's removal as an operator of the Property, Customer immediately shall remove such individual as an operator of the Property. In the event that Customer shall fail to do so for any reason whatsoever, Customer, notwithstanding any other remedies of Lessor or provisions of this Lease Agreement, shall reimburse Lessor in full for any damages, costs, losses or expenses sustained by Lessor 6 arising out of the operation of the Property by the said driver, and shall release, indemnify, and otherwise hold harmless Lessor from and against any claims or causes of action for death or injury to persons or loss or damage to properly or any other loss or damages sustained by any person arising out of the use or operation of the Property by said driver. Customer further agrees that the Property shall not be operated by drivers in possession of or under the influence of alcohol or any drug which may impair their ability to operate the Property, nor shall the Property be operated in a reckless or abusive manner, off improved roads, on flat tires, improperly loaded or loaded in excess of the manufacturer's recommended maximum gross weight, or to transport any material considered extremely hazardous, including, but not limited to, poisons, inflammables, explosives, and radioactive substances. Notwithstanding any other provision of this Lease Agreement, Customer shall reimburse Lessor in full for all damages, losses, costs, or expenses resulting from a breach of this provision. The Indemnification provision of Section 11 in this Lease Agreement shall remain in full effect and shall further apply herein. Customer hereby warrants and represents that the Property is to be used only for its trade or business and not for personal, household, or other non- customary purposes. 4. ~~ENS. Lessor shall have the right to pay any fines or discharge any liens or encumbrances asserted against any Property resulting from Customer's failure to pay any traffic citation, assessment or charge for licenses, permits or taxes for which the Customer is responsible under this Lease Agreement, and Customer shall reimburse Lessor for such payments and any associated costs or fines. 5. ~N~EMN~F~CAT~oN. Customer hereby agrees to defend, hold harmless and indemnify Lessor, its directors, officers, ,employees, agents, insurers, successors and assigns from and against any and all claims, demands, actions, causes of action, expenses, and liabilities whatsoever for injury or death to persons, or loss or damage to property, or any other loss or damages sustained by any person arising out of or in connection with the ownership, use, or operation of the Property or Customer's breach of this Lease Agreement. If Lessor sells any Property to Customer, to an employee of Customer or to a third party from whom Customer obtains an offer, or at Customer's request sells any Property owned by Customer or a third party, Customer's covenants of indemnity shall continue with respect to the condition of the Property at the time of sale and warranties that cannot be disclaimed as a matter of law. Customer agrees to take upon itself the settlement of all such claims and the defense of any legal proceeding brought to enforce such claim or claims, and to pay all judgments entered in such legal proceeding and all costs, attorneys' fees or other expenses. If settlement of said claims would affect Lessor's Interests, Customer shall obtain Lessor's written consent prior to settlement. The provisions of the foregoing indemnity do not include any gross negligence or willful misconduct by Lessor, its agents or employees, but are otherwise absolute and unconditional and shall continue in full force and effect regardless of where, how or by whom any Property is operated, and notwithstanding any insurance coverage that Customer may carry or the termination or cancellation of this Lease Agreement. The foregoing provisions include, without limitation, liability and claims arising by reason of negligence, strict liability, breach of warranty, or defect in manufacture or maintenance. 6. PHYSICAL DAMAGE AND LIABILITY INSURANCE. Unless otherwise designated on Schedule A, Customer, at its sole cost and expense, shall, during the term of the Lease Agreement, procure and maintain in full force and effect insurance on the Property, and any substitute or replacement Property, with insurance companies with a Best's Guide A- rating or better and approved by Lessor, providing coverage against loss or damage by fire, theft and collision and perils covered under the comprehensive coverage of the standard automobile policy of insurance in an amount equal to the full insurable value thereof, subject to the deductible provided on Schedule A, with Lessor and its secured party assignee, if any, as loss payees. Notwithstanding the above, and unless otherwise designated on Schedule A, Customer, at its sole cost and expense, shall, during the term of the Lease Agreement, procure and maintain in full force and effect public liability insurance policies written by non-assessable insurance companies with a Best's Guide A- rating or better and approved by Lessor and authorized to transact business in each state where the Property, and any substitute or replacement Property, is to be operated, protecting the interests of Lessor, the funding source, and Customer with respect to their liability for injury to or death of persons and damage to or loss of use of property resulting from the ownership, use, or operation of the Property, with Lessor and its secured party assignee, if any, as additional insureds. Such public liability insurance policies as to the Property shall have limits of not less than the amounts specified on Schedule A. 8 Customer shall deliver to Lessor the insurance policies hereinabove required or other evidence thereof satisfactory to Lessor, and shall pay the premiums on such insurance promptly when due. All such policies shall be in a form satisfactory to Lessor and shall provide for thirty (30) days minimum written notice to Lessor of cancellation, non- renewal, or material change. In the event of Customer's failure to procure or to maintain in effect policies satisfactory to Lessor, or deliver to Lessor satisfactory evidence thereof, or if such insurance is refused or canceled by any insurance carrier, then Lessor may, without prejudice to any other rights or remedies under this Lease Agreement, provide such insurance and add to the charges herein the cost of the same which Customer shall pay promptly upon demand. 7. CARGO INSURANCE. Customer agrees to release and hold harmless Lessor from and against any liability for loss or damage to any goods or other property carried by the Property, whether such loss or damage occurs on the premises of Lessor or elsewhere. Customer, at its sole cost and expense, shall include Lessor as a named insured in any and all cargo, transportation, or floater insurance policies covering Customer with respect to any loss or damage to such goods or property. Customer hereby waives any right of recovery against Lessor for any such loss or damage and shall reimburse Lessor for loss of any tools, tarpaulins, accessories, spare tires, or other equipment furnished by Lessor. $. OyERI_OADING. Customer shall not overload any Property in excess of the Licensed weight shown on the Schedule A and shall be responsible for all costs of towing service, damages, fines, and all expenses incurred as a result of overloading. Lessor at any time may request, and Customer agrees to furnish to Lessor, all payload weight documentation for any Property. 9. NOTICE OF ACCIDENT. Customer shall notify Lessor immediately upon the occurrence of any accident, collision, theft, or loss involving the Property, or any substitute or replacement Property, and shall furnish Lessor with a detailed written police report as soon as practicable thereafter. Customer shall render such further assistance to Lessor, the insurer, and any funding source as may be requested by any of them in investigation, defense or prosecution of any resulting claims or suits. 10. THEFT OR DESTRUCTION OF THE PROPERTY. If any Property shall be lost or stolen and remains so for a period of thirty (30) days or more, or, in the 9 opinion of Lessor, shall be damaged beyond repair, this Lease Agreement, at the exclusive option of Lessor, may be terminated, provided, however, that all applicable charges have been paid to that date and any further amounts due Lessor hereunder have been paid in full. Lessor shall not be obligated to provide substitute Property during said thirty (30) day period. 11. ADDITIONAL EMISSION CONTROL OR SAFETY DEVICES. The parties recognize that federal and state laws and regulations from time to time may require the addition or installation of emission controls, safety devices, or other equipment on the Property. In such event, Lessor shall cause such addition or installation to be made at the cost and expense of Customer and the Fixed Charge, if any, set forth in Schedule A shall be adjusted to reflect the cost of maintenance and service of such devices, if required, during the remaining term of the Lease Agreement. 12. WARRANTY. THERE ARE NO WARRANTIES OR REPRESENTA- TIONS, EXPRESS OR IMPLIED, AS TO THE PROPERTY, EXCEPT, AS TO NEW VEHICLES ONLY, THE MANUFACTURER'S STANDARD VEHICLE WARRANTY, WHICH IS INCORPORATED HEREIN BY REFERENCE. A COPYOF SAID WARRANTY HAS BEEN FURNISHED TO CUSTOMER AND RECEIPT THEREOF IS HEREBY ACKNOWLEDGED. All USED VEHICLES ARE LEASED "AS IS". LESSOR EXPRESSLY WARRANTS ALL MAINTENANCE AND REPAIR SERVICES PERFORMED BY LESSOR ON THE PROPERTY TO BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP IN NORMAL USE AND SERVICE DURING THE TERM OF THE LEASE AGREEMENT, LESSOR'S OBLIGATION HEREUNDER BEING LIMITED TO REPAIR OR REPLACEMENT, AT ITS OPTION. THIS WARRANTY SHALL NOT APPLY IF THE PROPERTY HAS BEEN SUBJECT TO MISUSE, ABUSE, NEGLIGENCE, OR ACCIDENT, OR ALTERED OR REPAIRED BY ANY THIRD PERSON OTHER THAN LESSOR IN ANY WAY, WHICH IN LESSOR'S JUDGEMENT MAY AFFECT ITS OPERATION OR DURABILITY. THE FOREGOING WARRANTIES ARE MADE EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INTERFERENCE OR INFRINGEMENT, AND ANY OTHER LIABILITY OR OBLIGATION ON THE PART OF MANUFACTURER OR LESSOR, INCLUDING, WITHOUT LIMITATION OF THE FOREGOING, CONSEQUENTIAL AND INCIDENTAL DAMAGES. 10 73. FORCE MAJEURE. Lessor shall incur no liability to Customer for failure to perform any of Lessor's obligations hereunder if such failure is due, in whole or in part, to accident, fire, flood, natural disaster, strikes or labor disturbances, riot or civil disorder, act of war, governmental action, interruption of normal transportation, fuel, or power facilities, or any other cause of like or different kind, beyond Lessor's reasonable control. 14. TERM~NAT~oN. Either party may terminate this Lease Agreement, in whole or in part after the second anniversary date thereof, other than the anniversary date on which the term expires, by giving to the other party at least sixty (60) days prior written notice of its intent to do so. If this Lease Agreement is so terminated by Lessor, Customer shall have the right, but not the obligation, to purchase the Property affected by such termination in accordance with Section 22 below. If this Lease Agreement is so terminated by Customer, Lessor, at its option, may demand that Customer purchase the Property affected by such termination in accordance with Section 22 below. Lessor shall have the right to terminate this Lease Agreement if the Property shall be rendered inoperative for any reason, except where Lessor shall have an obligation to furnish Customer with substitute Property pursuant to Section 9 hereinabove, and Lessor shall determine whether its condition does not justify repair. Lessor shall have the right, at its option, to terminate the Lease Agreement in the event that Customer shall become insolvent or the subject of proceedings under law relating to bankruptcy or the relief of debtors, including an assignment for the benefit of creditors. In such event, Lessor, at its option, may demand that Customer purchase the Property within ten (10) days of termination in accordance with Section 22 below. In the event that Customer shall breach or default in the performance of any of the terms and conditions of this Lease Agreement, for which time shall be of the essence, Lessor immediately, without notice, demand, or judicial process, all of which are hereby expressly waived by Customer, at its option may take possession of the Property, together with all equipment and accessories thereto. For this purpose, Lessor may enter upon any premises where the Property may be located and remove the same. Lessor may retain and refuse to redeliver the Property to Customer until such breach or default is cured, without such action being deemed an act of termination and without prejudice to any other rights or remedies available to Lessor. Customer shall continue to be liable for all charges 11 accruing hereunder during the period the Property is so retained by Lessor. If at the time of such removal and retention of the Property by Lessor, there shall be in, upon, or attached to the Property any property, goods, or things of value belonging to Customer or in the custody or control of Customer, Lessor shall have the right to take possession of such items and hold the same for Customer or place the same in public storage at Customer's expense. If Customer's breach or default of this Lease Agreement shall continue for seven (7) days or more after Lessor shall have sent written notice thereof to Customer, Lessor, at its option, may terminate this Lease Agreement, and Lessor, at its option, may demand that Customer purchase the Property in accordance with Section 22 below. In the event that Lessor shall be required to resort to legal process in order to take possession of the Property or otherwise enforce its rights hereunder, including the collection of amounts due from Customer,. Customer shall be liable to Lessor for the cost thereof, including attorneys' fees. Upon termination of this Lease Agreement for any reason whatsoever, resulting in return of the Property to Lessor, Customer shall return the Property to Lessor's designated place of business in good repair and operating condition, reasonable wear and tear excepted. Any damage or wear which is the responsibility of Customer must be remedied at the sole expense of Customer. In the event of any holding over of any Property after the termination of the Lease Agreement, the holding over will be deemed aweek-to-week lease at the same lease charges as provided in Schedule A and shall be subject to all the terms and conditions of this Lease Agreement. In addition, Lessor shall have the right on seven (7) days notice to increase the lease charges or terminate the lease at any. time during such period holding over. 15. CUSTOMER DEFAULT. Any failure by Customer to perform its obligations under this Lease Agreement shall constitute a default by Customer and shall entitle Lessor to exercise its remedies under this Lease Agreement or any other remedies available to Lessor at law or in equity. 16. TERMINATION PURCHASE. If Customer is required to purchase any Property or if Lessor demands Customer purchase any Property as set forth in Section 20 above, Customer agrees to purchase the Property for the Original Value shown on Schedule A less the accumulated Depreciation Monthly Amount, which is the monthly depreciation credit . multiplied by the number of months between the In Service Date shown on 12 Schedule A and the termination date. Customer also agrees to reimburse Lessor the amount of any and all prepaid expenses, including but not limited to all taxes, permits, and licenses, prorated as of the date of purchase. Customer is also responsible for any and all taxes resulting from the sale and purchase of the Property. 17. ASSIGNMENT AND SUBORDINATION. This Lease Agreement shall be binding upon the parties, together with their respective successors, representatives, and permitted assigns. CUSTOMER SHALL NOT SUBLEASE THE PROPERTY NOR ASSIGN ITS RIGHTS UNDER THIS LEASE AGREEMENT, IN WHOLE OR IN PART, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR AND ITS SECURED PARTY ASSIGNEE, IFANY, WHICH CONSENT SHALL BE CONDITIONED UPON CUSTOMER REMAINING LIABLE FOR THE FULL AND FAITHFUL PERFORMANCE OF ALL OBLIGATIONS OF CUSTOMER UNDER THIS LEASE AGREEMENT. Customer shall promptly notify Lessor in writing prior to any substantial change in ownership or any material Disposition of the assets of Customer's business. Customer acknowledges and agrees that all of its rights under this Lease Agreement with Lessor in and to the Property, including Customer's right to possess the Property, are subordinate, junior, and subject to the rights and claims of any assignee of Lessor ("Assignee") against the Property under any instrument, lease, mortgage or title retention or other security agreement, whether now existing or hereafter created, including but not limited to the right of Assignee to take possession of the Property. Customer consents and agrees to the assignment to Assignee of (i) all monies due or to become due to Lessor under this Lease Agreement and (ii) all rights and privileges of Lessor under this Lease Agreement. Customer promises and agrees to settle all claims against Lessor directly with Lessor and hereby waives, relinquishes and disclaims as to Assignee all counterclaims, rights of set-off, and defenses Customer may have against Lessor, including any right to withhold payments of or to refrain from paying .any monies that are due or to become due under the terms of this Lease Agreement, except that Customer shall not be liable to Assignee for monies paid to Lessor in accordance with the terms of this Lease Agreement prior to the time Assignee notifies Customer to pay Assignee directly. Thereafter, Customer agrees to pay directly to Assignee all monies owing under this Lease Agreement. Customer represents that, except as stated in this Lease Agreement, it has not prepaid any rentals or other monies owing under this Lease Agreement, and no deposits have been made. 13 Customer agrees and acknowledges that Assignee has not assumed and will not have any obligations or liabilities under this Lease Agreement to Customer or to any other person by reason of the aforementioned assignment or otherwise. Customer agrees that it will not, without Assignee's prior written consent: (i) prepay rentals or other monies owing under this Lease Agreement, (ii) modify or amend this Lease Agreement, (iii) assign or sublet its rights under this Lease Agreement or in the Property, (iv) exercise any of its rights under this Lease Agreement which are exercisable only with the consent of Lessor, or (v) return the Property to Lessor, Customer hereby acknowledging and agreeing to hold the Property as bailee for Assignee for the purpose of perfecting Assignee's lien, title retention and/or security interest in the Property as against Lessor and its creditors. Customer represents that it has no purchase or renewal option concerning the Property other than as stated in this Lease Agreement and Customer hereby agrees to give Assignee at least thirty (30) days prior written notice of the exercise of any such option. In addition, Customer agrees that, at the same time it sends to Lessor any notice under this Lease Agreement, it will send a copy thereof to Assignee at such address as Assignee may specify from time to time in writing. 18. NOTICE. All notices provided for herein shall be in writing sent by certified or first class mail, postage prepaid, or by overnight courier with parcel tracking capability, to the address of the party to whom directed as hereinabove set forth, or to such other address as hereafter may be designated in writing by such party for this purpose. 18. ENTIRETY, AMENDMENT. REMEDIES AND NON-WAIVER. Any and all Schedule(s) A, including this Full Service Lease Agreement and any other attachments, supplements or schedules referenced herein, collectively constitute the entire agreement between the parties with respect to the subject matter hereof, and there are no understandings or representations not herein contained. This Lease Agreement may not be modified, altered, or amended except by written instrument duly executed by both parties. The rights and remedies herein granted to Lessor are not exclusive, but are in addition to any other rights and remedies available to Lessor at law or otherwise. No delay or omission in the exercise of any power or remedy herein provided or otherwise available to Lessor shall not operate as a waiver or otherwise impair or affect Lessor's rights thereafter to exercise the same. Any extension of time of payment hereunder or other 14 forbearance granted to Customer shall not otherwise alter or affect Lessor's rights or Customer's obligations hereunder. In the event that, contrary to the express intention of the parties hereto, this Lease Agreement is deemed to be other than a finance lease or a lease under the Uniform Commercial Code, but rather is deemed an agreement intended for security, Customer hereby grants Lessor a security interest in the Property to secure the prompt payment and performance, when and as due, of all of Customer's obligations and indebtedness hereunder. Customer hereby also grants Lessor a security interest in all accessions and additions to, substitutions and replacements for, and proceeds (including insurance proceeds), accounts, rights of payment (including monetary obligations, whether or not earned by performance), secondary obligations incurred or to be incurred, chattel paper, electronic chattel paper, equipment, general intangibles, payment intangibles, promissory notes and income arising from or generated by the Property. Customer hereby authorizes Lessor to file financing statements describing the Property. Customer hereby appoints Lessor as agent for the benefit of Customer and grants Lessor an irrevocable power of attorney to take any and all actions and to execute and file all documents necessary to establish, maintain, and continue the perfected security interests of Lessor in the Property, in the name of and on behalf of Customer at Customer's sole cost and expense. This power of attorney is coupled with an interest and is irrevocable during the term of this Lease Agreement. Customer shall take all actions and execute and file all documents reasonably requested by Lessor to establish, maintain and continue the perfected security interests of Lessor. Customer shall, within ten (10) days after receipt of notice from Lessor, pay all costs and expenses of filing and recording, including the costs of all searches deemed necessary by Lessor, to establish, maintain, continue, and determine the validity and priority of Lessor's security interests in the Property during the term of this Lease Agreement. ~9. GoyERN~NG LAw. This Lease Agreement shall be governed by and interpreted in accordance with the law of the jurisdiction in which Lessor has its place of business as set forth hereinabove, and any legal action to enforce the terms of this Lease Agreement shall be brought in the courts of said jurisdiction, the parties hereby waiving the right to select venue elsewhere. 15 IN WITNESS WHEREOF, the parties have duly executed this Maintenance Agreement as of the date and year first above written. (Lessor) BY Title Of Above Signatory (Customer) BY Title of Above Signatory