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HomeMy WebLinkAbout08-Finance I ''"-..--,. CITY OF SAN BERN~DINO - REQUEST F~ COUNCIL ACTION '-" From: BARBARA PACHON, DIRECTOR OF FINANCE Subject: MASTER CONTRACT FOR MUNI-GROUP A MUNICIPAL LEASE/FUNDING COMPANY Dept: FINANCE Date: SEPTEMBER 22, 1994 Synopsis of Previous Council action: NONE ,D141N" OH'lCE, ~ SE? 94 2.J 21 Recommended motion: ADOPT RESOLUTION ~k /~~ ~ Signature Contact penon: BARBARA PACHON. nIRRCTOR OF FTNANCR Phone: 1R4-~?4? Supporting data attached: FUNDING REQUIREMENTS: Ward: Amount: Source: (Acct. No.! (Acct. Descriotionl Finance: Council Notes: 75-0262 Agenda Item No g o o CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAPP REPORT The proposed action is to add a Lease Purchase Master Contract with the city of San Bernardino. This will add to our library of financinq partners which currently includes Associated Commercial Corporation, G.E. Capital, MLC Group, Pacific Atlantic, MNC Government Finance, City Corp North America, Ford Motor Credit Co., Security Pacific Leasinq and Pacificorp. This will reduce the processinq time in Lease Purchasinq Transactions. It is requested that Council approve Muni Group for Lease Purchase Master Contract. Muni-Group 7349 Via Pas eo Del Sur Suite 515-134 Scottsdale, AZ 85258 /' I .. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - I.....- o RESOLUTION NO. Ql1._1;nn RESOI,UTION OF THE CITY OF SAN BERNARDINO ACCEPTING LEASE- PURCHASE MASTER AGREEMENT FOR MUNI-GROUP FOR THE FURNISHING OF LEASE PURCHASE FINANCING. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That Equipment Lease-Purchase Master Agreement with Muni-Group (the "Agreement"), a copy of which is attached hereto and incorporated herein as Exhibit "A", is approved by the city of San Bernardino for the furnishing of Lease-Purchase Financing; pursuant to this determination, said Master Lease- Purchase Agreememt award shall only be effective upon the execution of an Agreement by the Mayor of the City of San Bernardino. SECTION 2. The City Shall not be obligated under the Agreement unless and until the Agreement is fully executed and no oral agreement relating thereto shall be implied or authorized. The authorization to execute the above referenced Agreement is rescinded if the parties fail to execute it within sixty (60) days of the passage of this resolution. SECTION 3. No transactions shall be initiated under the Master Lease contained in the Agreement without the approval of the Mayor and Common Council. SECTION 4. The City shall not be obligated until a lease-purchase schedule transaction for material, equipment, supplies or contracted services is executed with the vendor under this Agreement. / / / / / / / / / / / / 09-13-94 -1- <;( ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 94-300 o o RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING LEASE PURCHASE MASTER CONTRACT FOR MUNI-GROUP FOR THE FURNISHING OF LEASE PURCHASE FINANCING. SECTION 5. The purchasing Agent, Director of Finance and the City Attorney are hereby authorized to execute such documents as necessary for the administration of transactions under the Agreement. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the city of San Bernardino at a meeting thereof, held on the reanla.r 3rd day of , 199~, by Oct'nhPT the following vote, to wit: Council Members: ABSTAIN ABSENT AYES NAYS NEGRETE x CURLIN x HERNANDEZ x OBERHELMAN x DEVLIN x POPE-LUDLAM x MILLER x City Clerk The foregoing resolution is hereby approved this day of October , 199-1-. Tom Minor, Mayor City of San Bernardino Approved as to form and legal content: James F. Penman, City Attorney By: 09-13-94 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o o RESOLUTION NO. RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTI LEASE- PURCHASE MASTER AGREEMENT FOR HUNI-GROUP FOR THE SHING OF LEASE PURCHASE FINANCING. BE IT RESOLVED BY THE MAYOR AND COMMON COUNC OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That Equipment Lease-Pure se Master Agreement with Muni-Group (the "Agreement"), a cop of which is attached hereto and incorporated herein as Exhi t "A", is approved by the City of San Bernardino hing of Lease-Purchase Bernardino. of the City of San Financing; pursuant to Purchase Agreememt award shall ination, said Master Lease- effective upon the execution of an Agreement SECTION 2. shall not be obligated under the Agreement unless and un 1 the Agreement is fully executed and no thereto shall be implied or authorized. The authorization t execute the above referenced Agreement is rescinded if the p. rties fail to execute it within sixty (60) days of the passage this resolution. SECTION No transactions shall be initiated under the Agreement without the approval of the Common Council. 4. The City shall not be obligated until schedule transaction for material, equipment, suppl' s or contracted services is executed with the vendor under I I I I I I I I 09 , ) ( -1- o o RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING LEASE PURCHASE MASTER CONTRACT FOR HUN I -GROUP FOR THE FURNISHING OF LEASE PURCHASE FINANCING. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 MILLER 20 21 22 23 24 25 26 27 28 SECTION 5. The Purchasing Agent, Director of Finance and the City Attorney are hereby authorized to execute as necessary for the administration of transac Agreement. I HEREBY CERTIFY that the foregoing was duly adopted by the Mayor and Common Council the City of San Bernardino at a day of the following vote, to wit: Council Members: NEGRETE CURLIN HERNANDEZ OBERHELMAN DEVLIN POPE-LUDLAM thereof, held or the JfAU ABSTAIN The foregoing reso ution is hereby approved this day of , 199_. Approved as to form and legal con ent: James F. pe City Attorne By: 09-13-94 , 199_, by ABSENT City Clerk Tom Minor, Mayor City of San Bernardino -2- DAlE: 8- o 0 AORllEMENT NO. MUNICIPAL LEASE AND OPTION AGREEMENT .E5S0R: 2- 3- 4- " LESSEEz ,- 6- 7- This Municipal Lease and Option Apeement (the" Apeemenn entered into between 2 - rLessor"). and' - ("Lessee"). a body corporale and politic duly orpilized and esistin. under the laws of the Slale of 9 - (Slate"); W1TNF.sSETII: WHEREAS. Lessor desirello lease the Equipment as hereinafter defined. 10 Leaee. and Leaee desires 10 te... the Equipment (rom Lessor. subject 10 the terms and conditions of and for the purposes sel forth in this Agreement; and WHEREAS. Lessee is authorized under the Constitution and I..... of the Stale to enter into this ^p-eement for the purposes lei forth herein: NOW, llIEREFORE. for and in consideralion of the premises hereinafter contained. the partia hereby a.. u follows: AmCLE I COVENANTS OF LESSEE Section 1.OJ. COft-m. or Lessee. lessee represents. covenants and warrant.. for the benefit of Leaot and ill ..ipeel. as follows: (I) Lessee is authorized under the Constitution and laM of the State to enter into this Apeement and the Inasaccion contemplated hereby. and tn perform all o( its obli!ations hereunder. AmCLE II DEFINITIONS Sectinn 2.ot. JJe.ftaitioa.. Unless Ihe cnnteat clearly otMf"AUe requires or unlea otherwise deRned herein. the Clpitalized term~ in Ihis "lt1cemclll !Chall have the respective meaninp specified below. .Code. means the Internal Revenue Code of 1986. as amended. and to the ellent applic:able. the re!ulations and rulin.. issued thereunder. .Co....ence..eat Date' is the dale when the term of this Agreement beJins and l..euee'l obliption to pay renl aocrues. which dale shan be the date lint above "ritlen. "Eqai,..eDt" me-ns the property described in &hibit D Ind which is the subject of this Ap'eemenl. "[..ea. Te..... means the period between the date hereof' and the last day 0{ the fllCal year or Leuee which indudes the due date of the last Renlll Payment. "rurcb.Je rrterr" shall be equal 10 Ihe sum of (a) the Prepayment Option Price. ;as shown on Exhibit E to be the applicable price after the lasl prior Rental Payment is and has heen made. (h) accrued interest thereon. which shall be computed by a De, diem calculation of the in.rest portion of Ihe next due Rental Payment. divided by the nunlber of days between such due date and the prior immediate due date. mulliplied by tbe number of da~'S elapsing between the twO al of the date of paymenL (c) any unpaid challes for or interest. on late paymen... and (d) Iny other lmouR" payable to Lessor hereunder as reimbursements or repayments for advances. ")lelllal r."....." means the basic rental payments p8yable by Lessee punuant to Exhibit E of this Ap1lement. ~'''lIdor. means the manufacturer or the Equipment a. well as the alCnts or deDlen o( the manuracturer. ARTICLE III LEASE OF EQUIPMENT Section 3.01. Lease or En...... Lessor hereby demises. leues and lell to Lenec. and I..cuee rea... Ie... and hires from Lenor. the Equipment. in accordance wilh the prcwilions of this ^~eemenl. to have and 10 hokl for the Leue Tenn. AmCLE IV LEASE TERM Section 4.01. Lease Term. This A,reement shill be in effect Ind sball commence u of the Commencement Date and will remain in effecl throughout the Lease Tenn. The Lease Tenn will terminate upon the lint to occur or: (a) the cercise by Leaee uf tbe option 10 purchue the Equipment under Artidcs XI or VI: (b) Lessor', eicction 10lerminate this ^~ment upon . de[ault under Article XIII: (c) the payment by ......... of all sums required to he paid by Leslee hereunder: or (d) the occurrence of an Event or Nonappropriation in aClCOl'dance with Article VI. Section 6."'. AmCLE V ENJOYMENT OF EQUIPMENT Section '.01. Quiet Ellhw.tllL Lessor hereby coven.nllto provide Lessee durinSlhe Lease Term with quiet use and enjoyment of the Equipment. EOnO.l.. ~- Seedon '.02. UN 01 the !au....... t..enee will nol install. UK. openle or maintain the Equipment improperty. carelealy. in vioIalion applicable law or in a manner conlr.ry 10 thal,.....'templ.led by lhis Apeemenl. .-IIIt. Sec:lion '.OJ. RIo'" 011.._10.. ~,the....... Te"". .he Leaor mellll amcen. em~ and a.,nlllhaD haw the ri"'lat aO ._l>l< times durinS business hoon '0 en.e. into Ind upon .he properly 0{ the ........ I.. .he porpooe 0{ Inspeetina the Equlpmelll. Sec:lion '.04. Dlsdalmer oIWarnali... LESSOR MAKES NO WARRAtI1Y NOR REPRF.'lEtlTATION. EI1HER EXPRESSED OR IMPUED. "'S TO nlE VALUE. DESIGN. CONDITION. MERCIAIO'ABIUIY OR FITNESS FOR PARTICULAR PURPOSE OR FTINESS FOR USE OF1HE ,QUlPMEtIT. OR ANY O1HER WARRANlY WI1H RESPECTnlERETO AND. AS TO 1HE LESSOR. lHE LESSEE LEASES 1HE EQUIPMENT . AS IS". In no evenl shan the Lessor be liable for any loss or damase, indudins incidenlal. indirect. spedal or consequenlial damaF. in connection with or arising out or this Agreement or the exislence, furnishing. fundioning or the l..euee'1 use or any ilems or products or servicel provided ror in this Agreemenl. Seclion '.05. Yeadon Warnade.. Lessee may assert crain and rights thai the I..ea:or may have .pinst any Vendor of any ponion o( the Equipment ARTICLE VI RENTAL PAYMENTS Section 6.01. ReDial PanaeDl. to CODltitute a Curnal Enea" of LeSIft. The oblisalion of Lessee 10 pay Renlal Payments hereunder is a currenl expense of Lessee .nd not a debt of Lessee in contravenlion o( any applicable limitalions or requirements, nor shall anythinl contained herein conslitule a pledge of the pneral lU revenues, funds or monies of Lessee. Section 6.02. laaend aad PriDCi..1 ComDODeallo A ponion of each Renlal Payment is paid al interest. and the balance of each Renlal Payment is paid as principal. Exhibit E hereto sets forth the interesl component and the principal componenl o( each Rental Payment during the Leue Term. Sedion 6.03. Reatal PlnlCal, to be UDcoaditlo.... The obligalions o{ Leuee to make Renla. Paymena. and to perrorm and observe the covenants and apeemenll c:nnlained herein. shaU be absnlute and uncondilional in aU evenll. elCept as espreuly provided under this Ap'eement. notwithstanding any dispute berweea Leuee and Lessor. any Vendor or any other penon, Lcnee shall nol assen any right o( set-off or c:ounlerdaim apinsl its obligalion 10 make payments under this A~eemenl. Section 6,04. Coatinu.doa o{ base Term by Lessee. Le,see inlendllo do all thinp lawfully wilhin ils power to oblDin and maintain funds Crom which Ihe Rental pa.ymenlS may be made. Section 6.05, NODlDDroDrialloa. If (3) suflidenl funds are not appropriated for Renlal Pa.yments due in any flSC8l year and (b) lhe Lessee shall have at such tinle no runds duly aUlborind (or lhe Rental Payments or olher amounts payable hereunder (rom other sources. an Evenl of Nonappropriation shall he deemed In have occurred. The Lessee sh:lIl promplly deliver notice Ihereor 10 the Leaor. Upon Ihe occurrence o( an Event of Nonapproprialion. the Leuee apT<<s Ihat the Lessor may reclaim poue55ion of the Equipment. LcsllCe ap:reel peaceably to deliver lhe Equipmenlto Leaor at a reasonable location spedfied by Lessor. allal Lessee's elpense, Seclion 6,06. Noasubstltutloa. If an Event or Nonaprroprialion nccun the Lessee hereby agrees. to the eXlent permined by law and subjeClJo applicable public policy. not 10 purchase. lea."e or renl equipmenl perrormin! (unctioRlsimilar to lhose performed by the Equipmenl (or a period or one year rollowin~ Ihe date of such evenl. ARTICLE VII TITI.F. TO F.QUlPMENT: SECURITY INTERF.5T Section 7.01. Title to tbe MuiDIDeDt. Durin~ .he term o( IhiR Agreemenl.lille to the Equipmenl shall veil in Leaee. subject 10 Lessor's ri~lS upon an E\'ent of Default or an Evenl of Nonappropri31ion. Section 7,02. Security IDternl. Lessee grants 10 Lessor a securilY interest consliluting a fintlien on the Equipmenl and on alladdilions. allachmenlS. accessions and subslitutions thereto. and on any proceeds there(rom. Section 7.03, Ue.s aDd EDCtIDlb...aars to Title. LeSSef' shall promplly discharge any mechanic's or materialmen's liens placed on lhe Equipment by any _@Cn1. contraclor or supplier o( the Lessee. ARTICLE VIII MAINTF.NANCF~ MODIFICATION: TAXES: INSURANCE AND OTIIER CIIARGES Section 8.01. Malateaaace or EauiDmeal by LuRe. l..essee will. all.euee's own cosl and expense. maintain. preserve and keep the Equipmenl in IZOOCI repair. working order Ind condition. If requested by I..eaor. Leuee will enter inlo a maintenance contracl for tbe Equipmenl wilh Vendor. - Section 8.02. Taxe.. Otbel' GoYt,........ CU..s.... Utlllty~ In tbe event that lhe UIe. posMIIion or acquisition or the Equipmenl is found to be subject 10 tuation in any form (eleepl for inanne IUn of Lessor). government charps or util~ty chelles ant! espense.. Lessee will ray allluch lues and charges as the\' come due. . Section 8,03. Prorisio.. Rnanlla .........aee. At its own elpense Lessee shall caUIe CIIIualty, public liability and property daml!C insurance 10 be carried and mainlained (and evidenoed Iw certincales delivered 10 Lessor throupotlllhe Lease Tenn) in lhe amounll and ror Ibe c:overages set (orlh on S!Iill!i! Q. provided Ihat Ihe amount of cuualty ~nd property dama~ insurance shall nol be lesllhan Ihe then applicable Purchase Price. All insurance proceeds from casually Iona shall be payable al hereinaller provided in Ihis AlfCCmenl. . Section 8.04. ~ In the evenl ....essee shall (aU 10 main.ain lhe (ull insurance ClOW'Crase required by Ihis Alreemenl or shall fad 10 keep the Equipment in pKJd repair and openting condilion. Leuor may (but shan be under DO obli~lioa) to purchase the required polic:ia of insurance and pay lhe premiums on the .....e or may make such repain or rep!acementl u an nec:essuy and provide for paymenl thereof; Ind all amounlllO advanced there(or by Lessor shall be repaid to Leuor. totelher wilh inltrest thereon lithe rale spec:iGed hereafter. ... ' Section 8.05. J\.locUDcat'" Withoul the prior written consenl of Ihe Leaor. the Lasee shall nol make any matenal altenuonl. modlficaUOlll or auacllmenll to the Equipment. ARTICLE IX DAIIIAGF. DF.'lTRUCTION AND CONDF.MNATION: USE OF NET PROCEEDS Sec:lion 9.01. Do...... Dest....IoD aDd CoDd.__" II (a) Ihe Equipmen... any po~ion lhereolls destroye~ (In whole or in part) ~. is d.ma~ .y (ire or other cuulty or (b) litle to. or the temporary use or the Equipmenlor any part thereof _ taken under the eurase oflhe. power of ~mlRellt ~o~ln. I....eUee and Leuor will caUIe the Hel Proceeds of any insurance claim or condemnalion award to be applied either to lhe prompt rep.lr. restoratl~n: mochrlCallon or replacemenl or the Equipment m. at Lessee's oplion.lo Ibe paymenl in rull o( lhe Purchase Price. Any balance or the Net Proceeds remaining aller such work or purchase has been completed shall be paid 10 l...essee. EQOQ.lse ~- 2 . For JII-.-. af ~ VI~I. SeCliGn 8.03. and th~ ArUde IX. the ~erm ':'Cl Proceeds' snaU mean Lne amOUOl remalnmg 110m wt ~ I.h:lo ~,~"^'..~ of any insuraRCe' darm << ~"'IOII ...-d ',!~~r deducting aU expense. (lnclud.n.allorney', fees) incurred in the coUcc:lton of such claims or award. Section 9.02. J._~ 4IP.... Pn' 'J!.. If the Net Proceeds are inlutrtcicnt to pay in fu'" "-' Cdl of any repair. restoration, modification or re~lacemenl. Lessee shan either (I) complete th~6'rk and pay anycosl in escea orlhe amount of Net Prtl.. ,,.ds, or (b) Lessee shall pay 10 Lessor the Purchase PrICe. The amount or the Net Proceeds in excess of the then applicable Purchase Price. if any. may be retained by Leuee. ^RTICLE X T~ COVEN^NT Section 10.01. Tax CoYell&Dt. It is the intention or rhe Lessee and the Lessor that the interest portion of the Rental Payment! received by the Lessor be and ~emain exempt from federal income Iu.alion. Lessee covenant! thai it will take any and :111 rcasonablc action necessary 10 maintain lhe e.emption from fedcr~llnoome luation of. the inlerest portio~ of the Re~l.al Paymenu. and that it will nol intentionally perform any act or enter inlO any agreement or use or permit the use of the EqUipment or any ponlon thereof In a manner that shall have the effect of terminating Ihe exemption from federal inoome taJ.alion of the inlerest ponion of thc Rcntal Paymcnu. includin~ (wilhoutlimitation) leasing. all or any portion of the Equipment 0:- contracting to a third party for the use or operation of all or any portion of the Equipment if enlenn! into such lease or contract would have such effect. ^RTICLE XI OPTION TO rURCI,^SE Section 11.01. rurchase R.bts. I....essee shall be entitled to purchase Ihe Equipment: (a) upon paymenl in full of all Rental Paymenl1i in accordance with Exhibit E hereof and all other amounts due hereunder; or (b) upon written notice delivered at least 30 days in advance of a proposed dale for payment. and upon the payment on such date of the Purchase Price. ^RTlCLE XII ^SSIGNMENT. SUOLFASING. INDEMNlFlC^TION. MORTG^GING AND SELLING Seclion 12.01. Als.Ramen. or S.le bv Lessor. (a) This ^~eemenl. and the oblilatiolls of Lessee to make payments hereunder. may he sold. :1!1Si~ncd ('Ir otherwi5e disposed of in whote or in rart to one or more suc:cesson. granton. holden. assignees or subaui!l'ees by Lessor. Upon any sale. disposition. usignment or reauignmenl. l.estce shall be provided with a duplicate original counterplut of ~he document by which the same is made. During the term or this Agreement. Lessee shall each keep a complele and accurate re,ister of all such aS5i~nments i~ form necessary to comply with Section 149(a) of the Code. (b) Lessee agrees 10 make all payments 10 the assi,nee designated in ttlC asianmcnl. notwithstanding any claim. defense. setoff or counterdaim whatsOeVer (except arising from Lessor's breach of this ^@fCement) Ihat Lessee may from time to time have apinst Lessor or Vendor. Lessee agrees to elecute all documents. indudinlnotices of assignment and chattel mon!3Fs or (inancin,statemenll. which may be reasonably ;equelted by Lessor or assignee to prOlcel ils interesls in the Equipmenl and in this ^lZ'cemenl. (e) Lessee hereby ."eel that Les!Cor may !jell or offer 10 sell this A@1eement (i) Ihrough a certificate of participation program. whereby two or 810rc ,.lIerests are crealed in the A!t'eement. the EqUIpment or the Rental PaymeDIS: or (ii) with other similar inslltlments. a@FeemenlSandobligationsthrougha pool. trust. limited parlnership. or other enlity. Section 12.02. No Sale. AJli.alllent or Suble.sm. b, USIlft. This A!'eement and the interest o( Lessee in the Equipmenl may not be sold. assip-ned or encumbered by Lessee without Ihe prior wrillen consent or I....essor. Section 12.03. Rele.. aacllnde..ninmtioa Conuatl. To the cltent permitted by the laws and Constilution of the State. Lessee shall protect. hold harmless and indemniry Lessor from and against any and allliabilily. c..blisations.lossCl. claims and damages whatsoever. re.ardlea or cause thereof e'll:ceptlhose resulting from Lessor's intentional ('Ir nelliigent acts or ominions. and expemel in connection therewith. indudin", without limitation. counsel fees and espenses. penalties and intere!t arisinl out of or as Ihe result of the enlcrin! inlo 0( this ^!lcement. Ihe owncnhip 0( Iny item or the Equipment. the ordering. acquisition. use. operation. condition. purchale. delivery. rejection. stora!C or return of any item of the Equipment or any accident in connection with Ihe operation. use. condilion. prtMession. stora. or return o( any item of Ihe Equipmenl resnttin, in damaf.tC to property or injury to or death 10 any penon. "('be indemnification arising under Ihis parl!D'aph shall survive the lermination of this A!I'eement. ^RTICLE XIII tvENTS OF DEF^ULT ~D RF.IIIEDIF..s Section 13.01. EnD" 0' DelaulL '['he followinl constitute -Events of Default- under this Agreement: (a) (ailure by the Lessee to pay any Rcntal Payment or other payment required to be paid hereunder when due: or (b) f.ilure by the Lessee to maintain insurance on the Equipment in acmrdancc with Article VIII Section 8.03 hereof; or .. (e) failure by the Lenee to observe and perform allY other covenant. condition or a"cement an its part 10 be observed or performed for a period of 30 days after written notice is Biven to the Lessee by lhe Lessor, IpecifyinS such failure and requeslinl that it be remedied: provided. howcvcr. that if Ihe failure stated in such notice cannot he corrected .,Ihin such )(kIay period. t~e Leaor will not unreuonably withhold ill consent to an ellension of such lime if corrective aaion is in5lituted by the Lcuce within the applicable period and dilipntly punued until the default il c:orrec1ed: or (d) initiation by the I..essee of a rroceeding under any federal or ltate banluuplCY or intotvency law seetin. relief under such laws concerning its indebtedness. The forepng provisions o( Ihis Section ire subject to the provisions of Article VI. Section 6.05. hereof. Section 13.02. Re....1n OD DefaalL WhenC\ler any Event of Default shall have occurred and be oontinuing. the Lessor shall have Ihe right. al its !ole option without any furlher demand or notice. 10 t..te Iny one or any combinalion of the following remedial steps: (a) Terminate this Apeement and retate poIICllion of Ihe Equipment wherever situated. and lell or leue, lublease or make olher disposition of the Equipment ror use ewer Ii term in a commen..;ally reasonable manner. an for the account of Lasor: provided that I..essec lhall remain directly liable for the mounl aClualty appropriated for Ihe purchlle or renllil of the Equipment and unpaid by Leuce durin. the cunent rucal year. Lessor shall apply the sale proceeds in the followin. manner: FlRSlL Y. to pay an proper and rellonable COSIS and elpe'lSel associaled wilh the recovery. repair. storap and sale or the Equipment. induding reasonable attorneys' fees and espenser. SECONDLY. 10 pay the Lessor (i) the amount of all unpaid Rental Paymenll. if any. which are then due and owing. together with interest and late EQOQ.1se 5- 3 cbaFles lhereon. (ii) Ihe lhen apphcable Purchase Prioe (laking inlo aa:ounlthe payment 01 pasl due Rental PaymenlS as aroresaid), plus a pro rata allocation of interest, a. the rate utilized to establish the int~rest component for lhe Rental raymenl nel.t due, from Ihe nelt preoedinl due dale 0(. RenLlI Payment unlil Ihe date of payment by the buyer. and (iii) an~''''''' ~r amounts due hereunder; . ."..,,~, 1111 RDL Y. to poy .he remainder or.... .ale proceeda. pun:hue moneys or other amounll .....by a buyer or the Equipment. to .he Lessee. (b) proceed by appropriale courl aClion 10 enforce pcdormance by the Leuec of the applicable c:ovenanll of this A8I'eemem or \0 rec:over lor the 'reach thereof: or (c) Use or retake such portion of the Equipment as the Lessor. in its sole discretion. may decide. All of lhe Lenee's right. title and inlerest in any Equipment the possession of which is retaken by the Lenor upon Ihe occurrence or an Event oC Default or Event of Nonappropriation .halllerminate immedialely upon such repossession. Seelion l3.03. Retanl 01 EauiDlDCDL Upon an Event of Default, Lessee agrees to allow Lessor to recover the Equipmenl at Lcuee's sole COlt and expense. in accordance wilh Artide VI, Seelion 6.0'. Seelion l3.04. No Rcme4. ExcIulin. No remedy herein conferred upon or reserved to lhe lessor is intended to be ezclusive and every such remedy 5hall b~ cumulative and shall be in addilion to every other remedy given under lhis Asrcement or now or hereafter existing at law or in equily. Section 13.0.5. ute Cbane: I.leftst oa Late PaY1lleaL Any Rental Payment not paid on the due date thereof shall bear a late charge equal 10 Iwo percenl (2%) of Ihe amounl of Ihe past due Rental Payment. but in no evenlless than 5100.00. Any unpaid Rental Paymenl or olher amount payable by Lessee 10 the Lessor hereunder, shall bear inleresl al the lesser of (3) the rate payable on the principal portion of the Purchase Price. plus five full percxnta!c points per annum. or (b) the muimum rale allowtd l:ty law. Section 13.06. Fol'ft Maieuft. tr by reason of foree maieure Lessee is unable in whole or in part to carry OUI its asreemenl on its part herein contained. olher than Ihe obli!:alions on the pan of Lessee conlained in Artide VI and Artide VIII Section 8.03 hereof. Lessee shall nOI be deemed in default durin!: lhe oontinuance of such inability. The lerm -force majeure~ as used herein shall mean. withoutlimitalion.lhe following: aelS oC God. slrikes. lockouts or olher indu"'OIrioJ dislurbances: act 01 public enemies. orders or re~lrain1S of any kind of Ihe !OYernmenl of the United Stales of America or the Stale or any or their departments. agencies or officials. or any civil or military aUlhority: insurreaions; riots; landslides: earthquakes:: fires: storms; droughts; Ooods; or elplosions. ^RTICLE XIV MISCEUJ\NEOUS Seclion 14.01. ~ All nolia:s. certificales or other communications hereunder shall be sufficiently aiven and shall be deemed given when delivered or mailed by resistcred mail. poslage prepaid. lo lhe parlies at Ihe addresses set forlh on the firsl pa~ hereof. Section 14.02. DIDdIl. Effect. This ^~ement shall inure 10 the benefit of and shall be binding upon l.euor and Lessee and their respeclive successon Dnd aMigns. Seclion 14.03. Sc"c.....lllly. In Ihe event any provision of Ihis A@1eementshallbe held invalid or unenforceable by any court of compel~nl jurisdiction. such holdin@shall nol invalidate or render unenforceable any olher provision hereof. Secaion 14.04. A8MaclIHDtS. All amendments herelo must be in writing. Secdon 14.0'. Execution In Coualel'Dart.. This A!feement may be ezecuted in several councerparts. Seclion 14.06. ADDlIcable Law. 'This A~eement shall be governed by and conslrued in acx:onlaace wilh the la... of the State. ^RTICLE XV DEFF..\S^"CE Section I~.OI. Dele.saace. The Lesc\ee's obli,alion 10 pay the Purchase Price will be deemed to be paid and Ihe Leuee's obliplions under this r\p-eemenl will re dischar@Cd and satilified upt"n lhe deposit by the Lessee with the Lessor of (a) moneys surrlcienl to pay lhe Purchase Price or (b) oblittation5 which are din:cdv in!liured or auurllnleed bv Ihe United Slales ar. with lhe prior wrillen CORIent of Ihe Lessor. Iny olher obliptions in which any !linking fund for honds i!llsued "y the l..c!l!le~ may legally l'1e in\'ested. the principal of and inlerest on which when due will provide suffICient moneys for such payment. IN WITNESS WIIEREOf. Lessnr h:'l5 eJlecuted Ihis ^!Jccment in its corporate name. anelted byils dulyaulhorjzed officen. and Leuee hall cau!lled Ihis I\!teenlenl In be eJlecuted in ils corpora Ie name. allested by ils dulyaulhorized o{ficen. All of Ihe above occurred as of Ihe dale finl wrinen on Ihe headill~ hereof. LESSOR: 2- ,\lIest: oy: oy: litle: lille: ,\lIest: LESSEE: ~- By: oy: "n,le: lille: ~- . EOUO.lse _ EXHIBIT A U 0 RESOLUTION OF GOVERNING BODY EXTRACT OF MINUTES Lessee: Dale of Agreement: ,- 8- AI a duly called meelinl of the toverninl body or Lessee (as defined in the A@Jeement) held on the _ day of was introduced and adopted. . 1994 the following resolution RESOLVED. whereas the governins body of Lessee h;u determined that a true and very real need eusts {or the acquisition of the Equipment described in the Municipal1.eue and Option AlP'eement presenled to Ihis meeting: and WHEREAS. the governins body or Lessee has taken the necessary steps. induding any legal bidding requirements. under applicable law to arrange for the acquisition of such Equipment. BE IT RESOLVED. by the perninl body of Lessee tha.t the terms of said Municipal Lease and Option Apeement are in the best intereslS of Lessee for the acquisition oCsuch F..quipment.and the governin@:bodyofLessee designates and aJnDrms the followins persons to execute and deliver. and to witness (or allesO. respectively. the Municipal Lease and Oplion ^~eemenl and any related doalmenll necessary 10 the consummation of the transadions contemplated by the Municipal Lea.oce and Oplion ^!EI'eemenl. FURTIfERMORE BE IT RESOt VED. Ihat Ihe governing body of Lenee hereby represents that the reasonably anticipated amount of qualified tu-exempt obli!-ations which have been and will be issued by the Les!l:ee does nOI exceed $10.000.000 for the calendar year wilhin which Ihis Municipal Lease and Option A~eemenl is to be "qualified tax-exempt obli~atiCln~ pursuant 10 Section 26~(b)(3) of the Internal Revenue Code. (lille) (Name of Party to &ecule Municipal Lease &t Oplion ^"eemenl) (lilJel (Name of Party 10 EleCllte Municipal Lease &. Option A!I'eement) The undersianed furl her cerlilies thatlhe above resolution has nol been rerealed or amended and remains in full force and eKect and furlher certifies Ihat the above and r~re!Oin~ Municipal Lease and Option Agreement is the !tame a, presented al nid meedn! of lhe sovernins body of Lessee. SecretarylClerk Seal: Dale EQDQ.be ,- I' I o EXHIBIT B o OPINION OF LESSEE'S COUNSEL (Please rurnish in this rorm on Anomey's Leuerhead) Lessee: Dale of Ap-eement: s- 8- Gentlemen: As counsel for ~ - ('"Lessee.), I have examined duly executed originals of the Municipal Lease and Option ^sreement67 - (the. Agreemenn dated 8 - . between Lessee and 2 - ('"Lessor.), and based upon the examination and upon such other examination as I have deemed necessary or appropriale. I am of the opinion that 1. Lessee is a public body corporate and polilic.leplly existing under the laws of the State of 9 -. 2. The ^!1eement has heen duly authorized. execuled and delivered by Lessee. punuanllo conslilulional.slllutory andlor home rule provi~iofl which luthori2:es this lransadiaD and Ihe Resolulion. anlched as Exhibit ^ to the A!1eement. 3. The Agreemenl is I lepl. valid and hinding obligation of Lessee. enrorceable in accordance with ils terms. In the event tho. Lessor ottt:lins :I judgemenl apinsl Lessee in money or damages. 35 :I result of an evenl of default under Ihe ^p-eement. Lessee will be obligaled to pay such judgenlenl. 4. ^pplimble public bidding req.uirements have heen complied wilh. S. To the besl of my knowledge, no Iili!tltion is rendin, or threatened in any oourl or alher Iribunal, Ilale or federal, in any way questioning or affecting the validity of the r,:solution or the ^tz:eement. 6. The signatures of the officers of Lessee which appear on the ^p-eemenl are lrue and genuine: I know said officen and know them to hold the offices set forlh below Ih~ir names. EQBQ.lse ~- II J o EXHIBIT C o CERTIFICATE OF LESSEE mE UNDERSIGNED. duly authorized representative or the named Lessee under that certain Muniapal1.ease and Option Agreement dated 8- with 2 - as Lessor (the "Agreement") hereby certifies as rollowsand in aa:ordance with the requiremenb or the Agreement. Capitalized terms used herein have the same mean ins u in the Agreement: A. INCUMBENCY OF OFFICERS AND SIGNAlURES: I hold the position noted under my si@nature.and I hive an authority necessary to execute and deliver this Certificate. The rollowinaoHicers or the Lessee are duly elected or appointed, and Ihe signalures opposite Iheir names are true and correct. and where required. have been filed '"with the appropriate officials or the Slate: Name Name litle: lille: 8. ESSENTIAL USE: l. l'be Eql'ipment will be used by the rollowin!- Ftvernmental agenCol' department ror the specific purpose or: 2. The Equipmenl is essential ror the runctionin. or the Leaee and is immediately needed by the I..essee. Such need is neither ~mrorary nor expected to diminish during (he Lease Tenn. The Equipment is espected to be used by the Lessee ror a period in emess or the lrase Tenn. 3. Funds are e~pected to come rrom the Fund or the Lessee. C. SECTION 265ibl/31 MATrnRS: 1. Lessee (a) mainlains a register or list or Exempt Government Obliptions. (b) files when required Form 80;1~G or Form 8038GC. and (c) thereCore can certify that the tolal Exempt Government Obliplions iuued to date in the current calendar year. indudin.the ^~ecment. is less lhan 510.000.000. TIlis Certificate is b.."ed upon r:lets. circumstanccs. calimata and elpeetations or the Lessee u or the date on which Ihe ^!"cemenl \\'35 eaeculed. and to the besl or my knowled!le and betief. as or Ihis dale, such r~ClJ. arcums.anees and estimates are true and correct and such expeclations are reasonable. IN WITNESS WIIEREOF. I have executed and delivered this certificate as of the _day or .1994. WI11'IESS: Name: Name: litle: TItle: EQBQ.lse ,- IIJ o EXHIBIT D 0 DESCRIPTION OF THE EQUIPMENT .QUIPMENT: 10- EQUIPMENT lOCAI10N: By: TIlle: Date: EODO.l.. ~- c EXHIBIT F o ACCEPTANCE CERTIFICATE To Lessor: 2 - 3- 4- In aaxmlance with the terms of the Municipal Lease and Option Agreement dated 8 - (the "Lease-) between 2 - fl..euor-). and the undenigned fLessee"). Lenee hereby, cerlines and represents to. and alVees with. Lessor as Collows: 1. The Equipment. u such lerm is defined in the Lease. has been delivered and installed at the Equipment Location specified in Exnibit 0 ~ Description of the Equipment to the Lease and ac::cepled on the date indicated below. 2. Leaee hu mnductcd IUch inspection andlor tcsting of the Equipment II it deenu necessary and appropriate and hereby acknowledges thai it accepts the Equipment [or all purposes. 3. No Even. of Derauh. as such term is defined in the Lease. and no event which with nolice or lapse of time. or both. would become an Event of Default. has occurred and is conlinuintt al Ihe date hereof. Lessee: , - By: ille: Dale: \ EQBQ.1se ,- o EXHIBIT G o , INSURANCE COVERAGE REQUIREMENTS TO: 2- r 4- FROM: ,- 6- ,- SUBJECT: INSURANCE COVERAGE REQUIREMENTS 1. In accordance with Artide VllJ. Section .!t03 or the ^!fcement. we have instructed the inlunnce agent named below (please fill in name, address and telephone number) to issue: a. All Risk Physical Dama!c Insurance on the leased equipment evidenced by. CertirJCate or Insurance and Lon@. Form Loss ra~'able Clause naming 2 - as loss payee. Covera~ Required: Full Replacement Value b. Public Liabilily Insurance evidence by a Certirtcate or Insurance naming 2 - and/or ill assigns u an Additional Insured. Minimum Covera@e Required: S'OO.ooo.OO per person SjOO.OOO.OO lIaresate bodily injury liability SIOO.OOO.OO prop.r1y dama!" liability OR 2. Pursuant to Artide VIlI. Section 8.03 or lhe Apeement. we In: sel(.insured ror all rilk. ph,.ic:al damap. and public liability and will provide proof or such selr-insurance in leller rorm loplher wilh a copy or Ihe slalure aUlhorizins Ihis (orm or insurance. 3. rroor or insurance coverage will be provided prior 10 lhe time thai the equipment is delivered to us. By: Dated: ~- EQBQ.I..