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HomeMy WebLinkAboutCity of Tamarac Resolution R-2011-123Temp. Reso. #12100 Page 1 September 20, 2011 Rev. 1 — October 17, 2011 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2011 f� A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO AWARD AND EXECUTE A TAX EXEMPT MASTER LEASING AGREEMENT WITH THE BANC OF AMERICA PUBLIC CAPITAL CORPORATION FOR THE PROVISION OF MASTER LEASING SERVICES PROVIDING FOR A TERM OF ONE (1) YEAR WITH FIVE (5) ADDITIONAL ONE (1) YEAR EXTENSIONS SUBJECT TO ANNUAL CREDIT APPROVAL AND ANNUAL PRICING REVIEW; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City operates a multitude of municipal services, including Fire/Rescue/EMS, a City Water Utility, several city parks, as well as support of municipal infrastructure, and as a part of the operation of the City's municipal activities, the City may, on occasion, determine that it may be advantageous to lease certain equipment acquisitions in an attempt to best leverage its overall financial strategy; and WHEREAS, the development of a master tax exempt leasing agreement will support this initiative by providing that leasing services are available for a variety of assets; and WHEREAS, on July 31, 2011, and August 7, 2011, Request for Proposal No. 11- 29R was advertised in the Sun Sentinel and on the City's web -site, included herein as Exhibit 1 herein; and Temp. Reso. #12100 Page 2 September 20, 2011 Rev. 1 — October 17, 2011 WHEREAS, submittals were received from the following four (4) firms on August 26, 2011: Banc of America Public Capital Corporation PNC Equipment Finance • SunTrust Equipment Finance and Leasing Corporation • TD Equipment Finance, Inc. WHEREAS, The Director of Financial Services, in consultation with the Controller, evaluated all proposals, and determined that the proposal provided by Banc of America Public Capital Corporation provided the most responsive proposal with the lowest overall responsive rate structure, a copy of said proposal is attached hereto as Exhibit 2; and WHEREAS, the Director of Financial Services and the Purchasing and Contracts Manager recommend the appropriate City officials be authorized to enter into an agreement with Banc of America Public Capital Corporation to provide tax exempt master leasing services based on the rates in effect at the time of lease transaction. WHEREAS, the City Commission of the City of Tamarac, Florida, deems it to be in the best interest of the citizens and residents of the City of Tamarac to provide for the acceptance and execution of the Agreement for the provision of tax exempt master leasing services with Banc of America Public Capital Corporation for a term of one (1) I Temp. Reso. #12100 Page 3 September 20, 2011 Rev. 1 —October 17, 2011 year with five (5) additional one year extensions subject to annual credit approval and pricing review, a copy of said Agreement is included herein as Exhibit 3. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA: SECTION 1: The foregoing "WHEREAS" clauses are HEREBY ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution upon adoption hereof and all exhibits referenced and attached hereto are incorporated herein and made a specific part of this resolution. SECTION 2: That the appropriate City Officials are hereby authorized to accept and award Request for Proposal No. 11-29R, and execute an Agreement with Banc of America Public Capital Corporation for the provision of tax exempt master leasing services for a term of one (1) year and to furthermore exercise up to five (5) additional one year extensions upon completion of an annual credit approval by Banc of America Public Capital Corporation and a pricing review by City staff, (Exhibit 3). SECTION 3: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. SECTION 4: If any clause, section or other part or application of this Resolution is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or Temp. Reso. #12100 Page 4 September 20, 2011 Rev. 1 — October 17, 2011 application, it shall not affect the validity of the remaining portions or applications of this Resolution. SECTION 5: This Resolution shall become effective immediately upon its passage and adoption. PASSED, ADOPTED AND APPROVED this Q�day of , 2011. ATTEST: 7 PETER M. J. RICHARDSON, CRM, CMC CITY CLERK. �TAtijq''�.. W i ESTABLISHED': Q p : 1963 ` =� SEAL : p <( I HEREBY C�R I`WYHAT I HAVE APPROVED THIS RESOLUTION AS TO FORM. SAMUIEL S. GOREN CITY ATTORNEY ox'w t L -, �C') �. r � ( PAMELA BUSHNEL RECORD OF COMMISSION VOTE: MAYOR BUSHNELL DIST 1: COMM. SWENS N DIST 2: V/M GOMEZ DIST 3: COMM. GLASSE DIST 4: COMM. DRESSLER J n :FOLEY ATTORNEYS AT LAW FOLEY & LARDNER LLP VIA FEDERAL, EXPRESS Keith K. Glatz Purchasing & Contracts Manager City of Tamarac 7525 NW 88th Ave. Tamarac, FL 33321 October 18, 2011 )"41 Z� II k �V wL:, LP Re: Banc of America Public Capital Corp Equipment Lease Dear Keith: ONE INDEPENDENT DRIVE, SUITE 1300 JACKSONVILLE, FL 32202-5017 P. O. BOX 240 JACKSONVILLE, FL 32201-0240 904.359.2000 TEL 904-359.8700 FAX foley.com CLIENT/MATTER NUMBER 026295.0195 Enclosed please find 3 executed originals of the Master Equipment Lease Purchase Agreement. Please have the City execute all 3 where indicated and return one to my attention. None of the exhibits need to be executed. If you have any questions, please do not hesitate to call or e-mail me. EFG/ggt Enclosures BOSTON JACKSONVILLE BRUSSELS LOS ANGELES CHICAGO MADISON DETROIT MIAMI Best regards, (�5 Em' y F. gee MILWAUKEE SAN DIEGO NEW YORK SAN DIEGO/DEL MAR ORLANDO SAN FRANCISCO SACRAMENTO SHANGHAI SILICON VALLEY TALLAHASSEE TAMPA TOKYO WASHINGTON, D.C. 4850-9894-5804.1 TR12100 Exhibit 1 PURCHASING AND CONTRACTS DIVISION Date: July 29, 2011 REQUEST FOR PROPOSALS RFP 11-29R ALL QUALIFIED PROPOSERS: RFP NO. 11-29R Sealed Proposals, addressed to the Purchasing and Contracts Manager of the City of Tamarac, Broward County, Florida, will be received in the Purchasing Office, 7525 NW 88th Avenue, Tamarac, Florida 33321-2401 until 3:00 p.m. local time, pm August 26, 2011 for: MASTER LEASING SERVICES The City is soliciting proposals to obtain the services of a qualified firm to provide Tax Exempt Master Equipment Leasing Services for the City of Tamarac. Sealed Proposals must be received and time stamped in the Purchasing Office, either by mail or hand delivery, on or before the date and time referenced above. Any Proposals received after August 18, 2011 at 3:00 p.m. on said date will not be accepted under any circumstances. Any uncertainty regarding the time a Proposal is received will be resolved against the Proposer. Official time will be measured by the time stamp in the Purchasing Office. City reserves the right to reject any or all Proposals, to waive any informalities or irregularities in any Proposals received, to re -advertise for Proposals, to award in whole or in part to one or more Proposers, or take any other such actions that may be deemed to be in the best interests of the City. Proposal documents may be obtained from the Purchasing Office or via the Internet at http,//www.tamarac.org. For inquiries, contact the Purchasing Office at (954) 597-3570. Sincerely, r Keith K. Glatz, CPPO Purchasing and Contracts Manager Publish Sun -Sentinel: July 31, 2011 and August 7. 2011 Hof SWA%W*. 7525 N.1N O thAvww I Tanww, Florida 3332124011 P'954.597.3570 I F: 954.597.3565 eQU&0PP0RTMffY8WLMM City of ianiarac REQUEST FOR PROPOSALS RFP 11-29R MASTER LEASING SERVICES INTRODUCTION Purchasing and Contracts Division The City is soliciting proposals to obtain the services of two or more qualified firms to provide ongoing Tax Exempt Master Equipment Leasing Services for the City. II. INFORMATION For information pertaining to this Request for Proposals (RFP), contact Keith Glatz, Purchasing & Contracts Manager, at (954) 597-3570 The Project Manager will be the Director of Financial Services, Mr. Mark C. Mason, CPA (954) 597-3550. Such contact shall be for technical clarification purposes only, and shall be routed through the Purchasing & Contracts Manager. Material changes, if any, to the scope of the proposal or proposal procedures will be transmitted only by written addendum. It is preferred that all questions be submitted in writing, either via fax or email. Fax questions to (954) 597- 3565 or email to keith tamarac.or . I I I:611 N 110 r4:F1 Our Vision and Mission Our Vision: The City of Tamarac, our community of choice -- leading the nation in quality of life through safe neighborhoods, a vibrant economy, exceptional customer service and recognized excellence. Our Mission: We Are "Committed to Excellence.. . Always" It is ourjob to foster and create an environment that Responds to the Customer Creates and Innovates Works as a Team Achieves Results, and Makes a Difference In the fulfillment of our vision and mission, as stewards of the public trust we value vision, integrity, efficiency and quality service. Our vendors are truly partners in meeting these commitments to the community, and in support of that vision and mission, we are committed to ensuring that qualified, competitive vendors who share our commitment to quality, efficiency, teamwork and customer service are employed to provide goods and services to the City. Our vendors are expected to deliver high quality products and efficient service that is provided on time and as ordered; in a manner that improves the overall value of the services that the City provides to its residents. In addition, we expect our vendors to work with the City as a team, and exhibit the highest level of integrity when dealing with any office or department of the City. Diligence in the execution of the requirements of this proposal will ultimately contribute to the overall quality of services provided to the entire community. The City is searching for a firm who will exemplify these ideals in the execution of their work, and the successful firm will be measured against the performance standards outlined in this bid invitation. GENERAL TERMS AND CONDITIONS These General Terms and Conditions apply to all offers made to the City of Tamarac by all prospective Proposers, including but not limited to, Requests for Quotes, Requests for Proposal and Requests for Bid. As such the words "bid", "proposal" and 'offer' are used interchangeably in reference to all offers submitted by prospective Proposers. The City of Tamarac reserves the right to reject any or all proposals, to waive any informalities or irregularities in any proposals received, to re -advertise for proposals, to enter into contract negotiations with the selected Proposer or take any other actions that may be deemed to be in the best interest of the City of Tamarac. Any and all special conditions in this RFP or any sample agreement document that may be in variance or conflict with these General Terms and Conditions City of Tamarac `# 3. 9 shall have precedence over these General Terms and Conditions. If no changes or deletions to General Conditions are made in the Special Conditions, then the General Terms and Conditions shall prevail in their entirety. ■]4JRl4■)r14:Vi1.1 Terms used in these Instructions to Proposers are defined as follows: 2.1 "Offeror" - one who submits a Proposal in response to a solicitation, as distinct from a Sub -Offeror, who submits a Proposal to the Offeror. 2.2 "Proposer' — one who submits a Proposal in response to a solicitation. The terms "Offeror' and "Proposer' are used interchangeably and have the same meaning. 2.3 "Successful Proposer or Lessor" - the qualified, responsible and responsive Proposer to whom City (on the basis of City's evaluation as hereinafter provided) makes an award. 2.4 "City" - the City of Tamarac, a municipal corporation of the State of Florida. 2.5 "Proposal Documents" - the Request for Proposals, Instructions to Proposers, Proposers Qualifications Statement, Non -Collusive Affidavit, Certified Resolution, Vendor Drug -Free Workplace, Proposer's Proposal, Proposal Security and Specifications, if any, and the proposed Contract Documents (including all Addenda issued prior to opening of Proposals). RT;J4di/_15919]►10]11111C0]►E.-I Where there appears to be variances or conflicts between the General Terms and Conditions and the Special Conditions and/or Scope of Work outlined in this proposal, the Special Conditions and/or the Scope of Work shall prevail. OMISSION OF DETAILS / VARIANCES AND EXCEPTIONS 3 Purchasing and Contracts Division 4.1 The apparent silence of the requirements as to any detail, or the apparent omission of a detailed description concerning any point, shall be regarded as meaning that only the best commercial practice is to prevail. All interpretations of the specifications shall be made on the basis of this statement. Omission of any essential details from these specifications will not relieve the Proposer of supplying such services or product(s) as specified. 4.2 For the purpose of evaluation, the Proposer must indicate any variance or exceptions to the stated requirements, no matter how slight. Deviations should be explained in detail. Absence of variations and/or corrections will be interpreted to mean that the Proposer meets all the requirements in every respect. S. INTERPRETATIONS AND ADDENDA If the Proposer believes that the General Conditions, Special Conditions and/or Specifications contain errors, contradictions or obvious omissions, the Proposer should submit a written request to the Purchasing Office for interpretation or darification. Such request must reference RFP name and number, and should be received by the Purchasing Office at least ten (10) calendar days prior to the Proposal opening date, or prior to any deadline specified in the "Schedule of Events" as may be provided herein. Questions received less than ten (10) calendar days prior to the Proposal opening, or the deadline specified by the "Schedule of Events" herein, whichever is sooner, may not be answered. Interpretations or clarifications in response to such questions will be issued in the form of a written addendum transmitted via either fax or email to all parties recorded by the Purchasing Office as having received the Proposal Documents. The issuance of a written addendum shall be the only official method whereby such an interpretation or clarification will be made. Proposer may contact the Purchasing and Contracts Manager by telephone regarding any questions related to clarification of information contained within this RFP. The Purchasing and Contracts Manager may then authorize the Proposer to contact the designated project contact, as may be appropriate to the individual situation. City of Tamarac Purchasing and Contracts Division 6. COSTS AND COMPENSATION 8. NON -COLLUSIVE AFFIDAVIT 6.1. Costs and compensation shall be Each Proposer shall complete the Non -Collusive shown in both unit prices and Affidavit form and shall submit the form with their extensions whenever applicable, and Proposal. City considers the failure of the expressed in U.S. Dollars. In the event Proposerto submitthis document may be cause of discrepancies existing between unit for rejection of the Proposal. prices and extensions or totals, the unit 9 PUBLIC ENTITY CRIMES prices shall govem. In accordance with Florida Statutes 6287.133 6.2. All costs and compensation shall ( )La): A person or affiliate who has been remain firm and fixed for acceptance placed on the convicted vendor list following a for 60 calendar days after the day of conviction for public entity crime may not the Proposal opening. submit a bid on a contract to provide any goods or services to a public entity, may not 6-3. The price proposal shall include all submit a bid on a contract with a public entity franchise fees, royalties, license fees, for the construction or repair of a public etc., as well as all costs for building or public work, may not submit bids on transportation or delivery as applicable leases of real property to public entity, may not within the scope of the solicitation, be awarded or perform work as a contractor, supplier, subcontractor, or Contractor under a 7. PRICES, PAYMENTS, DISCOUNTS & contract with any public entity, and may not ELECTRONIC PAYMENTS transact business with any public entity in excess of the threshold amount provided in Florida Statutes §287-017 for Category Two, 7.1 Firm Pricing: Prices shall be fixed for a period of 36 months from the date of and firm to the extent required under being placed on the convicted vendor list. Special Conditions. In the absence of a 10. CONFLICT OF INTEREST reference in the Special Conditions, prices shall be fixed and firm for a period of sixty The award of any contract hereunder is subject (60) calendar days. Payment will be made to the provisions of Chapter 112, Florida only after receipt and acceptance of Statutes. Proposers must disclose with their services. Proposal the name of any officer, director, partner, proprietor, associate or agent who is 7.2 Payment: All payments shall be also an officer or employee of City or any of its governed by the Local Government agencies. Further, all Proposers must disclose Prompt Payment Act, F.S. Chapter the name of any officer or employee of City who 218. owns, directly or indirectly, an interest of five 7.3 Payments by Electronic Funds percent (5%) or more in the Proposer's firm or Transfer: The successful contractor any of its branches or affiliate companies. will be required to accept payments 11. SUBMITTAL REQUIREMENTS by direct deposit via electronic funds transfer. Vendors are strongly Specific submittal requirements are included encouraged to pre -register to receive as a part of the Special Conditions herein. payments by direct deposit. Failure to include a technical proposal, interest Registration may be accomplished by rate proposal, or required certification forms or accessing the City of Tamarac web- any other document that, by its omission, may site at http://www.tamarac.org/city- prejudice the rights of other respondents, may departments/financial- result in immediate rejection of your proposal services/pu rchasi nq/regi ster-for- direct-deposit-payment aspx for 12. SUBMISSION OF PROPOSALS more information. 12.1 Proposals must be typed or printed in 7.4 Payments by Procurement Card ink. All corrections to prices made by The City desires the ability to make the Proposer should be initialed - payments by a City procurement 122 All proposals shall be submitted in the card. It is desirable that the successful firm be capable of English language, and pricing accepting payments by procurement expressed in U.S. Dollars. card. City of Tamarac Purchasing and Contracts Division 12.3 Proposals must contain a manual 12.9 The Proposer preparing a submittal signature of a corporate officer or in response to this RFP shall bear all designee with the proven authority to expenses associated with its bind the firm in matters of this nature. preparation. The Proposer shall The address and telephone number for prepare a submittal with the any communications regarding the understanding that no claim for Proposal must be included. reimbursement shall be submitted to the City for the expense of proposal 12.4 Proposals shall contain an preparation and/or presentation. acknowledgment of receipt of all addenda. 13. MODIFICATION AND WITHDRAWAL OF PROPOSALS 12.5 Proposals b y partnerships must be executed in the partnership name and 13.1 Proposals may be modified or signed by a partner, whose title must withdrawn by a duly executed appear under the signature. document signed by a corporate officer or other employee with designated 12.6 Proposals shall be submitted to the signature authority. Evidence of such Purchasing Office on or before the time authority must accompany the request indicated in the Request for Proposals. for withdrawal or modification. The Proposals shall be submitted in a request must be delivered to the sealed envelope (faxed proposals will Purchasing Office at any time prior to not be accepted under any the deadline for submitting Proposals. circumstances). The envelope should Withdrawal of a Proposal will not be dearly marked on the exterior with prejudice the rights of an Proposer to the applicable solicitation name and submit a new Proposal prior to the number. The envelope should state the Proposal opening date and time. No name and address of the Proposer and Proposal may be withdrawn or should be include all documents as modified after the date of proposal specified in the Request for Proposals. opening has passed. Purchasing and Contracts Division staff is not responsible for the 13.2 If, within twenty-four (24) hours after premature opening of a Proposal that Proposals are opened, any Proposer is not properly addressed and files a duly signed, written notice with identified. the Purchasing Office, and within five (5) calendar days thereafter 12.7 In accordance with Florida Statutes, demonstrates to the reasonable Chapter §119.07(1)(a) and except as satisfaction of the City, by clear and may be provided by other applicable convincing evidence, that there was a state and federal law, the Request for material and substantial mistake in the Proposals and the responses thereto preparation of its Proposal, or that the are in the public domain. However, mistake is dearly evident on the face of Proposers are requested to specifically the Proposal, but the intended correct identify in the submitted Proposal any Proposal is not similarly evident, financial information considered Proposer may withdraw its Proposal confidential and/or proprietary which and any bid security will be returned. may be considered exempt under Thereafter, the Proposer will be Florida Statute §119.07(t). disqualified from further bidding on the 12.8 All Proposals received from Proposers subject Contract in response to the Request for 14. REJECTION OF PROPOSALS Proposals will become the property of the City and will not be returned. In the 14.1 To the extent permitted by applicable event of Contract award, all state and federal laws and regulations, documentation produced as part of the the City reserves the right to reject any Contract shall become the exclusive and all Proposals, to waive any and all property of the City. informalities not involving price, time or 5 City of Tamarac Purchasiog and Contracts Division changes in the work with the Proposer shall be responsible to the Successful Proposer, and to disregard City for the acts and omissions of all all nonconforming, non -responsive, employees working under its unbalanced or conditional Proposals. direction. Proposals will be considered irregular 16. INDEMNIFICATION and may be rejected if they show serious omissions, alterations in form, 16.1 GENERAL INDEMNIFICATION: additions not called for, conditions or Contractor shall, in addition to any unauthorized alterations, or other obligation to indemnify the City irregularities of any kind. and to the fullest extent permitted by law, protect, defend, indemnify and 14.1 City reserves the right to reject the hold harmless the City, their agents, Proposal of any Proposer if City elected officials and employees from believes that it would not be in its best and against all claims, actions, interest of to make an award to that liabilities, losses (including economic Proposer, whether because the losses), costs arising out of any actual or alleged: a). Bodily injury, Proposal is not responsive, the p p sickness, disease or death, or injury Proposer is unqualified, of doubtful to or destruction of tangible property financial ability, or fails to meet any including the loss of use resulting other pertinent criteria established by therefrom, or any other damage or City within the scope of the solicitation. loss arising out of or resulting, or claimed to have resulted in whole or 15. QUALIFICATIONS OF PROPOSERS in part from any actual or alleged act or omission of the Contractor, any 15.1 Each Proposer shall complete the sub -Contractor, anyone directly or Proposer's Qualifications Statement indirectly employed by any of them, and submit the form with the Proposal. or anyone for whose acts any of them Failure to submit the Proposer's may be liable in the performance of Qualifications Statement and the the Work; or b). violation of law, documents required thereunder may statute, ordinance, governmental administration order, rule, regulation, constitute grounds for rejection of the or infringement of patent rights by Proposal. Contractor in the performance of the Work; or c). liens, claims or actions 15.2 As a part of the evaluation process, made by the Contractor or any sub - the City may conduct a background Contractor under workers investigation including a criminal compensation acts; disability benefit record check of Proposer's officers acts, other employee benefit acts or and/or employees, by the Broward any statutory bar. Any cost of County Sheriffs Office. Proposer's expenses, including attorney's fees, submission of a proposal constitutes incurred by the City to enforce this agreement shall be borne by the acknowledgement of and consent to Contractor. such investigation. City shall be the sole judge in determining Proposer's 16.2 Upon completion of all Services, qualifications. obligations and duties provided for in this Agreement, or in the event of 15.3 No proposal shall be accepted from, termination of this Agreement for any nor will any contract be awarded to, reason, the terms and conditions of any person who is in arrears to City for this Article shall survive indefinitely. any debt or contract, who is a defaulter, as surety or otherwise, of any 16.3 The Contractor shall pay all claims, obligation to City, or who is deemed losses, liens, settlements orjudgments irresponsible or unreliable by City. City of any nature whatsoever in connection will be the sole judge of said with the foregoing indemnifications determination. including, but not limited to, reasonable attorney's fees (including appellate 15.4 Employees of the Proposer shall at attorneys fees) and costs. all times be under its sole direction. 0 City of Tamarac 16.4 City reserves the right to select its own legal counsel to conduct any defense in any such proceeding and all costs and fees associated therewith shall be the responsibility of Contractor under the indemnification agreement. Nothing contained herein is intended nor shall it be construed to waive City's rights and immunities under the common law or Florida Statute 768.28 as amended from time to time. 17. INDEPENDENT CONTRACTOR An Agreement resulting from this solicitation does not create an employee/employer relationship between the Parties. It is the intent of the Parties that the Contractor is an independent contractor under this Agreement and not the City's employee for any purposes, including but not limited to, the application of the Fair Labor Standards Act minimum wage and overtime payments, Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the State Worker's Compensation Act, and the State Unemployment Insurance law. The Contractor shall retain sole and absolute discretion in the judgment of the manner and means of carrying out Contractor's activities and responsibilities hereunder provided, further that administrative procedures applicable to services rendered under any potential Agreement shall be those of Contractor, which policies of Contractor shall not conflict with City, State, or United States policies, rules or regulations relating to the use of Contractor's funds provided for herein. The Contractor agrees that it is a separate and independent enterprise from the City, that it had full opportunity to find other business, that it has made its own investment in its business, and that it will utilize a high level of skill necessary to perform the work. Any potential Agreement shall not be construed as creating any joint employment relationship between the Contractor and the City and the City will not be liable for any obligation incurred by Contractor, including but not limited to unpaid minimum wages and/or overtime premiums. iE: R71-114J-1►111*! 18.1 Successful Proposer warrants to City VA Purchasing and Contracts Division that the consummation of the work provided for in the Contract documents will not result in the breach of any term or provision of, or constitute a default under any indenture, mortgage, contract, or agreement to which Successful Proposer is a party. 182 Successful Proposer warrants to City that it is not insolvent, it is not in bankruptcy proceedings or receivership, nor is it engaged in or threatened with any litigation, arbitration or other legal or administrative proceedings or investigations of any kind which would have an adverse effect on its ability to perform its obligations under the Contract. 18.3 Successful Proposer warrants to City that it will comply with all applicable federal, state and local laws, regulations and orders in carrying out its obligations under the Contract. 18.4 All warranties made by Successful Proposer together with service warranties and guarantees shall run to the City and the successors and assigns of the City. 19. NON-DISCRIMINATION AND EQUAL OPPORTUNITY EMPLOYMENT During the performance of the Contract, the Contractor shall not discriminate against any employee or applicant for employment because of race, color, sex, religion, age, national origin, marital status, political affiliation, familial status, sexual orientation, or disability if qualified. The Contractor will take affirmative action to ensure that employees are treated during employment, without regard to their race, color, sex, religion, age, national origin, marital status, political affiliation, familial status, sexual orientation, or disability if qualified. Such actions must include, but not be limited to, the following: employment, promotion; demotion or transfer; recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor shall agree to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. The Contractor further agrees that he/she will ensure that Subcontractors, if any, will be made aware of City of Tamarac and will comply with this nondiscrimination clause. 20. TAXES Successful Proposer shall pay all applicable sales, consumer use and other similar taxes required by law. 21. PERFORMANCE Failure on the part of the Proposer to comply with the conditions, terms, specifications and requirements of the proposal shall be just cause for cancellation of the proposal award. The City may, by written notice to the Proposal, terminate the contract for failure to perform. The date of termination shall be stated in the notice. The City shall be the sole judge of nonperformance. This Agreement may be terminated by the City for convenience, upon ninety (90) days of written notice by the City to the Successful Proposer for such termination in which event the Successful Proposer shall be paid its compensation for services performed to termination date, including services reasonably related to termination. In the event that the Successful Proposer abandons this Agreement or causes it to be terminated, the Successful Proposer shall indemnify the city against loss pertaining to this termination. 23. ASSIGNMENT 23.1 Successful Proposer shall not assign, transfer or subject the Contract or its rights, title, interests or obligations therein without Citys prior written approval in accordance with the requirements of the Scope of Work for this project. 23.2 Violation of the terms of this paragraph shall constitute a breach of the Contract by Successful Proposer and City may, at its discretion, cancel the Contract. All rights, title, interest and obligations of Purchasing and Contracts Division Successful Proposer shall thereupon cease and terminate. Employees of the Proposer shall at all times be under its sole direction and not under the direction of an employee or agent of the City. The City may require the Proposer to remove an employee who it deems to be careless, incompetent, insubordinate or otherwise objectionable. Proposer shall be responsible to the City for the acts and omissions of all employees working under its directions. 25. TAXES The City of Tamarac is exempt from all Federal, State, and Local taxes. An exemption certificate will be provided where applicable upon request. 26. GOVERNING LAW: The laws of the State of Florida shall govern this Agreement. Venue shall be Broward County, Florida. 27. INFORMATION REQUESTS AFTER DUE DATE Following a recommendation for award, Proposers may download the evaluation results directly from the Internet at htti):/A ww.tomarac.org. Pursuant to Florida Statute Chapter 119, Section 7(m), sealed bids or proposals received by an agency pursuant to invitations to bid or requests for proposals are exempt from the provisions of subsection (1) and s. 24(a), Art. I of the State Constitution until such time as the agency provides notice of a decision or intended decision pursuant to F.S. §120.57(3)(a), or within 10 days after bid/proposal opening, whichever is earlier. REMAINDER OF PAGE INTENTIONALLY BLANK City of Tamarac IV. SPECIAL TERMS AND CONDITIONS Purchasing and Contracts Division A. Warranties of Usage Any estimated quantities listed are for information and tabulation purposes only. No warranty or guarantee of quantities needed is given or implied. It is understood that the Contractor will furnish the City's needs as they arise. B. Assignment of Contracts — Special Provisions This Agreement Shall Not Be Assigned Or Transferable - The Master Lease Agreement shall not be assignable or transferable except by written mutual agreement. Notwithstanding the foregoing, in no event shall the Lessor assign this agreement, any Lease or the Lease Payments as a part of a plan to publicly offer participation interests therein. When Lessor requests City's consent to the private placement of participation interests, such consent shall be subject to such conditions as City reasonably determines including, but not limited to: 1. Participation interests will be sold only to accredited investors in minimum denominations of $100,000 or multiples thereof as defined in Rule 501(a) under regulation D of the Securities Act of 1933, as amended, or financial institutions engaged in the business of investing in securities of the type being offered. 2. Each investor (including subsequent purchasers) will be required to execute a letter acceptable to City certifying that it is an Accredited Investor or an Institutional Investor who has undertaken its own investigation and is not relying on any representation of City or any agency. 3. Any disclosure documents prepared in connection with such assignment must include a legend to the effect that neither City nor any agency thereof has participated in preparation of the disclosure materials. 4. Lessor must agree to indemnify City against any third party claims arising as a result of such assignment. C. Basis of Award - Award will be made to the most responsive and responsible bidder, in City's judgment, that submits the best proposal including interest rate and other considerations for the contract period that include the following: Experience of Firm Qualifications of Firm Financial Capability of Firm Leasing Capacity of Firm Qualification of Staff Technical Approach Cost / Interest Rate Proposal Options The City will also consider other relevant factors in determining the qualifications of the Proposer including the following: 1. The willingness, ability, capacity and skill of the Proposer to comply with the terms of the proposal and to perform its obligation as Lessor under the Agreement. 2. Whether the firms can comply with the terms of the proposals within the time specified, without delay or interference. P* City of Tamarac Purchasing and Contracts Division 3. The character, integrity, reputation, judgment, experience and efficiency of the proposer. 4. The experience of the proposer with respect to financing agreements similar to the transactions contemplated in this proposal. 5. The willingness and financial capability of the proposer to meet the terms of the Master Lease/Purchase Agreement, including the demonstrated prior ability to provide funding to comparable leasing clients within 48 hours of receiving a properly executed request for funding. 6. Whether the response conforms in all material respects to the requirements contained in this proposal. 7. Such other information as may be required by the City having a bearing on the selection of the successful proposer. 8. Sample Agreement -A sample master lease -purchase agreement to be used for this service by the proposer shall be included as a part of the proposer's response. 9. Individual Lease Agreements -- Since it is contemplated that each asset acquisition will be covered by an 'Appendix' or `Addendum' to the master agreement, copies of these documents shall be included with the proposal. D. Proposal Submittal Requirements When submitting your proposal, please include the items shown below as a part of your response in support of the evaluation criteria listed in Special Conditions Section C "Basis of Award" above. Failure to include a Scope of Services, Proposer Qualifications, the Cost / Interest Rate Proposal, Answers to the Questionnaire shown in Appendix A, or any other document that, by its omission, may prejudice the rights of other respondents, may result in immediate rejection of your proposal. Other forms or documents, including required certifications, which, by their nature do not impact price or the Proposer's cost of doing business should accompany the Proposal; but must be provided within three (3) business days of the City's request to be considered responsive. Please include the following items along with your proposal: 1. Scope of Services Each Proposal response shall provide a straightforward, concise delineation of the Proposer's capabilities to satisfy the requirements of the RFP. The emphasis in each Proposal must be on completeness and clarity of content. In order to expedite the evaluation of Proposals, it is essential that Proposers follow the format and instructions contained herein. If the Proposer so wishes, the Proposal may be accompanied with brochures, promotional materials or displays properly identified. However, Proposal submission requirements as listed herein must be followed. All Proposals must be submitted as specified on the Proposal pages, which follow. Any attachments must be clearly identified. The Proposal must address a commitment to continuous provision of the scope of services proposed within the contract period. 2. Firm Qualifications Please provide a description of the firm, including the size, range of activities, etc. Particular emphasis should be placed on how the firm's experience and expertise in the area of tax exempt master leasing services. This section must also identify the primary contact person, principle support staff, and supervisory personnel who will be responsible for the provision of services. The following items shall be specifically addressed: a. Describe your firm's experience in providing tax exempt master leasing services for municipalities or other governmental entities. Provide a representative list of current and prior government clients for the past five (5) years. Include the contract person's name, e-mail 10 City of Tamarac Purchasing and Contracts Division address and telephone number and indicate the type of services performed. b. Provide a minimum of five (5) references, preferably of governmental entities comparable to the City of Tamarac for whom your firm provides similar leasing services. A separate form has been provided for your use. c. Complete the enclosed Proposer's Qualification Form, which is included as a part of this proposal document. 3. Forms and Certifications: Other forms or documents which, by their nature do not impact price or the Proposer's cost of doing business should accompany the Proposal; but must be provided within three (3) business days of the City's request to be considered responsive. These forms include the following: a. Certification Forms b. Vendor Drug Free Workplace Form c. Non -Collusive Affidavit Form d. The City reserves the right to request the most recent audited financial statement, or other approved documentation to verify financial viability. Please include your firm's current long- term and short-term ratings, if available, from Fitch, Moody's and Standard & Poors. E. Discussions and Presentations All Proposers are advised that in the event of receipt of an adequate number of proposals, which in the opinion of the City require no clarification and/or supplementary information, such proposals may be evaluated without discussion or need for presentations. Hence, proposals should be initially submitted on the most complete and favorable terms which Proposers are capable of offering to the City. The City may conduct discussions with any Proposer who submits an acceptable or potentially acceptable proposal. Proposers shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals. The City reserves the right to request the Proposer to provide additional information during this process. F. Right to Reject Proposals To the extent permitted by applicable state and federal laws and regulations, City reserves the right to reject any and all Proposals, to waive any and all informalities not involving price, time or changes in the work, and to disregard all nonconforming, non -responsive, unbalanced or conditional Proposals. Proposals will be considered irregular and may be rejected if they show serious omissions, alterations in form, additions not called for, conditions, unauthorized alterations, or irregularities of any kind. City reserves the right to reject any Proposal if City believes that it would not be in its best interestto make an award to a particular Proposer, either because the Proposal is not responsive, the Proposer is unqualified, of doubtful financial ability, or fails to meet any other pertinent criteria established by City within the scope of this solicitation. G. Proposal Copies Return One (1) Original and three (3) copies in an envelope marked with your firm's name and "RFP 11- 29R, MASTER LEASING SERVICES" to the City of Tamarac, Purchasing & Contracts Division, 7525 NW 889' Avenue, Room 108, Tamarac, Florida 33321, Attention: Keith Glatz, CPPO, FCPM, Purchasing & Contracts Manager. Any addenda become part of this Request of Proposal and the resulting agreement. The Proposal Form included herein should be signed by an authorized company representative, dated and returned with the Proposal. 11 City or Tamarac Purchasing and Contracts Division H. No negotiations, decisions or actions shall be initiated or executed by the Proposer as a result of any discussions with any City employee. Only those communications that are issued in writing from the Purchasing & Contracts Division may be considered as a duly authorized expression. Also, only communications from Proposers that are signed and in writing will be recognized by the City as duly authorized expressions on behalf of the Proposer. CONTACT WITH PERSONNEL OF THE CITY OF TAMARAC OTHER THAN THE PURCHASING AND CONTRACTS MANAGER OR DESIGNATED REPRESENTATIVE REGARDING THEIR REQUEST FOR PROPOSALS MAY BE GROUNDS FOR ELIMINATION FROM THE SELECTION PROCESS. Remainder of Page Intentionally Blank 12 City of Tatrrarac V. STATEMENT OF WORK Purchasing and Contracts Division A. Scope of Proposal The purpose of this Request for Proposals is to obtain the services of a qualified firm(s) to provide for Tax Exempt Master Equipment Leasing Services on behalf of the City of Tamarac. The Director of Financial Services projects that the principal requirements will be short-term or long-term lease type financing of assets necessary for the municipal operations of the City. B. Background The City of Tamarac is a metropolitan municipality serving more than 60,000 residents and encompassing an area of 12 square miles. The City operates a multitude of municipal services, including Fire/Rescue/EMS, a City Water Utility, several city parks, as well as support of municipal infrastructure. As a part of the operation of the City's municipal activities, the City may, on occasion, determine that it may be advantageous to lease certain equipment acquisitions in an attempt to best leverage its overall financial strategy. The City is also exempt from payment of State of Florida Sales Tax. C. Contract Term The term of the contract is sixty (60) months commencing on the first day of the first month following acceptance and award of an Agreement. The City reserves the right to extend the contract for three (3) additional one (1) year terms on the anniversary date of the Agreement, providing all terms conditions and specifications remain the same, both parties agree to the extension, and such extension is approved by the City. Due to the nature of this contract, the term is for origination of new financings only. Any individual lease for which the term expires after the end date of the Master Agreement shall survive the Master Agreement, and payments shall continue, notwithstanding any breach on the part of the Contractor in regard to such individual lease. D. Equipment to be Purchased The City expects to purchase equipment and other assets in aggregate amounts of at least $3,000,000 or the next five (5) years. Total purchases during the master lease period are not expected to exceed $5,000,000; however, the proposer shall agree that the amount to be financed, over or under this amount are within the scope of this agreement at the City's discretion. It is not currently known either how the lease amounts will be distributed during the term of this agreement, therefore, quantities that may be provided herein are for informational purposes only. The quantities for this Agreement shall be based on the equipment actually financed, whether below or above the anticipated total value. GENERAL DESCRIPTION OF EQUIPMENT TO BE PURCHASED UNDER THIS AGREEMENT (The City may, at its option, also purchase other types of equipment not listed below, as may be required): Fire Apparatus, other Fire -Rescue Vehicles, vehicles, public works, stormwater, and utilities equipment. E. Estimated Useful Life of Equipment The City covenants that any and all lease financing will not exceed the estimated useful life of the assets to be acquired. The determination of estimated useful life will be at the sole discretion of the City. The City may finance a variety of equipment as set forth in, but not limited to, the sample list above. Proposers must be willing to finance any one or more of the items listed. The City doesn't commit to the lease/purchase financing of any or all of the items listed during the term of the agreement. F. Interest Rate Index The interest rate to be paid on equipment financed under the Master Lease Purchase Agreement shall be determined by applying the interest rate index plus or minus the proposed deviation from a 13 City of Timarac Purchasing acid Contacts Division corresponding Treasury Bill/Note Index as published in the Wal/ Street Joumal. This interest rate will remain in effect for the full term of each individual asset funding. G. Non -Bank Qualified Tax Exempt Obligations The City does not warrant nor imply that any lease payments under the Agreement will be "Bank Qualified" obligations that constitute "Qualified Tax Exempt Obligations" within the meaning of Section 265(b) of the Internal Revenue Code of 1986 or latest edition thereto, although that may happen by coincidence. H. Principal and Interest Payment Dates All lease payments will be made on a semi-annual, payment in arrears basis - March 1st and September 1 st. All payments will be made by ACH transfer to the depository and account designated by the successful bidder on the dates reflected above, or should the dates fall on a weekend or banking holiday, then on the first banking day thereafter. Basis of Interest Interest will be calculated on a 30/360 day basis. For purposes of evaluating this proposal, only fixed rate financing proposals will be accepted. While the term of the master contract is for five (5) years, for each individual lease agreement, the interest rate will be fixed from the date of the respective lease funding - not the date of the Master Lease Agreement. For example, if we have five (5) lease agreements, closing at various times throughout the five (5) year contract, there will be five (5) interest rates which shall remain in effect for the full term of each individual asset funding. J. Level Debt Service Each acquisition made under the lease will have its debt repaid on a level debt basis with both principal and interest paid semi-annually. Individual payments shall not vary by more than one percent (1 %) from all other payments except for the initial payment due under each individual acquisition repayment plan which may reflect a long or short coupon if desired by the City. There shall be no residual value at the end of the individual lease term. K. Acquisition Costs / Interest Rate The interest rate premium or discount proposed should be an "all in rate". The City will not pay any separate ordinary or extraordinary lease related closing costs or legal fees for individual acquisitions - any and all such costs should be factored into the rate proposed. L. Prepayment Options The City shall have the option to prepay the balance due under the lease during the term of any lease financing without penalty. Lessor will be given written notice by the City of its intention to prepay not less than 30 days prior to the lease payment date on which the option is to be exercised. Upon actual prepayment by the City, that particular Lease acquisition financing shall terminate. M. Asset Funding Lessor shall deposit funds with the City to be applied by the City to pay for the assets financed with this agreement. Such funds will be held by the City in a restricted account routinely used by the City for such financings and segregated on the City's books and records so as to maintain proper accountability of financing proceeds. Any balances remaining in such accounts shall be applied to scheduled debt service either upon the earlier of 1) two years after deposit of funds, or upon completion of acquisition and acceptance of the assets for which the financing was made. Interest accruing on the financing shall accrue to the City. N. Title to Assets In order to avoid personal property taxes or sales taxes on items financed with this financing vehicle, the Lessor agrees to allow title to pass to City and remain in City's name and under the City's control- O. Covenant to Budget and Appropriate As security for assets financed under this Master Lease Purchase Agreement, the City agrees to a 14 City of Tamarac Purchasing and Contracts Division covenant to budget and appropriate (CB&A) from legally available non -ad valorem revenues to pay the debt on the lease and to make the funds available as the payments due under this lease mature. Should for any reason the City fail to budget and appropriate sufficient funds to make the payments when they become due under the asset financing schedule, then City will remove from service the item financed by this agreement and will not replace the item with a similar item. Please see attached for your reference the recent rating agencies reports on the City's existing CB&A debt. The City's audited Financial Statements for the Fiscal Year Ending October 31, 2010 can be found on the City's website at www.tamarac.org. O. Maintenance Leases entered into under this Master Lease Agreement will be net lease transactions, whereby maintenance to be provided beyond that provided as a part of the purchase of equipment and similar expenses shall be the responsibility of the City. P. No Security Interest The Lessor shall have no security interest in any equipment leased. The agreement shall not place any lien, charge, security interest or encumbrance upon the equipment or any other asset of the City. Q. Spread The City is requesting information regarding the Spread per Section F. for various years. The City may have leases for 1, 2, 3, up to 7 years. Please provide the "premium or discount" in basis points off the corresponding U.S. Treasury Bond/Note Index, as published in the Tuesday edition of the Wall Street Journal for each of the types of leases (1,2,3...7 years) For example — if a lease is for 7 years - the rate may be the US Treasury Bond/Note Index discounted by .23. Remainder of Page Intentionally Blank 15 City of Tamarac Furchasing and Contacts Division PROPOSALFORM RFP 11-29R MASTER LEASING SERVICES Proposer agrees to supply leasing services at the spreads as bid below in accordance with the terms, conditions, and specifications contained in this Request for Proposal. All price information to be used in the proposal evaluation must be on this page. Lease Type (Check One — Prefer Simple): Simple Funded Escrow Spread: 2 Year _ 3 Year 4 Year 5 Year 6 year _ 7 year _ Minimum Interest Rate? No Yes (If yes, please state rate) Interest Calculated on 30/360 basis with all payments except the initial payment to be Within 1 % of all other payments? Yes No Prepayment Option? Yes No Prepayment Penalty? Yes No The interest rate index for all assets purchased under the master lease purchase agreement shall be basis points Premium - or — Discount (Must Select One) off the corresponding U.S. Treasury bond/note yield (no agencies) as published in the Tuesday edition of the Wall Street Journal. For purposes of comparison and evaluation, please calculate on the date of July 15, 2011, what your rate would be for a five-year $100,000 equipment lease? SUBMITTED BY: Company Name: Principal Contact Officer: Address: City:_ Telephone: FAX: Email: State: Zip: NOTE: To be considered eligible for award, one (1) original copy of this proposal form must be submitted with the Proposal. 16 City of Tamarac Purchasing and Contracts Division NO BID INDICATION (IF "NO BID" IS OFFERED): Please indicate reason(s) why a Proposal is not being submitted at this time. Remainder of Page Intentionally Blank 17 City of Tamaiac Purchasing and Contracts ©iosion REFERENCES Please list governmental entities with whom you have done business who utilized a similar scope of services to the City of Tamarac requirements within the past five years: Entity: Address City State Zip Phone/Fax E-mail Address Contact Name Entity: Address City State Zip Phone/Fax Email Address Contact Name Entity: Address City State Zip Phone/Fax E-mail Address Contact Name Entity: Address City State Zip Phone/Fax E-mail Address Contact Name Agency/Firm Name: Address City State Zip Phone/Fax E-mail Address Contact Name 18 City of Tamarac Purchasing and Contracts Division BEFORE SUBMITTING YOUR PROPOSAL, MAKE SURE YOU... ❑ 1. Carefully read the General Terms & Conditions, Special Conditions and the General Requirements. ❑ 2. Provide a Scope of Services. ❑ 3 Include the Proposal Form included herein, with your Cost / Interest Rate Proposal. ❑ 4 Provide information regarding your Firm Qualifications. ❑ 5. Fill out and sign the Non -Collusive Affidavit and have it properly notarized. ❑ 6. Sign the Certification page. Failure to do so will result in your Bid being deemed non- responsive. ❑ 7. Provide Proposers Qualification Statement. ❑ 8 Provide References, preferably with similar governmental agencies similar to the City. ❑ 9 Sign the Vendor Drug Free Workplace Form. ❑ 10 Provide answers to Questionnaire in Appendix A. ❑ 11 Include all necessary Financial Statements requested. ❑ 12 Provide any additional documentation requested within the Proposal Document. ❑ 13 Submit ONE (1) Original AND the number of copies requested in the Proposal Instructions. Clearly mark the sealed containerwith the PROPOSAL NUMBER AND PROPOSAL NAME on the outside of the package. Make sure your Proposal is submitted PRIOR to the deadline. Late Proposals will not be accepted. Failure to provide the requested attachments may result in your proposal being deemed non -responsive. THIS SHOULD BE THE FIRST PAGE OF YOUR PROPOSAL. 19 City of Tamarac Purc hasiog and Contracts Diosion CERTIFICATION THIS DOCUMENT MUST BE SUBMITTED WITH THE PROPOSAL We (1), the undersigned, hereby agree to furnish the item(s)/service(s) described in the Invitation to Bid. We (1) certify that we(I) have read the entire document, including the Scope of Work, Additional Requirements, Supplemental Attachments, Instructions to Proposers, Terms and Conditions, and any addenda issued. We agree to comply with all of the requirements of the entire Request for Proposals. SUBMITTED TO: City of Tamarac Purchasing and Contracts Manager 7525 NW 88th Avenue Tamarac, Florida 33321 Indicate which type of organization below: INDIVIDUAL ❑ PARTNERSHIP ❑ CORPORATION ❑ OTHER ❑ If "Other", Explain: Authorized Signature Typed/Printed Name Telephone Fax Email address for above signer (if any) Company Name Address City, State, ZIP Federal Tax ID Number 20 City of Tamarac Purchasing and Contracts Division PROPOSER'S QUALIFICATION STATEMENT The Proposer, under oath certifies to the truth and correctness of all statements and of all answers to questions made hereinafter: 1. If Proposer is a corporation, answer the following: Date of Incorporation: State of Incorporation: 2. If Proposer is operating under a fictitious name, submit evidence of compliance with the Florida Fictitious Name Statute. 3. How many years has your organization been in business under its present business name? a. Under what other former names has your organization operated? 4. List the pertinent experience of the key individuals of your organization (continue on insert sheet, if necessary). 5. State the name of the individual who will serve as the primary contact for the City: 7. Has your company ever declared bankruptcy? Yes ❑ No ❑ If Yes, explain: 8. Have you ever received a contract or a purchase order from the City of Tamarac or other governmental entity? Yes ❑ No ❑ If yes, explain (date, service/project, bid title etc.) 9. Have you ever received a complaint on a contract or bid awarded to you by any governmental entity? Yes ❑ No ❑ If yes, explain: 10. Have you ever been debarred or suspended from doing business with any governmental entity? Yes ❑ No ❑ If yes, explain: 21 City of Tamai,�c Purchasing and Contracts Division NON -COLLUSIVE AFFIDAVIT State of ) )ss. County of 1. He/she is the Representative or Agent) of has submitted the attached Proposal; being first duly sworn, deposes and says that: (Owner, Partner, Officer, ,the Proposerthat 2. He/she is fully informed respecting the preparation and contents of the attached Proposal and of all pertinent circumstances respecting such Proposal; 3, Such Proposal is genuine and is not a collusive or sham Proposal; 4. Neither the said Proposer nor any of its officers, partners, owners, agents, representatives, employees or parties in interest, including this affiant, have in any way colluded, conspired, connived or agreed, directly or indirectly, with any other Proposer, firm, or person to submit a collusive or sham Proposal in connection with the Work for which the attached Proposal has been submitted; or to refrain from bidding in connection with such Work; or have in any manner, directly or indirectly, sought by agreement or collusion, or communication, or conference with any Proposer, firm, or person to fix the price or prices in the attached Proposal or of any other Proposer, or to fix any overhead, profit, or cost elements of the Proposal price or the Proposal price of any other Proposer, or to secure through any collusion, conspiracy, connivance, or unlawful agreement any advantage against (Recipient), or any person interested in the proposed Work; The price or prices quoted in the attached Proposal are fair and proper and are not tainted by any collusion, conspiracy, connivance, or unlawful agreement on the part of the Proposer or any other of its agents, representatives, owners, employees or parties in interest, including this affiant. Signed, sealed and delivered in the presence of: Witness Witness By Printed Name Title 22 City of Tamarac Purchasing and Contracts Division ACKNOWLEDGMENT NON -COLLUSIVE AFFIDAVIT State of Florida County of On this the day of 20 , before me, the undersigned Notary Public of the State of Florida, personally appeared and (Name(s) of individual(s) who appeared before notary) whose name(s) is/are Subscribed to within the instrument, and he/she/they acknowledge that he/she/they executed it. WITNESS my hand and official seal. NOTARY PUBLIC SEAL OF OFFICE: NOTARY PUBLIC, STATE OF FLORIDA (Name of Notary Public: Print, Stamp, or Type as Commissioned) ❑ Personally known to me, or ❑ Produced identification: (Type of Identification Produced) ❑ DID take an oath, or ❑ DID NOT take an oath 23 City of Tamarac Putchasing and Contracts Division VENDOR DRUG -FREE WORKPLACE Preference may be given to vendors submitting a certification with their bid/proposal certifying they have a drug -free workplace in accordance with Section 287.087, Florida Statutes. This requirement affects all public entities of the State and becomes effective January 1, 1991. The special condition is as follows: IDENTICAL TIE BIDS - Preference may be given to businesses with drug -free workplace programs. Whenever two or more bids that are equal with respect to price, quality, and service are received by the State or by any political subdivision for the procurement of commodities or contractual services, a bid received from a business that certifies that it has implemented a drug -free workplace program shall be given preference in the award process. Established procedures for processing tie bids will be followed if none of the tied vendors have a drug -free workplace program. In order to have a drug -free workplace program, a business shall: Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees for violations of such prohibition. Inform employees about dangers of drug abuse in the workplace, the business's policy of maintaining a drug -free workplace, any available drug counseling, rehabilitation, & employee assistance programs, and penalties that may be imposed upon employees for drug abuse violations. Give each employee engaged in providing commodities or contractual svcs., that are under bid a copy of the statement specified in subsection (1). In the statement specified in subsection (1), notify the employees that, as a condition of working on the commodities or contractual services that are under bid, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendere to, any violation of chapter 893 or of any controlled substance law of the United States or any state, for a violation occurring in the workplace no later that five (5) days after each conviction. Impose a section on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, by any employee who is so convicted. Make a good faith effort to continue to maintain a drug -free workplace through implementation of this section. As the person authorized to sign the statement, I certify that this form complies fully with the above requirements. Authorized Signature 24 Company Name City of Tamarac Purchasing and Contracts Division APPENDIX A QUESTIONNAIRE Please provide responses to the following questions shown below. Please use additional sheets if necessary. Responses shall included with your proposal response. 1. Does the sample Master Lease/Purchase Agreement, included as a part of your response, conform to the requirements set forth in this Bid? YES NO - If 'NO', please explain deviation and confirm that a letter is included as part of your response that states that you agree to make the necessary changes. 2. Do you acknowledge that the Master Lease/Purchase Agreement shall not be assignable or transferable except as set forth in this bid? YES NO - If 'NO', please explain deviation and confirm that a letter is included as part of your response that states that you agree to make the necessary changes. 3. Does the interest rate provision of your bid provide for individual asset repayment schedules payable semi-annually on March 1 st and September 1 st each year of the repayment period? YES NO - If 'NO', please explain deviation and confirm that a letter is included as part of your response that states that you agree to make the necessary changes. 4. Is the interest rate that is to be charged for the initial equipment to be purchased as well as additional equipment to be acquired an "all in rate"? YES NO - If 'NO', please explain deviation and confirm that a letter is included as part of your response that states that you agree to make the necessary changes. 5. Does your response provide for fixed rate financing based upon the current interest rates of Treasury instruments as adjusted by your discount/premium of the same duration as the new asset financing as published each Tuesday in the Wall Street Journal? YES NO - If 'NO', please explain deviation and confirm that a letter is included as part of your response that states that you agree to make the necessary changes. 6. Is interest to be calculated on a level debt service 30/360-day basis with all payments except the initial to be within 1 % of all other payments? YES NO - If 'NO', please explain deviation and confirm that a letter is included as part of your response that states that you agree to make the necessary changes. 7. Will the City have the right to prepay the principal balance, plus accrued interest, of any lease without penalty upon giving thirty (30) days notice prior to the rent payment date? YES NO - If 'NO', please explain deviation and confirm that a letter is included as part of your response that states that you agree to make the necessary changes. 25 CITY OF TAMARAC PURCHASING AND CONTRACTS DIVISION 7525 NW 88T" AVENUE TAMARAC, FL 33321 "Committed to Excellence... Always" ADDENDUM NO.1 REQUEST FOR PROPOSAL 11-29R DATE OF ADDENDUM: AUGUST 8, 2011 TO ALL PROSPECTIVE PROPOSERS: The following clarifications, changes, additions and/or deletions are hereby made part of the Contract Documents for Request for Proposal #11-29R, MASTER LEASING SERVICES. Proposal Due Date & Time: AUGUST 26, 2011 at 3:00 P.M., E.D.T. The following questions have been received by the Purchasing & Contracts Division: 1. Q, Will funds need to be escrowed for this transaction? A. No, not under the Master Lease program but, we may escrow on an individual lease basis which will be evaluated at the time an individual lease is processed, due to timing. All other terms, conditions and specifications remain unchanged for RFP # 11-29R. Please acknowledge receipt of this Addendum No. 1, by returning it and/or acknowledging it in your proposal. Sincerely, Keith K. Glatz, CPPO, FCPM Purchasing & Contracts Manager COMPANY: NAME: 7525 NW 88th Avenue ■ Tamarac, Florida 33321-2401 ■ (954) 597-3570 0 Fax (954) 597-3565 ■ www.tomarac.org Equal Opportunity Employer } CITY OF TAMARAC PURCHASING AND CONTRACTS DIVISION 7525 NW 88TH AVENUE TAMARAC, FL 33321 "Committed to Excellence... Always" ADDENDUM NO.2 REQUEST FOR PROPOSAL 11-29R MASTER LEASING SERVICES DATE OF ADDENDUM: AUGUST 17, 2011 PROPOSAL DUE DATE & TIME: 8/26/2011 at 3:00 P.M., E.D.T. TO ALL PROSPECTIVE PROPOSERS: The following clarifications, changes, additions and/or deletions are hereby made part of the Contract Documents for Request for Proposal #11-29R, MASTER LEASING SERVICES. The following questions have been received by the Purchasing & Contracts Division: 1. Q. Will the City use the Covenant to Budget and Appropriate (C B & A) method to fund leases, or the Funds Appropriation method to fund leases? A. The City will utilize the C B & A method. Please acknowledge receipt of this Addendum No. 2, by returning it and/or acknowledging it in your proposal. All other terms, conditions and specifications remain unchanged for RFP # 11-29R. Sincerely, 4�, A — Keith K. Glatz, CPPQ, FCPM Purchasing & Contracts Manager COMPANY: NAME: 7525 NW 88fh Avenue ■ Tamarac, Florida 33321-2401 ■ (954) 597-3570 ■ Fax (954) 597-3565 ■ www.tamorac.org Equal Opportunity Employer CITY OF TAMARAC PURCHASING AND CONTRACTS DIVISION 7525 NW 88T" AVENUE TAMARAC, FL 33321 "Committed to Excellence... Always" ADDENDUM NO.3 REQUEST FOR PROPOSAL 11-29R MASTER LEASING SERVICES DATE OF ADDENDUM: AUGUST 22, 2011 PROPOSAL DUE DATE & TIME: 8/26/2011 at 3:00 P.M., E.D.T. TO ALL PROSPECTIVE PROPOSERS: The following clarifications, changes, additions and/or deletions are hereby made part of the Contract Documents for Request for Proposal #11-29R, MASTER LEASING SERVICES. The following questions have been received by the Purchasing & Contracts Division: Q. "Can you please clarify whether the $20 million Taxable Redevelopment Revenue Note, Series 2008 with SunTrust termed -out in April 2011 over 10 years as it was suppose to, or is it interest -only as the 2012 budget suggests? If it termed out, please send the respective annual debt service and parameters that contributed to such annual debt service — outstanding amount, rate used, etc." A. The note was refinanced through RBC in February of this year, with interest only for three years with an option to fix from that point forward. Please acknowledge receipt of this Addendum No. 3, by returning it and/or acknowledging it in your proposal. All other terms, conditions and specifications remain unchanged for RFP # 11-29R. Sincerely, 1 !, Keith K. Glatz, CPPO, FCPM Purchasing & Contracts Manager COMPANY: NAME: 7525 NW 88th Avenue ■ Tamarac, Florida 33321-2401 ■ (954) 597-3570 ■ Fox (954) 597-3565 ■ www,tamorac.org Equol Opportunity Employer TR12100 EXHIBIT 2 ►f►IRA �1N11%. City of Tamarac V Purchasing and Contrarts Division BEFORE SUBMITTING YOUR PROPOSAL, MAKE SURE YOU... d1. Carefully read the General Terms & Conditions, Special Conditions and the General Requirements. d2. Provide a Scope of Services. Include the Proposal Form Included herein, with your Cost / interest Rate Proposal. wo- Provide information regarding your Firm Qualifications. Li o Fill out and sign the Non-Collwive Affidavit and have it properly notarized. Sign the Certification page. Failure to do so will result in your Bid being deemed non- responsive. 7. Provide Proposers Qualification Statement. 8 Provide References, preferably with similar governmental agencies similar to the City. �9 Sign the Vendor Drug Free Workplace Form, 10 Provide answers to Questionnaire in Appendix A. U11 Include all necessary Financial Statements requested. �/,2 Provide any additional documentation requested within the Proposal Document. d13 Submit ONE (1 ) Original AND the number of copies requested in the Proposal Instructions. Clearly mark the sealed containerwith the PROPOSAL NUMBER AND PROPOSAL NAME on the outside of the package. Make sure your Proposal is submitted PRIOR to the deadline. Late Proposals will Mt be accepted. Failure to provide the requested attachments may result in your proposal ( being deemed non -responsive. THIS SHOULD BE THE FIRST PAGE OF YOUR PROPOSAL. 19 Original August 25, 2011 City of Tamarac, FL Re: RFP 11-29R, Master Leasing Services Dear Sir/Madam: Bank of America '0�' Merrill Lynch Banc of America Public Capital Corp, on behalf of Bank of America N,A. as Lender ("Lender"), is pleased to submit our Lease proposal (the "Proposed Transaction") described in the attached Summary of Terms and Conditions (the "Term Sheet"). Please review our proposal and contact me at (804) 788-3345 if you have any questions. This proposal letter and the Term Sheet include only a brief description of the principal terms of the Proposed Transaction. Please understand that this proposal is not a commitment or offer to Loan, and does not create any obligation for Lender. Lender will not be responsible or liable for any damages, consequential or otherwise, that may be incurred or alleged by any person or entity, including Borrower, as a result of this proposal letter. Lender will notify you in writing of its decision if Lender agrees to proceed with the Proposed Transaction after completing its credit review and analysis. To accept this proposal, please sign the enclosed copy of this letter and return it, by no later than August 30, 2011 to: Banc of America Public Capital Corp Mail Code: VA2-300-18-02 l l 11. Fast Main Street 18th Floor Richmond, VA 23219-3500 Attn: Charles Maguire We appreciate this opportunity to present Bank of America. Ve truly yours, Charles Maguire Senior Vice President SUMMARY OF TERMS AND CONDITIONS Date: August 25, 2011 Borrower: City of Tamarac FL. Lender: Banc of America Public Capital Corp ("Lender") and/or its Designees or Assignees FEIN # is: 48-1173664 Loam Amount: Approximately $5,000,000 Use if Proceeds: Master Lease Agreement Structure: Non -Bank Qualified Tax-exempt Lease. Utilization: Period Lease approval is valid for one year from lease commencement. There will be 5 one-year extensions at commencement anniversary subject to credit and pricing review and approval, subject to change at the sole discretion of BAPCC and subject to Lessee's consent. Lease terms: Three (3), Four (4), Five (5), Six (6) and Seven (7) years from lease commencement date; semiannual payments in arrears. Terms cannot exceed the useful life of the equipment being financed as determined by BAPCC. Master Lease Tax Exempt Rates (New): The following indicative fixed interest rates for each tenor and associated indexing formulas describe our financing: Pricing is based on semiannual payments in arrears. Please note if alternative payment frequencies (i.e. monthly, semiannual or annual) are requested, this may be accommodated but any changes to the average life may also impact the rate quoted herein. Index• NBQ - H-15 Dated 8123/11 Average Life Swap Index Term Average Life Yrs Average Life Swap Rate TE Factor Result Spread Requirement Required Muni Rate 3 Year 2 Year 0.53 0.65 0.3445 1.038 1.382 4 Year 2 Year 0.53 0.65 0.3445 1.141 1.485 5 Year 3 Year 0.67 0.65 0.4355 1.174 1.609 6 Year 3 Year 0.67 0.65 0.4355 1.338 1.773 7 Year 4 Year 0.92 0.65 0.5980 1.347 1.945 H 15 Interest Rate Swap is as of August 23, 2011. Note Indicative rates will be held for 15 days from the date of the Index Rate. H15 Interest Rate Average Life Swap (www.federalreserve,Pov/releases/_H15/up_daten. The above Formula will be held for one year and subject to review on an annual basis. Security: The loan shall be secured by a covenant to budget and appropriate by the City. The City shall appropriate in its annual budget, from Non -Ad Valorem Revenues lawfully available to the City in each fiscal year, amounts sufficient for the payment of principal and interest on the City of Tamarac, FL. Banc of America Public Capital Corp EXHIBIT C The City covenants that, so long as the Note shall remain unpaid or any other amounts are owed by the City under the Note, it will appropriate in its annual budget, by amendment, if required, from the Available Non Ad Valorem Revenues, amounts sufficient to pay the principal of and interest on the Note and other amounts owed thereunder as the same shall become due. In the event that the amount previously budgeted for such purpose is ever insufficient to pay such principal and interest on the Note and other amounts owed thereunder, the City covenants to take action to amend its budget as soon as reasonably practicable so as to budget and appropriate an amount from the Available Non Ad Valorem Revenues sufficient to pay such debt service on the Note and such other amounts. The covenant to budget and appropriate does not create a lien upon or pledge of the Non Ad Valorem Revenues. Such covenants to budget and appropriate from Available Non Ad Valorem Revenues shall be cumulative to the extent not paid and shall continue until Available Non Ad Valorem Revenues sufficient to make all required payments have been budgeted, appropriated and used to pay such debt service on the Note and such other amounts. Notwithstanding the foregoing covenant, the City does not covenant to maintain any service or programs now provided or maintained by the City which generate Non Ad Valorem Revenues. "Available Non Ad Valorem Revenues" means all Non Ad Valorem Revenues (a) other than (i) any revenues which are restricted by a contract in existence on the date hereof, or created subsequent to the date hereof in connection with the incurrence of debt permitted hereby, from being used to pay principal and interest on the Note, (ii) any revenues which are prohibited by a general or special law of the State in existence on the date hereof from being used to pay principal and interest on the Note and (iii) any source of Non Ad Valorem Revenue which is created after the date hereof and which is prohibited by a general or special law of the State from being used to pay principal and interest on the Note, and (b) to the extent, and only to the extent, necessary to avoid a violation of Article VII, Section 12 of the Florida Constitution, subject to the prior payment of essential governmental services of the City. "Non Ad Valorem Revenues" means all revenues of the City not derived from ad valorem taxation. City of Tamarac, FL. Banc of America Public Capital Corp BankofAmerica-01. Merrill lynch REFERENCES & FINANCIAL AUDIT LINK State of Maryland Kina Johnson -Malcolm Maryland State Treasurer's Office 80 Calvert Street Annapolis, MD 21401 410-260-7154 Montgomery County MD Glen Wyman Finance Department 101 Monroe St. 15th Floor Rockville, MD 20850 240-777-8929 Miami -Dade School District Silvia Rojas Treasurer 1450 NE 2nd Avenue Suite 615 Miami, FL 33132 City of Miami Beach Ramon Suarez City of Miami Beach 1700 Convention Center Dr Miami Beach, FL 331391819 Fax: 302-739-3779 School District of Broward County Mr. Henry Robinson 7720 W Oakland Park Blvd Suite 319 Sunrise, FL 333510000 State of South Carolina Rick Harmon Senior Assistant State Treasurer Office of State Treasurer 122 Wade Hampton Office Building Capitol Complex Columbia, South Carolina 29201 803.734.2114 (direct) 803.734.2039 (fax) 2010 Bank of America Annual Report http://b2nkofamerica.com/investor t t Bankof Atnerica"� Merrill Lynch Appendix A - Deviations 1. BAPCC will obtain credit approval, which will be valid for one year from lease commencement. There will be 5 one-year extensions at commencement anniversary subject to credit and pricing review and approval, subject to change at the sole discretion of BAPCC and subject to Lessee's consent. The minimum term BAPCC can accommodate is 3 Years BAPCC prefers to base its index off of H.15 average interest rate swaps Our standard MLA has been submitted with our proposal for the City's review. 2. BAPCC will not limit its right to assign the lease 5. BAPCC proposes using the H15 average life swaps as indexing as indicated in our summary of terms and conditions. 7. Prepayment is allowed at par after half the term has expired. Payment shall be in whole and made on a scheduled payment date. City or Tamarac Purchasing and Contracts Division PROPOSAL FORM RFP 11-2SR MASTER LEASING SERVICES Proposer agrees to supply leasing services at the spreads as bid below in accordance with the terms. oonditions, and specifications contained in this Request for Proposal. All price information to be used In the proposal evaluation must be on this page. Lease Type (Check One — Prefer Simple): Simple Funded Escrow V Spread: 2 Year 3 Year 4 Year U 5 Year e year 7 year Minimum Interest Rate? No / _ Yes 6", tC""S (If yes, please state rate) Interest Calculated on 301369 basis with all payments except the initial payment to be Within 1 % of all other payments? Yes 'V No Prepayment Option? Yes No Prepayment Penalty? Yes Noy C, � The i terest rate Index for all assets purchased under the master lease purchase agreement shall be basis points Premium - or— Discount (Must Select One) off the corresponding U.S. Treasury b nd/note yield (no agencies) as published in the Tuesday edition of the Wall Street Joumal. For purposes of comparison and evaluation, please calculate on the date of July 15, 2011, what your rate would be for a five-year $100,000 equipment lease? t 1Q) Via SUBMITTED BY: Company Name: 4�.'- (,e,)j rar Address: City:— State: Zip: '2 Ll- I Telephone: ff )Y'i `7�7 FAX: �'t ��- Email: NOTE: To be considered eligible for award, one (1) original copy of this proposal form must be submitted with the Proposal. 16 City of Tamarac Purchasing and Contracts Division NO BID INDICATION (IF "NO BID" IS OFFERED): Please indicate reason(s) why a Proposal is not being submitted at this time. ---------- ..._.._..._ .... ..- - .... - -- ...----- Remainder of Page Intentionally Blank 17 City of Tamarac Purchasing and Contracts Division REFERENCES Please list governmental entities with whom you have done business who utilized a similar scope of services to the City of Tamarac requirements within the past five years: Entity: Address City State Zip Phone/Fax E-mail Address Contact Name Entity: Address City State Zip Phone/Fax Email Address Contact Name Entity: Address City State Zip Phone/Fax E-mail Address Contact Name Entity: Address City State Zip Phone/Fax E-mail Address Contact Name Agency/Firm Name: Address City State Zip Phone/.Fax E-mail Address Contact Name 6LY CS,,a�� ", trV- t"I 18 City of Tamarac Purchasing 111d Contracts Division CERTIFICATION TM E T HOT 19E SUBWD WTH TW PROPOSAL We (1), the undersigned, hereby agree to furnish the item(syservice(s) described in the Invitation to Bid. We (1) certify that we(I) have read the entire document, including the Scope of Work, Additional Requirements, Supplemental Attachments, Instructions to Proposers, Terms and Conditions, and any addenda`` issued. We ogre to comply w all of the uirements of the entire Request for Proposals. ]v�1 �v Cam, ti f r�90 SUBMITTED TO: City of Tamarac Purchasing and Contracts Manager 7525 NW 8e Avenue Tamarac, Florida 33321 Indicate which type of organization below: INDIVIDUAL ❑ PARTNERSHIP ❑ CORPORATION d OTHER ❑ If" VExplain: —A— .,, Au zed Signature a'k 4f, "'— Typed/Printed Name goy '1 V'6 Telephone Fax address for above signer (If any) 6.0 Company Name r/vie. Address City, State, ZIP Federal Tax ID Number City of Tamarac Purchasing and Contracts Division PROPOSER'S QUALIFICATION STATEMENT The Proposer, under oath certifies to the truth and correctness of all statements and of all answers to questions made hereinafter: 1. If Proposer is a corporation angwer the following: / Date of Incorporation: State of Incorporation: \cn&G S 2. If Proposer Is operating under a fictitious name, submit evidence of compliance with the Florida Fictitious Name Statute. 4 V_ 3. How many years has your organization been in business under its present business name? a. Under what other former names has your organization operated? a. List the pertinent experience of the key individuals of your organization (continue on insert sheet, if necessary). 5. State the npmq of the Individual who will serve as the primary contact for the City: 7. Has your company ever declared bankruptcy? Yes ❑ No ®" If Yes, explain: 8. Have you ever recelVd a contract or a purchase order from the City of Tamarac or other governmental entity? Yes ❑ No 14 if yes, explain (date, servioe/projeot, bid title etc.) 9. Have a ev received a complaint on a contract or bid awarded to you by any governmental entity? Yes [] No M If yes, explain: 10. Have you evTif en debarred or suspended from doing business with any governmental entity? Yes [I Noes,explain: ............... _.._ ....._. 21 City of Tamara(Purchasing and Contracts Divishm NON -COLLUSIVE AFFIDAVIT State of 11 )ss. County being first duly swom, deposes and says that: 1. 0/she is the V r ( F. Partner, Officer, Representative or Agent) of a l , the Proposerthat has submitted the attached Proposal; 2. He/she is fully informed respecting the preparation and contents of the attached Proposal and of all pertinent circumstances respecting such Proposal; 3. Such Proposal Is genuine and Is not a collusive or sham Proposal; 4. Neither the said Proposer nor any of its officers, partners, owners, agents, representatives, employees or parties in interest, including this affiant, have in any way colluded, conspired, connived or agreed, directly or indirectly, with any other Proposer, firm, or person to submit a collusive or sham Proposal In Gonnection with the Work for which the attached Proposal has been submitted; or to refrain from bidding in connection with such Work; or have in any manner, directly or indirectly, sought by agreement or collusion, or communication, or conference with any Proposer, firm, or person to fix the price or prices in the attached Proposal or of any other Proposer, or to fix any overhead, profit, or cost elements of the Proposal price or the Proposal price of any other Proposer, or to secure through any collusion, conspiracy, connivance, or unlawful agreement any advantage against (Recipient), or any person Interested in the proposed Work; The price or prices quoted in the attached Proposal are fair and proper and are not tainted by any collusion, conspiracy, connivance, or unlawful agreement on the part of the Proposer or any other of Its agents, representatives, owners, employees or parties in Interest, Including this aftiant. Sign , segaledliLddellveredin the presence of ., By tness Witnes )IV jr .-V AL, G �j Printed Name of Title City of Tamarac Purchasing and Contracts Division ACKNOWLEDGMENT NON -COLLUSIVE AFFIDAVIT State of F.'Jodd County of 0 1-4✓A dee? On this the 25- day of j-J .20 I I , before me, the undersigned Notary Public of the State of Florida, personally}} appeared Alec r-) t� 6 * and (Name(s) of Individual(s) who appeared before notary) whose name(s) Is/are Subscribed to within the Instrument, and helshelthey acknowledge that helsheRhey executed ft. WITNESS my hand and official seal. NOTARY PUBLIC SEAL OF OFFICE: DAVID C. THOMAS NOTARY PUBLIC STATE OF RHODE ISLAND MY COMMISSION EXPIRES DEC. 2013 -�2 OTARY PUBLIC, STATE OF 2AVAZ -S (Name of Notary Public: Print, Stamp, or Type as Commissioned) 615ersonally known to me, or ❑ Produced identification: (Type of Identification Produced) 0 DID take an oath, or 0 DID NOT take an oath I ove requirements. Au orized Signature City of Tamarac Purchasing and Contrac(s Division VENDOR DRUG -FREE WORKPLACE Preference may be given to vendors submitting a certification with their bid/proposal certifying they have a drug -free workplace in accordance with Section 287.087, Florida Statutes. This requirement affects all public entities of the State and becomes effective January 1,1991, The special condition is as follows: g KNIaGA4 Tt IDS - Preference may be given to businesses with drug -free workplace programs. Whenever two or more bids that are equal with respect to price, quality, and service are received by the State or by any political subdivision for the procurement of commodities or contractual services, a bid received from a business that certifies that it has implemented a drug -free workplace program shall be given preference In the award process, Established procedures for processing tie bids will be followed if none of the tied vendors have a drug -free workplace program. In order to have a drug -free workplace program, a business shall: Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees for violations of such prohibition. inform employees about dangers of drug abuse in the workplace, the business's policy of maintaining a drug -free workplace, any available drug counseling, rehabilitation, & employee assistance programs, and penalties that may be imposed upon employees for drug abuse violations. Give each employee engaged In providing commodities or c o&actual eves., that are under bid a copy of the statement specified In subsection (1). In the statement specified in subsection (1), notify the employees that, as a condition of working on the commodities or contractual services that are under bid, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendere-to, any violation of chapter 893 or of any controlled substance law of the United States or any state, for a violation occurring ing in the workplace no later that five (5) days after each conviction. Impose a section on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, by any employee who is so convicted. Make a good faith effort to continue to maintain a drug -free workplace through implementation of this section. As the person authorized to sign the statement, I certify that this form complies fully with the Company Nam City of Tamarac Purchasing and Contracts Vivision APPENDIX A QUESTIONNAIREN"`�� Please provide responses to the following questions shown below. Please use additional sheets if necessary. Responses shall Included with your proposal response. 1. Does the sample Master Lease/Purchase Agreement, included as a part of your response, conform to the require ants set forth in this Bid? YES NO - If 'NO', please explain deviation and confine that a letter is included as part of your response that states that you agree to make the necessary changes. 2. Do you acknowledge that the Master Lease/Purchase Agreement shall not be assignable or transferable except as set forth in this bid? YES NO —4z - If 'NO', please explain deviation and confirm that a letter is included as part of your response that states that you agree to make the necessary changes. 3. Does the interest rate provision of your bid provide for individual asset repayment schedules payable semi-annually on March 1 st and September 1 at each year of the repayment period? YES --L NO - If 'NO', please explain deviation and confirm that a letter is included as part of your response that states that you agree to make the necessary changes. 4. Is the interest rate that Is to be charged for the Initial equipment to be purchased as well as additional gqulpment to be acquired an "all in rate"? YES 7 NO - If 'NO', please explain deviation and confirm that a letter is included as part of your response that states that you agree to make the necessary changes. 5. Does your response provide for fixed rate financing based upon the current interest rates of Treasury instruments as adjusted by your discountipremium of the same duration as the new asset financing as published each Tuesday in the Wall Street Journal? YES NO -�L - If 'NO', please explain deviation and confirm that a letter is included as part of your response that states that you agree to make the necessary changes. B, Is interest to be calculated on a level debt service 301360-day basis with all payments except the initial tobe within I % of all other payments? YESy%NO - If'NO', please explain deviation and confirm that a letter is included as part of your response that states that you agree to make the necessary changes. 7, Will the City have the right to prepay the principal balance, plus accrued Interest, of any lease without penalty upon giving thirty (30) days notice prior to the rent payment date? YES NO V - If 'NO'. please explain deviation and confirm that a letter is included as part of your response that states that you agree to make the necessary changes. �&J CITY OF TAMARAC PURCHASING AND CONTRACTS DIVISION 7525 NW 88'" AVENUE TAMARAC, FL 33321 "Committed to Excellence... Always" ADDENDUM NO.1 REQUEST FOR PROPOSAL 11-29R MASTER LEASING SERVICES DATE OF ADDENDUM. AUGUST 8, 2011 TO ALL PROSPECTIVE PROPOSERS: The following clarifications, changes, additions and/or deletions are hereby made part of the Contract Documents for Request for Proposal #11-29R, MASTER LEASING SERVICES. Proposal Due Date & Time: AUGUST 26 2011 at 3:00 P.M. E.D.T. The following questions have been received by the Purchasing & Contracts Division: 1. Q. Will funds need to be escrowed for this transaction? A. No, not under the Master Lease program but, we may escrow on an individual lease basis which will be evaluated at the time an individual lease is processed, due to timing, All other terms, conditions and specifications remain unchanged for RFP # 11-29R. Please acknowledge receipt of this Addendum No. 1, by returning it and/or acknowledging it in your proposal. Sincerely, Keith K. Glatz, CPPO, FCPM Purchasing & Contracts Manager COMPANY: (s,w( _ i NAME: 7525 NW 88th Avenue ■ Tamarac, Florida 33321-2401 ■ (954) 597-3570 ■ Fax (954) 597-3565 ■ www.tomarac.org Equal Opportunity Employer CITY OF TAMARAC PURCHASING AND CONTRACTS DIVISION 7525 NW 86T" AVENUE TAMARAC,FL 33321 "Committed to Excellence... Always" ADDENDUM NO.2 REQUEST FOR PROPOSAL 11-29R MASTER LEASING SERVICES DATE OF ADDENDUM: AUGUST 17, 2011 PROPOSAL DUE DATE & TIME: 8/26/2011 at 3:00 P.M., E.D.T. TO ALL PROSPECTIVE PROPOSERS: The following clarifications, changes, additions and/or deletions are hereby made part of the Contract Documents for Request for Proposal #11-29R, MASTER LEASING SERVICES. The following questions have been received by the Purchasing & Contracts Division: 1. Q. Will the City use the Covenant to Budget and Appropriate (C B & A) method to fund leases, or the Funds Appropriation m ethod to fund leases? A. The City will utilize the C B & A method. Please acknowledge receipt of this Addendum No. 2, by returning it and/or acknowledging it in your proposal. All other terms, conditions and specifications remain unchanged for RFP # 11-29R. Sincerely, Keith K. Glatz, CPPO, FCPM Purchasing &.Contracts Manager 6Li NAME: %�J COMPANY: i" IG 7525 NW 88th Avenue ■ Tamarac, Florida 33321-2401 ■ (954) 597-3570 ■ Fox (954) 597-3565 ■ www.tamorac.org Equal Opportunity Employer CITY OF TAMARAC PURCHASING AND CONTRACTS DIVISION 7525 NW 88T" AVENUE TAMARAC, FL 33321 "Committed to Excellence... Always" ADDENDUM NO.3 REQUEST FOR PROPOSAL 11-29R MASTER LEASING SERVICES DATE OF ADDENDUM: AUGUST 22, 2011 PROPOSAL DUE DATE & TIME: 8/26/2011 at 3:00 P.M., E.D.T.. TO ALL PROSPECTIVE PROPOSERS: The following clarifications, changes, additions and/or deletions are hereby made part of the Contract Documents for Request for Proposal #11-29R, MASTER LEASING SERVICES. The following questions have been received by the Purchasing & Contracts Division: Q. "Can you please clarify whether the $20 million Taxable Redevelopment Revenue Note, Series 2008 with SunTrust termed -out in April 2011 over 10 years as it was suppose to, or is it interest -only as the 2012 budget suggests? If it termed out, please send the respective annual debt service and parameters that contributed to such annual debt service — outstanding amount, rate used, etc." A. The note was refinanced through RBC in February of this year, with interest only for three years with an option to fix from that point forward. Please acknowledge receipt of this Addendum No. 3, by returning it and/or acknowledging it in your proposal. All other terms, conditions and specifications remain unchanged for RFP # 11-29R. Sincerely, ,Q/ yq,-- Keith K. Glatz, CPPO, FCPM Purchasing & Contracts Manager COMPANY: Ar NAME: 7525 NW 88th Avenue ■ Tamarac, Florida 33321-2401 M (954) 597-3570 ■ Fax (954) 597-3565 ■ www.tamarac.org Equal Opportunity Employer MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT between BANC OF AMERICA PUBLIC CAPITAL CORP, AS LESSOR, and CITY OF TAMARAC, BROWARD COUNTY, FLORIDA, AS LESSEE DATED AS OF OCTOBER _, 2011 4841-4703-3355.2 TABLE OF CONTENTS Section Page Article I. Section1.01. Definitions............................................................................................................... 1 Article II. Section 2.01. Representations and Covenants of Lessee.............................................................. 4 Section 2.02. Representations and Covenants of Lessor.............................................................. 7 Article III. Section 3.01. Lease of Equipment................................................................................................ 7 Section 3.02. Lease not to be Indebtedness of the Lessee, Broward County, Florida or theState................................................................................................................... 7 Section 3.03. Rental Payments; Covenant to Budget and Appropriate From Legally Available Non -Ad Valorem Funds......................................................................... 8 Section 3.04. Substitution............................................................................................................. 9 Section 3.05. Conditions to Lessor's Performance Under Any Lease .......................................... 9 Article IV. Section 4.01. Rental Payments.................................................................................................... 10 Section 4.02. ...................................... Interest and Principal Components ............................... .. 10 Section 4.03. Rental Payments to be Unconditional................................................................... 11 Section 4.04. Tax Covenants...................................................................................................... 11 Section 4.05. Event of Taxability............................................................................................... 11 Section 4.06. Mandatory Prepayment......................................................................................... 12 Section 4.07. Future Borrowings................................................................................................ 12 Article V. Section 5.01, Delivery, Installation and Acceptance of Equipment ........................................... 12 Section 5.02. Enjoyment of Equipment...................................................................................... 13 Section 5.03. Location and Inspection of the Equipment........................................................... 13 Section 5.04. Use and Maintenance of the Equipment............................................................... 13 Article VI. 4841-4703-3355.2 Section 6.01. Title to the Equipment.......................................................................................... 14 Section 6.03. Personal Property.................................................................................................. 14 Article VII. Section 7.01. Liens, Taxes, Other Governmental Charges and Utility Charges ......................... 14 Section7.02. Insurance............................................................................................................... 15 Section7.03. Risk of Loss.......................................................................................................... 15 Section7.04. Advances............................................................................................................... 16 Article VIII. Section 8.01. Damage, Destruction and Condemnation............................................................. 16 Section 8.02. Insufficiency of Net Proceeds............................................................................... 16 Article IX. Section 9.01. Disclaimer of Warranties...................................................................................... 17 Section 9.02. Vendor's Warranties............................................................................................. 17 Article X. Section 10.01. Purchase Option.................................................................................................... 17 Article XI. Section 11.01. Assignment by Lessor........................................................................................... 18 Section 11.07. 18 Section 11.08. Assignment and Subleasing by Lessee................................................................. 19 Article XII. Section 12.01. Events of Default Defined.................................................................................... 19 Section 12.02. Remedies on Default............................................................................................. 20 Section 12.03. No Remedy Exclusive ................................................. ....... 20 Section 12.04. Application of Moneys......................................................................................... 21 Article XIII. Section 13.01. No Fees Paid by Lessor......................................................................................... 21 Section13.02. Notices.................................................................................................................. 21 Section 13.03. Binding Effect....................................................................................................... 21 6r1a �fisare�xaex�.�.yva Section13.04. Severability........................................................................................................... 21 Section 13.05. Amendments, Changes and Modifications........................................................... 21 Section 13.06. Execution in Counterparts..................................................................................... 22 Section 1.3.07. Applicable Law..................................................................................................... 22 Section13.08. Captions................................................................................................................ 22 EXHIBITS Exhibit A -- Form of Schedule of Property and Rental Payment Schedule Exhibit B -- Form of Acceptance Certificate Exhibit C -- Form of Secretary Certificate Exhibit D -- Form of Opinion of Counsel to Lessee Exhibit E -- Form of Notice and Acknowledgement of Assignment -3- 4841-4703-3355.2 Master Equipment Lease/Purchase Agreement This Master Equipment Lease/Purchase Agreement (this "Agreement") dated October 2011, and entered into between Banc of America Public Capital Corp, a Kansas Corporation ("Lessor"), and the City of Tamarac, Broward County, Florida ("Lessee"). WITNESSETH: WHEREAS, Lessee desires to lease and acquire from Lessor certain equipment described in each Schedule (as each such term is defined herein), subject to the terms and conditions of and for the purposes set forth in each Lease; and in the event of a conflict the terms of a Schedule prevail; and WHEREAS, the relationship between the parties shall be a continuing one and items of equipment may be added to the Equipment from time to time by execution of additional Schedules by the parties hereto and as otherwise provided herein; and WHEREAS, Lessee is authorized under the constitution and laws of the State to enter into this Agreement and the Schedules hereto for the purposes set forth herein; NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, and in consideration of the premises hereinafter contained, the parties hereby agree as follows: ARTICLE I. Section 1.01. Definitions. The following terms will have the meanings indicated below unless the context clearly requires otherwise: "Acquisition Amount" means the amount specified in each Lease and represented by Lessee to be sufficient to acquire the Equipment listed in such Lease. "Acquisition Fund" means, with respect to any Lease, the fund established and held by the Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement, if any. "Acquisition Fund Agreement" means, with respect to any Lease, an Acquisition Fund Agreement in form and substance acceptable to and executed by Lessee, Lessor and the Acquisition Fund Custodian, pursuant to which an Acquisition Fund is established and administered. "Acquisition Fund Custodian" means the acquisition fund custodian or depository bank of Lessee identified in any Acquisition Fund Agreement, and its successors and assigns. "Acquisition Period" means, with respect to each Lease, that period stated in the Schedule to such Lease, during which the Lease Proceeds attributable to such Lease may be expended on Equipment Costs. 4841-4703-3355.2 "Act" means, collectively, Chapter 166, Florida Statutes, the Constitution of the State, and other applicable provisions of law. "Available Non -Ad Valorem Revenues" means all Non -Ad Valorem Revenues (a) other than (i) any revenues which are restricted by a contract in existence on the date hereof, or created subsequent to the date hereof in connection with the incurrence of debt permitted hereby, from being used to pay Rental Payments under a Lease, (ii) any revenues which are prohibited by a general or special law of the State in existence on the date hereof from being used to pay Rental Payments under a Lease and (iii) any source of Non -Ad Valorem Revenue which is created after the date hereof and which is prohibited by a general or special law of the State from being used to Rental Payments under a Lease, and (b) to the extent, and only to the extent, necessary to avoid a violation of Article VII, Section 12 of the Florida Constitution, subject to the prior payment of essential governmental services of the Lessee. "Agreement" means this Master Equipment Lease/Purchase Agreement, including the exhibits hereto, together with any amendments and modifications to the Agreement pursuant to Section 13.05. "Code" means the Internal Revenue Code of 1986, as amended. Each reference to a Section of the Code herein shall be deemed to include the United States Treasury Regulations proposed or in effect thereunder. "Commencement Date" means, for each Lease, the date when Lessee's obligation to pay Rental Payments commences under such Lease, which date shall be the earlier of (i) the date on which the Equipment listed in such Lease is accepted by Lessee in the manner described in Section 5.01, or (ii) the date on which sufficient moneys to purchase the Equipment listed in such Lease are deposited for that purpose with an Acquisition Fund Custodian. "Contract Rate " means the rate identified as such in the applicable Schedule. "Equipment" means the property listed in each of the Leases and all replacements, repairs, restorations, modifications and improvements thereof or thereto made pursuant to Section 8.01 or Article V. Whenever reference is made in this Agreement to Equipment listed in a Lease, such reference shall be deemed to include all such replacements, repairs, restorations, modifications and improvements of or to such Equipment. "Equipment Costs" means, to the extent permitted by the Act, the total cost of the Equipment listed in each Lease, including soft costs such as freight, installation and taxes paid up front by Lessor and all capitalizable consulting and training fees approved by Lessor, legal fees, financing costs, motor vehicle registration fees, recording and filing fees, and other costs necessary to vest full, clear legal title to the Equipment in Lessee, and otherwise incurred in connection with the financing provided by the lease -purchase of the Equipment as provided in each Lease; provided that (i) any such soft costs on a cumulative basis shall not exceed a percentage of the Maximum Equipment Cost approved by Lessor, and (ii) in no event shall capitalizable delivery charges, installation charges, taxes and similar capitalizable "soft costs" relating to such Equipment exceed 20% of the total cost of such Equipment as determined by Lessor. -2- 4841-4703-3355.2 "Expense Fund" means, with respect to any Lease, the fund established and held by the Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement. "Event of Default" means an Event of Default described in Section 12.01. "Lease" means a Schedule and the terms of this Agreement which are incorporated by reference into such Schedule. Each Schedule with the incorporated terms of this Agreement shall constitute a separate and independent Lease. "Lease Proceeds" means, with respect to each Lease, the total amount of money to be paid by Lessor to the Acquisition Fund Custodian for deposit and application in accordance with such Lease and the Acquisition Fund Agreement, or if there is no Acquisition Fund Agreement, the amounts paid to Lessee to finance Equipment Costs. "Lease Term" for each Lease means the Commencement Date of each Lease until the date such Lease is terminated. "Lessee" means the entity referred to as Lessee in the first paragraph of this Agreement. "Lessor" means (a) the entity referred to as Lessor in the first paragraph of this Agreement or (b) any assignee or transferee of any right, title or interest of Lessor in and to the Equipment under a Lease or any Lease (including Rental Payments thereunder) pursuant to Section 11.01, but does not include any entity solely by reason of that entity retaining or assuming any obligation of Lessor to perform under a Lease. "Material Adverse Change " means (a) prior to the Utilization Period Expiration, a downgrade in Lessee's external debt rating of two or more subgrades by either Moody's Investors Service, Inc. or Standard & Poor's Ratings Group or any equivalent successor credit rating agency, or any downgrade by either such agency that would cause Lessee's credit rating; to be below investment grade, and (b) thereafter, any change in Lessee's creditworthiness that could have a material adverse effect on (i) the financial condition or operations of Lessee, or (ii) Lessee's ability to perform its obligations under this Agreement or any Lease. "Maximum Equipment Cost" means the cumulative amount specified in the latest Schedule executed under this Agreement. "Non -Ad Valorem Revenues" means all revenues of the City not derived from ad valorem taxation. "Budgeted Revenues " shall have the meaning set forth in the Master Subordinate Obligation Resolution. "Purchase Price" means, with respect to the Equipment listed on a Lease, the amount that the Lessee may pay to the Lessor to purchase such Equipment as provided in such Lease. "Rental Payments" means the basic rental payments payable by Lessee under each Lease pursuant to Section 4.01, in each case consisting of a principal component and an interest component. -3- 4841-4703-3355.2 "Resolution " shall mean a resolution of the Lessee which among other things authorizes the execution and delivery of this Master Equipment Lease/Purchase Agreement. "Schedule" means each separately numbered Schedule of Property substantially in the form of Exhibit A hereto together with a Rental Payment Schedule attached thereto substantially in the form of Exhibit A-1 hereto. "State" means the State of Florida. "Utilization Period Expiration" means the date with respect to each Lease not funded under an Acquisition Fund Agreement, by which Lessee must deliver an Acceptance Certificate for the Equipment under such Lease as set forth in such Lease. "Vendor" means the manufacturer or supplier of the Equipment or any other person as well as the agents or dealers of the manufacturer or supplier from whom Lessor arranged Lessee's acquisition and financing of the Equipment pursuant to the applicable Lease. ARTICLE II. Section 2.01. Representations and Covenants of Lessee. This Section 2.01 sets forth facts and estimates upon which Lessor and its counsel may rely regarding the exclusion of the interest portion of the Rental Payments from the gross income of Lessor, and the facts and estimates upon which Lessee bases its reasonable expectation that the obligation to make Rental Payments pursuant to the Leases does not create an arbitrage bond under Section 148 of the Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations. Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof and as of the Commencement Date of each Lease as follows: (a) Lessee is a state or a political subdivision thereof within the meaning of Section 103(c) of the Code, duly organized and existing under the constitution and laws of the State, including the Act, with full power and authority to enter into this Agreement and each Lease and the transactions contemplated hereby, and to perform all of its obligations hereunder and under each Lease. (b) Lessee has duly authorized the execution and delivery of this Agreement and each Lease by proper action of its governing body at a meeting duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and each Lease. (c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof. Lessee is not in default under any indenture, mortgage, deed of trust, bank loan, credit agreement or other instrument to which Lessee is a party. -4- 4841-4703-3355.2 (d) The entering into and performance of each Lease by Lessee will not violate any judgment, order, or regulation applicable to Lessee, and except as otherwise expressly provided in this Agreement, result in the creation of any lien, charge, security interest, or other encumbrance upon any assets of Lessee pursuant to any indenture, mortgage, deed of trust, bank loans, credit agreement or other instrument to which Lessee is a party or by which it or its assets may be bound. (e) There are no actions, suits or proceedings pending or, to the knowledge of Lessee, threatened against or affecting Lessee in any court or before any governmental commission, board or authority, which, if adversely determined, will have a material adverse effect on the ability on Lessee to perform its obligations under this Agreement or any Lease. (f) Lessee has complied and will comply with Section 218.38, Florida Statutes, with respect to each Lease. (g) The interest rate for the interest portion of the Rental Payments, on the first date interest begins to accrue, does not exceed a rate of interest permitted by Section 215.84, Florida Statutes. (h) Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a political subdivision within the meaning of Section 103(c) of the Code. (i) Lessee has complied and will comply with such open meeting laws and public bidding requirements as may be applicable to this Agreement and each Lease and the acquisition by Lessee of the Equipment as provided in each Lease or, in the case of public bidding requirements, has otherwise complied and will comply with Section 218.385(1), Florida Statutes, in connection with each Lease. 0) During the Lease Term, the Equipment will be used by Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee permitted under the Act. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid under each Lease. (k) Lessee has kept and throughout the Lease Term shall keep its books and records in accordance with generally accepted accounting principles and practices consistently applied, and shall deliver to Lessor (1) annual audited financial statements (including a balance sheet, statement of revenues, expenses and changes in fund balances for budget and actual, statement of cash flows and notes, and schedules and attachments to the financial statements) within 270 days of its fiscal year end, (ii) such other financial statements and information as Lessor may reasonably request, and (iv) its annual budget for the following fiscal year when approved but not later than 30 days prior to its current fiscal year end. Such statements in clause (i) above shall be accompanied by an unqualified opinion of Lessee's auditor. Credit information relating to Lessee may be -5- 4841-4703-3355.2 disseminated among Lessor and any of its affiliates and any of their respective successors and assigns. (1) Lessee has an immediate need for the Equipment listed on each Schedule and expects to make immediate use of the Equipment listed on each Schedule. Lessee's need for the Equipment is not temporary and Lessee does not expect the need for any item of the Equipment to diminish during the Lease Term of such item. The use of the Equipment is essential to Lessee's proper efficient and economic operation. (m) The original proceeds of each Lease, and the interest to be earned thereon, do not and will not exceed the amount necessary for the purpose for which such Lease is executed. (n) No sinking fund is expected to be created by Lessee with respect to any Lease or the Rental Payments. (o) No other governmental obligations of Lessee are being issued at substantially the same time and sold pursuant to a common plan of financing which will be paid out of (or have substantially the same claim to be paid out of) substantially the same source of funds as each Lease. (p) No portion of the amounts received pursuant to each Lease will be used as a substitute for other funds which were otherwise to be used as a source of financing for any portion of the costs of Equipment and which have been and will be used to acquire, directly or indirectly, obligations producing a yield in excess of the yield on each Lease. (q) In connection with the execution and delivery of each Lease, no action has or will be taken which attempts to circumvent the provisions of Section 148 of the Code and the regulations promulgated thereunder by (i) enabling Lessee to exploit the difference between tax-exempt and taxable interest rates to gain a material financial advantage and (ii) over burdening the tax-exempt bond market. (r) Lessee will not directly or indirectly use or permit the use of any proceeds of a Lease, or take or omit to take any action, that would cause the Rental Payments to be "federally guaranteed" within the meaning of Section 149(b) of the Code. (s) Lessee will submit to the Secretary of the Treasury information reporting statements and other information related to each Lease at the times and in the forms required by the Code. (t) To the best of the knowledge and belief of Lessee, the expectations of Lessee, as set forth in this Section 2.01, are reasonable, and there are no present facts, estimates and circumstances which would change the expectations contained therein. -6- 4841-4703-3355.2 (u) There is no pending litigation, tax claim, proceeding or dispute that may adversely affect Lessee's financial condition or impairs its ability to perform its obligations hereunder. Lessee will, at its expense, maintain its legal existence in good standing and do any further act and execute, acknowledge, deliver, file, register and record any further documents Lessor may reasonably request in order to protect Lessor's rights and benefits under this Lease. (v) The payment of the Rental Payments or any portion thereof is not (under the terms of any Lease or any underlying arrangement) directly or indirectly (1) secured by any interest in property used or to be used in any activity carried on by any person other than a state or local governmental unit or payments in respect of such property; or (2) on a present value basis, derived from payments (whether or not to Lessee) in respect of property, or borrowed money, used or to be used in any activity carried on by any person other than a state or local governmental unit. The Equipment will not be used, directly or indirectly, in any activity carried on by any person other than a state or local governmental unit. No portion of the Equipment Costs for the Equipment will be used, directly or indirectly, to make or finance loans to any person other than Lessee. Lessee has not entered into any management or other service contract with respect to the use and operation of the Equipment. (w) Lessee has reviewed and will review Internal Revenue Service Form 8038-G to be filed in connection with the execution and delivery of each Lease, and all of the information contained therein is, and will be, to the best of Lessee's knowledge, true and correct, and Lessee will cause such Form 8038-G to be filed not later than 30 days after the execution and delivery of each Lease. To the best of the knowledge and belief of Lessee, the expectations of Lessee, as set forth in this Section 2.01, are reasonable, and there are no present facts, estimates and circumstances which would change the expectations contained therein. Section 2.02. Representations and Covenants of Lessor. Lessor represents, covenants and warrants for the benefit of Lessee on the date hereof and as of the Commencement Date of each Lease that it has and will comply with Section 218.385(2) and Section 218.385(3), Florida Statutes, with respect to each Lease. ARTICLE III. Section 3.01. Lease of Equipment. Subject to the terms of this Master Lease, Lessor agrees to provide the funds specified as the "Acquisition Amount" in each Lease to acquire the Equipment. Upon the execution of each Lease, Lessor demises, leases, transfers and lets to Lessee, and Lessee acquires, rents and leases from Lessor, the Equipment as set forth in such Lease and in accordance with the terms thereof. Section 3.02, Lease not to be Indebtedness of the Lessee, Broward County, Florida or the State. The obligation of Lessee to make Rental Payments under each Lease shall not be or constitute an indebtedness of the Lessee, Broward County, Florida, the State of Florida or any political subdivision or agency thereof, within the meaning of any constitutional, statutory or -7- 4841-4703-3355.2 charter limitations of indebtedness, but shall be payable from the Budgeted Revenues, in the manner and to the extent provided herein. The Lessor shall never have the right to compel the exercise of the ad valorem taxing power of the Lessee or taxation in any form on any property therein to pay the Rental Payments. The Rental Payments due under each Lease are special and limited obligations payable as to principal and interest from the Budgeted Revenues in the manner and to the extent provided herein. Section 3.03. Rental Payments; Covenant to Budget and Appropriate From Legally Available Non -Ad Valorem Funds. (a) The Lessee promises that it will promptly make Rental Payments due under each Lease at the place, on the dates and in the manner provided herein and in such Lease, provided that the Lessee may be compelled to pay the principal of and interest on any Lease solely from the Budgeted Revenues, and nothing in any Lease shall be construed as pledging any other funds or assets of the Lessee to such payment or as authorizing such payment to be made from any other source. Nothing herein shall, however, prevent the Lessee from using any lawfully available funds to pay its obligations under any Lease. The Lessee is not and shall not be liable for the payment of the principal of and interest on any Lease or for the performance of any pledge, obligation or agreement for payment undertaken by the Lessee any Lease from any property other than the Budgeted Revenues. The Lessor shall not have any right to resort to legal or equitable action to require or compel the Lessee to make any payment required by any Lease from any source other than the Budgeted Revenues. (b) The Lessee covenants that, so long Rental Payments under any Lease shall remain unpaid or any other amounts are owed by the Lessee under this Agreement, it will appropriate in its annual budget, by amendment, if required, from the Non -Ad Valorem Revenues, amounts sufficient to pay the Rental Payments due under any Lease and other amounts owed under this Agreement as the same shall become due. In the event that the amount previously budgeted for such purpose is ever insufficient to pay such Rental Payments and other amounts owed under this Agreement, the Lessee covenants to take immediate action to amend its budget so as to budget and appropriate an amount from the Non -Ad Valorem Revenues sufficient to pay such Rental Payments and such other amounts. The covenant to budget and appropriate does not create a lien upon or pledge of the Non -Ad Valorem Revenues. Such covenants to budget and appropriate from Non -Ad Valorem Revenues shall be cumulative to the extent not paid and shall continue until Non -Ad Valorem Revenues sufficient to make all required payments have been budgeted, appropriated and used to pay such Rental Payments and such other amounts. (c) Notwithstanding the foregoing covenant in paragraph (b), the Lessee does not covenant to maintain any service or programs now provided or maintained by the Lessee which generate Non -Ad Valorem Revenues. The obligation of Lessee to make Rental Payments from Budgeted Revenues shall be absolute and unconditional in all events. Notwithstanding any dispute between Lessee and Lessor or any other person, Lessee shall make all Rental Payments when due from Budgeted Revenues and without setoff or deduction, and shall not withhold all or any part of a Lease Payment pending final resolution of such dispute nor shall Lessee assert any right of set-off or counterclaim -8- 4841-4703-3355.2 against its obligation to make such Rental Payments required under each Lease. Lessee's obligation to make Rental Payments from Budgeted Revenues during the Lease Term shall not be abated through accident or unforeseen circumstances. Section 3.04. Substitution. Lessee reserves the right to substitute Equipment of the same quantity and general type with the approximate equal value, utility and remaining useful life as the Equipment so replaced. Such substitution is subject to Lessor's prior written consent, which consent shall not be unreasonably withheld, and shall be reflected in an amendment to the appropriate Schedule. Section 3.05. Conditions to Lessor's Performance Under Any Lease. As a prerequisite to the performance by Lessor of any of its obligations pursuant to any Lease, Lessee shall deliver to Lessor the following: (1) A fully completed Schedule, executed by Lessee; (ii) An Acquisition Fund Agreement, executed by Lessee and the Acquisition Fund Custodian, unless Lessor pays 100% of the Acquisition Amount directly to the Vendor (or to Lessee in reimbursement for payments to the Vendor) upon execution of the Lease; (iii) A Certificate executed by the Clerk or Secretary or other comparable officer of Lessee, in substantially the form attached hereto as Exhibit C, completed to the satisfaction of Lessor. (iv) A certified copy of a resolution or other official action of Lessee's governing body authorizing the execution and delivery of the Lease and performance by Lessee of its obligations thereunder; and if a Lease provides for reimbursement of Lessee for amounts paid to a Vendor prior to the execution and delivery of the Lease, a certified copy of a reimbursement resolution of Lessee. (v) An opinion of counsel to Lessee in substantially the form attached hereto as Exhibit D respecting such Lease and otherwise satisfactory to Lessor. (vi) Evidence of insurance as required by Section 7.02 hereof: (vii) All other closing documents reasonably required by Lessor, including certificates, notices and similar instruments, in form satisfactory to Lessor. (viii) A copy of a fully completed and executed Form 8038-G; (ix) If any Equipment units are motor vehicles, properly completed certificates of title for such vehicles; and -9- 4841-4703-3355.2 (x) Such other items, if any, as are set forth in such Lease or are reasonably required by Lessor. (b) In addition, the entering into by Lessor of any Lease shall be subject to (i) no Material Adverse Change in the financial condition of Lessee since the date of this Agreement, (ii) no Event of Default having occurred and (iii) if no Acquisition Fund has been established, the Equipment must be accepted by Lessee no later than the date listed as the Utilization Period Expiration in the applicable Schedule. (c) This Agreement is not a commitment by Lessor to enter into any Lease not currently in existence, and nothing in this Agreement shall be construed to impose any obligation upon Lessor to enter into any proposed Lease, it being understood that whether Lessor enters into any proposed Lease shall be a decision solely within Lessor's discretion. (d) Subject to satisfaction of the foregoing, Lessor will pay the Acquisition Amount for Equipment described in a Schedule to the Vendor (or to reimburse Lessee for payments to the Vendor), as applicable, upon receipt of the documents described in Section 5.01; or if an Acquisition Fund has been established pursuant to an Acquisition Fund Agreement, Lessor will deposit the Acquisition Amount for Equipment described in the Schedule with the Acquisition Fund Custodian. (e) Lessee will cooperate with Lessor in Lessor's review of any proposed Lease. Without limiting the foregoing, Lessee will provide Lessor with any documentation or information Lessor may request in connection with Lessor's review of any proposed Lease. Such documentation may include, without limitation, documentation concerning the Equipment and its contemplated use and location and documentation or information concerning the financial status of Lessee and other matters related to Lessee. ARTICLE IV. Section 4.01. Rental Payments. (a) Lessee shall promptly pay Rental Payments from the Budgeted Revenues, in lawful money of the United States of America, to Lessor on the dates and in such amounts as provided in each Lease. Lessee shall pay Lessor a charge on any Rental Payment not paid on the date such payment is due at a rate equal to the Contract Rate plus 5% per annum or the maximum amount permitted by law, whichever is less, from such date. Rental Payments consist of principal and interest payments as more fully detailed on each Schedule, the interest on which begins to accrue as of the Commencement Date for each such Schedule. (b) The interest component of Rental Payments shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Section 4.02. Interest and Principal Components. A portion of each Rental Payment is paid as, and represents payment of, interest, and the balance of each Rental Payment -10- 4841-4703-3355.2 is paid as, and represents payment of, principal. Each Lease shall set forth the principal and interest components of each Rental Payment payable thereunder during the Lease Term. Section 4.03. Rental Payments to be Unconditional. Except as otherwise provided in herein, the obligations of Lessee to make Rental Payments and to perform and observe the other covenants and agreements contained in each Lease shall be absolute and unconditional in all events without abatement, diminution, deduction, set-off or defense, for any reason, including without limitation any failure of the Equipment, after it has been accepted by Lessee, any defects, malfunctions, breakdowns or infirmities in the equipment or any accident, condemnation or unforeseen circumstances. Section 4.04. Tax Covenants. (a) Lessee agrees that it will not take any action that would cause the interest component of Rental Payments to be or to become ineligible for the exclusion from gross income of the owner or owners thereof for federal income tax purposes, and will not fail to take in a timely manner any action necessary to maintain the exclusion of the interest component of the Rental Payments from gross income of the owner or owners thereof for federal income tax purposes, including, without limitation, the calculation and payment of any rebate required to preserve such exclusion. Subject to Lessee's right to terminate the Lease as provided herein, the foregoing covenant shall remain in effect until the date on which all obligations of Lessee in fulfilling the above covenant under the Code have been met. (b) In the event that Lessee does not spend the moneys in the Acquisition Fund within six (6) months of the date the deposit is made pursuant to Section 3.04(c), Lessee will, if required by section 148(f) of the Code to pay rebate: (i) establish a Rebate Account and deposit the Rebate Amount (as defined in Section 1.148-3(b) of the Federal Income Tax Regulations) not less frequently than once per year after the applicable Commencement Date; and (ii) rebate to the United States, not less frequently than once every five (5) years after the applicable Commencement Date, an amount equal to at least 90% of the Rebate Amount and within 60 days after payment of all Rental Payments or the Purchase Price as provided in Section 10.01(a) hereof, 100% of the Rental Payments or the Purchase Price and shall maintain such determination, together with any supporting documentation required to calculate the Rebate Amount, until six (6) years after the date of the final payment of the Rental Payments or the Purchase Price. Section 4.05. Event of Taxability. Upon the occurrence of an Event of Taxability, the interest component shall be at the Taxable Rate retroactive to the date as of which the interest component is determined by the Internal Revenue Service to be includible in the gross income of the owner or owners thereof for federal income tax purposes, and Lessee will pay such additional amount as will "result in the owner receiving the interest component at the Taxable Rate. Lessee will also pay any penalties and interest charged to Lessor by the Internal Revenue Service in connection with an Event of Taxability. For purposes of this section, "Event of Taxability" means (i) a final determination of the Internal Revenue Service or other agency or entity having lawful jurisdiction over the matter, after any and all applicable appeals rights within such agency have been exhausted or after Lessee chooses not to appeal such determination, or (ii) a determination by a court having lawful jurisdiction over the matter, which determination is not subject to appeal or which Lessor in its -11- 4841-4703-3355.2 sole discretion chooses not to appeal, that the interest component is includible for federal income tax purposes in the gross income of the owner thereof due to Lessee's action or failure to take any action.. Section 4.06. Mandatory Prepayment. If the Lease Proceeds are deposited into an Acquisition Fund, any funds remaining in the Acquisition Fund on or after the Acquisition Period and not applied to Equipment Costs, shall be applied, in Lessor's discretion based upon the amount remaining in such Fund, on the next Rental Payment date to either: (i) all or a portion of the next Rental Payment and if such amount is in excess of the next Rental Payment then, any remaining balance shall be applied to all or a portion of the next succeeding Rental Payments until fully applied; or (ii) as prepayment of the remaining principal balance owing under the Schedule in the inverse order of maturity. Section 4.07. Future Borrowings. The Lessee shall not hereafter incur any indebtedness payable from any Non -Ad Valorem Revenues, other than any Non -Ad Valorem Revenues accounted for in an enterprise fund under governmental accounting principles, which could, but for such future indebtedness, be lawfully used to pay Rental Payments (any and all such indebtedness payable from Non Ad Valorem Revenues, other than any Non -Ad Valorem Revenues accounted for in an enterprise fund under governmental accounting principles, whether now existing or incurred in the future, is referred to as "Competing Debt"), unless (i) the amount of Non -Ad Valorem Revenues, other than any Non -Ad Valorem Revenues accounted for in an enterprise fund under governmental accounting principles, which could lawfully be used to pay Rental Payments received by the Lessee during the fiscal year of the Lessee most recently concluded prior to the incurrence of such indebtedness, equals or exceeds 150% of the maximum amount of Rental Payments scheduled to be payable on the Leases and principal and interest scheduled to be payable all Competing Debt (including the proposed debt) during the then current or any future fiscal year and (ii) the Finance Director of the Lessee certifies in writing to the Lessor that to the best of his or her knowledge no event has occurred which would cause him or her to believe that the amount of Non -Ad Valorem Revenues, other than any Non -Ad Valorem Revenues accounted for in an enterprise fund under governmental accounting principles, which could lawfully be used to pay Rental Payments to be received in any future fiscal year to be less than 120% of the amount of the scheduled Rental Payments and principal and interest scheduled to be payable on all Competing Debt during such fiscal year. For purposes of calculating the foregoing, if any indebtedness bears a variable rate of interest, then the interest rate on such indebtedness shall be assumed to be the higher of (i) the average rate of actual interest borne by such indebtedness during the most recent complete month prior to the date of issuance of such proposed indebtedness, (ii) The Bond Buyer 25 Revenue Bond index as of the date 30 days prior to the incurrence of the additional debt, provided that if the Lessee shall have entered into an interest rate swap or interest rate cap or shall have taken any other action which has the effect of fixing or capping the interest rate on such indebtedness for the entire term thereof, then such fixed or capped rate shall be used as the applicable rate for the period of such swap or cap. ARTICLE V. Section 5.01. Delivery, Installation and Acceptance of Equipment. -12- 4841-4703-3366.2 (a) Lessee shall order the Equipment, cause the Equipment to be delivered and installed at the location specified in the Leases, and pay any and all delivery and installation costs and other Equipment Costs in connection therewith. When the Equipment listed in any Lease has been delivered and installed, Lessee shall promptly accept such Equipment and evidence said acceptance by executing and delivering to Lessor an Acceptance Certificate in the form attached hereto as Exhibit B. (b) Lessee shall deliver to Lessor original invoices and bills of sale furnished by the Vendor (if title to such Equipment has passed to Lessee) relating to each item of Equipment accepted by Lessee. With respect to Equipment not purchased through an Acquisition Fund, Lessor shall, upon receipt of an Acceptance Certificate from Lessee, prepare a Schedule of Property and Rental Payment Schedule in the forms attached hereto as Exhibit A and Exhibit A-1, respectively. Lessee shall execute and deliver such Schedules to Lessor within S business days of receipt. Section 5.02. Enjoyment of Equipment, Lessor shall provide Lessee with quiet use and enjoyment of the Equipment during the Lease Term., and Lessee shall peaceably and quietly have, hold and enjoy the Equipment during the Lease Term, without suit, trouble or hindrance from Lessor, except as otherwise expressly set forth in the related Lease. Lessor shall not interfere with such quiet use and enjoyment during the Lease Term so long as Lessee is not in default under the related Lease. Section 5.03. Location and Inspection of the Equipment. Once installed, Lessee will not move any item of the Equipment from the location specified for it in the Lease on which such item is listed without Lessor's consent, which consent shall not be unreasonably withheld. Lessor shall have the right at all reasonable times during regular business hours to enter into and upon the property of Lessee for the purpose of inspecting the Equipment. Lessee shall promptly provide any information about the Equipment or a Lease that may be reasonably requested by Lessor. Section 5.04. Use and Maintenance of the Equipment, Lessee will not install, use, operate, or maintain the Equipment improperly, carelessly, in violation of any applicable law or in a manner contrary to that contemplated by the related Lease. Lessee shall provide all permits and licenses, if any, necessary for the installation and operation of the Equipment. In addition, Lessee agrees to comply in all respects with all applicable laws, regulations and rulings of any legislative, executive, administrative, or judicial body; provided that Lessee may contest in good faith the validity or application of any such law, regulation or ruling in any reasonable manner that does not, in the opinion of Lessor, adversely affect the interest (including the reversionary interest) of Lessor in and to the Equipment or its interest or rights under the Lease. Lessee agrees that it will maintain, preserve, and keep the Equipment in good repair and working order, in a condition comparable to that recommended by the manufacturer. Lessor shall have no responsibility to maintain, repair or make improvements or additions to the Equipment. In all cases, Lessee agrees to pay any costs necessary for the manufacturer to re- certify the Equipment as eligible for manufacturer's maintenance upon the return of the Equipment to Lessor as provided for herein. -13- 4841-4703-3355.2 Lessee shall not alter any item of Equipment or install any accessory, equipment or device on an item of Equipment if that would impair any applicable warranty, the originally intended function or the value of that Equipment. All repairs, parts, accessories, equipment and devices furnished, affixed to or installed on any Equipment, excluding temporary replacements, shall thereupon become subject to the Lease. ARTICLE VI. Section 6.01. Title to the Equipment. During each Lease Term, and so long as Lessee is not in default under Article XII hereof, all right, title and interest in and to each item of the Equipment shall be vested in Lessee immediately upon its acceptance of each item of Equipment, subject to the terms and conditions of the applicable Lease. Lessee shall at all times protect and defend, at its own cost and expense, its title in and to the Equipment from and against all claims, liens and legal processes of its creditors, and keep all Equipment free and clear of all such claims, liens and processes. Upon the occurrence of an Event of Default or upon termination of a Lease pursuant to Section 3.03 hereof, unless Lessee has elected not to return the Equipment and to purchase it pursuant to Section 10.01(a), full and unencumbered legal title to the Equipment shall be conveyed by Lessee to Lessor within 10 days of such occurrence or termination, and upon such conveyance, Lessee shall have no further interest therein (except to the extent provided in Section 12.02(c) and Section 12.04. In addition, upon the occurrence of such an Event of Default or such termination, Lessee shall execute and deliver to Lessor such documents as Lessor may request to evidence the conveyance of such legal title to Lessor and the termination of Lessee's interest therein, and upon request by Lessor shall deliver possession of the Equipment to Lessor in accordance with Section 12.02. Upon purchase of the Equipment under a Lease by Lessee pursuant to Section 10.01, Lessor's interest in the Equipment shall terminate, and Lessor shall execute and deliver to Lessee such documents as Lessee may request to evidence the termination of Lessor's interest in Equipment subject to the related Lease. Section 6.03. Personal Property. The Equipment is and will remain personal property and will not be deemed to be affixed to or a part of the real estate on which it may be situated, notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner physically affixed or attached to real estate or any building thereon. Upon the request of Lessor, Lessee will, at Lessee's expense, furnish a waiver of any interest in the Equipment from any party having an interest in any such real estate or building. ARTICLE VII. Section 7.01. Liens, Taxes, Other Governmental Charges and Utility Charges. Lessee shall keep the Equipment free of all levies, liens, and encumbrances except those created by each Lease. The parties to this Agreement contemplate that the Equipment will be used for a governmental, municipal or public purpose or function of Lessee and that the Equipment will therefore be exempt from all property taxes. If the use, possession or acquisition of any Equipment is nevertheless determined to be subject to taxation, Lessee shall pay when due all taxes and governmental charges lawfully assessed or levied against or with respect to such Equipment. Lessee shall pay all utility and other charges incurred in the use and maintenance of the Equipment. Lessee shall pay such taxes or charges as the same may become due; provided -14- 4841-4703-3355.2 that, with respect to any such taxes or charges that may lawfully be paid in installments over a period of years, Lessee shall be obligated to pay only such installments as accrue during each Lease Term. In the event that the installation of any component of any item of Equipment could be deemed to require a performance and payment bond under Section 255.05, Florida Statutes, or be deemed subject to the mechanic's lien provisions of Chapter 713, Florida Statutes, or any successor statute to each, as they may be amended from time to time, Lessee shall require such bonds, post such notices and do all other things provided for under such laws in order to keep the Equipment free of and exempt from all liens. Section 7.02. Insurance. Lessee shall during each Lease Term maintain or cause to be maintained (a) casualty insurance (with such deductibles as Lessor may approve) naming the Lessor and its assigns as additional insured or loss payee and insuring the Equipment against loss or damage by fire and all other risks covered by the standard extended coverage endorsement then in use in the State, and any other risks reasonably required by Lessor, in an amount at least equal to the then applicable Purchase Price of the Equipment; (b) liability insurance that protects Lessor from liability in all events in form and amount satisfactory to Lessor; and (c) worker's compensation coverage as required by the laws of the State; provided that, with Lessor's prior written consent, Lessee may self -insure against the risks described in clauses (a) and (b), to the extent permitted by State law. Lessee shall furnish to Lessor evidence of such insurance or self-insurance coverage throughout each Lease Term. Lessee shall not cancel or modify such insurance or self-insurance coverage in any way that would affect the interests of Lessor without first giving written notice thereof to Lessor at least 30 days in advance of such cancellation or modification. Section 7.03. Risk of Loss. Whether or not covered by insurance or self-insurance, Lessee hereby assumes all risk of loss of, or damage to and liability related to injury or damage to any persons or property arising from the Equipment from any cause whatsoever, and no such loss of or damage to or liability arising from the Equipment shall relieve Lessee of the obligation to make the Rental Payments or to perform any other obligation under this Lease. To the extent permitted by law, whether or not covered by insurance or self-insurance, Lessee hereby agrees to reimburse Lessor (to the fullest extent permitted by applicable law, but only from legally available funds) for any and all liabilities, obligations, losses, costs, claims, taxes or damages suffered or incurred by Lessor, regardless of the cause thereof and all expenses incurred in connection therewith (including, without limitation, counsel fees and expenses, and penalties connected therewith imposed on interest received) arising out of or as a result of (a) entering into of this Agreement or any of the transactions contemplated hereby, (b) the ordering, acquisition, ownership use, operation, condition, purchase, delivery, acceptance, rejection, storage or return of any item the Equipment, (c) any accident in connection with the operation, use, condition, possession, storage or return of any item of the Equipment resulting in damage to property or injury to or death to any person, and/or (d) the breach of any covenant of Lessee in connection with a Lease or any material misrepresentation provided by Lessee in connection with a Lease. The provisions of this paragraph shall continue in full force and effect notwithstanding the full payment of all obligations under all Leases or the termination of the Lease Term under any Lease for any reason. -15- 4841-4703-3355.2 Section 7.04. Advances. In the event Lessee shall fail to keep the Equipment in good repair and working order, Lessor may, but shall be under no obligation to, maintain and repair the Equipment and pay the cost thereof. All amounts so advanced by Lessor shall constitute additional rent for the Lease Term and Lessee covenants and agrees to pay such amounts so advanced by Lessor with interest thereon from the due date until paid at the Contract Rate plus 5% per annum or the maximum amount permitted by law, whichever is less. ARTICLE VIII. Section 8.01. Damage, Destruction and Condemnation. Unless the Lessee shall have exercised its option to purchase the Equipment by making payment of the Purchase Price as provided in the related Lease, if, prior to the termination of the applicable Lease Term, (a) the Equipment or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other casualty or (b) title to, or the temporary use of, the Equipment or any part thereof shall be taken under the exercise or threat of the power of eminent domain by any governmental body or by any person, firm or corporation acting pursuant to governmental authority, Lessee and Lessor will cause the Net Proceeds of any insurance claim or condemnation award or sale under threat of condemnation to be applied to the prompt replacement, repair, restoration, modification or improvement of the Equipment. Any balance of the Net Proceeds remaining after such work has been completed shall be paid to Lessee. If Lessee elects to replace any item of the Equipment (the "Replaced Equipment") pursuant to this Section, the replacement equipment (the "Replacement Equipment") shall be of similar type, utility and condition to the Replaced Equipment and shall be of equal or greater value than the Replaced Equipment. Lessee shall represent, warrant and covenant to Lessor that each item of Replacement Equipment is free and clear of all claims, liens, security interests and encumbrances, excepting only those liens created by or through Lessor, and shall provide to Lessor any and all documents as Lessor may reasonably request in connection with the replacement, including, but not limited to, documentation in form and substance satisfactory to Lessor evidencing Lessor's interest in the Replacement Equipment. Lessor and Lessee hereby acknowledge and agree that any Replacement Equipment acquired pursuant to this paragraph shall constitute "Equipment" for purposes of this Agreement and the related Lease. Lessee shall complete the documentation of Replacement Equipment on or before the next Rental Payment date after the occurrence of a casualty event, or be required to exercise the Purchase Option with respect to the damaged equipment. For purposes of this Article, the term "Net Proceeds" shall mean the amount remaining from the gross proceeds of any insurance claim or condemnation award or sale under threat of condemnation after deducting all expenses, including attorneys' fees, incurred in the collection thereof Section 8.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in frill the cost of any replacement, repair, restoration, modification or improvement referred to in Section 8.01, Lessee shall either (a) complete such replacement, repair, restoration, modification or improvement and pay any costs -16- 4841-4703-3355.2 thereof in excess of the amount of the Net Proceeds, or (b) pay or cause to be paid to Lessor the amount of the then applicable Purchase Price for the Equipment, and, upon such payment, the applicable Lease Term shall terminate and Lessor's interest in the Equipment shall terminate as provided in Section 5.01(a) hereof. The amount of the Net Proceeds, if any, remaining after completing such repair, restoration, modification or improvement or after purchasing such Equipment and such other Equipment shall be retained by Lessee. If Lessee shall make any payments pursuant to this Section, Lessee shall not be entitled to any reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the amounts payable under Article IV. ARTICLE IX. Section 9.01. Disclaimer of Warranties. Lessor makes no warranty or representation, either express or implied, as to the value, design, condition, merchantability or fitness for particular purpose or fitness for use of the Equipment, or any other warranty or representation, express or implied, with respect thereto and, as to the Lessor, the Lessee's acquisition of the Equipment shall be on an "as is" basis. In no event shall Lessor be liable for any incidental, indirect, special or consequential damage in connection with or arising out of this Agreement, any Lease, the Equipment or the existence, furnishing, functioning or Lessee's use of any item, product or service provided for in this Agreement or any Lease. Section 9.02, Vendor's Warranties. Lessor hereby irrevocably appoints Lessee its agent and attorney -in -fact during each Lease Term, so long as Lessee shall not be in default under the related Lease, to assert from time to time whatever claims and rights (including without limitation warranties) relating to the Equipment that Lessor may have against Vendor. Lessee's sole remedy for the breach of such warranty, indemnification or representation shall be against Vendor of the Equipment, and not against Lessor. Any such matter shall not have any effect whatsoever on the rights and obligations of Lessor with respect to any Lease, including the right to receive full and timely payments under a Lease, Lessee expressly acknowledges that Lessor makes, and has made, no representations or warranties whatsoever as to the existence or the availability of such warranties by Lessor of the Equipment. ARTICLE X. Section 10, 01. Purchase Option. Lessee shall have the option to purchase all of the Equipment listed in a Lease, upon giving written notice to Lessor at least 30, but not more than 120, days before the date of purchase, at the following times and upon the following terms: (a) From and after the date specified in the related Schedule (the "Purchase Option Commencement Date"), on the Rental Payment dates specified in each Lease, upon payment in full of the Rental Payments then due under such Lease plus the then applicable Purchase Price, and any prepayment premium on the unpaid balance as set forth in the applicable Schedule; or (b) In the event of substantial damage to or destruction or condemnation of substantially all of the Equipment listed in a Lease, on the day specified in Lessee's -17- 4841-4703-3355.2 notice to Lessor of its exercise of the Purchase Option upon payment in full to Lessor of the Rental Payments then due under such Lease plus the then applicable Purchase Price. Lessee shall also have the option to purchase all of the Equipment listed in a Lease upon the expiration of the Lease Term, upon payment in full of all Rental Payments then due and all other amounts then owing under the Lease, and the payment of $1.00 to Lessor. ARTICLE XI. Section .11.01. Assignment by Lessor. (a) Lessor's right, title and interest in and to Rental Payments and any other amounts payable by Lessee under any and all of the Leases, and all proceeds therefrom may be assigned and reassigned in whole or in part to one or more assignees or subassignees by Lessor, without the necessity of obtaining the consent of Lessee; provided, however, that any such assignment, transfer or conveyance to a trustee for the benefit of owners of certificates of participation shall be made in a manner that conforms to any applicable State and Federal law. Nothing in this Section 11.01 shall be construed, however, to prevent Lessor from executing any such assignment, transfer or conveyance that does not involve funding through the use of certificates of participation within the meaning of applicable State law, including any such assignment, transfer or conveyance as part of a multiple asset pool to a partnership or trust, interests in which are offered and sold in a private placement or limited offering only to investors whom Lessor reasonably believes are qualified institutional buyers or accredited investors within the meaning of the applicable federal securities law; provided further, however, that in any event, Lessee shall not be required to make Rental Payments, to send notices or to otherwise deal with respect to matters arising under a Lease with or to more than one individual or entity. (b) No assignment, transfer or conveyance permitted by this Section 11.01 shall be effective until Lessee shall have received a written notice of assignment that discloses the name and address of each such assignee; provided, however, that if such assignment is made to a bank or trust company as trustee or paying agent for owners of certificates of participation, trust certificates or partnership interests with respect to the Rental Payments payable under a Lease, it shall thereafter be sufficient that Lessee receives notice of the name and address of the bank or trust company as trustee or paying agent. During the term of each Lease, Lessee shall keep, or cause to be kept, a complete and accurate record of all such assignments in form necessary to comply with Section 149 of the Code. Lessee shall retain all such notices as a register of all assignees and shall make all payments to the assignee or assignees designated in such register. Lessee shall not have the right to and shall not assert against any assignee any claim, counterclaim or other right Lessee may have against Lessor or the Vendor. Assignments in part may include without limitation assignment of all of Lessor's rights in, to and under the Lease related to the Equipment listed in a particular Lease. The option granted in this Section may be separately exercised from time to time with respect to the Equipment listed in each Lease, but such option does not permit the assignment of less than all of Lessor's interests in the Equipment listed in a single Lease. -1$- 4841-4703-3355.2 (c) If Lessor notifies Lessee of its intent to assign the Lease, Lessee agrees that it shall execute and deliver to Lessor a Notice and Acknowledgement of Assignment substantially in the form attached hereto as Exhibit E within five (5) business days after its receipt of such request. Section H.08. Assignment and Subleasing by Lessee. None of Lessee's right, title, and interest in, to and under any Lease or any portion of the Equipment may be assigned or encumbered by Lessee without prior written consent of Lessor. ARTICLE XII. Section 12.01. Events of Default Defined. Any of the following events shall constitute an "Event of Default" under a Lease: (a) Failure by Lessee to pay any Rental Payment or other payment required to be paid under any Lease within 10 days of the date when due as specified herein; (b) Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred to in subparagraph (a) above, for a period of 30 days after written notice specifying such failure and requesting that it be remedied is given to Lessee by Lessor, unless Lessor shall agree in writing to an extension of such time prior to its expiration; provided that, if the failure stated in the notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected; (c) Any statement, representation or warranty made by Lessee in or pursuant to any Lease or its execution, delivery or performance shall prove to have been false, incorrect, misleading, or breached in any material respect on the date when made; (d) Any default occurs under any other agreement for borrowing money, lease financing of property or otherwise or receiving credit under which Lessee is an obligor under which there is outstanding, owing or committed in aggregate amount of at least 10% of Lessee's aggregate current long- and short-term indebtedness, if such default consists of (i) the failure to pay any indebtedness when due or (ii) the failure to perform any other obligation thereunder and gives the holder of the indebtedness the right to accelerate the indebtedness; (e) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be unable, fail or admit in writing its inability generally to pay its debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) have an order for relief entered against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors or taking advantage of any insolvency law or any answer admitting the material allegations of a petition filed against Lessee in any bankruptcy, reorganization or insolvency proceeding; -19- 4841-4703-3355.2 (f) An order, judgment or decree shall be entered by any court of competent jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator or Lessee or of all or a substantial part of the assets of Lessee, in each case without its application, approval or consent, and such order, judgment or decree shall continue unstayed and in effect for any period of 30 consecutive days; or (g) Lessee shall consolidate, merge or otherwise combine with any other entity, or sell, lease or dispose of all or a substantial portion of its assets. Section 12.02, Remedies on Default. Whenever any Event of Default exists, Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps: (a) Lessor may by notice in writing to Lessee terminate the Lease, whereupon all rights of Lessee to use the Equipment shall cease and terminate; (b) With or without terminating the Lease, declare the entire principal amount of the Lease then outstanding, all interest accrued and unpaid thereon and all amounts payable hereunder to be forthwith due and payable, whereupon such sums shall be forthwith due and payable; (c) With or without terminating the Lease, Lessor may request that Lessee at Lessee's expense promptly return any or all of such Equipment to the possession of Lessor at such place within the United States as Lessor shall specify. In such event, Lessor shall use its best efforts to sell or lease such Equipment or, for the account of Lessee, sublease such Equipment. If Lessee returns the Equipment and Lessor sells, leases or otherwise disposes of any or all of the Equipment, Lessor shall apply the proceeds of such sale, lease or other disposition as described in Section 12.04. Lessee shall not be liable for any deficiency after sale, lease or other disposition of the Equipment. If Lessee elects not to return the Equipment, Lessor is entitled to payment of unpaid Rental Payments through the date of Lessor's request to return the Equipment plus the then applicable Purchase Price, as set forth in the applicable Schedule for such Equipment. The exercise of any such remedies respecting any such Event of Default shall not relieve Lessee of any other liabilities under any other Lease or the Equipment listed therein; and (d) Subject to the next sentence, Lessor may take whatever action at law or in equity may appear necessary or desirable to enforce its rights under such Lease. The parties to this Agreement acknowledge that: (i) this Agreement is not intended to create a mortgage of or a security interest in the Equipment as proscribed by Nohrr v. Brevard County Educational Facilities Authority, 247 So. 2d 304 (Fla. 1971), and (ii) Lessor may not exercise any foreclosure -type remedies if an Event of Default occurs, State v. Brevard Co_ unty, 539 So. 2d 461 (Fla. 1989), notwithstanding any provisions to the contrary in this Agreement. Section 12.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in -20- 4841-4703-3355.2 addition to every other remedy given under a Lease now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor to exercise any remedy reserved to it in this Article it shall not be necessary to give any notice other than such notice as may be required in this Article. Section 12.04. Application of Moneys. Any net proceeds from the exercise of any remedy under this Agreement shall be applied in the following order of priority: FIRST, to pay all of Lessor's costs, charges and expenses incurred in taking, holding, repairing, selling, leasing or otherwise disposing of Equipment, then SECOND, to the extent not previously paid by Lessee, to pay Lessor all Rental Payments under the applicable Lease through the termination date, then THIRD, to pay the Purchase Price applicable as of the end of the Lease Term, as set forth in the Schedule for such Equipment, then FOURTH to pay any remainder to Lessee; provided that if such remedy is exercised with respect to more than one Lease, Equipment listed in more than one Lease or rights under more than one Lease, then to amounts due pursuant to such application of moneys pro rata among the Leases or Equipment, as the case may be. ARTICLE XIII. Section 13.01. No Fees Paid by Lessor. Lessor hereby certifies that it has not paid or has not promised to pay, directly or indirectly, a fee to any person not regularly employed by Lessor to act as an intermediary between Lessee and Lessor for the purpose of influencing any transaction in connection with this Agreement or any Lease. Section 13.02. Notices. All notices, certificates or other communications under any Lease shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, or delivered by overnight courier, or sent by facsimile transmission (with electronic confirmation) to the parties hereto at the addresses immediately after the signatures to this Agreement (or at such other address as either party hereto shall designate in writing to the other for notices to such party) and to any assignee at its address as it appears on the registration books maintained by Lessee. Section 13.03. Binding Effect. Each Lease shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns. Notwithstanding anything to the contrary contained in this Agreement, nothing contained herein is intended nor shall it be construed to waive the Leesee's rights and immunities under the common law or Florida Statute 768.28 as amended from time to time. Section .13.04. Severability. In the event any provision of any Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Any provisions in this Lease which are in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto. Section 13.05, Amendments, Changes and Modifications. Each Lease may only be amended by Lessor and Lessee in writing. -21- 4841-4703-3355.2 Section 13.06. Execution in Counterparts. Each Lease may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 13, 07. Applicable Law. Each Lease shall be governed by and construed in accordance with the laws of the State. Section 13.08. Captions. The captions or headings in this Agreement and in each Lease are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement or any Lease. -22- 4841-4703-3355.2 IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in their names by their duly authorized representatives as of the date first above written. Lessor: Banc of America Public Capital Corp 555 California Street, 4th Floor San Francisco, California 94104 Lessee: City of Tamarac, Broward County, Florida 7525 NW S$th Avenue Tamarac, FL 33321 By: ov. AM, al�,M,s Bri gett Arnol , Authorized Agent Name: P V)k C c A ib u s *4 t" L,tr Title -23- EXHIBIT A Schedule of Property No. _ Re: Master Equipment Lease/Purchase Agreement, dated as of , 2011, between Banc of America Public Capital Corp, a Kansas corporation, as Lessor, and the City of Tamarac, Broward County, Florida, as Lessee. 1. Defined Terms. All terms used herein have the meanings ascribed to them in the above -referenced Master Equipment Lease/Purchase Agreement (the "Master Equipment Lease"). 2. Equipment. The following items of Equipment are hereby included under this Schedule of the Master Equipment Lease, Quantity Description Serial No. Model No. Location 3. Payment Schedule. Rental Payments. The Rental Payments shall be in such amounts and payable on such dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit A-1. The obligation of Lessee to pay Rental Payments shall commence on the date on which the Equipment listed in this Schedule is accepted by Lessee, as indicated in an Acceptance Certificate substantially in the form of Exhibit B to the Master Equipment Lease or the date on which sufficient moneys to purchase the Equipment are deposited for that purpose with an Acquisition Fund Custodian, whichever is earlier. Purchase Price Schedule. The Purchase Price on each Rental Payment date for the Equipment listed in this Schedule shall be the amount set forth for such Rental Payment date in the "Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The Purchase Price is in addition to all Rental Payments then due under this Schedule (including the Rental Payment shown on the same line in the Rental Payment Schedule). 4. Representations, Warranties and Covenants. Lessee hereby represents, warrants and covenants that its representations, warranties and covenants set forth in the Master Equipment Lease are true and correct as though made on the date of commencement of Rental Payments on this Schedule. Lessee further represents and warrants that (a) no Material Adverse Change in Lessee's financial condition has occurred since the date of the Master Equipment Lease; (b) the governing body of Lessee has authorized the execution and delivery of this Agreement and the Leases pursuant to [Resolution No. ] [Ordinance No. ], approved on , 20 ; (c) the Equipment described in the Agreement referenced above is essential to the functions of Lessee or to the services Lessee provides its citizens; (d) lessee has an immediate need for, and expects to make immediate use of, substantially all such Equipment, which will be used by Lessee only for the purpose of performing one or more of Lessee's governmental or proprietary functions consistent with the permissible scope of its authority; and (f) Lessee expects and anticipates adequate funds to be available for all future payments or rent due after the current budgetary period. A-1 4841-4703-3355.2 5. The Lease. The terms and provisions of the Master Equipment Lease (other than to the extent that they relate solely to other Schedules or Equipment listed on other Schedules) are hereby incorporated into this Schedule by reference and made a part hereof. [OPTION: IF ACQUISITION FUND AGREEMENT IS USED: 6. Lease Proceeds. The Lease Proceeds which Lessor shall pay to the Acquisition Fund Custodian in connection with this Schedule is $ , of which $ is for deposit to the Expense Fund and the balance is for deposit to the Acquisition Fund. It is expected that by [six (6)] [twelve (12)] [eighteen (18)] months from the date of this Schedule No. , Lessee will have taken possession of all items of Equipment shown above and that a Lessee's Acceptance Certificate, or Acceptance Certificates, will be signed by Lessee and delivered to Lessor on or before [six (6)] [twelve (12)] [eighteen (18)] months from the date of this Schedule No. OR IF VENDOR PAID DIRECTLY USE: 6. Acquisition Amount. The Acquisition Amount for the Equipment described in this Schedule to be paid to the Vendor is $ .] [OPTION: IF ACQUISITION FUND AGREEMENT IS USED: 7. Acquisition Period. The Acquisition Period applicable to this Schedule shall end at the conclusion of the month following the date hereof.] [7] [8]. Lease Term. The Lease Term shall consist of the Original Term and consecutive Renewal Terms, with the final Renewal Term ending on [8] [9]. Purchase Option Commencement Date. For purposes of Section 10.01 of the Lease, the Purchase Option Commencement Date is [OPTION: IF NO ACQUISITION FUND AGREEMENT IS USED: 19][101 [10][11]. cumulative basis Utilization Period Expiration. The Utilization Period Expiration is ] Maximum Equipment Cost. The Maximum Equipment Cost approved on a under the Lease for this Schedule and all previous Schedules is [11][12]. Contract Rate. The Contract Rate for this Schedule is %. Dated: , Lessor: Banc of America Public Capital Corp 555 California Street, 4th Floor San Francisco, California 94104 In [Name/Title] Lessee: City of Tamarac Attn: Purchasing Department 7525 NW 88th Avenue Tamarac, FL 33321 By: [Name/ Title] Attest: A-2 4841-4703-3355.2 City Clerk A-3 4841-4703-3355.2 Rental Payment Date Exhibit A-1 Rental Payment Schedule Rental Payment Principal Amount Interest Portion Portion Purchase Price[*] The Purchase Price commencement date shall be [1/2 of term]. The Purchase Price payable (1) on any Rental Payment date is the amount equal to the aggregate principal portion of the remaining Rental Payments after payment of the Rental Payment payable on such Rental Payment Date, and (ii) on any date other than a Rental Payment date is the amount equal to the aggregate principal portion of the remaining Rental Payments plus an amount equal to the interest portion of such Rental Payments accrued thereon to such date. For purposes of this Lease, "Taxable Rate," with respect to the interest component of Rental Payments, means an annual rate of interest equal to %. Lessee: By: _ Title: After payment of the applicable Purchase Price, Lessee will own the related Equipment, free and clear of any obligations under the related Lease. A-4 4841-4703-3355.2 EXHIBIT B Acceptance Certificate Banc of America Public Capital Corp 555 California Street, 4th Floor San Francisco, California 94104 Re: Schedule of Property No. dated , to Master Equipment Lease/Purchase Agreement, dated as of October —, 2011, between Banc of America Banc of America Public Capital Corp, as Lessor, and the City of Tamarac, Broward County, Florida, as Lessee. Ladies and Gentlemen: In accordance with the Master Equipment Lease/Purchase Agreement (the "Agreement"), the undersigned Lessee hereby certifies and represents to, and agrees with Lessor as follows: 1. All of the Equipment (as such term is defined in the Agreement) listed in the above - referenced Schedule of Property (the "Schedule") has been delivered, installed and accepted on the date hereof. 2. Lessee has conducted such inspection and/or testing of the Equipment listed in the Schedule as it deems necessary and appropriate and hereby acknowledges that it accepts the Equipment for all purposes. 3. Lessee is currently maintaining the insurance coverage required by Section 7.02 of the Agreement. 4. No event or condition that constitutes, or with notice or lapse of time, or both, would constitute, an Event of Default (as defined in the Agreement) exists at the date hereof. Date: [Seal] Lessee City of Tamarac, Broward County, Florida M. N-IN [Name/Title] 4841-4703-3355.2 EXHIBIT C City Clerk Certificate The undersigned, a duly elected and acting Clerk of the City of Tamarac, Broward County, Florida (the "Lessee") certifies as follows: A. The following listed persons are duly elected and acting officials of Lessee (the "Officials") in the capacity set forth opposite their respective names below and the signatures set opposite thereto are the genuine signatures of such persons; Name of Official Title Signature B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and deliver the Master Equipment Lease/Purchase Agreement dated as of October 2011 and the Schedule(s) thereunder and all future Schedule(s), each by and between the Lessee and Banc of America Public Capital Corp, as Lessor [and the Acquisition Fund Agreement dated as of , 20_, among Lessor, Lessee and , as Acquisition Fund Custodian] (collectively, the "Agreements") and these Agreements are binding and authorized Agreements of Lessee, enforceable in all respects in accordance with their terms. Dated: By: _ Title: (The signer of this Certificate cannot be listed above as authorized to execute the Agreements.) C-1 4841-4703-3355.2 EXHIBIT D Opinion of Counsel to Lessee Banc of America Public Capital Corp 555 California Street, 4th Floor San Francisco, California 94104 Re: Schedule of Property No. , dated , 20_, to Master Equipment Lease/Purchase Agreement, dated as of October _, 2011, between Banc of America Public Capital Corp, as Lessor, and City of Tamarac, Broward County, Florida, as Lessee. Ladies and Gentlemen: As legal counsel to the City of Tamarac, Broward County, Florida (the "Lessee"), I have examined (a) an executed counterpart of a certain Master Equipment Lease/Purchase Agreement, dated as of October _, 2011, and Exhibits thereto by and between Banc of America Public Capital Corp, as Lessor (the "Lessor") and Lessee (the "Agreement"), and an executed counterpart of Schedule of Property No. , dated , by and between Lessor and Lessee (the "Schedule"), which, among other things, provides for the lease of certain property listed in the Schedule (the "Equipment"), [(b) the Acquisition Fund and Account Control Agreement dated as of , 20_-u__, among Lessor, Lessee and , as Acquisition Fund Custodian (the "Acquisition Fund Agreement"),] [(b)/(c)] an executed counterpart of the ordinances or resolutions of Lessee which, among other things, authorize Lessee to execute the Agreement and the Schedule and [(c)/(d)]such other opinions, documents and matters of law as I have deemed necessary in connection with the following opinions. The Schedule and the terms and provisions of the Agreement incorporated therein by reference together with the Rental Payment Schedule attached to the Schedule are herein referred to collectively as the "Lease". Based on the foregoing, I am of the following opinions: 1. Lessee is a public body corporate and politic, duly organized/municipality duly created and existing under the laws of the State, and is a political subdivision of a state within the meaning of Section 103(c) of the Internal Revenue Code of 1986, as amended (the "Code"), and the obligations of Lessee under the Agreement will constitute an obligation of Lessee within the meaning of Section 103(a) of the Code, notwithstanding Section 103(b) of the Code. 2. Lessee has the requisite power and authority to lease and acquire the Equipment and to execute and deliver the Lease [and the Acquisition Fund Agreement] and to perform its obligations under the Lease [and the Acquisition Fund Agreement]; 3. The Lease [and the Acquisition Fund Agreement] [has/have each] been duly authorized, approved, executed and delivered by and on behalf of Lessee and the Lease [and the Acquisition Fund Agreement] [is/are each] a valid and binding obligation of Lessee enforceable in accordance with [its/their] terms; 4. The authorization, approval, execution and delivery of the Lease [and the Acquisition Fund Agreement] and all other proceedings of Lessee relating to the transactions D-1 4841-4703-3355.2 contemplated thereby have been performed in accordance with all open meeting laws, public bidding laws and all other applicable state or federal laws; 5. There is no proceeding pending or threatened in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would adversely affect the transactions contemplated by the Lease [and the Acquisition Fund Agreement] or the interest of Lessor or its assigns, as the case may be, in the Equipment under the Lease; and 6. The portion of rentals designated as and constituting interest paid by Lessee and received by Lessor is excluded from Lessor's gross income for federal income tax purposes under Section 103 of the Code; and such interest is not a specific item for purposes of the federal individual or corporate alternative minimum taxes. All capitalized terms herein shall have the same meanings as in the Lease unless otherwise provided herein. Lessor and its successors and assigns, and any counsel rendering an opinion on the tax-exempt status of the interest components of the Rental Payments, are entitled to rely on this opinion. Yours truly, D-2 4841-4703-3355.2 EXHIBIT E Form of Notice and Acknowledgement of Assignment Dated BANC OF AMERICA PUBLIC CAPITAL CORP, a Kansas banking corporation ( "Assignor ") hereby gives notice that it has assigned and sold to the City of Tamarac, Broward County, Florida ( "Assignee ") all of Assignor's right, title and interest in, to and under [Schedule of Property] No. [ ], dated [ ] (the `Lease ") to the Master Equipment Lease/Purchase Agreement ( "Equipment Lease ") dated as of October , 2011, between Assignor and the City of Tamarac, Broward County, Florida ( "Lessee "). For purposes of this Notice and Acknowledgment of Assignment (the "Acknowledgment"), "Lease" means collectively the Lease identified above, together with all exhibits, schedules, addenda and attachments related thereto, and all certifications and other documents delivered in connection therewith. The term "Lease" specifically excludes all other [Schedules of Property] entered into under the Equipment Lease and rental payments other than with respect to the [Schedule of Property] identified above. Each capitalized term used but not defined herein has the meaning set forth in the Equipment Lease described above. 1. Pursuant to the authority of Resolution No. adopted on , Lessee hereby [consents to and] acknowledges the effect of the assignment of the Lease and absolutely and unconditionally agrees to deliver to Assignee all rental payments and other amounts coming due under the Lease in accordance with the terms thereof on and after the date of this Acknowledgment. 2. Lessee hereby agrees that: (i) Assignee shall have all the rights of Lessor under the Lease and all related documents, including, but not limited to, the rights to issue or receive all notices and reports, to give all consents or agreements to modifications thereto, to receive title to the equipment in accordance with the terms of the Lease, to declare a default and to exercise all remedies thereunder; and (ii) except as provided in Section [ ] of the Lease, the obligations of Lessee to make rental payments and to perform and observe the other covenants and agreements contained in the Lease shall be absolute and unconditional in all events without abatement, diminution, deduction, set-off or defense. 3. Lessee agrees that, as of the date of this Acknowledgment, the following information about the Lease is true, accurate and complete: Number of Rental Payments Remaining — Amount of Each Rental Payment — $ Total Amount of Rents Remaining — $ Frequency of Rental Payments — Next Rental Payment Due — Funds Remaining in Escrow Fund — $ 4. The Lease remains in full force and effect, has not been amended and no nonappropriation or event of default (or event which with the passage of time or the giving of notice or both would constitute a default) has occurred thereunder. 5. Any inquiries of Lessee related to the Lease and any requests for escrow disbursements, if applicable, and all rental payments and other amounts coming due pursuant to the F-1 4841-4703-3355.2 Lease on and after the date of this Acknowledgment should be remitted to Assignee at the following address (or such other address as provided to Lessee in writing from time to time by Assignee): ACKNOWLEDGED AND AGREED: LESSEE: CITY OF TAMARAC, BROWARD COUNTY, FLORIDA [FOR EXHIBIT PURPOSES ONLY] By: Name: Title: ASSIGNOR: BANC OF AMERICA PUBLIC CAPITAL CORP [FOR EXHIBIT PURPOSES ONLY] By: Name: Title: 2 4841-4703-3355.2