HomeMy WebLinkAboutCity of Tamarac Resolution R-2001-019is
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Temp. Reso. #9244
December 28, 2000
Page 1
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2001-19
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA, AUTHORIZING THE
APPROPRIATE CITY OFFICIALS TO EXECUTE AND
DELIVER CERTAIN LEASE DOCUMENTS IN
CONNECTION WITH THE PROPOSED FINANCING OF
VEHICLES AND HEAVY EQUIPMENT, AND A FIRE
RESCUE VEHICLE AND ASSOCIATED RESCUE
EQUIPMENT IN AN AMOUNT NOT TO EXCEED
$625,268 UNDER A MASTER LEASE -PURCHASE
AGREEMENT BETWEEN THE CITY OF TAMARAC
AND KISLAK NATIONAL BANK; AMENDING THE
ANNUAL BUDGET OF ESTIMATED REVENUES AND
EXPENDITURES FOR THE PURCHASE; PROVIDING
FOR CONFLICTS; PROVIDING FOR SEVERABILITY;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City has determined a need for loan financing to acquire
Vehicles ("the Vehicles") and Heavy Equipment (the "Equipment"), and a Fire
Rescue Vehicle and associated rescue equipment (the "Rescue Vehicle and
Equipment"); and
WHEREAS, the City Commission is scheduled to authorize the purchase
of the Vehicles and Equipment for an amount not to exceed $429,168 through
Temporary Resolution No. 9229 to be presented to the Commission on January
24, 2001; and
Temp. Reso. #9244
December 28, 2000
Page 2
WHEREAS, the City Commission authorized the purchase of the Rescue 0
Vehicle for an amount not to exceed $133,481 through City of Tamarac
Resolution R-2000-313; and
WHEREAS, through the passage of this resolution, the City Commission
will be authorizing the purchase of certain fire rescue equipment to include Life
Pak's, Self Contained Breathing Apparatus, GPS Radios and a Rescue Tool (as
proposed in the FY01 Adopted Budget), for an amount not to exceed $62,600;
and
WHEREAS, the City Commission of the City of Tamarac approved a
Master Lease Purchase Agreement with Kislak National Bank on April 12, 2000
by Resolution R-2000-95 attached hereto as Exhibit "A"; and
WHEREAS, the terms of the Lease -Purchase Financing Agreement for 0
the purchase of Vehicles, Equipment, Rescue Vehicle and Rescue Equipment,
utilizing the Master Lease Purchase Agreement, are outlined in Exhibit "B",
attached hereto; and
WHEREAS, the lease documents and various closing documents related
to the Lease -Purchase Financing Agreement of the Equipment and Rescue
Vehicle will be finalized and filed with the City Clerk; and
WHEREAS, the Director of Finance and the Investment Accountant of the
City of Tamarac, Florida recommend the execution of the Lease -Purchase
Financing Agreement with Kislak National Bank, and amending the Fiscal Year
2001 budget to properly account for all budgetary actions related to this
Agreement; and 0
Temp. Reso. #9244
December 28, 2000
Page 3
0 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
authorize the appropriate City Officials to execute and deliver certain lease
documents in connection with the proposed financing of the Vehicles, Equipment,
Rescue Vehicle and Rescue Equipment under a Master Lease -Purchase
Agreement between the City of Tamarac and Kislak National Bank, and to
amend the Fiscal Year 2001 budget to address the actions needed to implement
the lease -purchase of the Vehicles, Equipment, Rescue Vehicle and Rescue
Equipment.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY
0 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.
SECTION 2: The appropriate City Officials are hereby authorized and
directed to execute a Lease -Purchase Financing Agreement, in the principal
amount not to exceed $625,268, interest rate and repayment terms as set forth in
Exhibit "B" with Kislak National Bank.
SECTION 3: The budget of the City of Tamarac is hereby amended, in
accordance with the Lease -Purchase Financing Agreement and all necessary
0 budgetary transfers of funds are hereby approved.
Temp. Reso. #9244
December 28, 2000
Page 4
SECTION 4: All resolutions or parts of resolutions in conflict herewith are
hereby repealed to the extent of such conflict.
SECTION 5: If any clause, section, other part or application of this
Resolution is held by any court of competent jurisdiction to be unconstitutional or
invalid, in part or application, it shall not affect the validity of the remaining
portions or applications of this Resolution.
SECTION 6: This Resolution shall become effective immediately upon its
passage and adoption.
PASSED, ADOPTED AND APPROVED this 24th day of January, 2001
ATTE$T:
/I ldW SWE SON, CMC
=CITY CLERK
I HEREBY CERTIFY that I have
Approv)o this RESOLUTION Ads to form.
CITY ATTORNEY
q-z�-C/z
E SCHREIBER, MAYOR
RECORD OF COMMISSION VOTE
MAYOR SCHREIBER
DIST 1: COMM. PORTNER
DIST 3: COMM. SULTANOF
DIST 4: V/M ROBERTS
E
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December 28, 2000
Exhibit "A"
MASTER LEASI"A'URCIIASE AGREEMENT
THIS MASTER LEASE -PURCHASE AGR1TNENT, dated as of April 17, 20w
(together with all supplements, annexes, exhibits and schedules hereto hereinafter referred to as the
"Least"), between KISI.AK NATIONAI, BANK (he rein aftercaIIed, together with any successors
and assigns "Lessor") and CITY OF TANIARAC, FLORIDA (hereinafter called "Lessee").
WITN I.SSI,TH:
Section I. I2ETIZESENTATIONS AND WARRANTIES OF LESSIa'.
Lessee hereby represents and warrants to Lessor that on [lie date hereof and tit till limes
during the Terns (as defined in Section 3 below) hereof:
(a) Lessee is it political subdivision, municipal corporation or public body
ct1rporate and politic of the State of Florida ([he "State"), dttly organized and existing under the
('onstitLit ion anti laws of the Sta[C.
(b) Lessee is authorized under the Constitution and laws of the State to enter into
this I .e;Ise and the [ransac:tions contemplated hereby, and to perform all of its obligations hereunder.
(c) Lessee Ills duly authorized ant! ;Ippmved cite CXCCLit 1011 .and dCIIVCIN' elf this
Lease ;Intl ali nthcr doCtimCnlS I'Cla[ed to the transactions con!entplated hereby, and tills Lease
Constitutes a local, valid anti hinding obligalion of the Lessee, enforceable against the Lessee. in
accordance with the lei -ills hereol except as limited by applicable hankruptcy laws or other laws
affecting the enforcement of crCdilors rights getter.Illy, or by the Cxercise of_ludwial (lisc:retion in
accordance with general principals ofetluity.
(d) Each officer of, representative of Lessee executing this Lease ha; I►een duly.
duly.
hl execute and deliver this I .Case anti related docttntents unclear the terms and plovisions 1►f
;t ICSOIlltton of I.essec's governing body, or by other appropriate official action.
(e) Lessee has complied with all open ntcc.ting laws, till public hiddina l;lws and
all other SkIlC .utd FCdCt'al laws applicable to this Lease, and has obtained all approvals necessary for
the execution, delivery and performance of (Ills Lease and (he [ran5.lt;OMIS cr►n(enlpla►c:d here h�.
(I) Neither the execution .uid delivery hcreol, nor the full'illmcnt of, or
compli;ulc;e with, the terms and conditions hereof, nor the consttmtnation of the transaction
corlterltplated hereby, will conflict with, Constitute a hreaeh of, ordel'aull tinder, the Constitution and
laws of, the State, of the roles of procedure of the Lessee or any indenture, agreement or other
instrument to which the: Lessee is a p;Irty ar by which it is hound, ur any constitution;►I or stattnory
provisiOil. or urdCl-, rule regulation, elecree or ordinance of any court, government or governmental
hotly to which the Lessee of- any of its other properties are subject.
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(g) There is no action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, regulatory agency, public hoard or body pending or, to the best of the
Lessee's knowledge, threatened against the Lessee, wherein an unfavorable ruling or filing woulcl
adversely affect the vali(lity or enforceability of this Lease or any other instrument contemplate(I For
use in consummating the transaclions contemplated hereby, or the exclusion of the portion of the
Rerll Payments (as defined in Section 3 below) representing interest, froth gross income far purposes
of federal income taxation, or would materially and adversely affect any of the transactions
contemplated by this I.ease.
(h) The Equipment (as defined in Section 2 hereof) at all times will he used by the
I _essee for the purpose of perfornling a public function and the acquisition of the Equipment by the
lessee shall be necessary, useful Or appropriate to one or more governmental purposes of the Lessee.
Section 2. LEASING.
(a) Subject to the let -Ills and conditions set forth below, Lessor agrees to lease to
Lessee, and Lessee agrees to lease from Lessor, the Equipment described in the Equipment
Schedules delivered from time to time as described below, including all repairs, replacements,
substitutions and modifications to the same (the "Equipment").
(b) The Lessor may from time to time, at the request of Lessee, provide funds to
acquire Equipment from the manufacturer or supplier thereof ("Supplier") for lease herc:trnder. The
oblication of Lessor to lease Equipment hereunder shall he subject to the representations and
warranties of Lessee contained herein being trttc and accuralc throughout the lei -ill hereof and further
C011ditioned on receipt by Lessor of each of the following documents in form and substance
satisfactory to Lesser and the Lessee:
0) it Description of Equipment describing such Equipment executed by
Lessor and Lessee (the ''Description of lquipment"):
(ii) an Amortization Schedule setting forth th4 Rent payable with respect
to such CEcluipnlelit in the form attached as Exhibit 13 hereto (the "Amortization Schedule");
(iii) a Schedule ol"C'ernls setting forth additional terms applicable to the
Lase of such Equipment executed by Lessor and Lessee (the "Schedule of rernls");
(iv) copies of insurance policies or, at Lessor's option, such other evidence
of insurance which complies with the requirements of Section 11,
(v) hills of sale, titles or other appropriate evidence of ownership or
invoices for amounts (111c;
NO in opinion of counsel for Lessee;
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(vii) a copy of Internal Revenue Service Corm 8038 G or 8038 GC: (as
applicable) completed and executer! by Lessee;
(viii) an Ol'I'icers, Certificate of Lessee;
(ix) a duly adopted resolution or evidence of other appropriate action of
Lessee approving the; acquisition of such Equipment;
(x) executed and completed Form 2003/2004 of the Division of Bond
Finance of the State of Florida;
and
(xi) a Certificate of Acceptance in the form attached as Exhibit C hereto;
(xii) such other documents as Lessor may reasonably request.
All references herein to ti►e Description of Equipment, Amortization Schedule or the
Schedule: of Terms for Equipment is a reference to such schedule its it was executed in connection
with the lease of such item of Equipment.
(c) Lessor hereby appoints Lessee its agent for purchase, inspection and
acceptance of the Equipment front the manufacturer or supplier. Subject to the above: -stated
t;i,ntliIlot Is, upon execution by Lessee of a Certificate o f Acceptance in the form provided by 1_essor,
the L.,quipn►ettt descrihed thereon shall he deemed to have been delivered to, and irrevocably
accepted hy, Lessee for lease hereunder.
-Section 3. TEIRM, RENT AND PAYNIE'NT.
(a) The rent ("bent") payable hereunder with respect to all Equipment set forth on
an 1quipment Schedule shall commence on the (late set forth in the corresponding Schedule of
"terms (the "Commencement Date"). The term ("Perm") of this Lease with respect to such
f_(luipntent shall Commence on the Commencement late; and shall terminate upon the occurrence of
the first of the following events:
(1) the exercise by Lessee of its option to purchase Lessor's interest in
such E(JUipnte;nt pursuant to SCCtieln I hereof;
(2) the payment by Lessee of all Rent and other amounts required to be
paid by Lessee hereunder with aspect to such Equipment;
till 1Of19N:► 3
(3) upon the Occurrence of an Event of Nonappropriation (its that lerm is
defllled Ill subsecl►oll (c) hereof) with respect to :lily Equipment, the last clay of.' tile Bmigetttry
Period set forth in the Schedule ofTerms for which all appropriation has been made, subject
to Lessor's election to not terminate this lease with respect to Equipment for which an
appropriation has been made;
(4) an Event of Default by Lessee. and Lessor's election to terminate this
Lease pursuant to Section 70 hereof; Or
(S) payment Of all monies Owed pursuant to it Casualty Occurrence with
respect to such Equipment under Section ID hereof.
(h) Rent shall he paid to Lessor at its address noted in the Sche(Itile Of Terms,
except as otherwise directed by Lessor. Payments of Rent shall be in the amOurlt, payable at such
intervals and shall be clue in accordance with the provisions of the Amortization Schedule and
Schedule of Terms. (Each payment of Rent is hereinafter referred to as it "Rent Payment".) Lessor
stay change the location to which the Rent Pilynlents are to he paid by llOtillg such chiulge on any
invoice to Lessee or by sending Lessee notice in writing of such change. A portion of each Rent
Pilynlcnt is paid as, and represents, interest as reflected on the Amortization SCI1CdUIC.
The obligation of the Lessee to pity the anu 1111B requirCd herein shall constitute it current
expense ol, the Lessee and shall not in any way be construe(! to he .1 deft Of the Lessee in
Contravention of any applicable conslitutional, statutory Or charter limitations or requirements
C011CC1,11irlg the creation of indebl drless of the Lessee. 'ME PAYNIEWS DUI: UNDER THIS
I.1::\Sl.: ARL.TO BE MADE ONLY FRM-1 TI IE LESSEE'S LEGALLY APPROPRIATED 14INDS
ON AN ANNUAL BASIS, AND NEITHER THE LESSEE. THE S"CATE OF FLORIDA, NOR
ANY l'01.1 HCALS1113DIVISION OR AGENCY"1'IIERFOFSl1A1_L131:-;O13L.lCjA'1'f-D"I'O PAY
ANY SUMS DUE HERE -UNDER FROINI THE COMPELLED LEVY OF ALA VALORI NI OR
OTHL"•IZ '1'/\XLS EXCEPT FI O,%l `HOSE I-UNDS LEGALLY APPROPRIATED BY THE
1.1 55h1's CAN AN ANNU,-\1.13ASIS, ANI) Nl;l"I'I IEIZ Tlll Fi.11.1_FAII'l I AND CREDIT NOR T E
TAXING POWER OF THE LI�SSh.I:, THE S"1 A,rE 01, FLORIDA OR ANY POLITICAL.
SUBDIVISION OR AGENCY THEREOF ARE PLEDGED FOR PAYN-IENT 01-'Sl.l(-'I1 SUMS
DUE UNDER THIS LEASE. This Lease and the indchtedness evidenced hereby shall not
conslilulc a licit upon file E quipmenl, or any part thereof, or on by
or within the jurisdictional limits of Lessee.
(c) Lessee shall have the right to lerminale its obligation to ►nakc Rcnt Payments
with respect lu any Equipment at the end of any Budgetary Period (as that lerm is defined in the
Schedule of Ter►lls), in the manner and subjCct to the terms of this subsection (c), if Lessee's
gavel ring body clues not appropriate money sufficient to pay the Rent Payments and reasonable
estimated expenses hereunder coming due for the next Budgetary Period with respect to such
Equipment (such termination hercinal'ter an "Event of Nonappropriation"). Upon lite occurrence of
an livent of Nonappropriation, Lessee shall not be responsihie for the payment of any Rent Payments
with respect to such Equipment cOnlilig clue during any subse(Illent Budgetary Period. Uport file
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occ:,urrence of an Event of Nonappl,opri ati oil as providecl in this subsection, this Lease shall terminate
Mid Lessee covenants to surrender and deliver possession of the Equipment to Lessor in accordance
wi(h the provisions of Section 12. Provided, however, that Lessor may elect to continue to lease
hereunder any Equipment for which all appropriation has been tllade.
Section 4. TAXES.
Lessee steal I report and pay promptly from legal ly avai table revenues all other taxes, fees and
assessments due, imposed, assessed or levied against the: Equipment (or the Purchase, ownership,
delivery, leasing, possession, use or operation thereof), this Lease (or any rentals or receipts
hereunder), or Lessor or Lessee in connection with this Lease, by any foreign, federal, state or local
government or taxing authority, including, without limitation, all license and registration fees, and all
sales, use, personal property, excise, gross receipts, franchise, stamp or other taxes, imposts, duties
and charges, together with any penalties, fines or interest thereon (all hereinafter called "Taxes").
Lessee shall reimburse Lessor upon receipt of' written request for reimbursement for any "faxes
charged to or assessed against Lessor, and on request of lessor, submit to Lessor written evidence of
Lessee's payment of Taxes. Lessee shall have no liability for taxes imposed by the United States of
Anterica orally State or political suhdivision thereof which are on or measured by the net income of
Lessor.
Section 5. FINANCIAL INFORMATION; REPORTS.
Lessee will provide Lessor with W audited financial statenlents (includin-u, %V1010111
limitation, it h;tlance sheet, it statement ol, revenues, expenditures and change in fund halancC) within
2 M clays alter the cold of each I311(1,,Ci ti"ear, (ii) a copy Of its annual hudget within -1.5 days alter
approval by I.essee, and (iii) such other Financial information as requested in writing by Lessor.
Lessee will also provide Lessor with the following ill writing within the time periods specified: (a)
notice of tax or other lien which attLiches to L'•quipnlent within ten (10) days of Iessee's obtaining
knowlcdgC ol, such attachment and such additional information with respect to the tax or lien
promptly upon request of Lessor; (b) notice to Lessor of- the: relocation ol" the base -location of the
I�eluipnlent outside of the jurisdictional limits of Lessee, test ( Ill) days prior to any relocation;
(c) cetpie s of the insurance policies rtr other evidence t�f insurance required by the: terms hereof,
promptly upon request by Lessor; (d) copies of all information, logs, doCIIIII IIIS and rCcords
regarding or in respect to the Equipment and its use, maintenance and/or condition, within ten (1(t)
days of such request; (e) a certificate of [lie authorized officer of I_Cssee stating that he has reviewCd
(Ile activities of Lessee and that, to the best of his knowledge, there exists no default (as described in
Section 20) or event which with notice or lapse of ([tile (or both) would heconle such it default;
(F) copies rll' ally manufacturer's warranties, promptly upim request; (g) evidence: of Lessee's
compliance with maintenance provisions of Section A hereof upon request of Lessor; (11) notice of
at►y anticipated occurrence of un Event of Nonappropriation, if practical, thirty (30) days prior to
Stich occurrence; (i) notice of an occurrence of an Event ul' Nonappropriation within five (5) clays of
such oc curre.nce; (j) proof of appropriation for tite ensuing Budgetary Period in it form acceptable to
I .essor upon request; and (k) any other documents or reports required by any addenda hereto or
reasonably requested by Lessor.
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Section (. TITLE' AND QUILTENJOYMENT.
(a) Legal title to the Equilmtent shall, For the convenience of both parties, be titled
in the Lessee. I-e-ssee covenants to promptly return the Equipment to lessor as provicled in Section
12 upon the ot:CUI'r'erlce of in Event of Non appropriation, or upon the occurrence of an Event of
Defartlt and Lessor's election to terminate this Lease Pursuant to Section 21 hereof. Title to the
HNIllipment shall vest absolutely with Lessee upon payment of all Rent Payments clue hereuncler.
(b) So long as Lessee is not ill default under this Lease, Lessor covenants and
agrees that it will not interfere with Lessee's quiet enjoyment of the Equipment subject to, and in
accordance with, the provisions hereof.
Section 7. DELIVERY, REGISTRATION, USE AND OPERATION.
(a) The Equipment shall be delivered directly from the Supplier to Lessee.
(h) Lessee, at its own cost and expense, shall cause title of the Equipment to be
placed in the name of Lessee by appropriate documentation.
(c) The possession, use and operation of the Equipment shall be at the sole: risk
and expense of Lessee:. Lessee agrees that the Equipment will be used and operated in compliance
Willi any Mill all statues, laws, ordinances, regulations and standards or directives issued by ally
governmental agency applicable to the use or operation thereof, in compliance with any license or
registration relating to the Equipment issued by any agency and in at manner that does not modify of -
ally existing warranties on the [ quiptnent or ally part thereof. Lessee will operate the
laluipment solc;ly for governmental usc.
Section 8. NMINTE'N;1NCE.
(a) Lessee agrees that the Equipment will be maintained in compliantce With any
and all statutes, laws, oreiinances, regulations and standards of -directives issued by ally governmental
agcucy applicable to the maintenance thereol', and in at manner that does not moclil"y or impair any
existing warranties on the. Equipment or any part thereof.
(b) Lessee shall maintain, inspect, service, repair, overhaul and test the Equipment
Ill accordautce with (i) all maintenance ntartuatls initially furnished with the Equipment, incluclinp any
subsequent amendments or supplements to such manuals issued by the manufacturer from time to
time;, and (ii) all recommended "Service: 131.11letins" issued, supPlied, or available by or through tilt:
Manul'acaurer anal/or tits manufacturer of any part with respect to the Equipment. lessee shall
maintain all records, logs and other materials required by the manufacturer thereof Iorenforcentent
of any warranties. All maintenance Procedures required hereby shall be undertaken and completed
in accordance with the manufacturer's recommended Procedures, and by Properly trained, licensed,
sold certificated maintenance sources and maintenance personnel, so as to keep the Equipment in as
good operating condition as when delivered to Lessee hereunder, ordinary wear and tear expected.
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(c) Lesseeagrees to notify Lessor in writing; thirty (30) clays prior to making any
material cllallge in the configuration, appearance and coloring of the Equipment from that in effect
at the time the Equipment is accepted by Lessee hereunder, and in the event of such change or
modification of configuration, coloring; or appearance, Lessee shall restore, upon request of Lessor,
the Equipment to the configuration, coloring or appearance in effect on the Commencement mate or,
at Lessor's option, to pay to Ussor an amount equal to the reasonalile cast of such restoration. The
Lessee's addition of its logo or other identifying marks to Equipment shall not he considered a
material change in the appearance or coloring of the Equipment.
(d) Lessee shall be entitled from time to time during the Term of this Lease to
acquire and install on the Equipment at Lessee's expense, any additional accessory, device or
equipment as Lessee may desire (each such accessory, device or equipment, an "Addition"), but only
So Iona as such Addition sloes not alter or impair the originally intended function or use of the
Equipment, and'can be readily removed by Lessee prior to the return of the Equipment. Lessee shall
repair all damage to the Equipment resulting from the installation or removal of any Addition so its
to restore the Equipment to its condition prier to installation, ordinary wear and le�u• excepted.
(e) Any alteration or modification (each an "Alteration") with respect to the
I:iluilllllenl that play al any lime staring the terns of this I -east be required to comply With any
applicable law or any gtwernnlental rule or regulation shall be made at the expense of Lessee. Any
l'Clrlir nulde by Lessee of or upon the Equipment or replacement parts installed thereon in the course:
of repairing or maintaining the Equipment, or any Alteration required by law or any governmental
rule or regulation, Shall be deenled all accession and shall become it part ell- the Equipment.
(r) Except as per►llitICLI Mager this Section 8, Lessee will not modify the
F(lilipillent of alllx C1r I'elll(We any ICCCSSory to the L?quipinent leased hereunder without I .Cssot's
C011se111.
Section 9. I,IE'NS, SUBLEASE AND ASSIGNMEINT.
(a) Lessee shall nut sell, transfer, assign or encumber the Equipment nr I .Cssoi"s
rights under this (.ease anti shall not sublet or part with possession of the Liquip111ent or any hart
Ihercol'. lessee shall keep the Equipment and any part thereof free and clear of- all liens and
encumbrances other than those which result From (i) the respective rights of Lessor and Lessee as
herein provided; (ii) liens arising rronl the acts of lessor; (iii) liens for taxes not ycl slut:; anti (iv)
inchoate nlaterialnlcn's. mechanics', workmen's, repairmen's, employees' orother like: liens arising in
the ordinary courSC of htlSilless or Lessee ror sums not yet delinquent or being contested in good faith
(and fur the payment of which adequate assurances in Lessol's.judgnlent have been provided Lessor).
(b) All of Lessor's right, title: alld/or interest in and to this Lease, the Rent
Payments and other amounts dos: hereunder and the Equipment may be assigned and reassigned in
Whole or in part to one or more assignees or subassignees tit any time, without the consent of Lessee.
No such assignment shall be effective as against Lessee unless and until the Lessor or assignor, as
011 1 u,1 19 9 : 1 7
the case may he, shall have filed with Lessee a copy or written notice thereof identifying the
assignee. All Rent Payments clue hereunder shall be paid to Lessor at the address set forth herein or
at the direction of Lessor or assignee designated in the most recent notice of assignment filed will,
Lessee, such other address as Lessor or assignee directs. Upon such assignment, Lessee shall
pruvide notice thereof to all insurers and shall cause the insurance policies as required by Section I I
hereof to be modified to protect the assignees.
(c) This Lease shall inure to the benefit of and shall be binding upon file Lessor
and the I..essee and their respective successors anil permitted assigns.
Section 10. LOSS, DAMAGE AND STIPULATED LOSS VALUE -
Lessee hereby assumes and shall bear the entire risk of any loss, theft, confiscation,
expropriation, requisition, damage to, ordestruction of, the Equipment, orally part thereof from any
cause whatsoever. Lessee shall promptly and fully notify Lessor in writing if Equipment shall be or
become worn out, lost, stolen, confiscated, expropriated, requisitioned, destroyed, irreparably
damaged or permanently rendered unfit for use from any cause whatsoever (such occurrences bekig
hereinafter called "Casualty Occurrences"). In (lie event that, in the opinion of Lessor, a Casually
Occurrence has occurred which affects Only a portion of an item of the Equipment, then Lessee, at its
Own cost and expense, shall replace such portion with a replacement part acceptable to Lessor. In the
event that, in the opinion of Lessor, a Casualty OCCtII'r'ence hats Occurred in respect to an item Of
Equipment in its entirely, on the Rent Payment date rtext Succeeding it Casualty Occurrence (the
"Payment Date"), Lessee shall pay Lessor the sum of (i) an amount equal to the portion of the
Prepayment Price applicable to the affected Equipment For the time period of the C:.►sualty
Occurrence; anal (ii) all Rent Payments and other amounts which are due ar accrued Iler'eundCI- as of
tbc; I'uyntent Uate. t ►poll paynten(of all stints due hereunder, the "Perm of this Lease as to the: item of
Ialuipntcnt shall terminate. and Lessee shall he entitled to retain possession ol'such I:quiltntettt.
scclion 11. INSURANCE'.
Lessee agrees to keep the Equipment insured, at its own expense, with such companies and
on Stich terms acceptable to Lessor, in such amounts and forsuch risks as iscusutnuuy fi�requipntent
of the nature and type of the Equipment and as may be reasonably requested by the Lessor. The
insurance shall (1) name Lessor as additional insured and shall have a loss pavable clause in favor' of
Lessor, as its interest may appear, irrespective of any breach of warranty or Other act or omission of
Lessee; (ill) shall not be subject to ally co-insurance clause; and (iii) shall provide that it may not be
altered or cancelled by the insurer until after thinly (30) days written notice to Lessor. Any expense
of Lessor in adittsting or collecting insurance shall be borne by Lessee. Lessee shall not make
adiustinents with insurers except (a) with respect to claims from damage to all item of Equipment
where the repair costs do not exceed ten percent (1 O'%,) of such itent's fair market value, or(h) with
Lessor's written consent. Lessor may, at its option, apply proceeds of insurance, in whole or in part,
to repair Or replace the damaged or lost item of Equipment or any portion thereof, or to satisfy any
obligation of Lessee to Lessor hereunder. In addition to property and liability inSut'ance referenced
above, if required by State law, Lessee shall carry workmen's compensation insurance covering all
w411)719d:1 8
employees on, in, nearor about the Equipment, and upon request shall furnish to Lessor certificates
evidencing such coverage. Upon prior written consent of Lessor, Lessee may self -insure for some or
all of the ahove-referenced public liability, property, and casually damage risks.
If lessee is covered under a program of self insurance, Lessee shall provide Lessor with a
leller from its insuring authority certifying to the existence of a continuing self-insurance program
which meets the requirements of applicable law. In such event, Lessee shall provide a minimum of
ten (10) days written notice to Ussor of any material change or cancellation of said self insurance
program. In the event that such self-insurance program is unavailable or terminated, Lessee agrees to
procure and maintain with a carrier authorized to do business in Florida and acceptable to Lessor,
which acceptance shall not be unreasonably withheld, all insurance required hereby, including fire,
theft, and extended coverage insurance on the Equipment, insuring the full insurable value against
risk of loss or damage and providing for a mininlunl of ten (10) days written notice of material
change or cancellation to Lessor. Lessee shall provide Lessor with copies of certificates of the
insurance carrier or carriers evidencing such 1115uranCe coverage.
Section 12. RE'TURN OF E:QI111'MENT.
(a) Upon termination of this Lease due to an Event of Nonappropriatioil, or due to
an Event of Default and Lessor's election to terminate this Lease (suhject to Lessor's election to
continue this l..ease with respect to Equipment for which no Event of Nonappropriation has
ck:l UlTed), I .essee Covenants to promptly return all Equipment leased hereunder to Lessor together
with all logs, manuals and data, including without limitation, inspection, modification and overhaul
I'CCORIS required to be nlaintainecl with respect hereto tinder this Lease or under the manufacturer's
recommended maintenance progr.Im. l►poll return Of the Equipment, Lessee shall, upon request,
assign to lessor its rights under any manufacturer's Inuintenallce service contract or extended
warranty for the returned Equipment or any part thereof. All expenses for return ol'such Licluipnlent
and delivery of the aforementioned logs, manuals and Bala shall he borne by lxssee. The Equipnlent
shall be returned in the condition in which the Equipment is required to be nlilintained pursuant to
Section 8 hereof, hill with .III logos or other identifyinn rllarks of l.essec; rzllloved.
(b) Upon return of the Equipment, Lessorshall arrange forthe inspection ofsanle
within thirty (30) clays of return to determine it' Such Equipment Ilan been rllairlt.lined and reuu'ned in
accordance with the provisions hereof. Lessee shall he responsible for the reasonable cost of Such
inspection and shall pay Lessor such amount as additional Rent within ten (10) clays of demand for
Sallie. In [lie event Illal the results of Such inspection indicate that such Equipment, or .illy part
thereof, has not been maintained or returned in accordance with the provisions hereof, Lessee shall
pay to Lessor within ten (10) days of demand, as liquidated damages, the estimated cost ("Estimated
Cost") of servicilig or repairing such EgLlipnlcnt, or part. The Estimated Cost shall be cletCrnlinCd by
Lessor by obtaining two quotes fot' such service or repair work and taking the average of sank:.
.cssce shall hear the cost, if any, incurred by Lessor in obtaining such quotes.
(C) In the event of return of E(Illipnlent to Lessor pursuant to (a) above, Lessor
Shall use its hest efforts to sell all or part of the Equipment upon such terms as Lessor in its
till IUf1J0;1 9
rcasomll)le judgrttent deems prudent. Lessor shall apply the net Proceeds Of such salt: in the
1`011•0wi119 manner: (i) firstly, to reimburse Lessor for all costs associated with the removing, holding,
WPairing and selling of Equipment; (ii) secondly, to reimburse Lessor for Lessee's retraining
obligalions under the Lease including, but not limited to, the applicable Prepayment Price; and (iii)
lastly, any amounts remaining* thereafter shall be remitted to Lessee.
(d) All of Lessor's rights contained in this Section shall survive the expiration or
other termination of this Lease.
Section 13, INTEREST RATE SLJB.)IrCI' TU ADJUS NIENT.
In selling the interest rate used in calculating the interest component of the Rental Payments
set forth in the Amortization Schedule, the Lessor has taken into consideration: (a) the current
i\'iaxintunt Corporate Income Tax Rate, including Sul) Chapter S coiporatioils, as established in
Section I I of the Internal Revenue Code of 1986, as amended (the "Code"), (b) the treatment of Iltis
I .ease as a "qualified tax-exempt obligation" under Section 365 of tilt: Code, and (c) other Factors
Which .affect tax yield to the Lessor. Should there be future changes in the Code or related
regulations which affect the after-tax yield to Lessrn'. Should there be future c:hangcs in the COCIe or
related regulations which affect the after-tax yield of Lessor, the Lessor may adjust the interest rate in
order to maintain the salve alter -tax yield as in effect on the date hereof.
As utilized in this Seclinn, the term "Determination of Taxability" shall any
determination, decision ordecree by the Comntissionerof Internal Revenue orally District Dirwor
of Internal Revenue, as such officers are identified by the Code, or any court of con►petent
jurisdiction, or an opinion of counsel experienced in tax matters that the Interest COMP011ent pay.1hic
under this Lease is includable in the gross income (as defined in Section 61 of the Code) of the
I.CSS0 1' as it result Of the occurrence of it Taxable Event (herein defined). A Determination of*
'I';1s:111ility shall be deen)ed to have occurred on the first to occul• of the following:
(a) on that elate: when the Lessee files any statement, supplemental statement m
Diller tax schedule, return or Cloctmtent which discloses that a Taxable Event (hereinafter el fled)
shall have OCCUITed;
(b) on that elate when tale lessee or the Lessor shall be advised by said
Commissioner of Internal Revenue or any such District Director of Internal Revenue that, haled
Aloof (i) filings of the Lessee, (ii) any review or audit of the Lessee, or (iii) upon any ground
whatsoever, a Taxable Event shall have occurred; or
(e) on that date (i) witc:n the Lessee shall receive notice from the Lessor that the
Internal Revenue; Service has assessed as includable in the gross income (as defined in Section 61 of
the Code) of the Lessor tile interest component clue to the Occurrence of a 'Taxable: Event; or
(ii) when [lie Lessee shall he: advised by said Coniniissioner or any such District Director of Internal
Revenue that the inle:re:st component is includable in the gross income of the Lessor clue to the
occurrence of a "Taxable Event; or (iii) when the Lessee shall receive an opinion of counsel
U"1J)1y1s:1 10
experienced in tax matters that the interest component is includable in gross income (lilt: to tilt:
6ccurrencc of a Taxable Event.
As utilized in this Section, the term "Taxable Event" shall mean that event which shall cause
the interest component of the Rent paid or payable under this Lease to become includable for federal
income tax purposes in the gross income of tile Lessor as a consequence of any act, omission or
event whatsoever, other than an act, omission or event caused by the Lessor, and regardless of
whether the same was within or beyond the control of the Lessee. A Taxable Event shall be cleemed
to have occurred as of the earliest date on which it is alleged that interest became so includable.
If a Determination of'l'axability shoulcl occur-, the interest portion of the Rent Payments shall
be increased to the interest rate necessary to maintain the same after-tax yield as in effect on the clale
hereof (the "Taxable Rate"), and such increased rate of interest shall be payable from and after the
date of the Event of Taxability ("Date of Taxability"). Provided, however, that if the Lessee shall
elect to contest such allegation and such contest results in a final order or judgment of a court or
administrative body of competent jurisdiction to the effect that aTaxable Event has not occurred and
the time for any appeal of such order or judgment has expired, then no Taxable Event shall he
deerlled to have occurred and interest rate adjustments theretofore paid shall be refunded by the
Lessor.
Section 14. PERSOML PROPE'lZTY.
The Equipment shall at all times be and remain, personal property nc,twilhstancling that the
Equipment or any part thereof nlay now he, or hereafter become:, in any manner affixed or :ruacllecl
to, or embedded in, or permanently resting upon, real property orany building thereon, orattachecl in
any manner m what is permanent as by means of cement, plaster, nails, bolts, screws, or otherwise.
II', notwithstanding the intention of the p:trlies and the provisions of this Section 14, any person
acquires orclainls to have acquired any rights in the Equipment orally portion thereof by reason of"
such liiluipment's being affixed to real property and such person seeks in any manner to interfere
Witt( the CUntillUed quiet e111oymelll of the EEcluiprllent by Lessee as contemplated by this [.case,
I .cssee shall rnlnledrafely notify lessor in wriling nl'stich fact and shall seek cliligently lu remove file
hasis for any such interference. Unless file bitsis for such interference is waived or removed to the
satisfaction of Lessor wiIllin thinly (30) clays from the (lane it is asserted, Lessee, upon written request
I roll) Lessor, shall within ten (1 U) days after such request pay to Lessor an amount equal to the suns
of Man amount equal to the Prepayment Price applicable to the time period of the inferl'erence; and
(ii) all Rent Payments and olher amounts which are due or accrued hereunder. Upon such payment
the Lease of such 1?quipnlenl shall lerminate and :111 of Lesso1's title to and rights in such E citlipment
shall beconte the property of Lessee.
U14IGll)U; i I I
Section 1S. NET LEASE; NO SE,1%01?1�,o 1'C-
This lease is a net lease. Subject to the provisions of Section 3 subsection (c) hereof,
Lessee's obligation to pay Rent and other amounts clue hereunder shall be absolute anti
unconditional. Lessee shall not be entitled to any abatement or reduction of, or set-off agai►tst, said
Rent or ether amounts, including, without limitation, those arising oral legedly arising out orclainis
Of- disputes (present or future, alleges! or actual, and including claims arising out of strict tort car
negligence of lessor) of lessee against or with the manufacturer or venclor of the Equipment, any
supplier of labor or materials in connection therewith, or any other person. Nor shall this Lease
terminate or the obligations of I-.essee be affected by reason of any defect in or damage to, or loss of
possession, use or destruction of, the Equipment, from whatsoever cause or breach of warranties of
the manufacturerorsellerof the Equipment. Subject to the provisions of Section 3 subsection (c), it
is the intention of the parties that Rent Payments and other amounts due hereunder shall continue to
be payable in all events in the manner and at the times set Forth herein, unless the obligation to do so
shall have been 'terminated pursuant to the express terms hereof.
Section 16. INDEMNIFICATION.
(a) Lessee hereby agrees to the extent permitted by Low to indemnify, save and
keep harmless Lessor, its agents, employees, succc.sso►'s and assigns from and against -,lily and ;ill
losses, clamages, penalties, injuries, claims, actions anti suits, of whatsoever kind and nature, in
contract or fort, whether caused by the active or passive negligence of Lessor or otherwise.
including, but not limited to, Lessor's strict liability in tort, arising out of (i) ilie selection,
i►ianufacturc, purchase, acceptance ur rejection of L`•quipment, the ownership of Equipment by Lessee
during thc'I'erm ol'this Lease, and the delivery, lease, possession, n►aintenancc:, usc,conditiort, rcaurn
or operation of the Equipment (including, without limitation, latent and other defects, %viie:the:ror not
discoverable by Lessoror Lessee and any claim forpatent, trademark oreopyright infringement). or
(ii) the condition of the Equipment sold or disposed of alter use by Lessee, any sublessee or
employees of- I .essce. Lessee shall, upon request, defend any actions basal on, or arising out of, any
t,l the Foregoing.
(b) All of Lessor's rights, privileges and indemnities contained in this Section
Shall survive; [lie expiralion ur other termination of this Lease and the rights, privileges acid
indcnu►ilics contained herein are expressly made for tl►e benefit of', and shall be enforceable by
Lessor, its successors and assigns.
0141U.114d.1 12
Section 17. DISCLAIhIER.
(,ESSEI: ACKNOWLEDGES TI IAT 1T` SIIALLSEI_ECT'T'HE EQUIPM1N'r WITI (OCl'I'
ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES AND
LEASES THE EQUIPMENT IN AN "AS IS" CONDTI'ION. LESSOR DOES NOT MAKE, HAS
NOT MADE, NOR SHALL BE DEEMEDTO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EX13RESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPEC71'
TO THE EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF,
INC LI-IDING, WITFIOUT LIMITATION, ANY WARRANTY AS TO CONDITION, DESIGN,
COMPLIANCE WITH SPECFFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP,
MERCIIANTABILITY, FITNESS FOR ANY PURPOSE, USE OR OPERATION, SAFETY,
PATENT, 'TRADEMARK. OR COPYRIGHT INFRINGEMENT, OR TITLE. All such risks, as
between Lessor and 1_essee, are to he borne by Lessee. Without limiting the foregoing, Lessor shall
have no responsibility or liability to Lessee or any other person with respect to any of the fallowing
(except at such times as Lessor is in possession of tile Equipment), regardless of any negligence Of
Lessor (i) any liability, loss or damage caused or alleged to he caused directly or indirectly by the
Equipment, any inadequacy thereof, any deficiency or defect (latent or otherwise) therein, or any
other circumstance in connection therewith; (ii) the use, operation or performance of the Equipment
or any risks relating thereto; (iii) any interruption Of service, loss Of business or anticipated profits or
COnsequential damages; or (iv) tile delivery, Operation, servicing, maintenance, repair, improvement
or replacement of the Equipment. If, and so Iong as, no default exists under this Lease, LeaSee shall
lie, and hereby is, autimrized ciuring tile'rernl to assert and enforce, at Lessee's sole cost and expense,
front time to tinge, in the name ofand for the account of Lessor and/or Lessee, as their interests may
appear, whatever claims and rights Lesselr play have against any Supplier Of the I7-1(piplllellt.
Section 18. PLIRCHASE? OPTION.
(a) Provided that no Event of Default has aCl'.11rreel and is continuing hereunder,
I_Cssee S11,111 have the option to 11111-CII:ISe all of Lessor's right and/or interest in and to the Equipment
on any Eterlt Payment bate (tile "Purchase Date") for the applicable Prepayment Price as set forth in
the: Amortization Schedule:. The sale of the Lessor's interest in and to the Equipment to Lessee shall
be on an AS IS, WI IERE IS basis, without any recourse or warranty whatsoever as against Lessor.
(h) Lessee shall give notice to Lessor of its intention to exercise its option not less
Than sixty (60) days print- to the Rent Payment Date clrl which the Option is to be exercised and shall
remit 10 I-CSSOl'on such date an amount equal tip 111C sum Of the Prepayment Price; :111d (ii) all Rent
Payments and other amounts duC of accrued through and including the Purchase Date.
u1u0J1'm1 13
Section 19. NIU'1'UAL COVI;NAN'I' R1.GAIt1)ING'I'AX-I?XENII'1' S'1'A'I'US.
The Lessee and the Lesser mutually covenant that neither will take any action nor (emit to
take any aclion with respect to this Lease, the Fiquipment leased hereunder, or any funds of., the
Lessee il' such action or omission (i) would cause the interest component of the Rent to lose its
exclusion from gross income for federal income tax purposes under Section 103 of the Internal
Revenue Code of 1986, as amended (the "Code") anti applicable regulations, or (ii) would cause such
interest component of the Rent to lose its exclusion (if any) from alternative minitllum taxable
income as defined in Section 55(b)(2) of the Code except to the extent such interest is required to be
included in the adjusted net book income and adjusted current earnings adjustments applicable to
corporations under Section 56 of the Code in calculating corporate alternative mininurlll taxable
income, or Oil) would subject the Lessee to any penalties under Section 148 of the Code. Subject to
file Lessee's right its lerminale this Lease as provided herein, the foregoing covenant shall remain in
full force and effect, notwithstanding the payment in I.' I, of the Rent, until the date on which all
obligations of the Lessee in fulfilling the above covenant have been nlet.
Section 20. EVENTS OF DEFAULT.
The terns "Event of Default", wherever used herein, shall mean any of the following events,
Whatever the reason for such Event of Default and whether it shall be voluntary or involuntary, of -
come about or be effected by operation of law, or be pursuant to or in compliance with anyjud"Illent,
decree or oreler of any court or any order, rule or regulation or any administrative or governmental
body: (a) l"essee shall fail to mike any payment of Rent when the same shall become title; of-
(h) Lessee shall fail to keep in full force and effect insurance required under this Lease; or (c) Lessee
Shall or shall attempt to (except as expressly permitted by the provisions elf this Lease) remove, sell,
transfer, encunlher, part with possession of, assign or sublet the Equipment, or any part thereof, use
(lie Equipment for all illegal purpose, or permit the saute to occur; or (d) Lessee shall breach its
covenant to return the Equipment upon ;tit Event of Nonaptlropriation, or upon an Event of Default
and Lessor's election to terminate this Lease; or (e) Lessee shall fail to perform or observe ally
covenant, condition or agreement not included within (it), (h), (c) of-(d) above which is retluircd to be:
p4I formed or uhserved by it under this lease or any agreement, document orcerlificate delivered by
Lessee ill conn4clion herewith, anti such failure shall continue for twenty (20) days after written
IMLiCe lhereol front Lessor tll I"CSSee (ol If SUCII (IClalllt C;111110t he corrected within twellly (2ft) flays,
shall have failed to initiate and diligently pursue appropriate corrective action); or (I) any
representation or warranty math by Lessee in this I case or any agrzenlent, document or cerli ficalte
ticliverctl by Lessee in connection herewith 01' pursuant hereto shall prove to have been incorrect in
any material respect when any such representation or warranty was made or given (or, if it continuing
represcntation or warranty, art any material linle); or (g) Lessee shall generally fail to pay its debts as
they become due or shall file it voluntary petition in bankruptcy; or (h) a petition is filed against
l .essee in it proceeding under applicable bankruptcy laws or other insolvency laws (other than any
law which dogs not provide for or permit any readjustment of, alteration of Lessee's obligations
he:rernder in each case), as flow or hereafter ill effect, anti is not withdrawn or dismissed within
nillely (tall) clays thereafter, or if, under the provisions orally law (olher than any law which does not
provide for of- permit any readjustment or alteration of Lessee's obligations hereunder in each ease)
0"1031981 1 1.f
providing for reorganization ur liquiclatiotl of legal entities which may apply to Lessee; or (i) .lily
court of competent jurisdiction shall assume jutiscliction, custody or control of Lessee or of any
substantial part of its property and such jurisdiction, custody or control shall remain ill force
unrelinquished, unstayed or unterminated for it period of sixty (60) clays; or 0) Lessee becomes
insolvent.
Scclion 21. REMEDIES.
Whenever any Event of Default referred to in Section 20 hereof shall have happened and be
continuing wilh respect to the Equipment, Lessor shall have the right, at its option and without any
further demand or notice, and with or without terminating this Lease, to declare all Rent Payments
clue or to become due during the hiscal Year in effect when the default occurs to be inimediately clue
and payable by Lessee, whereupon such Rental Payments shall be immecliLite ly clue and payable. If
the Event of Default is I-Pessee's breach of its covenant to return [he Equipment, Lessor shall be
entitled to liquidated damages equal to the Rent Payments for the Equipment pro -rated on it daily
basis for each (lily the Equipment is retained. Any judgment for damages shall be payable solely
front legally available funds of the Lessee, and Lessor shall not have the power to require levies (If ad
valorem taxes in the fc111.1re to pay Rent Payments.
The remedies provided to Lessor herein shall be the sole and Cxclusive remedies exercisable
by Lessor in an Event of a Default by Lessee hereunder. L.esso'sliall in no event have the right to
involuntarily dispossess Lessee of the Equipment or title thereto. Lessor and LessCC du not intcrul to
create a security interest in any Equipment.
No LIClay or omission to exercise any right or remedy accruing hereunder shall impair any
such righl or renlecly or shall be construed to be a waiver thereof, but tiny such ri-ht and rCnledy may,
bC CxCIL.Sed 11'0111 little 10 iinle and as often as may he cleenled expedient. In order to cntille Lessor
10 CXCI'ilSe any remedy reserved to it in this Lease it sliall not be necessary to give any notice, other
than such notice as nlay be required in this Lease.
In the event any agreenent cont:ined in this L.easC should be breached by either p:n ty hereto,
and thereafter such breach should he waived by the other party herclo, such waivershall he limited to
the particular breach so waived and shall not be deemed to waive any other breach hereunder.
In the event that there is an Event of Default and the nondefaultina party shc►uld employ
attorneys and/or incur outer expenses fur the collection of moneys or the enforcement of performance
or observance orally obligation or agreement oil the par[ of the nondefaulting party herein contained,
the defaulting party agrees that it will on demand therefor pay to the nondefaulting party the
reasonable fee of such attorneys and/or such reasonable~ expenses so incurred by the nondefaulling
early.
Whenever any Event of Default referred to in Section 20, Clause (it) hereof shall have
Occurred and be continuing with respect to the Equipment, L.essorshall have the right at its option
and without any further clenlarld or notice, to require a late payment charge for each thirty (30) clay
o1flule'in:1 15
period or Dart thereof during which such Event of Default occurs equal to one and one: -hall' llc'rcenI ( I
l/2`%,) of the clelinquent amount, and l..essee shall be obligated to pay from funds legally available fur
such purpose, the same immediately upon receipt of Lessor's written invoice therefore, provided,
however, that Ihis provision shall not be applicable if or to the extent that the application thereof
would affect the validity of this lease.
Section 22. ESCROW AGREEMENT; TRUST FUND.
To the extent approved by Lessor and Lessee, sums advanced by Lessor for the acquisition of
Equipment may be funded through use of an escrow agent. All aspects of any such arrangement
shall he subject to the prior approval of Lessor including, but not by way of limitation, selection of
the escrow agent and the procedures for disbursements. Lessee agrees that any such escrow agent
may be an affiliate of Lessor, provided that only the customary escrow fees are charged by such
affiliate. All costs incurred in connection with any such escrow shall be paid by Lessee.
For the initial funding hereunder as reflected in the Schedule onTerms dated April 17, 2001),
and for future fundings, if approved by Lessor and Lessen, Lcssor shill I cleposit funds with Lessee to
be applied by Lessee to acquire Equipment. Such funels shall be held by Lessee in it segregated
account at it financial institution or trust company and applied to acquire Equipment upon delivery to
l .essor of these items required by Sections 2(b)( I ), (4). (i), (9). (1 1) and (12) hereon. Any balance
remaining in such fund after the date which is two (2) years after the deposit of I-undS thereilt shall he
applied M pay scheduled Rent Payments until fully expended.
Section 23. l?XECU'TIO AND LANN'S (;OVUAZNl`'(; VI_NUI�.'.
This Leilse and each of the exhibits hereto shall be billdiltg; only when accepted by the lessor
at its Orlando, Florida office and shall be construed and governed by the Laws of the Statc ol'Fiorida.
As part.of the consideration for the Lessor's executing this I.ease, Lessee agrees that all actions or
proccc( ings arising; directly or indirectly from this lease shall be litigated only in courts having its
surfs within Orange County, I-I0rida, and L_easce herehy consents to the jurisdiction of that Court and
wilives any rights to the selection of venue.
Section 24. h11SCI:I.L,ANI.01JS.
(a) Anycancellation or termination by 1.essor, pursuant to the provisions ofthis
Lease, any exhibit, supplement or amendillent hereto, or the release of the Equipment Itcreurldel-,
shall not release Lessee from any then outstanding obligations to Lessor hereunder. All exhibits,
certificates, consents and other attendant documents referenced herein are incorporated herein by
r4ncrcnce
(b) Time is of the essence. Lessor's failure at any time to require strict
lie rfor►nalice by Lessee of any of the provisions hereof' shall not waive: or diminish Lessor's right
Illereillicl. to demand strict compliance therewith.
Gklu319d;l 16
(c) All notices, certificates ot'otherconitrlunications hereundershall he in writing
and deemed given when delivered or mailed by certified or registered mail, postage prepaid, to the
respective addresses set forth in the Schedule of Terms. The Iressee and the lessor may designate by
written notice any further or different addresses to which subsequent notices, certificates or other
conlllunlication shall be sent.
(d) If the date for making any payment or the last day for performance of any act
or the exercising of any right, as provided in this Lease, shall be a legal holiday, or a clay on which
banking institutions in the city in which the principal office of the Lessor or the assignee of the
Lessor is located are authorized by law to remain closed, such payment may be made, or act
performed, or right exercised on the next succeeding day not a legal holiday or a day on which such
banking institutions are authorized by law to remain closed, with the same force and effect as if clone
on the (late otherwise specified herein.
(e) In the event that any provision of the- Lase (other than the requirement of
(i) the I _essee to slake Rent Payments; (ii) the Lessor to provide quiet enjoyment of the- Equipment;
and (iii) the Lessee to convey the Equipment to the Lessor under the conditions set forth herein) shall
be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other prevision hereof. Any provisions in this Lease which
arC in cool list with any statute-, law or applicable rule shall he deemed omitted, modified or altered to
cilnfornl thereto.
(1) This Lease play he execute-d sinlultalleously in several coullterll.u'ts, each Of
which shall be an original and all of whie:h shall constitute: but one: and the Same: instrument.
(g) The subst:ullivC law, but not the choice of law rules, of the State of Florida,
and rules and regulations issued pursuant thereto, shall be applied ill the interpretation and
CnforcenlCnl hereof.
(11) The captions and headings herein are for convenience only and in no wily
define, Iiniit or describe the scope or intent of any provisions or sections of this Lcasc.
(i) The signatories affirm that to their knowledge, nu employee of the Lessee has
any personal or beneficial interest whatsoever in the acquisition of the Equipment.
(I) This Lease constitutes the entire agreelllent of tile parties with respect to the
subject matter hereof. NO VARIATION OR MODIFICATION OF THIS LEASE, OR ANY
WAIVER OF ANY OF ITS PROVISIONS OF CONDITIONS, SHALT. BE VALID UNLESS IN
WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH OF THE
PARTIES HERETO. Any such waiver, consent, modification or change shall be effective only in
the specific instance and for the specific purpose given. 'There are no understandings, agreements,
representations orwat'ranties, express or implied, not stated ller'ettn(ler. No variation or lno(lification
6HIU3198;1 17
oft I,is Lease, or waiverof any of its provisions or conditions shall be valid after assignment byeither
party unless approved by assignee.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Lease to be executed by
their duly authorized representatives as of the date first above written.
LESSOR:
KISLAK NATIONAL BANK
By:
XDd>,5UU1M;5 hq MOLLY A. RIME
Its: Sd1S1EYiKW44XV&MySHj( Executive Vice President
LESSEE:
CITY OF TANIARAC, FLORIDA
By:_ te-Anav
.Toe Schreiber
Its: Mayor
A'ITI:S'111):
By: ��L-� G.L.='.►,,�'/ _
Marion Swellson, c ly ICry
(SI'_Al.)
u"10A19d:a 18
City of Tamarac
7525 N.W. 88th Avenue, Tamarac, Florida 33321-2401
Telephone: (954) 724-1240 - Facsimile (954) 724-1370
Mitchell S. Kraft
City Attorney
August 1, 2000
Mayor
City of Tamarac
Kislak National Bank
713 Pinar Drive
Orlando, Florida 32825
CITY OF TAMARAC
EQUIPMENT LEASE OBLIGATION
Gentlemen:
I have acted as the City Attorney for the City of Tamarac, Florida (the "Lessee") in connection
with the issuance by the Lessee of a lease obligation, pursuant to the Constitution and laws of
the State of Florida, particularly Chapter 166, Florida Statutes, and all other applicable
provisions of law (collectively, the "Act") and Resolution No. R-2000-194 adopted by the
Lessee on July 12, 2000 (the "Resolution"). The lease obligation of the Lessee is created
pursuant to a Master Lease -Purchase Agreement (the "Lease -Purchase Agreement") between the
Lessee and Kislak National Bank (the "Lessor"), dated as of April 17, 2000, whereby the Lessee
agrees to make rental payments to the Bank during the Lessee's current budget year and
subsequent budget years for which funds have been budgeted and appropriated for that purpose.
The obligation of the Lessee to make such rental payments in this budget year and any
subsequent budget year for which funds have been budgeted and appropriated for that purpose,
shall be referred to hereinafter as the "Lease Obligation".
In connection with this opinion, I have examined certified copies of the Resolution, the Lease -
Purchase Agreement, the Lease Documents, and such other documents, certificates, and proofs
as I have deemed necessary for the purposes hereof. Based thereon, I am of the opinion:
1. The Lessee is a duly created and validly existing municipal corporation of the State of
Florida, with the power to adopt and perform the Resolution and to issue the Lease
Obligation.
Equcl Opportunity Employer
2. The Lease -Purchase Agreement and the Lease Documents have been duly authorized,
executed and delivered by the Lessee and, assuming due authorization, execution and
delivery by the other parties thereto, constitute legal, valid and binding obligations of
the Lessee.
3. The Lease Obligation is a valid and binding obligation of the Lessee payable solely
from funds budgeted and appropriated for that purpose during the Lessee's then current
budget year. The Lease Obligation constitutes a current expense of the Lessee and does
not constitute a debt of the Lessee in contravention of any applicable constitutional,
statutory or charter limitations or requirements concerning the creation of indebtedness.
Neither the faith and credit of the Lessee nor the State of Florida is pledged in payment
of the Lease Obligation.
4. No further approval, consent, or authorization of, or filing with any governmental or
public body or agency is required in connection with the Lessee's issuance of the Lease
Obligation and the execution and delivery of the Lease -Purchase Agreement and Lease
Documents and the performance of its obligations thereunder.
5. The execution, delivery, and performance by the Lessee of the Lease -Purchase
Agreement and the Lease Documents do not conflict with or constitute a breach of or
default under any existing law, administrative regulation, court decree, resolution, or
agreement to which the Lessee is subject as of the date of closing.
6. The Resolution has been duly adopted by the Lessee and has not been amended,
supplemented, or repealed and is in full force and effect and constitutes a valid and
binding contract of the Lessee enforceable in accordance with its terms.
7. To the best of my knowledge after due inquiry, no litigation or other proceedings are
pending or threatened in any court or other tribunal of competent jurisdiction, state or
federal, in any way, (1) to restrain or enjoin the execution of the Lease -Purchase
Agreement, the Lease Documents, or the incurrence of the Lease Obligation; or (2)
questioning or affecting the validity of the Lease -Purchase Agreement, Lease
Documents or sources of payment the Lease Obligation; or (3) questioning or affecting
the validity of any of the proceedings for the authorization, execution, registration,
issuance, or delivery of the Lease -Purchase Agreement, the Lease Documents or the
incurrence of the Lease Obligation or the acquisition of the Equipment (as defined in
the Lease -Purchase Agreement); or (4) questioning or affecting the organization or
existence of the Lessee or the title to office of any member of the Lessee; or (5) which,
if adversely determined, would adversely affect the ability or capacity of the Lessee to
perform its obligations under the Resolution or the Lease -Purchase Agreement.
2
U:\EVAG\LETTERS\KRAFT\OPINION LTR-EQUIP LEASE. DOC(REV.6/13/94)
8. Any and all applicable public bidding requirements have been met with respect to the
execution and delivery of the Lease -Purchase Agreement and the Lease Documents.
9. The Lessee is exempt from all personal property taxes and is exempt from sales and/or
use taxes with respect to the transactions contemplated by the Lease -Purchase
Agreement and the Lease Documents.
10. I have no knowledge of any legislation adopted by the prior or current session of the
Florida Legislature that restricts or otherwise adversely affects the Lessee's power to
issue the Lease Obligation or its ability to pay the rent payments due thereunder.
It is to be understood that the rights of the holders of the Lease Obligation, and the enforceability
of the Resolution and the Lease -Purchase Agreement, may be subject to the exercise of judicial
discretion in accordance with general principles of equity, to the valid exercise of the sovereign
police powers of the State of Florida, and of the constitutional powers of the United States of
America and to bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights heretofore or hereafter enacted.
submitted,
Mitchell S. Kraft ✓
City Attorney
MSKIeg
WEVAMLETTERS\KRAMOPINION LTR•EQUIP LEASE.DOC(REV.61M94)
I
c9&KISLAK
'�nP NATIONAL BANK
December 28, 2000
Ms. Leanne Williams
Treasury Manager
City of Tamarac
7525 NW 886 Avenue
Tamarac, FL 33321-2401
VIA FACSIMILE; 954,4244321
Dear Ms. Williams:
Temp Reso # 9244
December 28, 2000
Exhibit "B"
The following is the Kislak National Bank proposal for financing for the capital equipment which the City of Tamarac
anticipates acquiring.
LESSOR! Kislak National Bank, Miami Lakes, Florida
LESSEE: City of Tamarac, Florida
EQUIPMENT; Vehicles — 5 year Term; Equipment— 7year Term
AMOUNT TO BE FINANC ; Vehicles - $80,709.00; Rescue Vehicle & Rescue Equipment $1.96, 106.00;
Equipment - $348,459.00 TOTAL - $625,268.00
ESTIMATED CLOSING DATE; January 11, 2001
EQUIPMENT FINANCINQYEH C - It is proposed that the parties utilize the existing Master Lease -Purchase
Agreement. Under such an arrangement, the Lessee would be able to obtain additional leased equipment under the same
basic terms and conditions as originally agreed to without having to negotiate and execute a new contract. Under this
structure, there would be no covenant to budget and appropriate and ho revenue pledge. The lease -purchase would
not be nsidcred lone term gebt.
LEASE TER : Vehicles -Five (5) years; ,Equipment — Seven (7) years
LEASE COM E EMENT DAT : The Lease Term will commence upon the funding of the Lease (payment to
vendor) or the handing of the lease into a trust account.
TRUST ACCOUNT:. TRUST ACCOUNT: The entire lease proceeds would be deposited by the Bank into a City owned
Trust Account prior to the delivery of the Equipment. The Trust Account, to be held by the. City, would be established at
the City's discretion. The Lease Term would commence on the date that the Trust Account is funded, with lease
amortization commencing at that point. This alternative would allow the City to lock in an interest rate up front when the
Trust Account is funded. The account will be designated in the Lease to be used solely for payment of the.Equipment.
Upon presentation of an invoice and a certificate of acceptance from the City, the Bank will authorize payment to be made
to the vendor(s) from the "Rust Account. The Trust Account may also be used to reimburse the City for equipment
previously purchased. The bank only requires that invoices be submitted substantiating the expense. There are no bank fees
for the Trust Account. The Trust Account may be established at any institution the City selects. This is an informal
arrangement between the Bank and the City.
TERMS OF LEASE: The Lessee will snake periodic tease payments sufficient to pay the debt service on the obligation
during each year the Lease is in effect and not terminated by an event of non -appropriation. The obligation to make lease
payments during any. fiscal year will be limited to legally available revenues appropriated for such purpose by the Lessee.
After the last scheduled payment, the City will own the asset free and clear.
713 Pinar Drive, Orlando. FL 32825 • Tel: 407.207.9192 • Fax: 407.207.9193 • Toll Free 877.759.5253
Ms. Leanne Williams
City of Tamarac, FL
December 28, 2000
Page 2
BANK QUALIFIED_MEREST RATE:
Five (5) Year Term_ 4.0%
Seven 7 Year ern 4,85%
The interest rate will be adjusted to 61% of the change in the 5 year United States Treasury Note 5 days prior to
closing. The current 5 year United States Treasury Note la 5.03% as of December 28, 2000.
After execution of the Lease, the interest Rate may be adjusted in the event of a change in income tax rates or other laws or
regulations affecting the after-tax yield to the Bank.
PP>C-OOIC RENTS: Periodic Rents are to be made monthly, quarterly or annually in advance or in arrears. An
amortization schedule for annual payments in arrears is included.
TAX-EXEMPT STATEMENT, The parties anticipate that the Agreement will qualify as a "qualified tax-exempt
obligation" within the meaning of Section 265(b)(3) of the Code.
PREPAYMENT SCHEDULE: Prepayments may be made in whole or in part without penalty per the amortization
schedule to be included In the documentation package.
5AL.F,S AND USE TAX: Lessee will pay all fees, assessments, sales, use, property, and other taxes imposed upon Lessor,
resulting from the lease of the equipment.
INSURANCE: prior to Lease Commencement Date, Lessee, at its sole cost and expense, will provide risk, physical
damage and liability insurance with the Lessor named as "Loss Payee" and "additionally insured", in accordance with its
normal standards, which may include self-insurance.
TITLE 10 EQUIPMENT: Title shall at all times remain in the name of the Lessee.
FINANCiQ,L STATEMENTS: Lessee will furnish financial statements on an annual basis, as well as unaudited financial
information and other supplementary information, which the Bank may request. Additionally, the Lessee will submit a
copy of its annual budget within 45 days after the budget has been adopted.
DOCUMENT ON: To be provided by the Bank. As is customary, the Lessee's local counsel will be required to
provide an opinion letter.
TRANSACTION EXPENSES: Lessee shall be responsible for fees and expenses incurred by it. No other bank fees or
expenses will apply.
MATERJALADVER NCE: At anytime prior to completion of funding, Lessor reserves the right to withdraw
any approval in the event that Lessor determines that there has been a material adverse change in the financial condition of
the Lessee or in its ability or willingness to meet its obligations under this Proposal.
P RATION OF PROPOSAL: This proposal expires unless accepted on or prior to January 31, 2001.
Ms. Leanne Williams
City of Tamarac, FL
December 28, 2000
Page 3
APPROVAL: This proposal does constitute a commitment to lend. Bank credit approval has been obtained. The
contents of this proposal represent the crank's indication of the terries and conditions that it deems appropriate based upon
the information available as of. the date hereof. If the terms of this proposal are acceptable to you, please execute below and
return the original to me.
Thank you again for the opportunity to be of service and to present this proposal for your consideration. Should you have
any questions, please feel free to contact me at (407) 207-9192 or toll free at (877) 759-5253
Best Regards,
•. ice`{'"
r
AeniseBeauchamp
Senior Vice President
rN
Proposal accepted this day of , 200 Q
CIT7 TAMARAC, FL
By
. 0 tr
Tamarac ------ 01/03/2001 Page 1
.T�a 5 year
Period Compound I ...... : Annual
Nominal Annual Rate 4.850 % VEHICLES
Effective Annual Rate 4.850 %
Periodic Rate .............. 4.8500 %
Daily Rate ................... 0.01329%
CASH FLOW DATA
Event
Start Date
-Amount
Number Period
End Date
I Loan
2 Payment
01/11/2001
80,709.00
01/11/2002
18,564.51
5 Annual
01/11/2006
AMORTIZATION SCHEDULE
- Normal Amortization
Date
_ Payment
Interest
Principal
Balance
Loan 01/11/2001
2001 Totals
0.00
0.00
80,709.00
0.00
1 01/11/2002
2002 Totals
18,564.51
18,564.51
3,914.39
14,650.12
66,058.88
3,914.39
14,650,12
2 01/11/2003
2003 Totals
18,564.51
18,564.51
3,203,86
15,360,65
50,698.23
3,203.86
15,360.65
3 01 /1 1/20c)4
2004 Totals
18,564.51
18,564.51
2,458.86
16,105.65
34,592,58
2,458.86
16,105.65
4 01/11/2005
2005 Totals
18,564.51
18,564.51
1,677.74
16,886.77
17,705.81
1,677,74
16,88677
5 01/11/2006
2006 Totals
18,564.51
858-70
17,705.81
0.00
18,564.51
858.70
17,705.81
Grand Totals
92,822,55
12,113.55
80,709,00
Tamarac i—year 01/03/2001 Pagel
Compound Period ....... : Annual
Nominal Annual Rate ... 4.850 % EQUIPMENT
Effective Annual Rate .. 4.850 %
Periodic Rate .............. 4.8500 %
Daily Rate ................... 0.01329%
CASH FLOW DATA
Event
Start Date
Amount
Number P eriod End Date
I Loan
2 Payment
01/11/2001
01/11/2002
348,469.00
59,893.67
7 Annual 01/11/2008
AMORTIZATION SCHEDULE
- Normal Amortization
Date
Payment
Interest
Principal Balance
Loan 01/1 1/2ool
2001
Totals
1
01/1112002
2002
Totals
2
01/11/2003
2003
Totals
3
01/11/2004
2004
Totals
4
01/11/2005
2005
Totals
5
01/11/2006
2006
Totals
6
01/11/2007
2007
Totals
7
01/11/2008
2008
Totals
Grand
'totals
0.00
59,893.67
59,893.67
59,893.67
59,893.67
59,893,67
59,893.67
59,893.67
59,893.67
59,893-67
59,893.67
59,893.67
59,893-67
59,893.67
59,893.67
419,255.69
0.00
16,900.26
16,900,26
14,815.08
14,815.08
12,628,77
12,628.77
10,336.42
10,336.42
7,932.90
7,932.90
5,412.80
5,412.80
2,770-46
2,770.46
70,796-69
0.0c)
42,993.41
42,993.41
45,078,59
45,078-59
47,264.90
47,264.90
49,557.25
49,557.25
51,960.77
51,960-77
54,480.87
54,480.87
57,123.21
57,123.21
348,459.00
348,459.00
305,465.59
260,387.00
213,122.10
163,564.85
111,604.08
57,123.21
Mrs]
. a -
01/03/2001 Page 1
— Tamarac 5 year
Compound Period ....... : Annual 7
RESCUE VEHICLE and
Nominal Annual Rate...: 4.850 % RESCUE EQUIPMENT
Effective Annual Rate .. ; 4.850 %
Periodic Rate .............. : 4.8500 %
Daily Rate ................... : 0.01329%
CASH FLOW DATA
Event
Start Date
Amount
------- —
Number Period
End Date
1
Loan
01/11/2001
196,100.00
1
2
Payment
01/11/2002
45,106.51
5 Annual
01/11/2006
AMORTIZATION
SCHEDULE - Normal Amortization
Date
Payment
------
- Interest
Principal
Loan
01/11/2001
2001
Totals
0.00
0.00
0.00
196,100.00
1
2002
01/11/2002
Totals
45,106,51
91510.85
35,595.66
160,504-34
45,106.51
9,510.85
35,595.66
2
2003
01/11/2003
Totals
45,106.51
7,784.46
37,322.05
123,182.29
45,106.51
7,784-46
37,322,06
3
2004
01/11/2004
Totals
45,106.61
5,974.34
39,132.17
84,050.12
45,106.51
5,974.34
39,132.17
4
2005
01/11/2005
Totals
45,106,51
4,076.43
41,030.08
43,020.04
45,106.51
4,076.43
41,030.08
5
2006
01/11/2006
Totals
45,106.51
2,086.47
43,020.04
0.00
45,106.51
2,086.47
43,020.04
Grand
Totals
225,532.55
29,432.55
196,100.00
No Text