HomeMy WebLinkAboutCity of Tamarac Resolution R-2000-1941
Temp. Reso. #9078
June 29, 2000
Page 1
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2000 r / 9�
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
A PASSENGER BUS UNDER A MASTER LEASE -
PURCHASE AGREEMENT BETWEEN THE CITY AND
KISLAK NATIONAL BANK; PROVIDING FOR
CONFLICTS; PROVIDING FOR SEVERABILITY; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City has determined a need for loan financing to acquire a
passenger bus (the "Vehicle"); and
WHEREAS, the City Commission of the City of Tamarac has approved a
Master Lease Agreement with Kislak National Bank on April 12, 2000 by
Resolution R-2000-95 attached hereto as Exhibit "A"; and
WHEREAS, the City Commission of the City of Tamarac approved a
budget amendment to the Fleet Fund 503 in the amount of $56,000 for the
purchase of the Vehicle; and
WHEREAS, the terms of the lease -purchase agreement, pursued under
the Master Lease Agreement, are outlined in Exhibit "B", as attached hereto; and
WHEREAS, the lease documents and various closing documents related
to the lease -purchase financing of the Equipment will be finalized and
substantially final forms of such documents to be on file with the City Clerk; and
Temp. Reso. #9078
June 29, 2000
Page 2
WHEREAS, the Interim Director of Finance and the Investment
Accountant of the City of Tamarac, Florida recommend the execution of the
Lease Purchase Agreement with Kislak National Bank; and
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 a passenger bus under a
Master Lease -Purchase Agreement between the City and Kislak National Bank
for the financing of a passenger bus.
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.
SECTION 2: The appropriate City Officials are hereby authorized and
directed to execute a Master Lease Agreement, in substantially the same form as
attached in Exhibit "A", in the principal amount, interest rate and repayment terms
as set forth in Exhibit "B" with Kislak National Bank.
SECTION 3: All resolutions or parts of resolutions in conflict herewith are
hereby repealed to the extent of such conflict.
Temp. Reso. #9078
June 29, 2000
Page 3
SECTION 4: 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 5: This Resolution shall become effective immediately upon its
passage and adoption.
PASSED, ADOPTED AND APPROVED this
1
ATTEST:
MAJ3JSWENSON,
A > Cf3Y'P - OC
I HEB Y-CERTIFY that I have
;�►1*1� ed this RESOLUTION as to form.
�c.m�n 5�. rG7a�ry
e MITCHELL S. KRA T, CITY A TORNE
u
day of %,2000
SCHREIBER, MAYOR
RECORD OF COMMISSION
MAYOR SCHREIBER �.,..,,...
DIST I., COMM. PORTNER.,,,,
DIST 2: COMM. MISHKIN ,
DIST 3: COMM. SULTANOF,
DIST 4: VIM ROBERTS .
EXHIBIT "A""
TR 8963
March 16, 2000
MASTER LEASE -PURCHASE AGREEMENT
THIS MASTER LEASE -PURCHASE AGREEMENT, dated as of April 17, 2000
(together with all supplements, annexes, exhibits and schedules hereto hereinafter referred to as the
"Lease"), between KISLAK NATIONAL BANK (hereinafter called, together with any successors
and assigns "Lessor") and CITY OF TAMARAC, FLORIDA (hereinafter called "Lessee").
WITNESSETH:
Section 1. REPRESENTATIONS AND WARRANTIES OF LESSEE.
Lessee hereby represents and warrants to Lessor that on the date hereof and at all times
during the Term (as defined in Section 3 below) hereof:
(a) Lessee is a political subdivision, municipal corporation or public body
corporate and politic of the State of Florida (the "State"), duly organized and existing under the
Constitution and laws of the State.
(b) Lessee is authorized under the Constitution and laws of the State to enter into
this Lease and the transactions contemplated hereby, and to perform all of its obligations hereunder.
(c) Lessee has duly authorized and approved the execution and delivery of this
Lease and all other documents related to the transactions contemplated hereby, and this Lease
constitutes a legal, valid and binding obligation of the Lessee, enforceable against the Lessee in
accordance with the terms hereof except as limited by applicable bankruptcy laws or other laws
affecting the enforcement of creditors rights generally, or by the exercise of judicial discretion in
accordance with general principals of equity.
(d) Each officer or representative of Lessee executing this Lease has been duly
authorized to execute and deliver this Lease and related documents under the terms and provisions of
a resolution of Lessee's governing body, or by other appropriate official action.
(e) Lessee has complied with all open meeting laws, all public bidding laws and
all other State and Federal laws applicable to this Lease, and has obtained all approvals necessary for
the execution, delivery and performance of this Lease and the transactions contemplated hereby.
(f) Neither the execution and delivery hereof, nor the fulfillment of, or
compliance with, the terms and conditions hereof, nor the consummation of the transaction
contemplated hereby, will conflict with, constitute a breach of, or default under, the Constitution and
laws of the State, or the rules of procedure of the Lessee or any indenture, agreement or other
instrument to which the Lessee is a party or by which it is bound, or any constitutional or statutory
provision, or order, rule regulation, decree or ordinance of any court, government or governmental
body to which the Lessee or 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 board or body pending or, to the best of the
Lessee's knowledge, threatened against the Lessee, wherein an unfavorable ruling or filing would
adversely affect the validity or enforceability of this Lease or any other instrument contemplated for
use in consummating the transactions contemplated hereby, or the exclusion of the portion of the
Rent Payments (as defined in Section 3 below) representing interest from gross income for purposes
of federal income taxation, or would materially and adversely affect any of the transactions
contemplated by this Lease.
(h) The Equipment (as defined in Section 2 hereof) at all times will be used by the
Lessee for the purpose of performing 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 terms 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 hereunder. The
obligation of Lessor to lease Equipment hereunder shall be subject to the representations and
warranties of Lessee contained herein being true and accurate throughout the term hereof and further
conditioned on receipt by Lessor of each of the following documents in form and substance
satisfactory to Lessor and the Lessee:
(i) a Description of Equipment describing such Equipment executed by
Lessor and Lessee (the "Description of Equipment"):
(ii) an Amortization Schedule setting forth the Rent payable with respect
to such Equipment in the form attached as Exhibit B hereto (the "Amortization Schedule");
(iii) a Schedule of Terms setting forth additional terms applicable to the
lease of such Equipment executed by Lessor and Lessee (the "Schedule of Terms");
(iv) copies of insurance policies or, at Lessor's option, such other evidence
of insurance which complies with the requirements of Section 11;
(v) bills of sale, titles or other appropriate evidence of ownership or
invoices for amounts due;
(vi) an opinion of counsel for Lessee;
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(vii) a copy of Internal Revenue Service Form 8038 G or 8038 GC (as
applicable) completed and executed by Lessee;
(viii) an Officers' 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 the Description of Equipment, Amortization Schedule or the
Schedule of Terms for Equipment is a reference to such schedule as 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 from the manufacturer or supplier. Subject to the above -stated
conditions, upon execution by Lessee of a Certificate of Acceptance in the form provided by Lessor,
the Equipment described thereon shall be deemed to have been delivered to, and irrevocably
accepted by, Lessee for lease hereunder.
Section 3. TERM, RENT AND PAYMENT.
(a) The rent ("Rent") payable hereunder with respect to all Equipment set forth on
an Equipment Schedule shall commence on the date set forth in the corresponding Schedule of
Terms (the "Commencement Date"). The term ("Term") of this Lease with respect to such
Equipment shall commence on the Commencement Date 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 Equipment pursuant to Section 18 hereof;
(2) the payment by Lessee of all Rent and other amounts required to be
paid by Lessee hereunder with respect to such Equipment;
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(3) upon the occurrence of an Event of Nonappropriation (as that term is
defined in subsection (c) hereof) with respect to any Equipment, the last day of the Budgetary
Period set forth in the Schedule of Terms for which an 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 20 hereof; or
(5) payment of all monies owed pursuant to a Casualty Occurrence with
respect to such Equipment under Section IO hereof.
(b) Rent shall be paid to Lessor at its address noted in the Schedule of Terms,
except as otherwise directed by Lessor. Payments of Rent shall be in the amount, payable at such
intervals and shall be due in accordance with the provisions of the Amortization Schedule and
Schedule of Terms. (Each payment of Rent is hereinafter referred to as a "Rent Payment".) Lessor
may change the location to which the Rent Payments are to be paid by noting such change on any
invoice to Lessee or by sending Lessee notice in writing of such change. A portion of each Rent
Payment is paid as, and represents, interest as reflected on the Amortization Schedule.
The obligation of the Lessee to pay the amounts required herein shall constitute a current
expense of the Lessee and shall not in any way be construed to be a debt of the Lessee in
contravention of any applicable constitutional, statutory or charter limitations or requirements
concerning the creation of indebtedness of the Lessee. THE PAYMENTS DUE UNDER THIS
LEASE ARE TO BE MADE ONLY FROM THE LESSEE'S LEGALLY APPROPRIATED FUNDS
ON AN ANNUAL BASIS, AND NEITHER THE LESSEE, THE STATE OF FLORIDA, NOR
ANY POLITICAL SUBDIVISION OR AGENCY THEREOF SHALL BE OBLIGATED TO PAY
ANY SUMS DUE HEREUNDER FROM THE COMPELLED LEVY OF AD VALOREM OR
OTHER TAXES EXCEPT FROM THOSE FUNDS LEGALLY APPROPRIATED BY THE
LESSEE ON AN ANNUAL BASIS, AND NEITHER THE FULL FAITH AND CREDIT NOR THE
TAXING POWER OF THE LESSEE, THE STATE OF FLORIDA OR ANY POLITICAL
SUBDIVISION OR AGENCY THEREOF ARE PLEDGED FOR PAYMENT OF SUCH SUMS
DUE UNDER THIS LEASE. This Lease and the indebtedness evidenced hereby shall not
constitute a lien upon the Equipment, or any part thereof, or on any other property owned by
or within the jurisdictional limits of Lessee.
(c) Lessee shall have the right to terminate its obligation to make Rent Payments
with respect to any Equipment at the end of any Budgetary Period (as that term is defined in the
Schedule of Terms), in the manner and subject to the terms of this subsection (c), if Lessee's
governing body does 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 hereinafter an "Event of Nonappropriation"). Upon the occurrence of
an Event of Nonappropriation, Lessee shall not be responsible for the payment of any Rent Payments
with respect to such Equipment coming due during any subsequent Budgetary Period. Upon the
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occurrence of an Event of Nonappropriation as provided in this subsection, this Lease shall terminate
and Lessee covenants to surrender and deliver possession of the Equipment to Lessor in accordance
with the provisions of Section 12. Provided, however, that Lessor may elect to continue to lease
hereunder any Equipment for which an appropriation has been made.
Section 4. TAXES.
Lessee shall report and pay promptly from legally available 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 Taxes
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
America or any State or political subdivision thereof which are on or measured by the net income of
Lessor.
Section 5. FINANCIAL INFORMATION; REPORTS.
Lessee will provide Lessor with (i) audited financial statements (including, without
limitation, a balance sheet, a statement of revenues, expenditures and change in fund balance) within
210 days after the end of each Budget Year, (ii) a copy of its annual budget within 45 days after
approval by Lessee, and (iii) such other financial information as requested in writing by Lessor.
Lessee will also provide Lessor with the following in writing within the time periods specified: (a)
notice of tax or other lien which attaches to Equipment within ten (10) days of Lessee's obtaining
knowledge of 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 of the base -location of the
Equipment outside of the jurisdictional limits of Lessee, ten (10) days prior to any relocation;
(c) copies of the insurance policies or other evidence of insurance required by the terms hereof,
promptly upon request by Lessor; (d) copies of all information, logs, documents and records
regarding or in respect to the Equipment and its use, maintenance and/or condition, within ten (10)
days of such request; (e) a certificate of the authorized officer of Lessee stating that he has reviewed
the 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 time (or both) would become such a default;
(f) copies of any manufacturer's warranties, promptly upon request; (g) evidence of Lessee's
compliance with maintenance provisions of Section 8 hereof upon request of Lessor; (h) notice of
any anticipated occurrence of an Event of Nonappropriation, if practical, thirty (30) days prior to
such occurrence; (i) notice of an occurrence of an Event of Nonappropriation within five (5) days of
such occurrence; 0) proof of appropriation for the ensuing Budgetary Period in a form acceptable to
Lessor upon request; and (k) any other documents or reports required by any addenda hereto or
reasonably requested by Lessor.
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Section 6. TITLE AND QUIET ENJOYMENT.
(a) Legal title to the Equipment shall, for the convenience of both parties, be titled
in the Lessee. Lessee covenants to promptly return the Equipment to Lessor as provided in Section
12 upon the occurrence of an Event of Nonappropriation, or upon the occurrence of an Event of
Default and Lessor's election to terminate this Lease pursuant to Section 21 hereof. Title to the
Equipment shall vest absolutely with Lessee upon payment of all Rent Payments due hereunder.
(b) So long as Lessee is not in 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.
(b) 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
with any and all statues, laws, ordinances, regulations and standards or directives issued by any
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 a manner that does not modify or
impair any existing warranties on the Equipment or any part thereof. Lessee will operate the
Equipment solely for governmental use.
Section S. MAINTENANCE.
(a) Lessee agrees that the Equipment will be maintained in compliance with any
and all statutes, laws, ordinances, regulations and standards or directives issued by any governmental
agency applicable to the maintenance thereof, and in a manner that does not modify or impair any
existing warranties on the Equipment or any part thereof.
(b) Lessee shall maintain, inspect, service, repair, overhaul and test the Equipment
in accordance with (i) all maintenance manuals initially furnished with the Equipment, including any
subsequent amendments or supplements to such manuals issued by the manufacturer from time to
time, and (ii) all recommended "Service Bulletins" issued, supplied, or available by or through the
Manufacturer and/or the manufacturer of any part with respect to the Equipment. Lessee shall
maintain all records, logs and other materials required by the manufacturer thereof for enforcement
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,
and 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.
OR103199;1 6
(c) Lessee agrees to notify Lessor in writing thirty (30) days prior to making any
material change 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 Date or,
at Lessor's option, to pay to Lessor an amount equal to the reasonable cost of such restoration. The
Lessee's addition of its logo or other identifying marks to Equipment shall not be 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 long as such Addition does 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 as
to restore the Equipment to its condition prior to installation, ordinary wear and tear excepted.
(e) Any alteration or modification (each an "Alteration") with respect to the
Equipment that may at any time during the term of this Lease be required to comply with any
applicable law or any governmental rule or regulation shall be made at the expense of Lessee. Any
repair made 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 deemed an accession and shall become a part of the Equipment.
(f) Except as permitted under this Section 8, Lessee will not modify the
Equipment or affix or remove any accessory to the Equipment leased hereunder without Lessor's
consent.
Section 9. LIENS, SUBLEASE AND ASSIGNMENT.
(a) Lessee shall not sell, transfer, assign or encumber the Equipment or Lessor's
rights under this Lease and shall not sublet or part with possession of the Equipment or any part
thereof. 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 from the acts of Lessor; (iii) liens for taxes not yet due; and (iv)
inchoate materialmen's, mechanics', workmen's, repairmen's, employees' or other like liens arising in
the ordinary course of business of Lessee for sums not yet delinquent or being contested in good faith
(and for the payment of which adequate assurances in Lessor's judgment have been provided Lessor).
(b) All of Lessor's right, title and/or interest in and to this Lease, the Rent
Payments and other amounts due hereunder and the Equipment may be assigned and reassigned in
whole or in part to one or more assignees or subassignees at any time, without the consent of Lessee.
No such assignment shall be effective as against Lessee unless and until the Lessor or assignor, as
Ox103198;1 7
the case may be, shall have filed with Lessee a copy or written notice thereof identifying the
assignee. All Rent Payments due 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 with
Lessee, such other address as Lessor or assignee directs. Upon such assignment, Lessee shall
provide notice thereof to all insurers and shall cause the insurance policies as required by Section 11
hereof to be modified to protect the assignees.
(c) This Lease shall inure to the benefit of and shall be binding upon the Lessor
and the Lessee and their respective successors and 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, or destruction of, the Equipment, or any 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 being
hereinafter called "Casualty Occurrences"). In the event that, in the opinion of Lessor, a Casualty
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 Occurrence has occurred in respect to an item of
Equipment in its entirety, on the Rent Payment date next succeeding a 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 Casualty
Occurrence; and (ii) all Rent Payments and other amounts which are due or accrued hereunder as of
the Payment Date. Upon payment of all sums due hereunder, the Term of this Lease as to the item of
Equipment shall terminate, and Lessee shall be entitled to retain possession of such Equipment.
Section 11. INSURANCE.
Lessee agrees to keep the Equipment insured, at its own expense, with such companies and
on such terms acceptable to Lessor, in such amounts and for such risks as is customary for equipment
of the nature and type of the Equipment and as may be reasonably requested by the Lessor. The
insurance shall (i) name Lessor as additional insured and shall have a loss payable clause in favor of
Lessor, as its interest may appear, irrespective of any breach of warranty or other act or omission of
Lessee; (ii) shall not be subject to any co-insurance clause; and (iii) shall provide that it may not be
altered or cancelled by the insurer until after thirty (30) days written notice to Lessor. Any expense
of Lessor in adjusting or collecting insurance shall be borne by Lessee. Lessee shall not make
adjustments with insurers except (a) with respect to claims from damage to an item of Equipment
where the repair costs do not exceed ten percent (10%) of such item's fair market value, or (b) 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 insurance referenced
above, if required by State law, Lessee shall carry workmen's compensation insurance covering all
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employees on, in, near or 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 above -referenced public liability, property, and casualty damage risks.
If Lessee is covered under a program of self insurance, Lessee shall provide Lessor with a
letter 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 Lessor 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 minimum 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 insurance coverage.
Section 12. RETURN OF EQUIPMENT.
(a) Upon termination of this Lease due to an Event of Non appropri ati on, or due to
an Event of Default and Lessor's election to terminate this Lease (subject to Lessor's election to
continue this Lease with respect to Equipment for which no Event of Nonappropriation has
occurred), Lessee covenants to promptly return all Equipment leased hereunder to Lessor together
with all logs, manuals and data, including without limitation, inspection, modification and overhaul
records required to be maintained with respect hereto under this Lease or under the manufacturer's
recommended maintenance program. Upon return of the Equipment, Lessee shall, upon request,
assign to Lessor its rights under any manufacturer's maintenance service contract or extended
warranty for the returned Equipment or any part thereof. All expenses for return of such Equipment
and delivery of the aforementioned logs, manuals and data shall be borne by Lessee. The Equipment
shall be returned in the condition in which the Equipment is required to be maintained pursuant to
Section 8 hereof, but with all logos or other identifying marks of Lessee removed.
(b) Upon return of the Equipment, Lessor shall arrange for the inspection of same
within thirty (30) days of return to determine if such Equipment has been maintained and returned in
accordance with the provisions hereof. Lessee shall be responsible for the reasonable cost of such
inspection and shall pay Lessor such amount as additional Rent within ten (10) days of demand for
same. In the event that the results of such inspection indicate that such Equipment, or any 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 servicing or repairing such Equipment, or part. The Estimated Cost shall be determined by
Lessor by obtaining two quotes for such service or repair work and taking the average of same.
Lessee shall bear the cost, if any, incurred by Lessor in obtaining such quotes.
(c) In the event of return of Equipment to Lessor pursuant to (a) above, Lessor
shall use its best efforts to sell all or part of the Equipment upon such terms as Lessor in its
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reasonable judgment deems prudent. Lessor shall apply the net proceeds of such sale in the
following manner: (i) firstly, to reimburse Lessor for all costs associated with the removing, holding,
repairing and selling of Equipment; (ii) secondly, to reimburse Lessor for Lessee's remaining
obligations 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 SUBJECT TO ADJUSTMENT.
In setting 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
Maximum Corporate Income Tax Rate, including Sub Chapter S corporations, as established in
Section 11 of the Internal Revenue Code of 1986, as amended (the "Code"), (b) the treatment of this
Lease as a "qualified tax-exempt obligation" under Section 265 of the 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 Lessor. Should there be future changes in the Code or
related regulations which affect the after-tax yield of Lessor, the Lessor may adjust the interest rate in
order to maintain the same after-tax yield as in effect on the date hereof.
As utilized in this Section, the term "Determination of Taxability" shall mean any
determination, decision or decree by the Commissioner of Internal Revenue or any District Director
of Internal Revenue, as such officers are identified by the Code, or any court of competent
jurisdiction, or an opinion of counsel experienced in tax matters that the Interest component payable
under this Lease is includable in the gross income (as defined in Section 61 of the Code) of the
Lessor as a result of the occurrence of a Taxable Event (herein defined). A Determination of
Taxability shall be deemed to have occurred on the first to occur of the following:
(a) on that date when the Lessee files any statement, supplemental statement or
other tax schedule, return or document which discloses that a Taxable Event (hereinafter defined)
shall have occurred;
(b) on that date when the Lessee or the Lessor shall be advised by said
Commissioner of Internal Revenue or any such District Director of Internal Revenue that, based
upon (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
(c) on that date (i) when 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 the interest component due to the occurrence of a Taxable Event; or
(ii) when the Lessee shall be advised by said Commissioner or any such District Director of Internal
Revenue that the interest component is includable in the gross income of the Lessor due to the
occurrence of a Taxable Event; or (iii) when the Lessee shall receive an opinion of counsel
OR103198; 1 10
experienced in tax matters that the interest component is includable in gross income due to the
occurrence 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 the 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 deemed
to have occurred as of the earliest date on which it is alleged that interest became so includable.
If a Determination of Taxability should 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 date
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 a Taxable Event has not occurred and
the time for any appeal of such order or judgment has expired, then no Taxable Event shall be
deemed to have occurred and interest rate adjustments theretofore paid shall be refunded by the
Lessor.
Section 14. PERSONAL PROPERTY.
The Equipment shall at all times be and remain, personal property notwithstanding that the
Equipment or any part thereof may now be, or hereafter become, in any manner affixed or attached
to, or embedded in, or permanently resting upon, real property or any building thereon, or attached in
any manner to what is permanent as by means of cement, plaster, nails, bolts, screws, or otherwise.
If, notwithstanding the intention of the parties and the provisions of this Section 14, any person
acquires or claims to have acquired any rights in the Equipment or any portion thereof by reason of
such Equipment's being affixed to real property and such person seeks in any manner to interfere
with the continued quiet enjoyment of the Equipment by Lessee as contemplated by this Lease,
Lessee shall immediately notify Lessor in writing of such fact and shall seek diligently to remove the
basis for any such interference. Unless the basis for such interference is waived or removed to the
satisfaction of Lessor within thirty (30) days from the date it is asserted, Lessee, upon written request
from Lessor, shall within ten (10) days after such request pay to Lessor an amount equal to the sum
of (i) an amount equal to the Prepayment Price applicable to the time period of the interference; and
(ii) all Rent Payments and other amounts which are due or accrued hereunder. Upon such payment
the Lease of such Equipment shall terminate and all of Lessor's title to and rights in such Equipment
shall become the property of Lessee.
OR103198;1 1
Section 15. NET LEASE; NO SET-OFF, ETC.
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 due hereunder shall be absolute and
unconditional. Lessee shall not be entitled to any abatement or reduction of, or set-off against, said
Rent or other amounts, including, without limitation, those arising or allegedly arising out of claims
or disputes (present or future, alleged or actual, and including claims arising out of strict tort or
negligence of Lessor) of Lessee against or with the manufacturer or vendor 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 Lessee 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 manufacturer or seller of 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 law to indemnify, save and
keep harmless Lessor, its agents, employees, successors and assigns from and against any and all
losses, damages, penalties, injuries, claims, actions and suits, of whatsoever kind and nature, in
contract or tort, whether caused by the active or passive negligence of Lessor or otherwise, and
including, but not limited to, Lessor's strict liability in tort, arising out of (i) the selection,
manufacture, purchase, acceptance or rejection of Equipment, the ownership of Equipment by Lessee
during the Term of this Lease, and the delivery, lease, possession, maintenance, use, condition, return
or operation of the Equipment (including, without limitation, latent and other defects, whether or not
discoverable by Lessor or Lessee and any claim for patent, trademark or copyright infringement), or
(ii) the condition of the Equipment sold or disposed of after use by Lessee, any sublessee or
employees of Lessee. Lessee shall, upon request, defend any actions based on, or arising out of, any
of the foregoing.
(b) All of Lessor's rights, privileges and indemnities contained in this Section
shall survive the expiration or other termination of this Lease and the rights, privileges and
indemnities contained herein are expressly made for the benefit of, and shall be enforceable by
Lessor, its successors and assigns.
OR103198: 1 12
Section 17. DISCLAIMER.
LESSEE ACKNOWLEDGES THAT IT SHALL SELECT THE EQUIPMENT WITHOUT
ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES AND THAT LESSEE
LEASES THE EQUIPMENT IN AN "AS IS" CONDITION. LESSOR DOES NOT MAKE, HAS
NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT
TO THE EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO CONDITION, DESIGN,
COMPLIANCE WITH SPECIFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP,
MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR OPERATION, SAFETY,
PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE. All such risks, as
between Lessor and Lessee, are to be 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 following
(except at such times as Lessor is in possession of the Equipment), regardless of any negligence of
Lessor (i) any liability, loss or damage caused or alleged to be 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) the delivery, operation, servicing, maintenance, repair, improvement
or replacement of the Equipment. If, and so long as, no default exists under this Lease, Lessee shall
be, and hereby is, authorized during the Term to assert and enforce, at Lessee's sole cost and expense,
from time to time, in the name of and for the account of Lessor and/or Lessee, as their interests may
appear, whatever claims and rights Lessor may have against any Supplier of the Equipment.
Section 18. PURCHASE OPTION.
(a) Provided that no Event of Default has occurred and is continuing hereunder,
Lessee shall have the option to purchase all of Lessor's right and/or interest in and to the Equipment
on any Rent Payment Date (the "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, WHERE IS basis, without any recourse or warranty whatsoever as against Lessor.
(b) Lessee shall give notice to Lessor of its intention to exercise its option not less
than sixty (60) days prior to the Rent Payment Date on which the option is to be exercised and shall
remit to Lessor on such date an amount equal to the sum of (i) the Prepayment Price; and (ii) all Rent
Payments and other amounts due or accrued through and including the Purchase Date.
OR103198; 1 13
Section 19. MUTUAL COVENANT REGARDING TAX-EXEMPT STATUS.
The Lessee and the Lessor mutually covenant that neither will take any action nor omit to
take any action with respect to this Lease, the Equipment leased hereunder, or any funds of the
Lessee if 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") and applicable regulations, or (ii) would cause such
interest component of the Rent to lose its exclusion (if any) from alternative minimum 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 minimum taxable
income, or (iii) would subject the Lessee to any penalties under Section 148 of the Code. Subject to
the Lessee's right to terminate this Lease as provided herein, the foregoing covenant shall remain in
full force and effect, notwithstanding the payment in full of the Rent, until the date on which all
obligations of the Lessee in fulfilling the above covenant have been met.
Section 20. EVENTS OF DEFAULT.
The term "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, or
come about or be effected by operation of law, or be pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation or any administrative or governmental
body: (a) Lessee shall fail to make any payment of Rent when the same shall become due; or
(b) 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 of this Lease) remove, sell,
transfer, encumber, part with possession of, assign or sublet the Equipment, or any part thereof, use
the Equipment for an illegal purpose, or permit the same to occur; or (d) Lessee shall breach its
covenant to return the Equipment upon an Event of Nonappropriation, or upon an Event of Default
and Lessor's election to terminate this Lease; or (e) Lessee shall fail to perform or observe any
covenant, condition or agreement not included within (a), (b), (c) or (d) above which is required to be
performed or observed by it under this Lease or any agreement, document or certificate delivered by
Lessee in connection herewith, and such failure shall continue for twenty (20) days after written
notice thereof from Lessor to Lessee (or, if such default cannot be corrected within twenty (20) days,
shall have failed to initiate and diligently pursue appropriate corrective action); or (f) any
representation or warranty made by Lessee in this Lease or any agreement, document or certificate
delivered by Lessee in connection herewith or pursuant hereto shall prove to have been incorrect in
any material respect when any such representation or warranty was made or given (or, if a continuing
representation or warranty, at any material time); or (g) Lessee shall generally fail to pay its debts as
they become due or shall file a voluntary petition in bankruptcy; or (h) a petition is filed against
Lessee in a proceeding under applicable bankruptcy laws or other insolvency laws (other than any
law which does not provide for or permit any readjustment or alteration of Lessee's obligations
hereunder in each case), as now or hereafter in effect, and is not withdrawn or dismissed within
ninety (90) days thereafter, or if, under the provisions of any law (other than any law which does not
provide for or permit any readjustment or alteration of Lessee's obligations hereunder in each case)
OR103198; 1 14
providing for reorganization or liquidation of legal entities which may apply to Lessee; or (i) any
court of competent jurisdiction shall assume jurisdiction, custody or control of Lessee or of any
substantial part of its property and such jurisdiction, custody or control shall remain in force
unrelinquished, unstayed or unterminated for a period of sixty (60) days; or 0) Lessee becomes
insolvent.
Section 21. REMEDIES.
Whenever any Event of Default referred to in Section 20 hereof shall have happened and be
continuing with 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
due or to become due during the Fiscal Year in effect when the default occurs to be immediately due
and payable by Lessee, whereupon such Rental Payments shall be immediately due and payable. If
the Event of Default is Lessee's breach of its covenant to return the Equipment, Lessor shall be
entitled to liquidated damages equal to the Rent Payments for the Equipment pro -rated on a daily
basis for each day the Equipment is retained. Any judgment for damages shall be payable solely
from legally available funds of the Lessee, and Lessor shall not have the power to require levies of ad
valorem taxes in the future to pay Rent Payments.
The remedies provided to Lessor herein shall be the sole and exclusive remedies exercisable
by Lessor in an Event of a Default by Lessee hereunder. Lessor shall in no event have the right to
involuntarily dispossess Lessee of the Equipment or title thereto. Lessor and Lessee do not intend to
create a security interest in any Equipment.
No delay or omission to exercise any right or remedy accruing hereunder shall impair any
such right or remedy or shall be construed to be a waiver thereof, but any such right and remedy 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 Lease it shall not be necessary to give any notice, other
than such notice as may be required in this Lease.
In the event any agreement contained in this Lease should be breached by either party hereto,
and thereafter such breach should be waived by the other party hereto, such waiver shall be 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 nondefaulting party should employ
attorneys and/or incur other expenses for the collection of moneys or the enforcement of performance
or observance of any obligation or agreement on the part 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 nondefaulting
Pay
Whenever any Event of Default referred to in Section 20, Clause (a) hereof shall have
occurred and be continuing with respect to the Equipment, Lessor shall have the right at its option
and without any further demand or notice, to require a late payment charge for each thirty (30) day
OR103198;1 15
period or part thereof during which such Event of Default occurs equal to one and one-half percent (1
1/2%) of the delinquent amount, and Lessee shall be obligated to pay from funds legally available for
such purpose, the same immediately upon receipt of Lessor's written invoice therefore, provided,
however, that this 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 be 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 of Terms dated April 17, 2000,
and for future fundings, if approved by Lessor and Lessee, Lessor shall deposit funds with Lessee to
be applied by Lessee to acquire Equipment. Such funds shall be held by Lessee in a segregated
account at a financial institution or trust company and applied to acquire Equipment upon delivery to
Lessor of those items required by Sections 2(b)(1), (4), (5), (9), (11) and (12) hereof. Any balance
remaining in such fund after the date which is two (2) years after the deposit of funds therein shall be
applied to pay scheduled Rent Payments until fully expended.
Section 23. EXECUTION AND LAWS GOVERNING VENUE.
This Lease and each of the exhibits hereto shall be binding only when accepted by the Lessor
at its Orlando, Florida office and shall be construed and governed by the Laws of the State of Florida.
As part of the consideration for the Lessor's executing this Lease, Lessee agrees that all actions or
proceedings arising directly or indirectly from this Lease shall be litigated only in courts having its
situs within Orange County, Florida, and Lessee hereby consents to the jurisdiction of that court and
waives any rights to the selection of venue.
Section 24. MISCELLANEOUS.
(a) Any cancellation or termination by Lessor, pursuant to the provisions of this
Lease, any exhibit, supplement or amendment hereto, or the release of the Equipment hereunder,
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
reference.
(b) Time is of the essence. Lessor's failure at any time to require strict
performance by Lessee of any of the provisions hereof shall not waive or diminish Lessor's right
thereafter to demand strict compliance therewith.
OR103198:1 16
(c) All notices, certificates or other communications hereunder shall be 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 Lessee and the Lessor may designate by
written notice any further or different addresses to which subsequent notices, certificates or other
communication 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 day 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 done
on the date otherwise specified herein.
(e) In the event that any provision of the Lease (other than the requirement of
(i) the Lessee to make 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 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.
(f) This Lease may be executed simultaneously in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same instrument.
(g) The substantive law, but not the choice of law rules, of the State of Florida,
and rules and regulations issued pursuant thereto, shall be applied in the interpretation and
enforcement hereof.
(h) The captions and headings herein are for convenience only and in no way
define, limit or describe the scope or intent of any provisions or sections of this Lease.
(i) The signatories affirm that to their knowledge, no employee of the Lessee has
any personal or beneficial interest whatsoever in the acquisition of the Equipment.
0) This Lease constitutes the entire agreement of the 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, SHALL 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 or warranties, express or implied, not stated hereunder. No variation or modification
OR103198;1 17
SKYLAKE STATE BANK Fax:305-558-6554 Apr 24 '00 9:47 P.02
of this Lease, or waiver of any of its provisions or conditions shall be valid after assignment by either
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
XDdffM2@ lA*AV* MOLLY A. HIME
Its; Executive Vice President
LESSEE:
CITY OF TAMARAC, FLORIDA
By. r
Joe Schreiber
Its: Mayor
ATTESTED:
By:
-Mari.on..Swens n, ity er
aa103198; 1 18
OTA.!b)q�
`� P ° ,City of Tamarac
�OR��
7525 N.W. 88th Avenue, Tamarac, Florida 33321-2401
Telephone: (954) 724-1240 • Facsimile (954) 724-1370
Mitchell 5, Kraft
City Attorney April 24, 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 Temporary Resolution No.8963 adopted by the Lessee on April
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:
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.
[JANIARIrA\POWIAMOPINION r.rTTER KISLAK.DOC 3i ga)
E�uaj 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 enacted and 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, the Lease Documents or sources of payment of 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-
UAMARIEA\rORMS\DI'INION LETTER KISI_AK.DOC 3/?8/(X)
S. 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'"ghts heretofore or her acted.
� • -!qmli
L4tchell S.
City Attorney
MSK/ma
-3-
UAMARIEATORMS\OPINION LE'r'rCR KISLAK.DOC 3128/00
06/28/2000 11:59 4072079193
&KISLAK
NATIQNAL AWK
June 28, 2000
Ms_ Leanne Williams
Treasury Manager
City of Tamarac
7525 NW 88`s Avenue
Tamarac, FL 33321-2401
VIA FACSIMILE: 954-724-1321
Dear Ms. Williams:
DENISE BEAUCHAMP
EXHIBIT "B"
Temp Reso #9078
June 29, 2000
PAGE 02
The following is the K.islak National Bank proposal for financing for the capital equipment which the City of Tamarac
anticipates acquiring, .
L Kislak National Bank, Miami bakes, Florida
L SSEE: City of'Tamarac, Florida
901IPMENT_ One sus
AAt0UN TO 8E INA CED; S56,000.00
EST[ ATED C OS NG AT ;
E ee E T iNA CING van arrangement,
IC E: It is proposed that the parties utilize the existing Master Lease -Purchase
Agreement: Under such gement, 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. nder —this
structure there wauld be no coven nt t bud et and a ro riate nd o revenu led e. The lease- urchath y�or,
not be considered on er debt.
LEASE TERM: Five (5) years
EASE C M ENCEM NT DA The Lease Term will commence upon the fundirig
vendor) or the funding of the lease into a trust account, of the Lease (payment to
RUT COUNT: TRUST ACCOUNT: The cntire lease proceeds would be deposited by the Bank into a City owned
Trust Account pror to the delivery of the Equipment. The Trust Account, to be held by the City,
the City's discretion. The Lease Term would commence on the date that the Trust Ac aunt is funded, with leasehshed at
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,
to the vendor(s) from the Trust Account. The Trust Account may also be used to a mburselauthorize payment to be made
the Cityfo 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 pF L &SE: The lessee will make periodic lease 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 -a n ra ation. The obligation to make ease
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 Plnar Drive • Orlando, FL 32825 0 Tel: 407,240,4115 • Fax: 407,240.3329 .* T011 Free: 1,877.759.5253
06/2B/2000 11:59
4072079193
DENISE BEAUCHAMP
PAGE 03
Ms. Leanne Williams
City of Tamarac, FL
June 28, 2000
Page 2
BAN KLQUALIFIFIn TE ES;
F' a Ye r Te m $.1m
The interest rate will be indexed to 61% of the change in the 5 year United states Treasury Note as published in the
Wall Street Journal. Currently the 5-year United States Treasury Note is 6.27% as of June 29, 2000.
After execution of the Lease, the Interest Rate may be adjusted in the event of a change in income tax rates or other laws or
regulations affecting the after-tax yield to the Bank_
PE IU 1C LENJ$: 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.
T _E T TAT NT: 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.
PRE A ENT SCHEDULE; Prepayments P yments may be made in whole or in part without penalty per the amortization
schedule to be included in the documentation package.
S LE AN U E SAX: 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
normal standards, which may include self-insurance, with its
TIT E O E U1 ME T: Title shall at all times retrain in the name of the Lessee.
N G L STA 4ENT : Lessee will fumish 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.
OCUM NT TI N. To be provided by the Bank. As is customary, the Lessee's local counsel will be required to
provide an opinion letter,
T>-ANSACTIQN E ENSES; Lessee shall be responsible for fees and expenses incurred by it. There will be a $250.00
administrative and documentation fee. No other bank fees or expenses will apply.
AT RI A SE CH NG : At any time 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.
EX -PI A iON OF RQ QS L; This proposal expires unless accepted on or prior to August 15, 2000.
06/28/2000 11:59
4072079193
DENISE BEAUCHAMP
PAGE 04
Ms. Leanne Williams
City of Tamarac, FL
June 28, 2000
Page 3
APE-0-VAAkER-0—VAL This proposal does constitute
contents of this proposal a comitment to lend. Bank credit approval has been obtained. The
represent the Bank's tn
indication of the terms and conditions that it deems a ro nate based up
on
s proposal are acceptable to
the information available as of the date hereof 1f the teens of this You, pe p
return the original to me. P y ,please execute below and
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 the at (407) 240-4115 or toll free at (877) 759-5253
Best Regards,
r
Denise Beauchamp
Senior Vice President
Proposal accepted this day of
.2000.
CITY OF TAMARAC, FL
By:
Title
--I s. / LUu" L i . LJ.3 4u 1 4u (-01 :Ij DENISE BEAUCHAMP
PAGE 05 1
City of Tamarac . ....... 06/28/2000 Page 1
Compound Period ....... Annual
Nominal Annual Rate ... R .1 An o.
CASH FLOW DATA
Event
I Loan
Start Date
—
Amount
_NumberPeriod
End" Date
2 Payment
07/31/2000
07/31/2001
56,000.00
AMORTIZATION SCHEDULE
12,999.01
5 Annual
07/3112006
- Normal Amortization, 360 Day Year
— Date
Paym,ent
Interest
rin!�
Loan 07/31/2000
Balance
2000 Totals
0.00
0.00
56.000.00
0.00
1 07/31/2001
2001 Totals
12,999.01
12,999.01
2,900.80
10,098.21
45,001.79
2,900,80
10,098.21
2 07/31/2002
2002 Totalr,
12,299.01
12,999.01
2,377.71
10,621.30
35,280.49
2,377.71
10,621.30
3 07/31/2003
2003 Totals
12,999.01
12,999.01
1,827.53
11,171.48
24,109.01
1,827.53
11,171.48
4 07/31/2004
2004 Totals
12,999.01
12,999.01
1,248.85
11,750.16
12,358.85
1,248.85
11,750.16
507/3112005
2005 Totals
12.999.01
12,999.01
640.16
12,358.85
0.00
640.16
12,358.85
Grand Totals
64,995.05
8,995.05
66,000.00