HomeMy WebLinkAboutVI(G1) Resolution No. 96-36, Designating As Tax Exempt, The Lease/ Purchase Of 20 Yard LODAL Garbage Truck AGENDA 12-17-96
Item VI G 1
"CENTER OF GOOD LIVING -PRIDE OF WEST ORANGE"
.r,.,,.
OCO@G S.SCOTT VANDERGRIFT
0 COMMISSIONERS
' CITY OF OCOEE RUSTY JOHNSON
'` • a SCOTT ANDERSON
O SCOTT A.GLASS
150 N.LAKESHORE DRIVE
0 C� OCOEE,FLORIDA 34761-2258to
JIM GLEASON
(407)656-2322
CITY MANAGER
sef d�of G 000 ELLIS SHAPIRO
MEMORANDUM
TO: The Honorable Mayor and Board� of City Commissioners
FROM: Mark W. Brace, CPPB, Buyer To
DATE: 12 December, 1996 `r
RE: LEASE/PURCHASE OF LODAL EVO-MAG-20 SIDELOADER
In this year's approved budget, there is a Lodal EVO-Mag-20
sideloader garbage truck placed for a lease/purchase. The
requesting Department, Solid Waste, currently has other sideloaders
of the exact same specifications as requested. The purchase price
is $119,299 . 00 and will be obtained from Container Systems &
Equipment Co. , Inc. of Daytona Beach who is the State of Florida's
authorized dealer for this particular piece of equipment.
I contacted Riverside Leasing, SunTrust, and Commercial & Municipal
Capital, LLC for leasing arrangements and found Commercial &
Municipal Capital, LLC to be the most responsive and responsible
agency for the leasing of this equipment. The attached will show
the amortization (quarterly advance payments over a five-year
period) schedule and all pertinent leasing documents for your
review.
Resolution No. 96-36 is needed to designate this purchase as a
Qualified Tax-Exempt Obligation and is required as part of the
Lease/Purchasing arrangements.
ACTION REQUESTED
The Mayor and Board of City Commissioners 1) authorize purchase of
a 1997. Lodal EVO-Mag-20 sideloader from Container Systems &
Equipment Co. , Inc. of Daytona Beach, Florida, 2) adopt Resolution
No. 96-36 approving an equipment lease/purchase agreement with
Commercial & Municipal Capital, LLC and designating it as a
qualified tax-exempt obligation, and 3) authorize the Mayor and
City Clerk to execute all necessary documents pertaining to the
Lease/Purchase of this equipment with Commercial & Municipal
Capital, LLC.
�1
EXHIBIT A
RESOLUTION NO. 96-36
A RESOLUTION OF THE CITY OF OCOEE, FLORIDA APPROVING AN
EQUIPMENT LEASE/PURCHASE AGREEMENT WITH COMMERCIAL' &
MUNICIPAL CAPITAL, LLC AND DESIGNATING IT AS A QUALIFIED
TAX-EXEMPT OBLIGATION
RESOLVED, that this City enter into a certain Municipal
Lease-Purchase Agreement with COMMERCIAL & MUNICIPAL CAPITAL, LLC
(hereinafter called "Lessor") in substantially the form attached
hereto and by this reference made a part hereof (the "Equipment
Lease") and that this City lease equipment from Lessor pursuant to
the terms of such Equipment Lease; and that the Mayor and the City
Clerk of this City be and hereby are authorized and directed in the
name and on behalf of this City to execute the Equipment Lease with
Lessor in substantially the form presented at this meeting, with
such changes therein and additions thereto as shall be approved by
such officers who execute the same, and such execution shall be
conclusive evidence that each such document so executed has been
authorized and approved by this vote.
FURTHER RESOLVED, that the City Commission of the City of
Ocoee, Florida finds that a true and very real need exists for the
acquisition of the Equipment described in the Equipment Lease and
that such acquisition is in the best interests of the City of
Ocoee.
FURTHER RESOLVED, that the City Commission of the City of
Ocoee, Florida finds that the City of Ocoee has taken the necessary
steps, including compliance with any applicable legal big? c
requirements, under applicable law to arrange for the acquisition
of such equipment.
FURTHER RESOLVED, that the obligations of the City under
the Supplemental Amendment be hereby designated, pursuant to
Section 265 (b) (3) (D) of the Internal Revenue Code of 1986, as
amended (hereinafter called the "Code") , as comprising a portion of
the $10, 000, 000 . 00 in aggregate issues which may be designated as
"Qualified Tax-Exempt Obligations" eligible for the exception to
the general rule of the Code which provides for a total
disallowance of a deduction for interest expense allocable to the
carrying of tax-exempt obligations.
FURTHER RESOLVED, that the Mayor and the City Clerk of
this City be and hereby are authorized to execute and deliver such
other instruments and take such other actions as they shall deem
necessary and desirable for the purpose of carrying out these
resolutions and consummating the transactions comtemplated by the
Equipment Lease.
1
FURTHER RESOLVED, that the foregoing resolutions shall
remain in full force and effect until written notice of their
- amendment or rescission shall have been received by Lessor and that
receipt of such notice shall not .affect any action taken by Lessor
prior thereto.
FURTHER RESOLVED, that. the Clerk of this City be and .
hereby is authorized and directed to certify to the Lessor the
foregoing resolutions and that the provisions thereof are in
conformity with the charter of this City.
ADOPTED this day of , 1996 .
ATTEST: . APPROVED:
CITY OF OCOEE, FLORIDA
Jean Grafton, City Clerk. S. Scott Vandergrift, Mayor
(SEAL)
FOR USE AND .RELIANCE ONLY. BY
THE CITY OF OCOEE, FLORIDA. .
APPROVED AS TO FORM AND LEGALITY
this day of , 1996
FOLEY & LARDNER APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON THE DATE INDICATED
By: ABOVE UNDER AGENDA ITEM
City Attorney NO.
•
DEC-09-1996 16:45 CITY OF OCOEE ENGINEERING 407 656 7835 P.02
• •
•
•
. Container Systems _
Equipment CO., Inc.
•
- PRICE QUOTATION-
DATE: Nov. 5, 1996
TO: Mr. Richard Corwin,Dir.
- Public Works Dept.
City of Ocoee •
150 N.Lakeshore Dr. -
Ocoee,FL. 34761
QTY2 . D ON _ PRE
one(1) 1997 Lodal EVO-Mag 20 sidcloader, S 112,024.00
39,900 lbs.QVW,20 cu. yd. hi-compaction` ody,
including the following:
Standard Equip.
Cat 3116 engine-215 h.p @a 2,600 rpm
605lb-$•torque® 1,560 rpm
Allison MT-643 transmission
Dana front drive axie(20,000 lbs.cap.,5.89 ratio,55 mph®2,600 rpm)
w/inter,pinion mounted drop box
Spicer 1710 series driveline •
air brakes:
front-15.5"x 8" Scam .
rear- 15.5"x 8"Scam
front axle mounted park&emergency type 30 spring brakes
425/65R x 22.5 radial tires,front&rear
Haldex auto. slack adjusters
Bendix ABS on rear wheels
dual cab fans
dual 3 position roof vents
•
air horn
battery disconnect switch
hopper light
. 7 ga.tailgate
Optional Equipment
Bendix AD-9 air dryer 470.00
Kysor engine protection system 600.0E
• (continued)
•
500 Benevue Avenue • Daytona Beach, Florida 32114-6279 • 1904) 253-5565 • FAX (904) 253-8537
r _
DEC-09-1996 16:46 CITY OF OCOEE ENGINEERING 407 656 7835 P.03
EVO-Mag 20 Quote
Nov. 5,1996
• Page 2
Lode}cart dumper,RH 2,620.00
amber strobe w/brushguard(tailgate) 230.00
differential lock on axle 190.00
plastic platen slides 330.00
sp. paint color Tangier orange cab&chassis w/white wheels 985.00
hopper chute w/streetcide door 500.00 -
Sub-total: $ 117,949.00
Federal Excise Tax(12%) nla.
• FL_State Sales Tax(6%) n/a.
Delivery 1,35b.00
TOTAL! $ 119,299.00
Ocoee,FL. (via driving)
L)ELW.: approx.60-90 days ARO
TERMS:• net 10 days
NOTE: We reserve the right to review pries after Dec.30,1996. •
Respectfully,
Bill Yo
Pres.
•
TOTAL P.03
SUPPLEMENTAL EXHIBIT E
PAYMENT DATES INCLUDED
(EXPRESSED IN DOLLARS)
CITY OF OCOEE, FLORIDA
1996 LEASE PURCHASE
1997 LODAL SIDELOADER
GROSS LEASE $ 135, 374 . 60 COMM DATE 12/16/96
LEASE AMOUNT $ 119, 299 . 00 PAY DATE 12/16/96
PAY PAYMENT PURCHASE
NO. DATE PAYMENT PRINCIPAL INTEREST PRICE
0 12/16/96 6768 . 73 6768 . 73 0 . 00 114218 . 22
1 03/16/97 6768 . 73 5224 .27 1544 .46 108915 . 59
2 06/16/97 6768 . 73 5295 . 96 1472 . 77 103540 . 19
3 09/16/97 6768 . 73 5368 . 65 1400 . 08 98091 . 01
4 12/16/97 6768 . 73 5442 . 33 1326 .40 92567 . 05
5 . 03/16/98 6768 . 73 5517 . 03 1251 . 70 86967 . 26
6 06/16/98 6768 . 73 5592 . 75 1175 . 98 81290 . 62
7 09/16/98 6768 . 73 5669 .51 1099 . 22 75536 . 07
8 12/16/98 6768 . 73 5747 . 32 1021 .41 69702 . 54
9 03/16/99 6768 . 73 5826 . 21 942 .52 63788 . 93
10 06/16/99 6768 . 73 5906 . 17 862 .56 57794 . 17
11 09/16/99 6768 . 73 5987 . 23 781 .50 51717 . 13
12 12/16/99 6768 . 73 6069 .41 699 . 32 45556 . 68
13 03/16/00 6768 . 73 6152 . 71 616 . 02 39311 . 68
14 06/16/00 6768 . 73 6237 . 15 531 . 58 32980 . 97
15 09/16/00 6768 . 73 6322 . 76 445 . 97 26563 .37
16 12/16/00 6768 . 73 6409 .53 359 . 20 20057 . 70
17 03/16/01 6768 . 73 6497 .51 271 . 22 13462 . 73
18 06/16/01 6768 . 73 6586 . 69 182 . 04 6777 . 24
19 09/16/01 6768 . 73 6677 . 08 91 . 65 0 . 00
TOTALS : 135, 374 . 60- 119, 299 . 00 16, 075 . 60
LESSEE: City of Ocoee
By:
S. Scott Vandergrift,Mayor
FOR USE AND RELIENCE ONLY BY THE CITY OF OCOEE,FLORIDA. APPROVED AS TO
FORM AND LEGALITY THIS DAY OF . 1996
By:
City Attorney
PAGE-1
MUNICIPAL LEASE-PURCHASE AGREEMENT
LESSOR: Commercial&Municipal Capital,LLC
201 E.Kennedy Blvd., Suite 712
Tampa,Florida 33602
LESSEE: City of Ocoee
150 N.Lakeshore Drive
Ocoee,Florida 34761
This Municipal Lease-Purchase Agreement(the"Agreement")entered into between Commercial&
Municipal Capital,LLC("Lessor"), and City of Ocoee("Lessee"),a body corporate and politic duly
organized and existing under the laws of the State of Florida("State");
WITNESSETH:
WHEREAS,Lessor desires to lease the Equipment,as hereinafter defined,to Lessee, and Lessee
desires to lease the Equipment from Lessor, subject to the terms and conditions of and for the purposes set
forth in this Agreement; and
WHEREAS,Lessee is authorized under the Constitution and laws of the State to enter into this
Agreement for the purposes set forth herein;
NOW,THEREFORE,for and in consideration of the premises hereinafter contained, the parties
hereby agree as follows:
ARTICLE I
COVENANTS OF LESSEE
Section 1.01. Lessee represents, covenants and warrants,for the benefit of Lessor and its assignees,
as follows:
(a) Lessee is a public body, corporate and politic, duly organized and existing under the Constitution
and laws of the State.
(b) Lessee will do or cause to be done all things necessary to preserve and keep in full force and
effect its existence as a body, corporate and politic.
(c) Lessee is authorized under the Constitution and laws of the State to enter into this Agreement
and the transaction contemplated hereby,and to perform all of its obligations hereunder.
(d) Lessee has been duly authorized to execute and deliver this Agreement under the terms and
provisions of the resolution of its governing body, attached hereto as Exhibit A, or by other appropriate
official approval, and further represents, covenants and warrants that all requirements have been met, and
procedures have occurred in order to ensure the enforceability of this Agreement, and Lessee has complied
with such public bidding requirements as may be applicable to this Agreement and the acquisition by
Lessee of the Equipment hereunder. Lessee shall cause to be executed an opinion of its
counsel substantially in the form attached hereto as Exhibit B.
(e) During the term of this Agreement,the Equipment will be used by Lessee only for the purpose of
performing one or more essential governmental or proprietary functions of Lessee consistent with the
permissible scope of Lessee's authority and will not be used in a trade or business of any person or entity
other than the Lessee.
(f) During the period this Agreement is in force,Lessee will annually provide Lessor with such
current financial statements,budgets,proof of appropriation for ensuing fiscal year or such other financial
information relating to the decision of Lessee to continue this Agreement as may be reasonably requested
by Lessor or its assignee.
(g) The Equipment will have a useful life in the hands of the Lessee that is substantially in excess of
the Original Term and all Renewal Terms.
(h) The Equipment is, and during the period this Agreement is in force will remain,personal
property and when subjected to use by the Lessee under this Agreement,will not be or become fixtures.
ARTICLE II
DEFINITIONS
Section 2.01. The following terms will have the meanings indicated below unless the context clearly
requires otherwise:
"Agreement" means this Municipal Lease-Purchase Agreement, including the Exhibits attached
hereto,as the same may be supplemented or amended from time to time in accordance with the terms
hereof.
"Commencement Date" is the date when the term of this Agreement begins and Lessee's obligation
to pay rent accrues,which date shall be the date on which the Lessor, having received and approved all
executed documents and exhibits, accepts, signs and dates the Municipal Lease and Option Agreement.
"Equipment" means the property described in Exhibit D and which is the subject of this Agreement.
"Lease Term" means the Original Term and all Renewal Terms provided for in this Agreement
under Section 4.01.
"Lessee" means the entity which is described in the first paragraph of this Agreement and which is
leasing the Equipment from Lessor under the provisions of this Agreement.
"Lessor" means(i) Commercial&Municipal Capital,LLC, acting as Lessor hereunder; (ii)any
surviving resulting or transferee corporation;and(iii)except where the context requires otherwise, any
assignee(s)of Lessor.
"Original Term" means the period from the Commencement Date until the end of the fiscal year of
Lessee in effect at the Commencement Date.
"Purchase Price" means the amount indicated with respect to any date after payment of all Rental
Payments(defined below)due through such date,all as set forth in Exhibit E hereto, or Supplemental
Exhibit E hereto,as the case may be.
"Renewal Terms" means the automatic renewal terms of this Agreement as provided for in Article
IV of this Agreement,each having a duration of one year and a term co-extensive with the Lessee's fiscal
year, except the last of such automatic renewal terms which shall end on the due date of the last Rental
Payment set forth in Exhibit E to this Agreement.
2
"Rental Payments" means the basic rental payments payable by Lessee pursuant to the provisions of
this Agreement during the Lease Term,payable in consideration of the right of Lessee to use the
Equipment during the then current portion of the Lease Term. Rental Payments shall be payable by
Lessee to the Lessor or its assignee in the amounts and at the times during the Lease Term,as set forth in
Exhibit E of this Agreement.
"Vendor" means the manufacturer of the Equipment as well as the agents or dealers of the
manufacturer from whom Lessor purchased or is purchasing the Equipment.
ARTICLE III
LEASE OF EQUIPMENT
Section 3.01.Lessor hereby demises, leases and lets to Lessee,and Lessee rents, leases and hires
from Lessor, the Equipment, in accordance with the provisions of this Agreement, to have and to hold for
the Lease Term.
ARTICLE IV
LEASE TERM
Section 4.01. Commencement of Lease Term. The Original Term of this Agreement shall
commence on the Commencement Date as exhibited on page 11 and Exhibit E of the Agreement and shall
terminate on the last day of Lessee's current fiscal year. Lessee may renew this Agreement beyond the
expiration of the Original Term,or beyond the expiration of any subsequent Renewal Term,up to the
number of additional fiscal years provided in Exhibit E of this Agreement by appropriating sufficient
funds to make scheduled Rental Payments for the ensuing fiscal year(each a"Renewal Term"). Terms
and conditions during any Renewal Term shall be the same as the terms and conditions during the
Original Term, except that the Rental Payments shall be as provided in Exhibit E of this Agreement.
Section 4.02. Termination of Lease Term. The Lease Term will terminate upon the earliest of any
of the following events:
(a) The expiration of the Original Term or any Renewal Term of this Agreement and the
nonrenewal of this Agreement in the event of nonappropriation of funds pursuant to Section 6.07;
(b) The exercise of Lessee of the option to purchase the Equipment before expiration of this
Agreement granted under the provisions of Articles IX or XI of this Agreement; or
(c) A default by Lessee and Lessor's election to terminate this Agreement under Article XIII.
(d) Payment by Lessee of all Rental Payments authorized or required to be paid by Lessee hereunder.
Section 4.03. Return of Equipment on Termination. Upon expiration or earlier termination of the
Original Term or any Renewal Term under any provision of this Agreement at a time when Lessee does
not exercise its option to purchase the Equipment granted under the provisions of Articles IX or XI of this
Agreement,Lessee hereby agrees to voluntarily deliver the Equipment to Lessor packaged or otherwise
prepared in a manner suitable for shipment by truck or rail common carrier at a location specified by
Lessor. All expenses resulting from the return of Equipment on Termination will be borne by Lessee.
3
ARTICLE V
ENJOYMENT OF EQUIPMENT
Section 5.01 Lessor hereby covenants to provide Lessee during the Lease Term with quiet use and
enjoyment of the Equipment, and Lessee shall during the Lease Term peaceably and quietly have and hold
and enjoy the Equipment,without suit,trouble or hindrance from Lessor, except as expressly set forth in
this Agreement.
Lessor shall have the right at all reasonable times during business hours to enter into and upon the
property of Lessee for the purpose of inspecting the Equipment.
ARTICLE VI
RENTAL PAYMENTS
Section 6.01. Rental Payments to Constitute a Current Expense of Lessee. Lessor and Lessee
understand and intend that the obligation of Lessee to pay Rental Payments hereunder shall constitute a
current expense of Lessee out of its available non-ad valorem revenues and shall not in any way be
construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitations
or requirements concerning the creation of indebtedness by Lessee. Nothing contained herein shall
constitute a pledge of the Lessee's general tax revenues,funds or monies.
Section 6.02. Payment of Rental Payments. During the Original Term and during each Renewal
Term elected by Lessee,Lessee shall pay Rental Payments, exclusively from legally available funds, in
lawful money of the United States of America to Lessor or, in the event of assignment by Lessor,to its
assignee, in the amounts and on the dates set forth in Exhibit E hereto. Rental Payments shall be in
consideration for Lessee's use of the Equipment during the applicable year in which such payments are
due.
Section 6.03. Interest and Principal Components. A portion of each Lease Rental Payment is paid
as,and represents payment of, interest, and the balance of each Rental Payment is paid as, and represents
payment of principal. Exhibit E hereto sets forth the interest component and the principal component of
each Rental Payment during the Lease Term.
Section 6.04. Additional Interest in the Event the Interest is Taxable. Lessee acknowledges that
Lessor's yield with respect to this Agreement is dependent upon the full amount of each lease rental
payment being excluded from Lessor's income pursuant to Section 103(a)of the United States Internal
Revenue Code of 1986 as amended(the"Code"). Accordingly, if at any time, as a result of a
determination that Lessee has breached a representation or covenant contained herein, or as a result of any
change in the Code,any payment of either the interest component or the principal component of any lease
rental payment is,in the opinion of counsel for the Lessor, subject to or affected by any income,
preference, excess profits, minimum or other federal tax,Lessee shall pay,as additional interest,an
amount which is necessary to provide to Lessor the same net income as Lessor would have received but for
such event. Lessor's calculations of such additional interest shall be binding upon Lessee in the absence of
manifest error.
Section 6.05. Rental Payments to be Unconditional. During the Original Term and during each
Renewal Term elected by Lessee, the obligations of Lessee to make payment of the Rental Payments
required under this Article VI and other sections hereof and to perform and observe the covenants and
agreements contained herein shall be absolute and unconditional in all events, except as expressly
provided under this Agreement. Notwithstanding any dispute between Lessee and Lessor,any Vendor or
any other person,Lessee agrees to pay all Rental Payments when due and shall not withhold any
Rental Payments pending final resolution of such dispute, nor shall Lessee assert any right of set-off or
counterclaim against its obligation to make such payments when required under this Agreement. Lessee's
obligation to make Rental Payments during the Original Term or the then current Renewal Term elected
by Lessee shall not be abated through accident or unforeseen circumstances.
4
Section 6.06. Continuation of Lease Term by Lessee. Lessee intends, subject to the provisions of
Section 6.07,to continue the Lease Term through the Original Term and all the Rental Payments
hereunder. Lessee reasonably believes that legally available funds from non-ad valorem tax sources in an
amount sufficient to make all Rental Payments during the Original Term and each of the Renewal Terms
can be obtained. Lessee further intends, subject to the provisions of Section 6.07, to do all things lawfully
within its power to obtain and maintain funds from which the Rental Payments may be made, including
making provision for such payments to the extent necessary in each biannual or annual budget submitted
and adopted in accordance with applicable provisions of state law, to have such portion of the budget
approved.
Section 6.07. Termination by Nonappropriation. In the event Lessee does not appropriate sufficient
funds for the payment of the Rental Payments scheduled to be paid in the next occurring Renewal Term
then,Lessee may, notwithstanding any other provision to the contrary,terminate this Agreement at the
end of the then current Original Term or Renewal Term,and Lessee shall not be obligated to make
payment of the Rental Payments provided for in this Agreement beyond the end of the then current
Original or Renewal Term. Lessee agrees to deliver notice to Lessor of such termination prior to the
adoption of the renewal term's budget.
Section 6.08. Late Charges. If any Rental Payment is not paid in full to Lessor within fifteen(15)
days after the payment first became due and payable,Lessee shall immediately pay to Lessor an additional
one time late charge equal to five(5%)percent of each such amount past due along with the Rental
Payment. Partial payments by Lessee shall be applied first to repayment of interest on Lessor advances
pursuant to Section 8.04 if any, then to the accrued interest component of past due Rental Payments and
the balance to the remaining principal component of past due rental payments.
Section 6.09. Prepayment. Lessee shall have the right to prepay principal components of Lease
Rental Payments in whole on any date set forth in Exhibit E by paying the then applicable Purchase Price
set forth in Exhibit E on such date. Lessee shall have the right to to prepay principal components of Lease
Rental Payments in part on any date set forth in Exhibit E by giving Lessor written notice at least 30 days
prior to such date and by paying a portion of the then applicable Purchase Price set forth in amount at
least equal to 20%of the initial Purchase Price set forth in the Exhibit E. All prepayments in part shall be
applied to reduce the Purchase Price to reflect the amount of the payment. Lessor shall then prepare a
revised schedule of Rental Payments,based upon amortization of the adjusted Purchase Price over the
remaining term.
ARTICLE VII
TITLE TO EQUIPMENT
Section 7.01. Title to the Equipment. During the term of this Agreement,title to the Equipment and
any and all additions, repairs, replacements or modifications shall vest in Lessee, subject to the rights of
Lessor under this Agreement. In the event of default as set forth in Section 13.02 or nonappropriation as
set forth in Section 6.07,Lessee agrees to surrender possession of the Equipment to Lessor. Lessee and
Lessor intend for federal income tax purposes under the Internal Revenue Code of 1986, as amended, that
this Agreement constitutes a financing lease or an installment sale contract rather than a true lease.
Section 7.02. Notice Filing. Lessee agrees to execute for informational purposes a notice filing
financing statement as attached hereto.
5
ARTICLE VDU
MAINTENANCE; MODIFICATION; TAXES;INSURANCE AND OTHER CHARGES
Section 8.01. Maintenance of Equipment by Lessee. Lessee agrees that at all times during the Lease
Term Lessee will, at Lessee's own cost and expense, maintain,preserve and keep the Equipment in good
repair,working order and condition,and that Lessee will from time to time make or cause to be made all
necessary and proper repairs, replacements and renewals. Lessor shall have no responsibility in any of
these matters, or for the making of improvements or additions to the Equipment.
Section 8.02. Taxes. Other Governmental Charges and Utility Charges. The parties to this
Agreement contemplate that the Equipment will be used for a governmental or proprietary purposes of
Lessee and,therefore, that the equipment will be exempt from all taxes presently assessed and levied with
respect to personal property. In the event that the use,possession or acquisition of the Equipment is found
to be subject to taxation in any form(except for income taxes of Lessor),Lessee will pay during the Lease
Term, as the same respectively come due, all taxes and governmental charges of any kind whatsoever that
may at any time be lawfully assessed or levied against or with respect to the Equipment and any
equipment or other property acquired by Lessee in substitution for, as a renewal or replacement of, or a
modification,improvement or addition to the Equipment, as well as all gas,water, steam, electricity, heat,
power,telephone, utility and other charges incurred in the operation,maintenance,use, occupancy and
upkeep of the Equipment;provided that,with respect to any governmental charges that may lawfully be
paid in installments over a period of years,Lessee shall be obligated to pay only such installments as have
accrued during the time this Agreement is in effect.
Section 8.03. Provisions Regarding Insurance. At its own expense,Lessee shall cause casualty,
public liability and property damage insurance to be carried and maintained, or shall demonstrate to the
satisfaction of Lessor that adequate self-insurance is provided with respect to the Equipment, sufficient to
protect the Full Insurable Value(as that term is hereinafter defined)of the Equipment, and to protect
Lessor from liability in all events. All insurance proceeds from casualty losses shall be payable as
hereinafter provided in this Agreement. Lessee shall furnish to Lessor certificates evidencing such
coverage throughout the Lease Term. Alternatively,Lessee may insure the Equipment under a blanket
insurance policy or policies which cover not only the Equipment but other properties. If Lessee insures
similar properties by self-insurance,Lessee will insure the Equipment by means of an adequate insurance
fund.
The"Full Insurable Value" as used herein shall mean the full replacement value of the Equipment.
Any insurance policy pursuant to this Section 8.03 shall be so written or endorsed as to make losses,
if any,payable to Lessee and Lessor as their respective interests may appear. The Net Proceeds(as
defined in Section 9.01) of the insurance required in this Section 8.03 shall be applied as provided in
Article IX hereof. Each insurance policy provided for in this Section 8.03 shall contain a provision to the
effect that the insurance company shall not cancel the policy or modify it materially and adversely to the
interest of Lessor without first giving written notice thereof to Lessor at least 30 days in advance of such
cancellation.
Section 8.04. Advances. In the event Lessee shall fail to maintain the full insurance coverage
required by this Agreement or shall fail to keep the Equipment in good repair and operating condition,
Lessor may(but shall be under no obligation to)purchase the required policies of insurance and pay the
premiums necessary and provide for payment thereof; and all amounts so advanced therefore by Lessor
shall become additional rent for the then current Original Term or Renewal Term,which amounts,
together with interest thereon at the rate of 12%per annum,Lessee agrees to pay.
6
ARTICLE IX
DAMAGE,DESTRUCTION AND CONDEMNATION: USE OF NET PROCEEDS
Section 9.01. Damage,Destruction and Condemnation. Unless Lessee shall have exercised its
option to purchase the Equipment by making payment of the Purchase Price as provided herein, if prior to
the termination of the Lease Term(a)the Equipment or any portion thereof is destroyed(in whole or in
part)or is damaged by fire or other casualty or(b)title to,or the temporary use of the Equipment or any
part thereof or the estate of Lessee or Lessor in the Equipment or any part thereof shall be taken under the
exercise of the power eminent domain by any governmental body or by any person,firm or corporation
acting under governmental authority,Lessee and Lessor will cause the Net Proceeds of any insurance
claim or condemnation award to be applied to the prompt repair, restoration, modification or
improvement of the Equipment. Any balance of the Net Proceeds remaining after such work has been
completed shall be paid to Lessee.
For purposes of Section 8.03 and this Article IX,the term"Net Proceeds" shall mean the amount
remaining from the gross proceeds of any insurance claim or condemnation award after deducting all
expenses(including attorney's fees)incurred in the collection of such claims or award.
Section 9.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the
cost of any repair,restoration,modification or improvement referred to in Section 9.01 hereof,Lessee
shall either(a)complete the work and pay any cost in excess of the amount of Net Proceeds, and Lessee
agrees that if by reason of any such insufficiency of the Net Proceeds,Lessee shall make any payments
pursuant to the provisions of this Section 9.02,Lessee shall not be entitled to any reimbursement therefore
from Lessor nor shall Lessee be entitled to any diminution of the amounts payable under Article VI
hereof or(b) if Lessee is not in default hereunder,Lessee shall pay to Lessor the amount of the then
applicable Purchase Price, and,upon such payment, the Lease Term shall terminate and Lessor's interest
in the Equipment shall terminate as provided in Article XI of this Agreement. The amount of the Net
Proceeds in excess of the then applicable Purchase Price, if any, may be retained by Lessee.
ARTICLE X
DISCLAIMER OF WARRANTIES; VENDOR'S WARRANTIES;USE OF EQUIPMENT
Section 10.01. Disclaimer of Warranties. LESSOR MAKES NO WARRANTY OR
REPRESENTATION,EITHER EXPRESS OR IMPLIED, AS TO THE VALUE,DESIGN, CONDITION,
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR USE OF THE
EQUIPMENT, OR WARRANTY WITH RESPECT THERETO. In no event shall Lessor be liable for any
incidental, indirect, special or consequential damage in connection with or arising out of this Agreement
or the existence,furnishing,functioning or Lessee's use of any item or products or services
provided for in this Agreement.
Section 10.02. Vendor's Warranties. Lessor hereby irrevocably appoints Lessee its agent and
attorney-in-fact during the Lease Term, so long as Lessee shall not be in default hereunder,to assert from
time to time whatever claims and rights, including warranties of the Equipment,which Lessor may have
against the Vendor of the Equipment. Lessee's sole remedy for the breach of such warranty,
indemnification or representation shall be against the Vendor of the Equipment, and not against the
Lessor,nor shall such matter have any effect whatsoever on the rights and obligations of Lessor with
respect to this Agreement, including the right to receive full and timely payments hereunder. Lessee
expressly acknowledges that Lessor makes,and has made, no representation or warranties whatsoever as
to the existence or availability of such warranties of the Vendor of the Equipment.
Section 10.03. Use of the Equipment. Lessee will not install,use, operate or maintain the
Equipment improperly, carelessly, in violation of any applicable law or in a manner contrary to that
contemplated by this Agreement. Lessee shall provide all permits and licenses, if any, necessary for the
7
installation and operation of the Equipment. In addition,Lessee agrees to comply in all respects
(including,without limitation,with respect to the use, maintenance and operation of each item
of the Equipment)with all laws of the jurisdictions in which its operations involving any item of
Equipment may extend and any legislative,executive,administrative or judicial body exercising any
power or jurisdiction over the items of the Equipment;provided, however,that Lessee may contest in good
faith the validity or application of any such law or rule in any reasonable manner which does not, in the
opinion of the Lessor, adversely affect the estate of Lessor in and to any of the items of the Equipment or
its interest or rights under this Agreement.
ARTICLE XI
OPTION TO PURCHASE
Section 11.01. At the request of Lessee,Lessor's interest in the Equipment and additional Rental
Payments will be terminated and this Agreement shall terminate:
(a) At the end of the final Renewal Term,upon payment by Lessee of all Rental Payments scheduled
as set forth in Exhibit E to this Agreement; or
(b) if the Lease Term is terminated pursuant to Article IX of this Agreement, in the event of total
damage,destruction or condemnation of the Equipment; or
(c) any time when Lessee is not on such date in default under this Agreement,upon payment by
Lessee of the then applicable Purchase Price to Lessor.
Upon the occurrence of any of such events,Lessor shall deliver a Bill of Sale of its remaining interest
in the Equipment to Lessee"AS IS -WHERE IS"without additional cost or payment by Lessee.
ARTICLE XII
ASSIGNMENT,SUBLEASING,INDEMNIFICATION,MORTGAGING AND SELLING
Section 12.01. Assignment by Lessor. This Agreement,and the obligations of Lessee to make
payments hereunder, may be assigned and reassigned in whole or in part to one or more assignees and
subassignees by Lessor at any time subsequent to its execution,without the necessity of obtaining the
consent of Lessee;provided,however,that no such assignment or reassignment shall be effective unless
and until(i)Lessee shall have received notice of the assignment or reassignment disclosing the name and
address of the assignee or subassignee, and(ii)in the event that such assignment is made to a bank or
trust company as trustee for holders of certificates representing interest in this Agreement, such bank or
trust company agrees to maintain, or cause to be maintained, a book-entry system by which a record of
names and addresses of such holders as of any particular time is kept and agrees,upon request of the
Lessee,to furnish such information to Lessee. Upon receipt of notice of assignment,Lessee agrees to
reflect in a book entry assignee designation in such notice of assignment, and to make all payments to the
assignee designated in the notice of assignment,notwithstanding any claim, defense, setoff or
counterclaim whatsoever(whether arising from a breach of this Agreement or otherwise)that Lessee may
from time to time have against Lessor, or the assignee. Lessee agrees to execute all documents which may
be reasonably requested by Lessor or its assignee to protect their interests in this Agreement.
Section 12.02. No Sale, Assignment or Subleasing by Lessee. This Agreement and the interest of
Lessee in the equipment may not be sold, assigned or encumbered by Lessee without the prior written
consent of Lessor or assignee.
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Section 12.03. Release and Indemnification Covenants. To the extent permitted by the laws and
Constitution of the State,Lessee shall protect, hold harmless and indemnify Lessor from and against any
and all liability,obligations,losses,claims and damages whatsoever, regardless of cause thereof,and
expenses in connection therewith, including,without limitation, counsel fees and expenses,penalties and
interest arising out of or as the result of the entering into this Agreement, the ownership of any item of the
equipment,the ordering, acquisition,use, operation, condition,purchase, delivery, rejection, storage or
return of any item of the equipment or any accident in connection with the operation,use, condition,
possession, storage or return of any item of the equipment resulting in damage to property or injury to or
death of any person. The indemnification arising under this paragraph shall continue in full force and
effect notwithstanding the full payment of all obligations under this Agreement or the termination of the
lease term for any reason. Lessee agrees not to withhold or abate any portion of the payments required
pursuant to this Agreement by reason of any defects, malfunctions,breakdowns or infirmities of the
equipment.
ARTICLE XIII
EVENTS OF DEFAULT AND REMEDIES
Section 13.01. Events of Default Defined. The following shall be"events of default" under this
Agreement and the terms "event of default" and"default" shall mean,whenever they are used in this
Agreement,any one or more of the following events:
(a) Failure by Lessee to pay any Rental Payment or other payment required to be paid hereunder at
the time specified herein; and
(b) Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be
observed or performed, other than as referred to in Section 13.01 (a),for a period of 30 days after written
notice, specifying such failure and requesting that it be remedied as given to Lessee by Lessor, unless
Lessor shall agree in writing to an extension of such time prior to the expiration,provided, however, if the
failure stated in the notice cannot be corrected within the applicable period,Lessor will not unreasonably
withhold its consent to an extension of such time if corrective action is instituted by Lessee within the
applicable period and diligently pursued until the default is corrected.
The foregoing provisions of this Section 13.01 are subject to(i)the provisions of Section 6.07 hereof
with respect to nonappropriation; and(ii) if by reason of force majeure Lessee is unable in whole or in
part to carry out its agreement on its part herein contained, other than the obligations on the part of Lessee
contained in Article VI hereof,Lessee shall not be deemed in default during the continuance of such
inability. The term"force majeure" as used herein shall mean,without limitation,the following: acts of
God; strikes, lockouts or other employee relations disturbances; acts of public enemies; orders or restraints
of any kind of the government of the United States of America or the state wherein Lessee is located or
any of their departments, agencies or officials,or any civil or military authority,insurrections; riots;
landslides;earthquakes;fires; storms; droughts;floods; or explosions.
Section 13.02. Remedies on Default. Whenever any event of default referred to in Section 13.01
hereof shall have happened and be continuing,Lessee agrees to return the equipment to Lessor and Lessor
shall have the right at its sole option without any further demand or notice, to take either one or both of
the following remedial steps:
(a) Accept surrender from Lessee of the equipment for sale or release by Lessor in a commercially
reasonable manner. All proceeds of such sale or re-letting shall inure to Lessor,provided, however, if
such proceeds after deduction of Lessor's reasonable costs and expenses, including attorneys'fees, incurred
to recover possession,restore or clean-up and sell or release the equipment,exceed an amount equal to the
sum of the past due but unpaid Rental Payments and an amount equal to the then applicable purchase
price,Lessor shall remit the amount of such excess to Lessee;or
9
(b) Institute an action in a court of competent jurisdiction to recover Lessor's compensatory damages
resulting from Lessee's default.
Lessor agrees that it shall not have a right to seek any remedy of specific performance nor shall
Lessor have any"self-help" right to take possession of the equipment absent Lessee's voluntary surrender
thereof.
Section 13.03. Waiver. No delay or omission to exercise any right or power accruing upon any
default shall impair any such right or power or shall be construed to be a waiver hereof,but any such right
and power may be exercised from time to time and as often as may be deemed expedient.
ARTICLE XIV
MISCELLANEOUS
Section 14.01. Notices. All notices, certificates or other communications hereunder shall be
sufficiently given and shall be deemed given when delivered or mailed by registered mail,postage
prepaid,to the parties at their respective places of business.
Section 14.02. Binding Effect. This Agreement shall inure to the benefit of and shall be binding
upon Lessor and Lessee and their respective successors and assigns.
Section 14.03. Severability. In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
Section 14.04. Amendments. The terms of the Agreement shall not be waived, altered, modified,
supplemented or amended in any manner whatsoever except by written instrument signed by the Lessor
and the Lessee;nor shall any such amendment that affects the rights of Lessor's assignee be effective
without such assignee's consent.
Section 14.05. Execution in Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same instrument.
Section 14.06. Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
Section 14.07. Captions. The captions or headings in this Agreement are for convenience only and
do not define, limit or describe the scope or intent of any provisions of sections of this Agreement.
Section 14.08. Entire Agreement. This Agreement and the executed Exhibits attached hereto
constitute the entire agreement between Lessor and Lessee. No waiver,consent, modification or change of
terms of this Agreement shall bind either party unless in writing signed by both parties,and then 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 specified herein,regarding this Agreement or the equipment leased hereunder.
Any terms and conditions of any purchase order or other document(with the exception of Supplements)
submitted by Lessee in connection with this Agreement which are in addition to or inconsistent with the
terms and conditions of this Agreement will not be binding on Lessor and will not apply to this
Agreement. Lessee by the signature below of its authorized representative acknowledges that it has read
this Agreement, understands it,and agrees to be bound by its terms and conditions.
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•
IN WITNESS WHEREOF,Lessor has executed this Agreement in its corporate name with its
corporate seal hereunto affixed and attested by its duly authorized officers, and Lessee has caused this
Agreement to be executed in its corporate name with its corporate seal hereunto affixed and attested by its
duly authorized officers. All of the above occurred as of the date first written below;this Agreement shall
be binding on Lessee beginning on the date it is accepted and executed by Lessor.
LESSOR: Commercial&Municipal Capital,LLC
Execute:
By:
Title:
Agreement Number: Date:
(Commencement Date)
LESSEE: City of Ocoee
Attest: Approved:
City of Ocoee,Florida
Jean Grafton, City Clerk S. Scott Vandergrift,Mayor
Date:
FOR USE AND RELIENCE ONLY BY THE CITY OF OCOEE,FLORIDA. APPROVED AS TO
FORM AND LEGALITY THIS DAY OF , 1996
FOLEY&LARDNER, APPROVED BY THE OCOEE CITY COMMISSION
AT MEETING HELD ON , 1996
UNDER AN AGENDA ITEM NO.
By:
City Attorney
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EXHIBIT C
CERTIFICATE AS TO ARBITRAGE
I,the undersigned officer of the City of Ocoee(the"Lessee"),being the person duly charged,with
others,with responsibility for issuing the Lessee's obligations in the form of that certain agreement
entitled"Municipal Lease-Purchase Agreement"with referenced Exhibits attached thereto(the
"Agreement")dated December 16th, 1996, and issued said date,HEREBY CERTIFY that:
1. The Agreement was issued by the Lessee under and pursuant to law to finance the acquisition of the
certain Equipment described therein.
2. Pursuant to the Agreement,the Lessee is entitled to receive said Equipment in consideration for the
obligation of the Lessee under the Agreement. Said Equipment will be used in furtherance of the public
purposes of the Lessee. The Lessee does not intend to sell said Equipment or said Agreement or to
otherwise dispose of said Equipment during the term of the Agreement. The Lessee will not receive any
monies,funds, or other"proceeds"as a result of the Agreement.
3. The Lessee expects to make payments under the Agreement from its general funds on the basis of
annual appropriations in the amounts equal to the required payments under the Agreement. The
remaining general funds of the Lessee are not reasonably expected to be used to make such payments and
no other monies are pledged to the Agreement or reasonably expected to be used to pay principal and
interest on the Agreement.
4. The Lessee has not received notice that its Certificate may not be relied upon with respect to its own
issues nor has it been advised that any adverse action by the Commissioner of Internal Revenue is
contemplated.
To the best of my knowledge, information and belief the expectations herein expressed are reasonable
and there are no facts,estimates or circumstances other than those expressed herein that would materially
affect the expectations herein expressed.
IN WITNESS WHEREOF, I have hereunto set my hand this day of , 19_
LESSEE: City of Ocoee
By:
S. Scott Vandergrift,Mayor
FOR USE AND RELIENCE ONLY BY THE CITY OF OCOEE,FLORIDA. APPROVED AS TO
FORM AND LEGALITY THIS DAY OF , 1996
By:
City Attorney
EXHIBIT D
DESCRIPTION OF EQUIPMENT
The Equipment which is the subject of the attached Municipal Lease-Purchase Agreement is as follows:
(1) 1997 Lodal EVO-Mag-20 Sideloader with standard and optional equipment as referenced in the
Price Quotation dated November 5,1996 as attached.
together with all additions, accessions and replacements thereto.
Lessee hereby certifies that the description of the personal property set forth above constitutes an
accurate description of the"Equipment", as defined in the attached Municipal Lease-Purchase Agreement.
LESSEE: City of Ocoee
By:
S. Scott Vandergrift,Mayor
Date:
LOCATION OF THE EQUIPMENT:
FOR USE AND RELIENCE ONLY BY THE CITY OF OCOEE,FLORIDA. APPROVED AS TO
FORM AND LEGALITY THIS DAY OF , 1996
By:
City Attorney