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HomeMy WebLinkAboutResolution 700 Fire Trucks RESOLUTION NO. 700 (Revised 1/20/93) A RESOLUTION OF THE CITY OF WINTER SPRINGS, FLORIDA, AUTHORIZING THE EXECUTION AND DELIV- ERY OF A LEASE AND PURCHASE AGREEMENT BETWEEN THE CITY AND CITIZENS FIDELITY LEASING CORPO- RATION RELATING TO THE LEASE OF PREVIOUSLY PURCHASED EMERGENCY ONE FIRE TRUCKS; AUTHORIZ- ING THE EXECUTION AND DELIVERY OF A LEASE SCHEDULE RELATING TO THE LEASE-PURCHASE OF SUCH VEHICLES; AUTHORIZING THE EXECUTION AND DELIVERY OF ALL DOCUMENTATION NECESSARY TO CONSUMMATE SUCH LEASE PURCHASE; DESIGNATING SUCH LEASE AND PURCHASE AGREEMENT AS BANK QUALIFIED; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE MAYOR AND CITY COMMISSIONERS OF THE CITY OF WINTER SPRINGS, FLORIDA: SECTION 1. FINDINGS. It is hereby found and determined that: (A) The Mayor and the City commissioners of the City of winter springs, Florida (the "City"), did on January 11, 1993 ordain the following ordinance: AN ORDINANCE AUTHORIZING THE LEASING AND ACQUISITION OF PREVIOUSLY PURCHASED EMERGENCY ONE FIRE TRUCKS FOR CITY PURPOSES; PROVIDING FOR DEFINITIONS AND FINDINGS; AUTHORIZING THE CITY TO TRANSFER TITLE TO CERTAIN PROPERTY OF THE CITY TO A LESSOR; AUTHORIZING LEASE-PUR- CHASE AGREEMENTS WITH LESSORS; PROVIDING CERTAIN REQUIREMENTS RELATING TO SUCH LEASE- PURCHASE AGREEMENTS; PROVIDING THAT THE OBLI- GATION OF THE CITY UNDER SUCH LEASE-PURCHASE AGREEMENTS DOES NOT CREATE A GENERAL DEBT OR OBLIGATION OF THE CITY OR THE STATE BUT SHALL BE PAYABLE FROM LEGALLY AVAILABLE REVENUES APPROPRIATED FOR SUCH PURPOSE; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. (B) Due to the present volatility of the market for tax- exempt obligations such as the Lease and Purchase Agreement (as hereinafter defined) and the complexity of the transactions relating to such Lease and Purchase Agreement, it is in the best interest of the City that the City enter into the Lease and Purchase Agreement with citizens Fidelity Leasing Corporation (the "Purchaser"). A letter of the City's financial advisor recommend- ing the lease purchase of the Equipment as defined in the Lease and Purchase Agreement from the Purchaser to the City is attached hereto as Exhibit A. SECTION 2. AUTHORIZATION OF LEASE-PURCHASE OF EQUIPMENT. The City hereby authorizes the lease-purchase of the Equipment (as defined in the Lease and Purchase Agreement) in accordance with the terms of the Lease and Purchase Agreement. SECTION 3. APPROVAL OF LEASE AND PURCHASE AGREEMENT. The City hereby authorizes and directs the Mayor or other members of the City commission designated by the Mayor to execute the Lease and Purchase Agreement, and the Clerk to attest the same under the seal of the City, and to deliver the Lease and Purchase Agreement to the Purchaser for its execution. The Lease and Purchase Agreement shall be in substantially the form attached hereto as Exhibit B, with such changes, amendments, modifications, omissions and additions as may be approved by said Mayor or his designee. Execution by the Mayor or his designee of the Lease and Purchase Agreement shall be deemed to be conclusive evidence of approval of such changes. SECTION 4. APPROVAL OF TERMS OF LEASE AND PURCHASE AGREEMENT. The City hereby approves the entering into the Lease and Purchase Agreement with the Purchaser at the purchase price indicated in Exhibit C hereto. SECTION 5. GENERAL AUTHORITY. The Mayor and members of the City Commission, the Clerk and the officers, attorneys and other agents or employees of the City are hereby authorized to do all acts and things required of them by this Resolution and the Lease and Purchase Agreement, or desirable or consistent with the requirements of this Resolution and the Lease and Purchase Agreement for the full punctual and complete performance of all the terms, covenants and agreements contained herein or therein, and each member, employee, attorney and officer and the Clerk is hereby authorized and directed to execute and deliver any and all papers and instruments and to be and cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated hereunder. The City Manager is hereby approved as the designee of the Mayor for purposes of executing the Lease and Purchase Agreement and taking the other actions authorized by this Resolution. SECTION 6. BANK QUALIFIED. The City designates the Lease and Purchase Agreement as "qualified tax-exempt obligations" within the meaning of section 265(b) (3) of the Internal Revenue Code of 1986, as amended (the "Code"). The City and any subordinate entities of the City and issuers of debt that issue "on behalf of" the City do not reasonably anticipate during calendar year 1993 to issue more than $10,000,000 of "tax-exempt" obligations, exclusive of those obligations described in section 265(b) (3) (C) (ii) of the Code. SECTION 7. SEVERABILITY AND INVALID PROVISIONS. If anyone or more of the covenants, agreement or provisions herein contained shall be held contrary to any express provision of law or contrary 2 to the policy of express law, though not expressly prohibited or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions hereof. SECTION 8. EFFECTIVE DATE. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED by the City Commission of the City of winter Springs, Florida, this 25th day of January, 1993. CITY OF WINTER SPRINGS, FLORIDA (SEAL) Mayor Attest: Mary T. Norton City Clerk Approved as to form and legal sufficiency City Attorney 36461LES.RES 01118/93 3 CMC EXHIBIT A January 21, 1993 Mr. Richard Rozansky City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Re: Fire Truck Permanent Financing Dear Mr. Rozansky: Following the review of proposals received on January 11, 1993, Capital Market Consultants, Inc. (CMC) acting as the City's financial advisor makes the following recommendation. The following recommendation is based on the proposer's ability to complete the transaction, the rate quoted in the proposal, a local presence and a confirmation by the City's counsel that the proposed lease and purchase agreement is workable. CMC would recommend that the City negotiate the lease-purchase transaction with Citizens Fidelity Leasing Corporation for a three year financing of the two Emergency One ftre trucks. The total amount to be ftnanced will be $338,000. If you have any questions or concerns regarding this transmittal please do not hesitate to call. Sincerely, James L. Lentz President JLL:rm cc: Harry Martin Mike Williams CAPITAL MARKET CONSULTANTS, INC. 108 South Court Avenue · Orlando, Florida 32801 (407) 426-9611 Fax: (407) 426-7835 EXHIBIT B LEASE AND PURCHASE AGREEMENT Lessor: Citizens Fidelity Leasing Corporation 539 4th Avenue, Suite 201 Louisville, Kentucky 40202 Lessee: City of Date: This Lease and Purchase Agreement (the IIAgreementll) entered into between Citizens Fidelity Leasing Corporation, (IILessorll) a Florida corporation and City of (IILesseell), a body corporate and politic duly organized and existing under the laws of the State of Florida. WIT N E SSE T H: 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: and WHEREAS, at a duly called meeting Lessee held on the day of was introduced and adopted authorizing described in the Attached Exhibit IIAII. of the governing body of , 19__, a resolution the lease of the equipment NOW, THEREFORE, for and in consideration of the premises hereinafter contained, the parties hereby agree as follows: ARTICLE I COVENANTS OF LESSEE Lessee represents, covenants and warrants, for the benefit of Lessor and its assignees, as follows: Page 1 of 15 (a) Lessee is a public body, corporate and politic, duly organized and existing under the Constitution and laws of the State of Florida. (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 of Florida 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, 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. (e) During the term of this Agreement, the Equipment will be used by Lessee only for the purpose of performing one or more 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) The equipment will have a useful life in the hands of the Lessee that is substantially in excess of the Original Terms. (g) The Equipment is and during the period this Agreement is in force, will remain, personal property and when subjected to use by Lessee under this Agreement, will not be or become fixtures. ARTICLE II DEFINITIONS The following terms will have the meanings indicated below unless the context clearly requires otherwise: Page 2 of 15 IIAgreementll means this Lease and 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. IICommencement Datell 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 Equipment is accepted by Lessee as indicated on the Certificate of Acceptance attached hereto as Exhibit B. IIEquipmentll means property described in Exhibit A which is the subject of this Agreement. IILease Termll means the Original Term and all Renewal Terms provided for in this Agreement under Section 4,01. IILesseell means The City of acting as Lessee hereunder, or any surviving or resulting Entity of the said City of IILessorll means (i) Citizens Fidelity Leasing Corporation acting as Lessor hereunder; (ii) any surviving, resulting or transferee corporation; and (iii) except where the context requires otherwise, any assignee(s) of Lessor. 1I0riginal Termll means the period from the Commencement Date until the end of the fiscal year of Lessee in effect at the Commencement Date. IIPurchase pricell means the amount which Lessee may, in its discretion, pay to Lessor in order to purchase the Equipment, as set forth in Exhibit C hereto. IIRenewal Termsll means the 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 renewal terms which shall end on the date of the last Rental Payment set forth in Exhibit C to this Agreement. IIVendorll 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. Page 3 of 15 ARTICLE III LEASE OF EQUIPMENT 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 date of the execution of this Agreement and shall terminate the last day of Lessee's current fiscal year. The Lease Term will be automatically renewed at the end of the Original Term or any Renewal Term for an additional one year, unless the Lessee gives written notice to Lessor not less than 90 days prior to the end of the Original Term or Renewal Term then in effect, or such greater notice as may be provided in Article VI, of Lessee's intention to terminate this Agreement at the end of the Original Term or then current Renewal Term pursuant to Article XI or Article VI, as the case may be. The 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 C 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 6.06: (b) the exercise by Lessee of the option to purchase the Equipment granted under the provisions of Articles IX or XI of this Agreement; (c) a default by Lessee and Lessor's election to terminate this Agreement under Article XIII; or (d) the payment by Lessee of all Rental Payments authorized or required to be paid be Lessee hereunder. Page 4 of 15 ARTICLE V ENJOYMENT OF EQUIPMENT Lessor hereby covenants to provide Lessee during the Lease Term with quiet use and enjoyment, 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 responsible times during business hours to enter into and upon the property of Lessee for the purposes 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 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 creations of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the general tax revenues, funds or monies of Lessee. Section 6.02 Payment of Rental Payments. 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 C 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 C hereto sets forth the interest component and the principal component of each Rental Payment during the Lease Term. If this Agreement is nonrenewed pursuant to Section 6.06, no further obligation for payment of the principal or interest portion of all future Lease Rental Payments shall exist. Page 5 of 15 Section 6.04 Rental Payments to be Unconditional. 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 or Lessor, any Vendor or any other person, Lessee shall make all payments of 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 Rental Payments during the Original term or the then current Renewal term and shall not be abated through accident or unforeseen circumstances. Section 6.05 Continuation of Lease Term by Lessee. Lessee intends, subject to the provisions of Section 6.06, to continue the Lease Term through the Original Term and all of the renewal Terms and to pay the Rental Payments hereunder. Lessee reasonably believes that legally available funds of an amount sufficient to make all Rental Payments during the Original Term and each of the Renewal Terms can be obtained. Section 6.06 Nonrenewal. In the event that the Lessee in its sole discretion determines not to appropriate funds for the payments of Rental Payments for any Renewal Term then Lessee may 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 then current Rental Term or Renewal Term. Lessee agrees to deliver notice to Lessor of such notice of termination at least 90 days prior to the end of the then current Original or Renewal Term. If this Agreement is terminated under this Section 6.06, Lessee agrees peaceably to deliver the Equipment to Lessor at the location specified by Lessor. To the extent lawful, Lessee shall not, until the date on which the next recurring Renewal Term would have ended, expend any funds for the purchase or use of equipment similar to the equipment subject to this Agreement. ARTICLE VII TITLE TO EQUIPMENT; SECURITY INTEREST Section 7.01 Title to the Equipment. During the terms of this Agreement, title to the Equipment and any and all additions, repairs, replacements or modifications shall vest in Lessee, Page 6 of 15 subject to the rights of Lessor under this Agreement. In the event of default as set forth in Section 13.02 or nonrenewal as set forth in Section 6.06, title to Equipment, shall immediately vest in Lessor, and Lessee will reasonably surrender possession of the Equipment to Lessor. Section 7.02 Security Interest. To secure the payment of all Lessee's obligations under this Agreement, Lessee grants to Lessor a security interest constituting a first lien on the equipment and on all additions, attachments, accessions and substitutions thereto, and on all proceeds therefrom. Lessee agrees to execute such additional documents, including financing statements, affidavits, notices and similar instruments, in form satisfactory to Lessor, which Lessor deems necessary or appropriate to establish and maintain its security interest, and upon assignment, the security interest of any assignee of Lessor, in the equipment. ARTICLE VIII 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. If requested by Lessor, Lessee will enter into a maintenance contract for the Equipment with Vendor. 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 purpose of Lessee and, therefore, that the Equipment will be exempt from all tax 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 to 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 Page 7 of 15 in substitution for, as a renewal of 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 occurred 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 shall insure similar properties by self-insurance, Lessee will insure the Equipment by means of an adequate insurance fund. The term "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 10 days in advance of such cancellation. Section 8.04 Advance. 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 ) Page 8 of 15 purchase the required policies or insurance and pay the premiums on the same or may make such repairs or replacements as are necessary and provide 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 Lessee agrees to pay. 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 part) or is damaged by fire or other casualty or (b) title to, or the temporary use of the Equipment or any part thereof shall be taken under the exercise of the power of eminent domain by the governmental body or 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 replacement 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 by reason of Lessee's failure to comply with Section 8.03 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 repayments 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 default hereunder, Lessee shall pay to Page 9 of 15 Lessor the amount of the then applicable Purchase Price, and, upon such payment, the Lease Term 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 THE 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 Lessor, nor shall such matters 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 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 body exercising any power or jurisdiction over the items of Page 10 of 15 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 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 At the request of Lessee, Lessor's security interest in the equipment will be terminated and this Agreement shall terminate: (a) at the end of the Lease Term (including Renewal Term), upon payment in full of Rental Payments due hereunder, or (b) at the end of the Original Term or any Renewal Term, upon payment by Lessee of the then applicable Purchase Price, or (c) 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 and, if Lessee is not such date in default under this Agreement, upon payment of the then applicable Purchase Price to Lessor. ARTICLE XII ASSIGNMENT, SUBLEASING, 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 or 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 or reassignment 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 the names and addresses of such holders as of any particular time is Page 11 of 15 kept and agrees, upon request of Lessee, to furnish such information to Lessee. Upon receipt of notice of assignment, Lessee agrees to reflect in a book entry the assignee, designated 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 the Agreement of otherwise) that Lessee may from time to time have against Lessor, or the assignee. Lessee agrees to execute all documents, including notices of assignments and chattel mortgages or financing statements which may be reasonably requested by Lessor or its assignee to protect their interest on the Equipment and 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 prior written consent of Lessor. 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, anyone 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 its expiration; provided, however, of 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. Page 12 of 15 - , . The foregoing provisions of this Section 13.01 are subject to the condition that if by reason of force majeure Lessor is unable in whole or in part to carry out its agreement on its part herein contained, 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 industrial disturbances; acts of public enemies, orders or restraints of any kind of the government of the United States of America or the state where 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 of Default. Whenever any event of default referred to in Section 13.01 hereof shall have happened and be continuing, Lessor shall have the rights at its sole option without any further demand or notice, to take one or any combination of the following remedial steps: (a) with or without terminating this Agreement, retake possession of the Equipment and sell, lease or sublease the Equipment for the account of the Lessee, holding Lessee liable for rents and other amounts payable by Lessee hereunder to the end of the Original Term or the then current Renewal Term; and, (b) take whatever action at law or in equity may appear necessary or desirable to enforce its rights as the owner of the Equipment. Section 13.03 No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon default shall impair and such right or power may be exercised from time to time as often as may be deemed expedient. Page 13 of 15 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 or 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 or competent jurisdiction, such holding shall not invalidate or render enforceable any other provision hereof. Section 14.04 Amendments. The terms of this 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 effects 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 no way define, limit or describe the scope or intent of any provisions or sections of this Agreement. Page 14 of 15 Section 14.08 Entire Agreement. This Agreement constitutes 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 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, understand it, and agrees to be bound by its terms and conditions. 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. LESSOR: CITIZENS FIDELITY LEASING CORPORATION Attest: By: By: Title: Title: LESSEE: CITY OF Attest: By: By: Title: Title: Date: Page 15 of 15 EXHIBIT C City of Winter Springs, Florida Lease Purchase Amortization Payment Ending Payment Date Interest Principal Balance 1 $61,363.89 7/30/93 $8,450.00 $52,913.89 $285,086.11 2 61,363.89 1/30/94 7,127.15 54,236.74 230,849.37 3 61,363.89 7/30/94 5,771.24 55,592.65 175,256.72 4 61,363.89 1/30/95 4,381.42 56,982.47 118,274.25 5 61,363.89 7/30/95 2,956.86 58,407.04 59,867.21 6 61,363.89 1/30/96 1,496.68 59,867.21 -0- RESOLUTION NO. A RESOLUTION OF THE CITY OF WINTER SPRINGS, FLORIDA, AUTHORIZING THE EXECUTION AND DELIV- ERY OF A LEASE AND PURCHASE AGREEMENT BETWEEN THE CITY AND CITIZENS FIDELITY LEASING CORPO- RATION RELATING TO THE LEASE OF PREVIOUSLY PURCHASED EMERGENCY ONE FIRE TRUCKS; AUTHORIZ- ING THE EXECUTION AND DELIVERY OF A LEASE SCHEDULE RELATING TO THE LEASE-PURCHASE OF SUCH VEHICLES; AUTHORIZING THE EXECUTION AND DELIVERY OF ALL DOCUMENTATION NECESSARY TO CONSUMMATE SUCH LEASE PURCHASE; DESIGNATING SUCH LEASE AND PURCHASE AGREEMENT AS BANK QUALIFIED; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE MAYOR AND CITY COMMISSIONERS OF THE CITY OF WINTER SPRINGS, FLORIDA: SECTION 1. FINDINGS. It is hereby found and determined that: (A) The Mayor and the City Commissioners of the City of Winter springs, Florida (the "City"), did on January 11, 1993 ordain the following ordinance: AN ORDINANCE AUTHORIZING THE LEASING AND ACQUISITION OF PREVIOUSLY PURCHASED EMERGENCY ONE FIRE TRUCKS FOR CITY PURPOSES; PROVIDING FOR DEFINITIONS AND FINDINGS; AUTHORIZING THE CITY TO TRANSFER TITLE TO CERTAIN PROPERTY OF THE CITY TO A LESSOR; AUTHORIZING LEASE-PUR- CHASE AGREEMENTS WITH LESSORS; PROVIDING CERTAIN REQUIREMENTS RELATING TO SUCH LEASE- PURCHASE AGREEMENTS; PROVIDING THAT THE OBLI- GATION OF THE CITY UNDER SUCH LEASE-PURCHASE AGREEMENTS DOES NOT CREATE A GENERAL DEBT OR OBLIGATION OF THE CITY OR THE STATE BUT SHALL BE PAYABLE FROM LEGALLY AVAILABLE REVENUES APPROPRIATED FOR SUCH PURPOSE; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. (B) Due to the present volatility of the market for tax- exempt obligations such as the Lease and Purchase Agreement (as hereinafter defined) and the complexity of the transactions relating to such Lease and Purchase Agreement, it is in the best interest of the City that the city enter into the Lease and Purchase Agreement with citizens Fidelity Leasing Corporation (the "Purchaser"). A letter of the City's financial advisor recommend- ing the lease purchase of the Equipment as defined in the Lease and Purchase Agreement from the Purchaser to the ci ty is attached hereto. Thc City ac]cnoulcdgcD rcccipt of thc information dCDcribcd in scction 218.385, Florida StatutcD, .in conncction 'idth thc ncgotiatcd Dalc of thc LcaDC and PurchaDc Agrccmcnt. A copy of thc letter of the Purchaaer containing the aforementioned information ia attached as Exhibit A hereto. SECTION 2. AUTHORIZATION OF LEASE-PURCHASE OF EQUIPMENT. The ci ty hereby authorizes the lease-purchase of the Equipment (as defined in the Lease and Purchase Agreement) in accordance with the terms of the Lease and Purchase Agreement. SECTION 3. APPROVAL OF LEASE AND PURCHASE AGREEMENT. The City hereby authorizes and directs the Mayor or other members of the City Commission designated by the Mayor to execute the Lease and Purchase Agreement, and the Clerk to attest the same under the seal of the City, and to deliver the Lease and Purchase Agreement to the Purchaser for its execution. The Lease and Purchase Agreement shall be in substantially the form attached hereto as Exhibit B, with such changes, amendments, modifications, omissions and additions as may be approved by said Mayor p#!!':::::I$:@::':::::gli~g#i@. Execution by the Mayor or his designee of the Le~ifie.........arid.....PUrcha.se Agreement shall be deemed to be conclusive evidence of approval of such changes. SECTION 4. APPROVAL OF TERMS OF LEASE AND PURCHASE AGREEMENT. The City hereby approves the entering into the Lease and Purchase Agreement with the Purchaser at the purchase price indicated in Exhibit C hereto. SECTION 5. GENERAL AUTHORITY. The Mayor and members of the City commission, the Clerk and the officers, attorneys and other agents or employees of the City are hereby authorized to do all acts and things required of them by this Resolution and the Lease and Purchase Agreement, or desirable or consistent with the requirements of this Resolution and the Lease and Purchase Agreement for the full punctual and complete performance of all the terms, covenants and agreements contained herein or therein, and each member, employee, attorney and officer and the Clerk is hereby authorized and directed to execute and deliver any and all papers and instruments and to be and cause to be done any and all acts and things necessary or p:r()p~r......f"o:r.... ..C::Clr:ry~ng..... out.....tl1~......t:ransact ions li.i--'-. SECTION 6. BANK QUALIFIED. The City designates the Lease and Purchase Agreement as "qualified tax-exempt obligations" within the meaning of section 265(b) (3) of the Internal Revenue Code of 1986, as amended (the "Code"). The City and any subordinate entities of the city and issuers of debt that issue "on behalf of" the city do not reasonably anticipate during calendar year 1993 to issue more than $10,000,000 of "tax-exempt" obligations, exclusive of those obligations described in section 265(b) (3) (C) (ii) of the Code. 2 SECTION 7. SEVERABILITY AND INVALID PROVISIONS. If anyone or more of the covenants, agreement or provisions herein contained shall be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions hereof. SECTION 8. EFFECTIVE DATE. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED by the city Commission of the City of Winter Springs, Florida, this 25th day of January, 1993. CITY OF WINTER SPRINGS, FLORIDA Mayor ( SEAL) ATTEST: City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: City Attorney 36461 LES.RBS 01118/93 3 01/18/93 15: 13 H M S & C l4J 002 RESOLUTION NO. 700 A RESOLUTION OF THE CITY OF .xNTER SPRINGS; FLORIDA, AUTHORIZING THE EXECUTION AND DELlV- ERY OF A LEASE AND PURCHASE AGREEMENT BETWEEN THE CITY AND CITIZENS FIDELITY LEASING CORPO- RATION RELATING TO THE LEASE OF PREVIOUSLY PURCHASED EMERGENCY ONE FIRE TRUCKS; AUTHORIZ- ING THE EXECUTION AND DELIVERY OF A LEASE SCHEDULE RELATING TO THE LEASE-PURCHASE OF SUCH VEHICLES; AUTHORIZING THE EXECUTION AND DELIVERY OF ALL DOCUMENTATION NECESSARY TO CONSUMATE SUCH LEASE PURCHASE; DESIGNATING SUCH LEASE AND PURCHASE AGREEMENT AS BANK QUALIFIED; AIm PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE MAYOR AND CITY COMMISSIONERS OF THE CITY OF WINTER SPRINGS, FLORIDA: SECTION. FINDINGS. It is hereby found and determined that: (A) The Mayor and the City Commissioners of the city of Winter Springs, Florida (the city") did on January 11, 1993 ordain the following ordinance: AN ORDINANCE AUTHORIZING 'THE LEASING AND ACQUISITION OF PREVIOUSLY PURCHASED EMERGENCY ONE FIRE TRUCKS FOR CITY PURPOSES; PROVIDING FOR DEFINITIONS AND FINDINGS; AUTHORIZING THE CITY TO TRANSFER TITLE TO CERTAIN PROPERTY OF THE CITY TO A LESSOR; AUTHORIZING LEASE-PUR- CHASE AGREEMENTS WITH LESSORS; PROVIDING CERTAIN REQUIREMENTS RELATING TO SUCH LEASE- PURCHASE AGREEMENTS; PROVIDING THAT THE OBLI- GAT ION OF THE CITY UNDER SUCH LEASE-PURCHASE AGRE~S DOES NOT CREATE A GENERAL DEBT OR OBLIGATION OF THE CITY OR THE STATE BUT SHALL BE PAYABLE FROM LEGALLY AVAILABLE REVENUES APPROPRIATED FOR sUCH PURPOSE; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. (B) Due to the present volatility of the market for tax- exempt obligations such as the Lease and Purchase Agreement (as hereinafter defined) and the complexity of the transactions relating to such Lease and purchase Agreement, it is in the best interest of the city that the City enter into the Lease and purchase Agreement with Citizens Fidelity Leasing Corporation (the "Purchaser"). A letter of the City'S financial advisor recommend- ing the lease purchase of the Equipment as de.fined in the. Lease and pUrchase Agreement from the Purchaser to the. city is atta.ched hereto. The City acknowledges receipt of the information described in Section 218.385, Florida Statutes, in connection with the negotiated sale of the Lease and Purchase Agreement. A copy of the 01-18-93 03: 19 PM P02 01/18/93 15:14 H M S & C 141003 letter of the Purchaser containing the aforementioned information is attached as Exhibit A hereto. SECTION 2. AUTHORIZATION OF LEASE-PURCHASE OF EQUIPMENT. The city hereby authorizes the lease-purchase of the Equipment (as defined in the Lease and purchase Agreement) in accordance with the terms of the Lease and Purchase AgreeInent. SECTION 3. APPROVAL OF LEASE AND PURCHASE AGREEMENT. The city hereby authorizes and directs the Mayor or other members of the city commission designated by the Mayor to execute the Lease and Purchase Agreement, and the Clerk to attest the SaIlle under the seal of the city, and to deliver the Lease and purchase Agreement to the Purchaser for its execution. The Lease and purchase Agreement shall be in substantially the form attached hereto as EXhibit B, with such changes, amend1nents, modifications, omissions and additions as may be approV'ed by said Mayor. Execution by the Mayor or his designee of the Lease and Purchase Agreement shall be deemed to be conclusive evidence of approval of such changes. SECTION 4. APPROVAL OF TERMS OF LEASE AND PURCHASE AGREEMENT. The city hereby approves the entering into the Lease and Purchase Agreement ~ith the Purchaser at the purchase price indicated in Exhibit C hereto. SECTION 5 _ GENERAL AUTHORITY.. The Mayor and members of the city Commission, the Clerk and the officers, attorneys and other agents or employees of the city are hereby authorized to do all acts and things required of them by this Resolution and the Lease and Purchase Agreement, or desirable or consistent with the requirements of this Resolution and the Lease and Purchase Agreement for the full punctual and complete performance of all the terms, covenants and agreel!lents contained herein or therein, and each member, employee, attorney and officer and the Clerk is hereby authorized and directed to execute and deliver any and all papers and instruments and to be and cause to be done. any and all acts and things necessary or proper for carrying out the transactions contemplated hereunder6 SECTION 6. BANK QUALIFIED. The City designates the Lease and purchase Agreement as "qualified tax-exempt obligations" within the. meaning of Section 265 (b) (3) of the Internal Revenue Code of 1986, as amended (the "code"). The City and any subordinate entities of the City and issuers of debt that issue "on behalf ofn the city do not reasonably anticipate during calendar year 1993 to issue more than $10,000,000 of ntax-exemptn obligations, exclusive of those obligations described in section 265(b) (3) (C) {ii} of the code. SECTION 7.. SEVERABILITY AND INVALID PROVISIONS. If anyone or more of the covenants, agreement or provisions herein contained shall be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited or 2 01-18-93 03: 19 PM P03 01/ 18/93 15: 15 H M S & C against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deem.ed separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions hereof. SECTION 8. EFFECTIVE DATE. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED by the City Commission of the City of Winter Springs, Florida, this 25th day of January, 1993. CITY OF WINTER SPRINGS, FLORIDA Mayor (SEAL) ATTEST: City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY: City Attorney 36461LES.RES 01118/93 3 01-18-93 03: 19 PM P.ll;' FAX COVER SHEET TO MARY NORTON FROM MIKE WILLIAMS HONIGMAN, MILLER, SCHWARTZ AND COHN