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TC Ord. No. 1985-160 0 ORDINANCE NO. 85-16 SERIES OF 1985 AN ORDINANCE AUTHORIZING EXECUTION OF A CERTAIN EQUIPMENT LEASE AGREEMENT. BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. That a certain Equipment Lease Agreement, together with its Exhibits, a copy of which agreement is attached hereto as Addenda I, and the terms of it are hereby approved, and the acquisition of the municipal property described therein are hereby authorized. Section 2. The Mayor and Town Clerk are hereby author- ized and directed to execute said Equipment Lease Agreement. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, THIS 10thday of September , 1985, and a public hearing on this ordinance shall be held at the regular meet- ing of the Town Council of the Town of Avon, Colorado, on the 24th day of September , 1985, at 7:30 P.M. in the Municipal Building of the Town of Avon Colorado. ATTEST: Patrice ,T oy e, wi 4Crk Allan 11\-, Notting, Mayor INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED THIS 24tiday of September , 1985. ATTEST : c (~L & Z"W'r Allan R. ottingh7 /Mayor • STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) • NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AT 7:30 P.M., ON THE 24TH DAY OF SEPTEMBER, 1985, AT THE MUNICIPAL BUILDING, 400 BENCHMARK ROAD, AVON, COLORADO, FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF OF ORDINANCE NO. 85-16, SERIES OF 1985: AN ORDINANCE AUTHORIZING EXECUTION OF A CERTAIN EQUIPEMNT LEASE AGREEMENT. A copy of said Ordinance is attached hereto and is also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This Notice is given and passed by order of the Town Council of the Town of Avon, Colorado. Dated this llthday of September, 1985. TOWN OF AVON, COLORADO BY: Barbara R. Jo h, Deputy Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON SEPTEMBER 11, 1985: AVON POST OFFICE, MAIN ENTRANCE CITY MARKET, MAIN ENTRANCE PESTER GAS STATION AVON MUNICIPAL BUILDING, MAIN LOBBY George K. Baum & Company INVESTMENT BANKERS MEMBER OF NEW YORK STOCK EXCHANGE, INC. MIDWEST STOCK EXCHANGE September 13, 1985 Town of Avon P.O. Box 975 Avon, Colorado-80620 Gentlemen: SUITE 2800 621 SEVENTEENTH STREET DENVER. COLORADO 80293 TELEPHONE (303) 292-2332 In connection with the lease purchase financing of an Orion Bus for the Town of Avon, Colorado at a cost of $116,000 we submit the following for your consideration and acceptance: Date of Lease Lease Amount Lease Term Lease Payment Payable quarterly Lease Rate in advance (20 quarters) (calculated in arrears) 8.45% Option to Purchase at the end of each fiscal year for an amount as shown in the lease documentation. The terms and conditions of the lease documentation are subject to mutual agreement be- tween the town of Avon and the Lessor. This proposal is subject to the approving opinion of nationally recognized municipal bond-counsel as to the legality of the transaction and as to the interest portion of the-lease payments being exempt from all present federal and Colorado state income tax. Further it is subject to the approval of the Lessor of the financial condition of the Town of Avon. Respectfully submitted, GEORGE K. BAUM & COMPANY -,4 c~ g ~0.~ 4'.fa~ JACK E. ORMSBEE Public Finance Department The above proposal is hereby accepted for and on behalf of the Town of Avon, Colorado by proper authorization on its council this , day of , 1985. ~Attestc Clerk William James.,--Town Manager 10/1/85 $116,000:00 Five (5) years $7,171.43 ~ i Date of Lease 9/15/85 Lease No. 0015 EQUIPMENT LEASE-PURCHASE AGREEMENT" Lessor: GEORGE R. BAUM & COMPANY Address: Suite 2800, 621 Seventeenth Street, Denver, Colorado 80293 Lessee: TOWN OF AVON, COLORADO Address: P.O. BOX 975, AVON, COLORADO 81620 Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor, the items of Equipment (the "Equipment") described in Exhibit A attached to this Equipment Lease-Purchase Agreement (the "Lease"), upon the following terms and conditions: 1. DELIVERY AND ACCEPTANCE. Lessee, or if Lessee so requests, Lessor, will cause the Equipment to be delivered to Lessee at the location specified in Exhibit A (the "Equipment Location"). Lessee will pay all transportation and other costs, if any, incurred in connection with the delivery of the Equipment. Lessee will accept the Equipment as soon as it has been delivered and is operational, or in the event that the manufacturer or vendor allows a pre-acceptance test period, as soon as the test period has expired. Lessee will evidence its acceptance of the Equipment by executing and delivering to Lessor an Acceptance Certificate (herein so called) in the form provided by Lessor. . 2. TERM. This Lease will become effective hereof by Lessor. The term of this Lease will the Equipment is accepted pursuant to Section 1 earlier-terminated as expressly provided for' in continue until the Expiration Date set forth in hereto (hereinafter the "Lease Terri"). upon the execution commence on the date above and, unless this"Lease, will Exhibit B attached 3. RENT. Lessee agrees to pay to Lessor or its assignee the Lease Payments (herein so called), including the interest portion, equal to the amounts specified in Exhibit B. The Lease Payments will be payable without notice or demand at the office of the Lessor (or such other place as Lessor or its assignee.may from time to time designate in writing), and will commence on the first Lease Payment dates as set forth in Exhibit B and thereafter on the dates set forth in Exhibit B. Any payments received later than ten (10) days from the due date will bear interest at the highest lawful rate for the due date. Except as specifically provided in Section 4 hereof, the Lease Payments will be absolute and unconditional in all events and will not be subject to any set-off, defense, counterclaim, or recoupment for any reason whatsoever.- Lessee-reasonably believes that funds can be obtained sufficient to make all Lease Payments during the Lease Term and hereby covenants that it'will do all things lawfully within its power to obtain, maintain and properly request and pursue funds from which the Lease Payments may be made,, including making provisions for such payments to the extent necessary in each budget submitted for the purpose of obtaining funding, using its bona fide best efforts to have such portion of the budget approved and exhausting all available administrative reviews and appeals in the event such portion of the budget is not approved. It is Lessee's intent to make Lease Payments for the full Lease Term if funds are legally available therefor and in that regard Lessee represents that the use of the Equipment is essential to its proper, efficient and economic operation. 4. NONAPPROPRIATION OF FUNDS. In the event no funds or insufficient funds are appropriated and budgeted or are otherwise available by any means whatsoever in any fiscal period f or'Lease Payments due under this Lease, then the Lessee will, immediately notify the Lessor or its assignee of such occurrence and this Lease shall terminate on the last day of .the fiscal period for which appropriations were received without penalty or.expense to Lessee of any kind whatsoever, except as to the portions of Lease Payments herein agreed upon for which funds shall have been appropriated and budgeted'or are otherwise available. In the event of such termination, Lessee agrees to peaceably surrender possession of the Equipment to Lessor or its assignee on the date of such termination, packed for shipment in accordance with manufacturer specifications and freight prepaid and insured to any location in the continental United States designated by Lessor. Lessor will have all legal and equitable rights and remedies to take possession of the Equipment. Notwithstanding the foregoing, Lessee agrees (i) that it will not cancel this Lease under the provisions of this Section if any funds are appropriated to it, or by it, for the acquisition, retention or operation of the Equipment or other equipment performing functions similar to the Equipment for the fiscal. period in which such termination occurs or the next succeeding fiscal period thereafter, and (ii) that it will not during the Lease Term give priority in the application of funds to any other functionally similar equipment. This paragraph will not be construed so as to permit Lessee to terminate this Lease in order to acquire any other equipment or to allocate funds directly or indirectly to perform essentially the same application for which the Equipment is intended. 5. LIMITATION ON WARRANTIES. Lessee acknowledges and agrees that the Equipment is of.a size, design, and capacity selected by Lessee, that Lessor is neither a manufacturer nor a vendor of such equipment, and that LESSOR HAS NOT MADE, AND DOES NOT HEREBY MAKE, ANY REPRESENTATION, WARRANTY, OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, CONDITION, QUALITY, DURABILITY, DESIGN, OPERATION,. FITNESS FOR USE, OR SUITABILITY OF THE EQUIPMENT• IN ANY RESPECT WHATSOEVER OR IN CONNECTION WITH OR FOR THE PURPOSES AND USES OF LESSEE, OR ANY OTHER REPRESENTATION, WARRANTY, OR COVENANT OF ANY KIND OR CHARACTER,-EXPRESS OR IMPLIED, WITH RESPECT THEREON, AND LESSOR SHALL NOT BE OBLIGATED OR LIABLE FOR ACTUAL, _ INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF OR TO LESSEE OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE EQUIPMENT AND THE- MAINTENANCE THEREOF. Lessor hereby assigns to Lessee during the Lease Term, so long as no Event of Default has occurred-hereunder and is continuing, all manufacturer's warranties, if any, expressed or implied with respect to the Equipment, and Lessor authorizes Lessee to obtain the customary services furnished in connection with such warranties at Lessee's expense. 6. AUTHORITY AND AUTHORIZATION. Lessee represents, covenants and warrants, and as requested by Lessor, will deliver an opinion of counsel to the effect that: (i) Lessee is a fully constituted political subdivision or agency of the State of the Equipment Location; (ii) the execution, delivery and performance by the Lessee of this Lease have been duly authorized by all necessary action on the part of the Lessee; and (iii) this Lease constitutes a legal, valid and binding obligation of the Lessee enforceable in accordance with its terms. Lessee agrees that (i) it will do or cause to be done all things necessary to preserve and keep the Lease in full force and effect, (ii) it has complied with all bidding requirements where necessary and by due notification presented this Lease for approval and adoption as a valid obligation on its part, and (iii) it has sufficient appropriations or other funds-available to pay all amounts due hereunder for the current fiscal period. 7. TITLE. Upon acceptance of the Equipment by Lessee hereunder, title to the Equipment will vest in Lessee; provided, however, that (i) in the event of termination of this Lease by Lessee pursuant to Section 4 hereof; (ii) upon the occurrence of an, Event of Default hereunder, and as long as such Event of Default is continuing; or (iii) in the event that the purchase option has.not_been exercised prior to the Expiration Date, title will immediately vest in Lessor or its assignee. 8. SECURITY INTEREST. In order to secure all of its obligations hereunder, Lessee hereby (i) grants to Lessor a first and prior security interest in any and all right, title and interest of Lessee in the Equipment and in all additions, attachments, accessions, and substitutions thereto, and on any proceeds therefrom, (ii) agrees that this Lease may be filed as a financing statement evidencing such security interest, and (iii) agrees to execute and deliver all financing statements, certificates of title and other instruments necessary or appropriate to evidence such security interest. 9. PERSONAL PROPERTY. The Equipment is and will remain personal property and will not be deemed to be affixed to or a part of the real estate on which it may be situated, notwithstanding-that the .Equipment or any part hereof may be or hereafter become in any manner physically affixed or attached to real estate or any building thereon. If requested by Lessor, Lessee will, at Lessee's expense, furnish a landlord or mortgagee waiver with respect to the Equipment. . • 10. USE; REPAIRS. Lessee will use the Equipment in a careful manner "for the use contemplated by the manufacturer for the Equipment and shall comply with all laws, ordinance, insurance policies and regulations relating to, and will pay all costs, claims, damages, fees and charges arising out of its possession, use or maintenance. Lessee, at its expense, will keep the Equipment in good repair and furnish all parts, mechanisms and devices required therefor. If the Equipment is such as is customarily covered by a maintenance agreement,- Lessee will furnish Lessor with a maintenance agreement with a party satisfactory to Lessor. 11. ALTERATIONS. Lessee will not make any alterations, additions or improvements to the Equipment without Lessor's prior written consent unless such alterations, additions or improvements may be readily removed without damage to the Equipment. 12. LOCATION; INSEPECTION. The Equipment will not be removed from, or if the Equipment consists of rolling stock, its permanent base will not be changed-from, the Equipment Location without Lessor's prior written consent which will not be unreasonably withheld. Lessor will be entitled to enter upon the Equipment Location or elsewhere during reasonable business hours to inspect the Equipment or observe its use and operation. 13. LIENS AND TAXES. Lessee shall keep the Equipment free and clear of all levies, liens, and encumbrances except those created under this Agreement. Lessee shall pay, when due, all charges and taxes (local, state and federal) which may now or hereafter be imposed upon the ownership, leasing, rental, sale, purchase, possession or use of the Equipment, excluding however, all taxes on or measured by Lessor's income. If Lessee fails to pay said charges, and taxes when due, Lessor shall have the right, but shall not be obligated, to pay said charges and taxes. If Lessor pays any charges or taxes for which Lessee is responsible or liable under this Agreement, Lessee shall reimburse Lessor therefor. 14.' RISK OF LOSS; DAMAGE; DESTRUCTION. Lessee assumes all risk of loss of or damage to the Equipment from any cause whatsoever, and no such loss of or damage to the Equipment nor defect therein nor unfitness or obsolescence thereof shall relive Lessee of the _ obligation to make Lease Payments or to perform any other obligation under- this Lease. In the event of damage to any item of Equipment, Lessee will immediately place the same in good repaid with the proceeds of any insurance recovery applied to the cost.of such repair. If Lessor determines that any items of Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee at the option of Lessor will: either (a) replace the same with like equipment in good repair; or (b) on the next Lease Payment date,,pay Lessor: (i) all amounts then owed by Lessee to Lessor under this Lease, including the Lease Payment due on such date; and (ii) an amount equal to the applicable Concluding Payment set forth in Exhibit B. In the event that Lessee is obligated to make such payment with respect to less than all the Equipment, Lessor will provide Lessee with the pro rata amount of the-.Lease Payment and-the Concluding Payment to be made by Lessee with respect to the Equipment which has suffered the event of loss. IS. IASURANCE.*Lessee, will, at its expense; maintain at all times during the Lease Term, fire and extended coverage, public liability and property damage insurance with respect to the Equipment in such amounts, covering such risks, and with such insurers as shall be satisfactory to Lessor, or, with Lessor's prior written consent, may self-insure against any or all such risks. In no event will the insurance limits be less than the amount of the then applicable Concluding Payment with respect to such Equipment. Each insurance. policy will name Lessee as an insured and Lessor or its-assigns as'an additional' insured and loss payee, and will contain'a clause requiring the insurer to give Lessor at least thirty (3.0) days prior written notice of any alteration in the terms of such policy or the cancellation thereof. The proceeds of any such policies will be payable to.Lessee and Lessor or its assigns as their interest may appear. Upon acceptance of the Equipment and upon each insurance renewal date, Lessee will deliver to Lessor a certificate evidencing such insurance. In the event that Lessee has been permitted to self-insure, Lessee will furnish Lessor.with a letter or certificate to such effect. In the event of any loss, damage, injury or accident involving the Equipment, Lessee will promptly, provide Lessor with written notice thereof and make available to Lessor all information and documentation relating thereto. 16: INDEMNIFICATION. Lessee shall indemnify Lessor against, and hold Lessor- harmless from, any and all claims, actions, proceedings, expenses, damages or liabilities, including attorney's fees and court costs, arising in connection with the Equipment, including, but not limited to, its selection, purchase, delivery, possession, use, operation, rejection or return and the recovery of claims, under insurance policies thereon. 17. PURCHASE OPTION. Upon thirty (30) days prior written notice from Lessee to Lessor, and provided that there is not Event of Default, or an event which with notice or lapse of time, or both, could become an Event of Default, then existing, Lessee will have the right to purchase the Equipment on the Lease Payment dates set forth in Exhibit B by paying to Lessor, on such date, the Lease Payment then due together with the Concluding Payment amount set forth opposite such date. Upon satisfaction by Lessee of such purchase conditions, Lessor will transfer any and all of its, right, title and interest in the Equipment to Lessee as is, without warranty, express or implied, except that Lessor will warrant to Lessee that the Equipment is free and clear of any liens created by Lessor. 18. ASSIGNMENT. Without Lessor's prior written consent, Lessee will not either (i) assign, transfer, pledge, hypothecate, grant any security interest in or otherwise dispose of this Lease or the Equipment or any interest in this Lease or the Equipment,'or (ii) sublet or lend the Equipment or permit it. _to be used by anyone other than Lessee or Lessee's employees. Lessor may assign its rights, title and interest in and to this Lease, the Equipment and any other documents executed with respect to this Lease and/or grant or assign, a security interest in this Lease and the Equipment, in whole or in part. Any such assignees shall have all of the rights of Lessor under this Lease. No assignment or reassignment of any of Lessor's right, title or interest in this Lease or the Equipment shall be effective unless and until Lessee shall have received a duplicate original counterpart of the document by which the assignment or reassignment is made, disclosing the name and address of each such assignee; provided, however, that is such assignment is made to a bank or trust company as paying or escrow, agent for holders of certificates of a participation in the Lease; it shall thereafter be sufficient that a copy of the agency agreement shall have been deposited with Lessee until Lessee shall have been advised that such agency agreement is no longer in effect. DURING THE LEASE TERM LESSEE SHALL KEEP A COMPLETE AND ACCURATE RECORD OF ALL SUCH ASSIGNMENTS IN FORM NECESSARY TO COMPLY WITH THE UNITED STATES INTERNAL REVENUE CODE, SECTION 103(j), AND THE REGULATIONS, PROPOSED OR EXISTING, FROM TIME TO TIME PROMULGATED THEREUNDER. Subject to the foregoing, this Lease inures to the benefit of and is binding upon the heirs, executors, administrators, successors and assignees of the parties hereto. No further action will be required by Lessor or by Lessee to evidence the assignment, but Lessee will acknowledge such assignments in writing if so requested. 19. EVENTS OR DEFAULT. The term "Event of Default", as used herein, means the occurrence of any one or more of the following events: (a) Lessee fails to make any Lease Payment (or any other payment) as"it becomes due in accordance with the terms of this Lease, and any such failure continues for ten (10) days after the due date thereof; (b) Lessee fails to perform or observe any other covenant, condition, or agreement to be performed or observed by it hereunder and such failure is not cured within twenty (20) days after written notice thereof by Lessor; or '(c) The discovery by Lessor that any statement, representation, or warranty made by Lessee in this Lease or in any writing ever delivered by Lessee pursuant hereto or in connection herewith is false, misleading, or erroneous in any material respect. 20. REMEDIES. Upon the occurrence of an Event of Default, and as long as such Event of Default is continuing, Lessor may, at its option, exercise any one or more of the following remedies: (a) By written notice to Lessee, declare an amount equal to all amounts then due under this Lease and all remaining- Lease Payments due during the Lease Term to be immediately due and payable, whereupon the same shall become immediately due and payable; (b) By written notice to the Lessee; request Lessee to (and Lessee agrees that it will), at Lessee's expense, promptly return the Equipment to Lessor in the manner set forth in Section 4 hereof ,.or Lessor, at its option, -may enter upon the premises where the Equipment is located and take immediate possession of and remove the same; ~I (c) Sell or lease the Equipment or sublease it for the account of Lessee,. holding Lessee liable for all Lease Payments and other payments due to the effective date of such selling, leasing or subleasing and for the difference between the purchase price, rental and other amounts paid by the purchase, lessee or sublessee pursuant to such sale, lease or sublease and the amounts payable by Lessee hereunder; and (d) Exercise any other right, remedy or privilege which may be available to it under applicable laws of the state of the Equipment Location or any other applicable law or proceed by appropriate court action to enforce the terms of this Lease or to recover damages for the breach of this"Lease or to rescind this Lease as to any or all of the Equipment- In addition, Lessee will remain liable for all covenants and indemnities under this Lease and for all legal fees and other costs and expenses, including court costs, incurred by Lessor with respect to the enforcement of any of the remedies listed above or any other remedy available to Lessor. 21. NOTICES. All notices to be given under this Lease shall be made in writing and mailed by certified, mail, return receipt requested, to the other party at its address set forth herein or at such address as the part may provide in writing from time'to time. Any such notice shall be deemed to have been received five days subsequent to mailing. 22. SECTION HEADINGS. All section headings contained herein are for the convenience of reference only and are not intended to define or limit the scope of any provision of this Lease. 23. GOVERNING LAW. This Lease shall be construed in accordance with, and governed by the laws of, the state of the Equipment Location. 24. DELIVERY OF RELATED DOCUMENTS. Lessee will execute or provide, as requested by Lessor, such other documents and information as are reasonably necessary with respect to the Transaction contemplated by this Lease. At the request of Lessor, Lessee will furnish Lessor annual financial statements of Lessee within forty-five days after the end'-of Lessee's fiscal year. 25. ENTIRE AGREEMENT; WAIVER. This Lease, together with the Acceptance Certificate and other attachments hereto, and other documents or instruments executed by Lessee and Lessor in connection herewith, constitute the entire agreement between the parties with respect to the lease of the Equipment, and this Lease shall not be modified, amended, altered, or changed except with the written consent of Lessee and Lessor. Any provision of, this Lease found to be prohibited by laws shall be ineffective to the extent of such prohibition without invalidating the remainder of this Lease. The waiver by Lessor of any breach by Lessee of any term, covenant or condition hereof shall not operate as a waiver of any subsequent breach thereof. 26. ADDITIONAL PROVISIONS. Any amendments to the standard language of this Lease will be set forth in Exhibit.C attached hereto. GEORGE K. BAUM & COMPANY LESSEE TOWN OF AVON, COLORADO BY: JACK E. ORMSBEE Title: PUBLIC FINANCE DEPARTMENT By: William D. es' i Title: Town Manager EXHIBIT A Quantity ONE (1) DESCRIPTION OF EQUIPMENT Description Serial No. ORION BUS EQUIPMENT LOCATION. AVON, COLORADO *To be completed upon Lessee's acceptance of-the Equipment. EXHIBIT B PAYMENT SCHEDULE PAGE ONE OF TWO Lessee: TOWN OF AV ON, COLORADO Fiscal Period: DECE MBER 31 Expiration Date: 7/ 1/1990 Payment Payment Interest Principal Concluding Number Date Payment Portion -Portion Payment 1 10/1/85 $7,171.43 $ 0.00 $71171.43 $112,178.18 2 1/1/86 7,171.43 2,564.27 4,607.16 107,278.36 3 4/1/86 7,171.43 2,455.72 4,715.71 102,279.32 4 7/1/86 7,171.43 2,344.60 4,826.83 97,179.05 5 10/1/86 7,171.43 2,230.87 4,940.56 91,975.50 6 1/1/87 7,171.43 2;114.46 5,056.97 86,'666.57 7, 4/1/87 7,171.43 1,995.30 5,176.13 81,250.14 8 7/1/87 7,171.43 1,873.34 53-298.09 75,724.03 9 - 10/1/87 7,171.43 11748.51 5,422.92 70,086.01 10 1/1/88 7,171.43 1,620.73 5,550.70 64,333.82 11 4/1/88 71)171.43 1,489:94 5,681.49 58946'5.15- 12 7/1/88 7,171.43 1,356.07 5,815.36 52,477.64 13 10/1/88 71171.43 15,219.04 5,952.39 46,368.88 14 1/1/89 7,171.43 1,078.79 6,092.64 40,136.42 15 4/1/89 7,171.43 935.23 6,236.20 33,777.75 16 7/1/89 7,171.43 788.29 6,383.14 27,290.32 17 10/1/89 7,171.43 637.89 6,533.54 20,671.52 18 1/1/90 7,171'.43 483.94 6,687.49 13,918.69 .19,_ 4/1/90 7,171.43 326.37 6,845.06 7,029.11 20 7/1/90 72171.27 165.08 7,006.19' 0.00 *To be completed upon Lessee's acceptance-of the Equipment. *After payment of all amounts otherwise due as of that date.