Loading...
TC Res. No. 2005-04 AUTHORIZING THE USE OF A PREVIOUSLYTOWN OF AVON, COLORADO RESOLUTION NO. 05-04 SERIES OF 2005 A RESOLUTION AUTHORIZING THE USE OF A PREVIOUSLY APPROVED, GOVERNMENTAL LEASE-PURCHASE MASTER AGREEMENT DATED MARCH 28, 2003 AND APPROVING A SUPPLEMENT THERETO AND RELATED DOCUMENTS AND CERTIFICATES WHEREAS, the Town of Avon has entered into a governmental lease-purchase master agreement dated March 28, 2003 for the purchase of certain municipal equipment; and WHEREAS, the Town, in it's 2005 budget has appropriated funds for the purchase of municipal equipment; and WHEREAS, the-Town desires to use capital lease financing for the purchase of certain items of equipment. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. The Supplement attached to the previously approved Governmental Lease- Purchase Master Agreement (the "Agreement" or the "Master Lease") with Norwest"Investment Services, Inc. dated March 28, 2003 is hereby approved substantially in the form presented to this Council and on file in the office of the Town Clerk. Section 2. The Finance Director of the Town of Avon is hereby authorized to execute this Supplement thereto on behalf of the Town, and to execute such other certificates and documents as may be necessary and appropriate to effectuate the transactions contemplated by the Agreement and said Supplement. The Agreement, the Supplement and the related documents may contain such necessary and appropriate variations, omissions and insertions as the Finance Director shall determine to be'necessary, and the execution thereof by the Finance Director shall be conclusive evidence of such determination and its approval by the Council. Section 3. Lessee does not reasonably anticipate that it will issue tax-exempt obligations (not including "private activity bonds" as defined'in Section 141 of the Internal Revenue Code of 1986, as amended) in an aggregate amount in excess of $10 million during the calendar year in which the Lease commences. The Lease is designated as a qualified tax-exempt obligation for the purposes of Section 265(b)(c) of the Internal Revenue Code of 1986, as amended, relating to deductibility of interest by financial institutions. ADOPTED this 22nd day of February, 2005. \aIl OF A& ATTEST: rn Pa "Menny, To C rk T OF AVON-,Tl~ Ronald C. Wolfe, Mayor RADO Resolution No. 05-04 Master Lease Purchase Page 2 of 2 COPY GOVERNMENTAL LEASE - PURCHASE MASTER AGREEMENT Name and Address of Lessee: Lessor: Town of Avon Wells Fargo Brokerage Services, LLC 400 Benchmark Road Public Finance Department Avon, Colorado 81620 1740 Broadway, MAC C730"11 Denver, Colorado 80274 1. LEASE. Lessor hereby agrees to lease to Lessee, and Lessee hereby agrees to lease from lessor, the personal property d=nI)ed m a Supplement or Supplements to this mister Lease from time to time signed by Lessor and Lessee upon the terms and conditions sex forth in the related Supplement (such property together with all replacements, repairs and additions incorporated therein or affixed thereto being referred to herein as "Equipment" The lease of the items described in a particular Supplement shall be considered a separate lease pursuant to the terms of the Master Lease and the Supplement the same as if a single lease agreement coulat mg such terms had been executed covering such items. The execution by Lessee of each Supplement shall evidence a determination by the Lessee that the Equipment covered thereby is essential to its proper, efficient and economic operation and desires to eater into that Supplement for the acquisition of that Equipment under the terms herm& that the Equipment is necessary for the governmemal functions of Lessee, and that Lessor is neither the manufacturer nor a dealer or merchant of said Equipmnenl, but has agreed to provide the funding for and on behalf of Lessee for the acquisition of said Equipment under the terms hereof at the specific request of Lesme. 2. DELIVERY AND ACCEPTANCE. Lessee will evidence its acceptance of the Equipment by executing and delivering to Lessor a Delivers, and Acceptance Certificate (herein so called) in the form to be provided by Lessor. 3. TERM. The term of this Lease with respect to each item of Equipment shall begin on the date it is accepted by I.essee and shall continue from the rent commencement date shown in the related Supplement unless earlier terminated as provided herein. The rent commencement date is the Acceptance Date as recorded on the Acceptance Certificate. 4. RENT. Lessee shall pay as basic rent for the full term of this Lease the amount shown in the related Supplement as Total Rent, and a portion of each rent payment is paid as, and represents the payment of interest, and Exbil* "A" attached to the related ments Supplement sets forth the interest component of each rent payment during the term The Total Rent shall be payable in install each in the amount of the basic rental payment set forth in the related Supplement plus any applicable sales and use tax thereon. Lessee shall pay rent in installments as shown in the Related Supplement. Except as specifically provided in Section 5 heraK the rental payments will be absolute and unconditional in all events and will not be subject to any sett defense, counter claim or recoupment for any reason whatsoever. Lessee reasonably believes that funds can be obtained sufficient to make all rent payments during the term of the Lease and hereby covenants that it will do all things lawfully within its power to obtdin, maintain and properly request, and pursue funds from which the rent payments may be made. The chief executive officer of the unit shall request the required appropriation from the governing board and exhaust all available administrative reviews and appeals in the event such portion of the budget is not approved 5. NON-APPROPRIATION OF FUNDS. If Lessee periodically requests from its legrslauwe body or funding authority fiords to be paid to Lessor under this Lease and, notwithstanding the malting in good faith of such request in accordance with appropriate 07 This Lease is not and shall not become a "private activity bond" within the meaning of Section 141 of the Internal Revenue Code of 1986, as amended (k) Lessee shall comply with all provisions of the Internal Revenue Code of 1986 which are necessary to preserve the tax exempt status of the interest component of the payments made and-to be made under this Lease, including, without limitation, the investment and rebate provisions of Section 148, the prohibition against federal guaranties under Section 149 (b) and the information reporting requirements of Section 149 (e). 7. WARRANTIES. Lessee agrees that it has selected each item of Equipment based upon its own judgment and disclaims any reliance upon any statements or representations made by Lessor. LESSOR MAKES NO WARRANTY WITH RESPECT -TO TTY EQUIPMENT, EXPRESSED OR MIPLIED, AND LESSOR SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE AND ANY LIABILITY FOR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE EQUIPMENT. Lessee agrees to.mWm rental and other payments required hereunder without regard to the condition of the Equipment and to look only to persons other than-Lessor such as the manufacturer, vendor or carrier thereof should any item of Equipment for any reason be detective. So long as no Event of Default has occurred and is continuing, Lessor agrees, to the extent they are assignable, to assign to Lessee, without any vF, , n r se to Lessor, any warranty received by Lessor. 8. TITLE. Upon acceptance of the Equipment by Lessee hereunder, title to the Equipment will vest in the Lessee; provided, however, that (i) upon the occurrence of an Event of Default, as that term is defined in Section 20 here4 or (ii) in the event that the purchase option, if any, has not been exercised prior to the expiration date thereof; title will immediately vest in Lessor or its assignee. For as long as title to the Equipment vests in Lessee , Lessee at its expense shall protect and defend the title and keep it free of all claims and liens other than the rights of Lessee hereunder and claims and liens created by or arising through Lessor. The Equipment shall remain personal property regardless of its attachment to realty, and Lessee agrees to take such action at its expense as may be necessary to prevent any third party from acquiring any interest in the Equipment as a result of its attachment to realty. 9. SECURITY AGREEMENT, FURTHER ASSURANCES. To secure the performance of all Lessee's obligations hereimder, Lessee hereby grants to Lessor a security interest constituting a first-lien on the Equipment and on all additions, attachments, repairs, replacements and modifications thereto or therefor, including all after-acquired Equipment of I== and on any proceeds thero6rom Lessee agrees to execute or deliver such additional documents, including, without limitation, financm statements, opinions of counsel, notices and similar instruments, in form satisfactory to Lessor, which Lessor deems necessary or appropriate to establish and maintain its security interest in the Equipment, or for the confirmation or perfection of this Lease and Lessor's rights hereon.der. Lessor is hereby authorized to file financing statements signed only by Lessor in accordance with the Uniform Commercial Code or signed by Lessor as Lessee's attorney in fact 10. LAWS AND TAXES. Lessee shall comply with all laws and regulations relating to the Equipment and its use and shall promptly pay when due all sales,' use, Property, excise and other taxes and all license and registration fees now or haeafter imposed by any governmental body or agency upon the Egnipmeat or its use or the rentals hereunder excluding, however, any faeces on or by Lessor's net income. Upon request by Lessor, Lessee shall prepare and file all tax returns relating to tames for which Lessee is responsible hereunder which Lessee is permitted to file under the laws of the applicable taxing jurisdiction. 11. INDENpuN. Lessee hereby indemnifies and agrees to save Lessor harmless from any and all liability and expense arising out of the ordering, ownership, use, condition or operation of each item of Equipment during the term of this Lease, including liability for death or injury to persons, damage to property, strict liability under the laws or judicial decisions of any state or the United States, and legal expenses in defending any claim brought to enforoe any such liability or expense, but excluding my liability for which Lessee is not responsible under Section 10. 12. ASSIGNMENT. Without Lessor's prior written consent, Lessee will not sell, assign, sublet, pledge, or otherwise enamuber or permit a, lien arising through Lessee to exist on or against any interest in this Lease or the Equipment or remove the Equipment from its location referred to above. Lessor may assign its interest in this Lease and sell or grant a security interest in all or any part of the equipment without Lessee's consent Lessee agrees not to assert against any assignee of Lessor any claim or defense I.essee may have against Lessor. 13. INSPECTION. Lessor may inspect the Equipment at any time and from time to time during regular, business hours. 14. REPAIRS. Lessee will use the Equipment with due care and for the purpose for which it is intended. Lessee will maiamin the Equipment in good repair, condition and working order and will furnish all parts and services required thwebr., all at its exgreose. All such parts when furnished shall immediately become the property of Lessor and part of the Equipment for all purposes betuaf 15. LOSS OR DAMAGE. In the event any item of Equipment shall become lost, stolen, destroyed,, damaged beyond repair or rendered permanently unfit for use for any reason, or in the event of condemnation or seizure of any item of Equipment, Lessee shall promptly pay Lessor (a) the amount of all rent and other amounts payable by Lessee hereunder with respect to such item due but unpaid at the date of such payment plus (b) the amount stated in the Supplement or an exhibit thereto as the Termination Balance included in Exhibit "A", plus (c) an amount equal to the applicable final purchase option price set forth in the Supplement or any exhibit thereto. Upon payment of such amount to Lessor, such item shall become the property of Lessee, Lessor will transfer to Lessee, without recourse or warranty, all of Lessor's right, title and interest therein, the real with respect to such item shall terminate, and the basic rental payments on the remaining items shall be reduced accordingly. Lessee shall pay any sales and use taxes due on such, transfer.` Any insurance or condemnation proceeds received shall be credited to Lessee's obligation under this paragraph and Lessee shall be entitled to any surplus. lb. INSURANCE. Lessee shall obtain and maintain on or with respect to the Equipment at its own expense (a) liability insurance" against liability for bodily injury and property damage with a minimum limit of $500,000 combined. single limit and (b) physical damage insurance insuring against loss or damage to the Equipment in an amount not less than the fall replacement value of the Equipment or the amount stated in the Supplement or an exhibit thereto as the Termination Balance. Lessee shall furnish Lessor with certificate of insurance evidencing the issuance of a policy or policies to Lessee in at least the minimum amounts required herein, naming Lessor as an additional insured thereunder for the liability coverage and as loss payee for the property damage coverage. Each such policy shall be in such form and with such insurers as may be satisfactory to Lessor, and shall contain a clause requiring the insurer to give to Lessor at least 10 days prior written notice of any alteration in the terms of such policy or the cancellation there cC and a clause specifying that no action or misrepresentation by Lessee shall invalidate such policy. Lessor shall be under no duty to ascertain the existence of or to examine any such policy or to advise Lessee in the event any such policy sball not comply with the requirement thereof In the event that Lessee has been permitted to self-insure, Lessee will furnish Lessor with a letter or certificate to such edyecL 17. RETURN OF TIE EQUIPMENT. Upon the expiration or earlier termination of this Lease, unless all payments are made as described in the Supplement, the Lessee will immediately deliver the Equipment to Lessor in the same condition as when delivered to Lessee, ordinary wear and tear excepted, at such location within the continental United States as Lessor shall desigoame. Lessee shall pay all transportation and other expenses relating to such delivery. n. ADDITIONAL ACTION. Lessee will promptly execute and deliver to Lessor such further documents and take such further action as Lessor may request In order to more effectively carry out the intent and purpose of this Lease, including the won and delivery of appropriate financing statements to fully protect Lessor's interest hereunder m accordance with the Uniform Commercial, Code or other applicable law. Lessee will furnish, from time to time on request, a copy of Lessee's latest awl balance sheet and' income statement 19. LATE CHARGES. If any installment of basic rent is not paid when due or within 5 days thew, Lessor may impose a late charge of up to 5% of the amount of the installment but in any event not more than permitted by applicable law. Payments thereafter received shall be applied first to delinquent installments and then to current mstallmen s. 20. DEFAULT. Each of the following events shall constitute an "Event of Default" hereunder: (a) Lessee shall fail to pay when due any installment on basic rent; (b) Lessee shall fail to observe or perform any other agreement to be observed or performed by Lessee hereunder and the continuance thereof for 10 calendar days following written notice thereof by Lessor to Lessee; (c) any warranty, representation or statement made or furnished to Lessor by or on behalf of Lessee proves to have been false or misleading in any material respect; or (d) Lessee shall voluntarily file, or have filed against it involuntarily, a petition for liquidation, reorgani72hon, adjustment of debt, or similar relied' under the federal or state Bankruptcy Code or my other present or fimue federal or state bankruptcy or insolvency law, or a trustee, receiver, or liquidator shall be appointed of it or all of a substantial part of its assets. 21. REMEDIES. Lessor and Lessee agree that Less&s damages suffered by reason of an Event of DErfaalt are uncertain and not capable of axial measurement at the time this Lease is executed because the value of the Equipment at the q#hition of this Lease is uncertain, and therefore they agree that for purposes of this Section 21 "Lessor's Loss" as of any dame shall be the sum of the 4 following: (1) the amount of all rent and other amounts payable by Lessee hereunder due but unpaid as of such date, plus (2) the. amount stated in the Supplement or an exhibit thereto as the Termination Balance, plus (3) an amount equal to the applicable purchase price set forth in the Supplement Upon the occurrence of an Event of Default and at any time thereafter, Lessor may exercise any one or more of the remedies listed below as Lessor in its sole discretion may lawfully elect; provided, however, that upon the occurrence of an Event of Default specified in Section 20 (d), an amount equal to Lessor's Loss as of the date of such occurrence shall arutomadcally be and become immediately due and payable without notice or demand of any land. A. Lessor may, by written notice to lessee, terminate this Lease and declare an amount equal to Lessor's Loss as of the date of such notice to be immediately due and payable, and the same shall thereupon be and become immediately due and payable without further notice or demand, and all rights of Lessee to use the Equipment shall terminate but Lessee. shall be and remain liable as provided in -this Section 21. Lessee shall at its expense promptly deliver the Equipment to lessor at a location or locations within the continental United. States designated by Lessor. Lessor may also enter upon the premises where the Equipment is located and take immediate possession of and remove the same with or without instituting legal proceedings. B. Lessor, may proceed by apps court action to enforce performance by Lessee of the applicable covenants of this Lease or to recover, for breach of this Lease, Lessor's LAss as of the date Lessor's loss is declared due and payable hereunder, provided, however, that upon recovery of Lessor's Loss from Lessee in any such action without having to repossess and dispose of the Equipment, Lessor shall transfer the Equipment to Lessee at its then location upon payment of any additional amount due under clause (C, D, E) below. C. In the event Lessor repossesses the Equipment, lessor shall either retain the Equipment in full soon of Lessee's obligation hereunder or sell or lease each item of Equipment in such a manner and upon such terms as Lessor may in its sole discretion determine. The proceeds of such-sale or lease shall be applied to reimburse Lessor for Lessor's Loss and any additional, amount due under dam (D, E) below. Lessee shall be entitled to any surplus and Lessee shall remain liable for any deficiency. For purposes of this, subparagraph, the proceeds of any lease of all or any part of the Equipment by Lessor shall be the amo~t reasonably assigned by Lessor as the cost of such Equipment in determining the rent under such Lease. - D. Lessor may recover interest on the unpaid balance of Lessor's Loss from date it becomes payable until fully paid at a rate of 8% pcc a E. Lessor may exercise any other right or remedy available to it by law or by agreement, and may m any,event recover legal Bees and other cvenses~ incurred by reason of an Event, of Default or to the exercise of any remedy hereunder, including of repossession, repair, storage, transportation, and disposition of the Equipment- No remedy given m this section is intended to be exclusive, and each shall be cumulative but only to the extent necessary to permit, Lessor to recover amounts for which Lem is liable hereunder. No express or implied waiver by Lessor of any Event of Ddaalt shell constitute a waiver of any other Event of Default 22. NOTICES. Any written notice hereunder to Lessee shall be deemed to have been given when delivered personally or deposited in the United States mails, postage prepaid, addressed to Lessee at its address sec forth above or at such other address as may be last known to Lessor. 23. NET LEASE AND UNCONDMONAL OBLIGATION. This Lease is a completely net lease and Lessee's obligation to pay the real and amounts payable by Lessee under Sections 15 and 21 is unconditional and not subject to any abatement, reduction, setoff or defense of any kind except as expressly provided herein. 24. PREPAYMENT. This lease and any related Supplement may be prepaid in whole; but not in part, and on a regular payment date with forty-five (45) days written notice to Lessor, upon payment of the amount set forth as Termination Vahhre on,the Exhibit A attached to said Supplement. 25. NON-CANCEU ABLE LEASE. This Lease cannot be canceled or terminated except as expressly pmt heren- 26. SURVIVAL, OF DMEMNMES. Lessee's obligations under Sections 10 and 11 shall survive termination of this Lease. 27. WSC EI.LANEOUS. Any provision of this Lease which is uneafonoeable m any jurisdiction shall, as to jur am be ineffective to the extent of such unenfmccability without invalidating the remaining provisions of this lease, and any such unenforceabiW in any jurisdiction shall not render unenforceable such provision in any other jurisdiction. This Lease shall m all respects be governed by, and construed in accordance with, the substantive laws of the state in which the I is located Dated: March 28, 2003 Lessee: Town of Avon, Colorado By: WLAa- - Its: Lessor. Wells F o Brokerage Services, LLC By- 0, -A,c.~ Its: Investment Banker 6 Wells Fargo Brokerage Services, LLC SUPPLEMENT TO MASTER LEASE Public Finance Division 1740 Broadway, MAC C7300-011 Denver, CO 80274 Name and address of Lessee: Supplement # 0900-009 Town of Avon 400 Benchmark Road Avon, Colorado 81620 This is a Supplement to the Governmental Lease-Purchase Master Agreement dated March 28, 2003 between Lessor and Lessee (the "Master Lease") and Supplement dated February 23, 2005. Upon the execution and delivery by Lessor and Lessee of this Supplement, Lessor hereby agrees to lease to Lessee, and Lessee hereby agrees to lease from Lessor, the Property described below upon the terms and conditions of this Supplement and the Master Lease. PROPERTY DESCRIPTION Quantity Serial Number 1 Variable Message Sign 1 Culvert Cleaning Machine 1 Toro Z Master Mower 1 Diagnostics Scanner 1 Small Vehicle Lift 1 Dump Box for 2004 Dump Truck Location of Proper ty _ if different from Lessee's address) SCHEDU LE OF RENT PAYMENTS 500 Swift Gulch Road Basic Rental Number Of Advance Avon, Colorado Payments Payments Payments Rent commencement date: February 23, 2005 $20,964.87 5 -0- Term in months from rent commencement Interest Rate First Payment Final Purchase Due Option Price 60 months 3.35% Feb. 23, 2006 $1.00 Rental payment period (check one) ® Annual AMOUNT: RENT: $1 Provisions: LESSOR:Wells Fargo Brokerage Services, LLC By Its Assistant Vice President LESSEE: Town of Avon, Colorado By Its Date February 23, 2005 Date February 23, 2005 Equipment Town of Avon Exhibit A Costs Funded Payment Rate $95,060.96 3350% Closing Fees $0.00 5 Payments Level Payment Lease Factor Average Life 1 per year $20,964.87 .22054 3.06 years 36.8 months Commencement: Feb 23, 2005 Closin¢ Date: Feb 23.2005 Total Payment Interest Principal After Payment After Payment Payment Due Pmt Due Payment Due Payment Due Principal Termination Date Balance Value $0.00 $0.00 $95,060.96 Feb 23, 2005 1 $20,964.87 $3,184.54 $17978033 $77,280.63 $77,280.63 Feb 23, 2006 2 $20,964.87 $2,588.90 $18,375.97 $58,964.66 $589904.66 Feb 23, 2607 3 $20,964.87 $1,97331 $18,99156 $39,913.09 $39,913.09 Feb 23, 2008 4 $20,964.87 $1,337.09 $19,627.78 $20928831 $20,28531 Feb 23, 2009 5 $20,964.87 $67956 $20,28531 $0.00 $1.00 Feb 23, 2010 FINAL PURCHASE OPTION PRICE: $1.00 By: Its: Dated as of Avon Equipment 2-05.xls 2/10/2005 9:53 AM by Wells Fargo Brokerage Services INCUMBENCY CERTIFICATE I, r gam' r 1 ~ n n , do hereby certify that I am the duly elected or appointed and ' g Secretary/Clerk own of Avon, a political subdivision or agency duly organized and existing under the laws of the State of Colorado that I have custody of the records of such entity, and that, as of the date hereof, the individuals named below are the duly elected or appointed officers of such entity holding the offices set forth opposite their respective names. I further certify that (I) the signatures set opposite their respective names and titles are their true and authentic signatures and (11) such officers have the authority on behalf of such entity to enter into that certain Governmental Lease-Purchase Master Agreement dated March 28, 2003 and Supplement dated February 23, 2005 between such entity and Wells Fargo Brokerage Services, LLC (Lessor). NAME, 94 TITLE ~1411CQ- C Tr-e_ SIGNATURE IN WETNESS WHEREOF, I have duly executed this certificate and affixed the seal of such entity hereto this a3" day of February, 2005. 0 SECRET LERK 5®F4*:, S E A 1j ~dCCRR Memo T« Honorable Mayor and Town Council Thnx Larry Brooks, Town Manager Frorm Scott Wright, Finance Director per, February 14, 2005 R« Resolution 05-04, Supplement to Lease Purchase Agreement Summary: This resolution adopts a Supplement to the Town's 2003 Master Lease-Purchase Agreement with Wells Fargo Brokerage Services, LLC. Previous Council Action: Council previously approved through Ordinance the 2003 Master Lease-Purchase Agreement. Discussion: This supplement finances the purchase of a variable message sign, a culvert cleaning machine, a Toro mower, a diagnostics scanner, a small vehicle lift, and a dump box for the 2004 dump truck. These items and the lease financing were approved in the 2005 budget. Financial Implications: The amount of the supplement is $95,060.96 to be amortized over a period of 5 years at an interest rate of 3.35%. Recommendation: Staff recommends that Council adopt the resolution discussed above as presented. Town Manager Connnenim Attachments: A - Resolution 05-04 B - 2003 Governmental Lease-Purchase Agreement and Supplement Page 1