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TC Res. No. 2006-56 AUTHORIZING THE USE OF A PREVIOUSLY APPROVEDTOWN OF AVON, COLORADO RESOLUTION NO. 06-56 SERIES OF 2006 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 its 2006 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 Wells Fargo Brokerage Services, LLC 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. ADOPTED this 12th day of December, 2006. VOX COLORADO Brianpes, Mayor Pro Tem ~A O ATTEST: Nr 8SElAL Pa y Mc envy, ?1wn C y lop GOVERNMENTAL LEASE-PURCHASE AGREEMENT Name and Address of Lessee: Lessor: Town of Avon Wells Fargo Brokerage Services, LLC 400 Benchmark Road 1740 Broadway, MAC C7300-011 Avon, Colorado 81620 Denver, Colorado 80274 1. LEASE. Lessor hereby agrees to lease to Lessee, and Lessee hereby agrees to lease from Lessor, the personal property described in the Supplement attached to this Lease and hereby made a part hereof (collectively the "Lease") upon the terns and conditions set forth in this Lease (such property together with all replacements, repairs and additions incorporated therein or affixed thereto being referred to herein as "Equipment"). The execution by Lessee of this Lease shall evidence a determination by the Lessee that the Equipment is essential to its proper, efficient and economic operation, that Lessee desires to enter into this Lease for the acquisition of that Equipment under the terms hereof, that the Equipment is necessary for the governmental functions of Lessee, and that Lessor is neither the manufacturer nor a dealer or merchant of said Equipment, 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 Lessee. 2. DELIVERY AND ACCEPTANCE. Lessee will evidence its acceptance of the Equipment by executing and delivering to Lessor a Delivery and Acceptance Certificate (herein so called) in the form to be provided by Lessor. 3. TERM. The term of this Lease shall begin the date the Equipment is accepted by Lessee (the "Acceptance Date.") The initial Lease term shall be terminated on December 31 of the calendar year in which the Acceptance Date occurs (the "Initial Term"). The Lease term may be extended at the option of the Lessee, for an additional one-year term (each a "Renewal Term") commencing on the day immediately following the end of the Initial Term; provided, however, the Lease Tenn may be continued, solely at the option of the Lessee, for no more than five (5) additional terms, each ending on the next December 31 following the end of the Initial Term or the then-current Renewal Term, as the case may be, but not later than the final expiration date set forth in the Supplement. The Acceptance Date shall be recorded on the Supplement. 4. RENT. Lessee shall pay as rent for the full term of this Lease the amount shown in the Supplement as Total Rent, and a portion of each rent payment is paid as, and represents the payment of interest, and Exhibit "A" attached to the Supplement sets forth the interest component of each rent payment during the term. The Total Rent shall be payable in installments each in the amount of the basic rental payment set forth in Exhibit A to the Supplement plus any applicable sales and use tax thereon. Except as provided in Section 5, the obligation of Lessee to make rent payments or any other payments required hereunder shall be absolute and unconditional in all events. Notwithstanding any dispute between Lessee and Lessor or any other person, Lessee shall make all rent payments and other payments required hereunder when due and shall not withhold any rent payment or other payment pending final resolution of such dispute nor shall Lessee assert any right of set-off or counterclaim against its obligation to make such rent payments or other payments required under this Lease. Lessee's obligation to make rent payments or other payments during the Lease term shall not be abated through accident or unforeseen circumstances. However, nothing herein shall be construed to release Lessor from the performance of its obligations hereunder; and if Lessor should fail to perform any such obligation, Lessee may institute such legal action against Lessor as Lessee may deem necessary to compel the performance of such obligation or to recover damages therefor. r, Lessee reasonably believes that funds can be obtained sufficient to make all rent payments during the term of the Lease and hereby covenants that the officer of Lessee responsible for budget preparation shall request the required appropriation for each fiscal year during the term of this Lease from the governing body of Lessee. 5. NON-APPROPRIATION OF FUNDS. If, notwithstanding the making in good faith of a request to the governing body of Lessee for funds to pay its obligations hereunder for any ensuing fiscal year in accordance with appropriate procedures and Section 4 hereof, such governing body does not appropriate funds to be paid to Lessor for the Equipment, Lessee may, upon prior written -notice to Lessor effective 60 days after the giving of such notice or upon the exhaustion of the funding authorized for the then current fiscal year, whichever is later, return the Equipment to Lessor at Lessee's expense and thereupon be released of its obligation to make all rental payments to Lessor due after the close of the fiscal year for which funds were appropriated, provided: (i) the Equipment is returned to Lessor freight prepaid and insured to any location in the continental United States designated by Lessor in the same condition as when first delivered to Lessee, reasonable wear and tear resulting solely from authorized use thereof excepted, (ii) the foregoing notice states the failure of the governing body to appropriate the necessary funds as reason for cancellation, and (iii) the notice is accompanied by payment of all amounts then due to Lessor under this Lease. In the event Lessee returns the Equipment pursuant to the terms of this Section 5, Lessor shall retain all sums paid hereunder by Lessee. 6. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee represents and warrants and, so long as this Lease is in effect or any part of Lessee's obligations to Lessor remain unfulfilled, shall continue to represent and warrant, that: (a) Lessee is a state, a possession of the United States, the District of Columbia, or a political subdivision of any of the foregoing. If Lessee is incorporated, it is duly organized and existing under the constitution and laws of its jurisdiction of incorporation and will do or cause to be done all things necessary to preserve and keep such organization and existence in full force and effect. (b) Lessee has been duly authorized by the constitution and laws of the applicable jurisdiction and by a resolution of its governing body (which resolution, if requested by Lessor, is attached hereto) to execute and deliver this Lease and to carry out its obligations hereunder. (c) All requirements have been met, and procedures have occurred in order to ensure the enforceability of this Lease, and Lessee has complied with such public bidding requirements, if any, as may be applicable to the transactions contemplated by this Lease. (d) 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 Lessee. (e) Lessee has funds available and properly appropriated to pay rent until the end of its current appropriation period. Lessee has never terminated, or threatened to terminate, a lease-purchase or similar agreement for failure of its governing body to appropriate funds sufficient to perform its obligations thereunder for any fiscal year. (f) This Lease constitutes a valid, legal and binding obligation of Lessee enforceable against Lessee in accordance with the terms hereof. (g) Lessee will take no action that would cause the interest portion of the rent payments to become includible in gross income of the recipient for federal income tax purposes under the Internal Revenue Code of 1986 (the Code) and Treasury Regulations promulgated thereunder (the Regulations), and Lessee will take and will cause its officers, employees and agents to take all affirmative actions legally within its power necessary to ensure that the interest portion of the rent payments does not become includible in gross income of the recipient for federal income tax purposes under the Code and Regulations. 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 THE EQUIPMENT, EXPRESSED OR IMPLIED, 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 make 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 defective. 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 recourse 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 hereof, (ii) in the event that the purchase option has not been exercised prior to the expiration date thereof, or (iii) in the event this Lease is not renewed by Lessee, title will immediately vest in Lessor or its assignee. For as long as title to the Equipment is 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 hereunder, 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 Lessee, and on any proceeds therefrom. Lessor is hereby authorized to file financing statements to perfect such security interest in accordance with the Uniform Commercial Code. Lessee agrees to execute or deliver such additional documents, including, without limitation, financing 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 hereunder. 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 hereafter imposed'by any governmental body or agency upon the Equipment or its use or the rentals hereunder excluding, however, any taxes on or measured by Lessor's net income. Upon request by Lessor, Lessee shall prepare and file at its expense all tax returns relating to taxes for which Lessee is responsible hereunder which Lessee is permitted to file under the laws of the applicable taxing jurisdiction. 11. LESSEE NEGLIGENCE. Lessee assumes all risks and liabilities, whether or not covered by insurance, for loss or damage to the Equipment and for injury to or death of any person or damage to any property, whether such injury or death be with respect to agents or employees of Lessee or of third parties, and whether such property damage be to Lessee's property or the property of others, which is proximately caused by the negligent conduct of Lessee, its officers, employees and agents. Lessee hereby assumes responsibility for and agrees to reimburse Lessor for all liabilities, obligations, losses, damages, penalties, claims, actions, costs and expenses (including reasonable attorney's fees) of whatsoever kind and nature, imposed on, incurred by or asserted against Lessor that in any way relate to or arise out of a claim, suit or proceeding based in whole or in part upon the negligent conduct of Lessee, its officers, employees and agents, to the maximum extent permitted by law. 12. ASSIGNMENT. Without Lessor's prior written consent, Lessee will not sell, assign, sublet, pledge, or otherwise encumber 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 hereby appoints Lessor as Lessee's agent for purposes of maintaining a written record of all such assignments. 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 maintain the Equipment in good repair, condition and working order and will furnish all parts and services required therefore, all at its expense. All such parts when furnished shall immediately become part of the Equipment for all purposes hereof. 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 Exhibit A thereto as the Termination Balance. 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 rent 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 Section and Lessee shall be entitled to any surplus. 16. 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 full replacement value of the Equipment or the amount stated in the Supplement or an exhibit thereto as the Termination Balance whichever is greater. 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 thereof, 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 shall not comply with the requirement thereof. Notwithstanding the foregoing, Lessee shall not be obligated to obtain or maintain insurance in excess of that required under the Colorado Governmental Immunity Act. 17. RETURN OF THE EQUIPMENT. Upon the termination of this Lease pursuant to Section 21 hereof, or upon expiration of the Initial Term or any Renewal Tenn and a decision by the Lessee not to renew the Lease, 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 designate. Lessee shall pay all transportation and other expenses relating to such delivery. 18. ADDITIONAL ACTION. Lessee will promptly execute and deliver to Lessor such further documents and take such reasonable further action as Lessor may request in order to more effectively carry out the intent and purpose of this Lease. Lessee shall furnish Lessor, within seven (7) days of availability, a copy of Lessee's audited financial statements. In the event that Lessee does not regularly obtain audited financial statements, Lessee shall provide to Lessor, within seven (7) days of availability, copies of Lessee's annual balance sheet and income statement. 19. LATE CHARGES. If any installment of basic rent is not paid when due or within 5 days thereafter, 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. Rent payments thereafter received shall be applied first to delinquent installments and'then to current installments. 20. DEFAULT. Each of the following events shall constitute an "Event of Default" hereunder: (a) Lessee-shall fail to pay when due any installriment 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 fumished 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 (and Lessee's statutory cure period shall have expired), a petition for liquidation, reorganization, adjustment of debt, or similar relief under the federal or state bankruptcy code or any other present or future 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. Whenever any event of default referred to in Section-20 hereof shall have happened and be continuing with respect to the Equipment, Lessor shall have the right, at its option and without any further-demand or notice, to take one or any combination of the following remedial steps: (a) Lessor, with or without terminating this Lease may declare all rent payments due or to become due during the fiscal year in effect when the default occurs to be immediately due and payable by Lessee, whereupon such rent payments shall be immediately due and payable. (b) Lessor, with or without terminating this Lease, may repossess the Equipment by giving Lessee written notice to deliver the Equipment to Lessor, whereupon Lessee shall do so in ,the manner provided in Section 17; or in the event Lessee fails to do so within 10 days after receipt of such notice, Lessor may enter upon Lessee's premises where, the Equipment is kept and take possession of the Equipment and charge Lessee for costs incurred in repossessing the Equipment, including reasonable attorneys' fees. Lessee hereby expressly waives all reasonable damages occasioned by such repossession. If the Equipment or any portion of it has been destroyed or damaged beyond repair, Lessee shall pay the applicable Termination Balance of the Equipment, as set forth in the Supplement or Exhibit A thereto (less credit for proceeds of insurance remaining after subtraction of Lessor's costs with respect to the collection thereof), to Lessor. Notwithstanding the fact that Lessor has taken possession of the Equipment, Lessee shall continue to be responsible for the rent payments due during the fiscal year then in effect. If this Lease has not been terminated, Lessor shall return the Equipment to Lessee at Lessee's expense when the event of default is cured. (c) If Lessor terminates this Lease and takes possession of the Equipment, Lessor shall within 30 days thereafter use its best efforts to sell the Equipment or any portion thereof in a commercially reasonable manner at public or private sale in accordance with applicable state laws. Lessor shall apply the proceeds of such sale to pay the following items in the following order: (i) all costs incurred in securing possession of the Equipment; (ii) all expenses incurred in completing the sale;. (iii) the applicable Termination Balance of the Equipment; and (iv) the balance of any rent payments owed by Lessee during the fiscal year then in effect Any sale proceeds remaining after the requirements of clauses (i), (ii), (iii) and (iv) have been met shall be transferred to Lessee. (d) If the proceeds of sale of the Equipment are not sufficient to pay the balance of any rent payments owed by Lessee during the fiscal year then in effect, Lessor may take any other remedy available at law or in equity to require Lessee to perform any of its obligations hereunder. 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 set forth above or at such other address as may, be last known to Lessor. 21 PREPAYMENT. This Lease may be prepaid in whole, but not in part, and on any date with 45 days written notice to Lessor, upon payment of all rent payments then due, plus the amount set forth as Termination Balance on the Supplement or any exhibit thereto. 24. SURVIVAL. Lessee's obligations under Section 10 shall survive termination of this Lease. 25. MISCELLANEOUS. Any provision of this Lease which is unenforceable in any jurisdiction shall, as to jurisdiction, be ineffective to the extent of such unenfomeability without invalidating the remaining provisions of this Lease, and any such unenforceability in any jurisdiction shall not render unenforceable such provision in any other jurisdiction. This Lease shall in all respects be governed by, and construed in accordance with, the substantive laws of the state in which the Lessee is located. Dated: December 14, 2006 L see: T wn of von, Colpr T By. 1` U Its: Lessor: Wells Fargo Brokerage Services, LLC By: Cynthia, M., Slawson Assistant Vice President Wells Fargo Brokerage Services, LLC 1740 Broadway, MAC C7300-011 Denver, Colorado 80274 Name and address of Lessee: Town of Avon 400 Benchmark Road Avon, Colorado 81620 Lease No.: 0900-0 10 This is the Supplement to the Governmental Lease-Purchase Agreement dated December 14, 2006, between Lessor and Lessee. Pursuant to the Governmental Lease-Purchase Agreement and this Supplement, Lessor is leasing to Lessee, and Lessee is leasing from Lessor, the Equipment described below. EOUIPMENT DESCRIPTION Quantity VIN or Serial Number Please see attached Schedule ! Location of E ui ment if different from Lessee's address SdH!bU LE OF RENT_ PAYMENTS Basic Rental Number Of Advance Payments Payments Payments Acceptance Date: December 14, 2006 $39,005.79 5 -0- Term in months (assuming all Renewal Terms) Interest Rate First Payment Final Purchase Due Option Price 60 months Dec. 14'2007 $1.00 Rental payment period (check one) ® Annually $172,675.54 Additional Provisions: AL LESSOR: Wells Fargo Brokerage Services, LLC LESSE Town of Avon, Colorado By By • Cynthia M. Slawson Its: Its: Assistant Vice President Date: December 14, 2006 SUPPLEMENT TO GOVERNMENTAL LEASE-PURCHASE AGREEMENT Date: December 14. 2006 Equipment Town of Avon Exhibit A Costs Funded Payment Rate $172,675.54 4.20% 5 Payments 1 per year Level Payment $39,005.79 Closing Fees $0.00 Average Life 3.08 years 4.200% Rate Fctr=.225891 37.0 months Commencement: Dec 14 2006 Closing Date: Dec 14, 2006 Total Payment Interest Principal After Payment Principal Alter Payment Termination Payment Due pmt Due Payment Due Payment Due Balance Value Date $0.00 $0.00 $172,675.54 Dec 14, 2006 1 $39,005.79 $7,252.37 $31,753.42 $140,922.12 $140,922.12 Dec 14,2007 2 $39,005.79 $5,918.73 $33,087.07 $101,835.05 $107,835.05 Dec 14,200i 3 $39,005.79 $4,529.07 $34,476.72 $73,358.33 $73,358.33 Dec 14, 2009 4 $39,005.79 $3,081.05 $35,924.74 $37,433.58 $37,433.58 Dec 14,2010 5 $39,005.79 $1,572.21 $37,433.58 $0.00 $1.00 Dec 14,2011 By: Its: 1 Dated as of L ge-m\ver Town of Avon, Colorado Lease No. 0900410 SCHEDULE 1 (Held by Lessor) YEAR DESCRIPTION - VIN #"OR SN# TITLE REC'D.._ 6 _ 200 Chevrolet Silverado 3500 1GBJK34G96E285269 . Motorola Radios & Accessories 25 _ Bobcat S/N: A003115.14 Toro Z-Master S/N: 260000194 INCUMBENCY CERTIFICATE r~~ I, G v ` do hereby certify that I am the duly elected or. appointed and acting Se /Clerk of own of Avon, a political subdivision or agency duly organized -and existing under the laws of the S 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 (II) such officers have the authority on behalf of such entity to enter into that certain Governmental Lease-Purchase Agreement dated December 14, 2006 and Supplement thereto between such entity and Wells Fargo Brokerage Services, LLC (Lessor). NAME " Y-i A-A ~c ASS TITLE SIGNATURE IN WITNESS WHEREOF, I have duly...e, certificate this ~k day of December, 2006. ; ~ • etc ` `ECRET LERK cry' DELIVERY AND ACCEPTANCE CERTIFICATE TO: WELLS FARGO BROKERAGE SERVICES, LLC RE: GOVERNMENTAL LEASE-PURCHASE AGREEMENT DATED DECEMBER 14, 2006 AND SUPPLEMENT DATED DECEMBER 14, 2006 FOR: TWENTY-FIVE (25) RADIOS, 2006 CHEV TRUCK, BOBCAT AND TORO Z-MASTER I am duly qualified and acting as the officer identified below of Town of Avon (Lessee); and with respect to the Governmental Lease-Purchase Agreement dated December 14, 2006 and Supplement thereto dated December 14, 2006 (the Lease), by and between Lessee and Wells Fargo Brokerage Services, LLC (Lessor), that: 1. The equipment described in the Lease (the Equipment) has been delivered and installed in accordance with Lessee's' specifications and has been accepted by Lessee as of the Acceptance Date shown on the Supplement. 2. The rent payments provided for in such Supplement or Exhibit A thereto shall commence and be due and payable on December 14, 2007 and December 10 of each year, thereafter, in the amounts shown thereon. 3. Lessee has appropriated and/or taken other lawful actions necessary to provide moneys sufficient to pay all rent payments required to be paid under the Lease during the current fiscal year of Lessee,. and such moneys will be applied in payment of all rent payments due and payable during such current fiscal year. 4. Lessee is exempt from all personal property taxes, and is exempt from [subject to] sales and/or use taxes with respect to the Equipment and the rent payments. 5. During the Lease term the Equipment will be used by Lessee to perform essential governmental functions. Such fractions are: P Se , ' 416 6. There is no litigation, action, suit or proceeding pending or before any court, administrative - agency, arbitrator or. governmental body, that challenges the organization or existence of Lessee; the authority of Lessee or its officers or its employees to enter into the Lease; the proper authorization, approval and execution of the Lease and, other documents contemplated thereby; the appropriation of moneys, or any other action taken by Lessee to provide moneys, sufficient to make rent payments coming due under the Lease in Lessee's current fiscal year, or the ability of Lessee otherwise to perform its obligations under the Lease and the transactions contemplated thereby. 7. The reasonably anticipated amount of tax-exempt obligations issued by Lessee during the current calendar year (other than obligations described in Section 265(b)(3)(C)(ii) of the Internal Revenue Code of 1986, as amended (the "Code") does not exceed $10,000,000. The Lease is hereby designated by Lessee as a "qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Code. In no event will Lessee designate in the current calendar year more than $10,000,000 of its tax-exempt obligations as such "qualified tax-exempt obligations". Dated: O&ft.rbGc 134, 2006. Town-of Avon, Colorado sy. Its: - y' Ferm8038-G Information Return for Tag-Exempt Governmental Obligations (Rev. November 2000) 110- Under Internal Revenue Code section 149(e) nepnumm or the Treasury llo- See separate instructions. ' tada.w Revenge service Caution: Use Form 8038-GC if the issue rice of the issue is under $100,000. OMB No, LUS4720 Part I Reporting Authority If Amended Return, ebeekbere 0- ❑ 1 Issuer's name 2 Issuer's employer identification number Town of Avon 84-0771088 3 Number and street (or P.O. box if mail is not delivered to street address) Room/suite 4. Report number 400 Benchmark Road G- - 5 City, town, or post office, state and ZIP code 6 Date of Issue ' Avon, Colorado 81620 December 14, 2006 7 Name of issue 8 CUS1P Number Governmental Lease Purchase Agreement N/A 9 Name and title of officer or legal representative whom the IRS may call for more 10 Telephone number of officer or legal representative information Scott Wright, Finance Director 970/748-4000 Part II Type of Issue check applicable box(es) and enter the issue rice See instructions and attach schedule 11 ❑ Education 11 12 ❑ Health and hospital 12 13 ❑ Transportation 13 14 ❑ Public safety 14 15 ❑ Environment (including sewage bonds) 15 16 ❑ Housing 16 17 ❑ Ublities 17 18 ® Other. Describe 18 $172,675.54 19 If obligations are TANs or RANs, check box If obligations are BANS, check box Pop-[] 20 If obligations are in the form of a lease or installment sale, check box Part III b ci ri tion of Obligations. Com lete for the entire issue for which this form is being filed. (a) Find maturity date (b) msuo price (c) stated redemption prix at (d) Weighted average (e) Yield maturity mmmr 21 December 14 2011 $172,675.54 3.08 ears Part IV Uses of Proceeds of Bond Issue (includin8 underwriters' discount) 22 Proceeds used for accrued interest 22 23 Issue price of entire issue (enter amount from line 21, column Ili]) 23 $172,675.54 24 Proceeds used for bond issuance costs (including underwriters' discount) 24 $2,969.85 25 Proceeds used for credit enhancement 25 26 Proceeds-allocated to reasonably required reserve or replacement fund 26 27 Proceeds used to currently refund prior issues 27 28 Proceeds used to advance refund prior issues 28 29 Total (add lines 24 through 28) 29 $2,969.85 30 Nenrefunding proceeds of the issue (subtract tine 29 from tine 23 and enter amount here) 30 $169,705.69 PartV Description of Refunded Bonds (Complete this part only for refunding bonds.) 31 Enter the remaining weighted average maturity of the bonds to be currently refunded 10' 32 Enter the remaining weighted average maturity of the bonds to be advance refunded 10' Yee- 33 Enter the last date on which the refunded bonds will be called 34 Enter the date(s) the refunded bonds were issued Part VI Miscellaneous - - 35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) 037a 36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (see instructions) b Enter the foal maturity date of the guaranteed investment contract 11o _ 37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units 37 b If this issue is a loan made from the proceeds of another tax-exempt issue, check box ❑ and enter the name of the b issuer 10. and the date of the sue 10- 38 If the issuer has designated the issue under section 265(b)(3)(Bx)(IIn (small issuer exception), check box 39 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check boa ® ❑ 39 If the issuer has identified a hedge, check box ❑ Please Under penalties of perjury, I declare that I have examined the return and accompanying schedules and statements, and to the best of my knowledge and belie!: Sign true, correct, and complete. Here l I I ~ © I-. d.a he t~e~'la C 7\ Ir I 16 P Signatureof Issuer's autho representative ate Jos- Type or pritkt me and title Cat No. 63773S Form 8038-G (Rev. 11-2000) Town of Avon Memo TO: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From Scott Wright, Finance DirectoO- - Date: December 5, 2006 Re: Resolution 06-56, 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: Capital lease purchases are a capital financing tool that lessen the burden of an initial purchase of capital equipment and spreads the cost out over the estimated useful life of the asset. In addition, several items of equipment, including the Bobcat identified below, have been purchased for use at the Village of Avon and a pro rata portion of the annual lease purchase payment is included in the Town's municipal service invoice. This supplement finances the purchase of Motorola 800 MHz radios, and a Toro mower. the 2006 budget. a Bobcat toolcat, a. Fleet Maintenance service truck, _ These items and the lease financing were approved in Financial Implications: The amount of the supplement is $172,675.54 to be amortized over a period of 5 years at an interest rate of 4.20%. Recommendation: Staff recommends that Council adopt the resolution discussed above as presented. Town Manager Comments: Page 1 Attachments: A - Resolution 06-56 B - Governmental Lease-Purchase Master Agreement dated March 28, 2003 C - Supplement to Governmental Lease-Purchase Master Agreement, including Exhibit A and Schedule 1 0 Page 2 RESOLUTION NO. 06-56 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 its 2006 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 Wells Fargo Brokerage Services, LLC 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 12th day of December, 2006. TOWN OF AVON, COLORADO Ronald C. Wolfe, Mayor 3 ATTEST: Patty Mc&enrry,-Town Clerk 4 COPY ogao-oos" 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 C7300-011 Denver, Colorado 80274 1. LEASE. Lessor hereby agrees to lease to Lessee, and Lessee hereby agrees to lease from lessor, the personal property. described in Lessor and Lessee upon the terms and conditions set a Supplement or Sttppl~~ to this Master lease from time to time signed by and additions incarpotatod therein or affitoed forth in the related Supplement (such property together with all replacements, repairs thereto being referred to herein as "Equipment" The lease of the items described in a particular Supplement shall be considered a such 1 the same as if a single lease agreement ooh separate lease pursuant to the terms of the Master lease and the Supplement of each Supplement shall a determinatim by the terms bad been acecut~ covering such items. The execution by Lessee evidence and desires to enter into that Lessee that the Equipment covered thereby is essential to its proper, efficient and economic operation govanmentill under the terms hereK that the Equipment is necessary for the for the aapsition of that Equipment Supplement and that Lessor is neither the manufacturer nor a dealer or mercbam of said Equipment, but has apwd to functions of Lessee, lion of said Equipment under the terms hereof at the specific request of provide the funding for and on behalf of Lessee for the acquisition Lessee. of the Equipment by executing and delivering to Lessor a 2. DELIVERY AND ACCEPTANCE. Lessee will evidence its acceptance Delivery and Acceptance Certificate (herein so called) in the form to be provided by Lessor. Le ~ 3. TERM The term 'Of this Lease with respect to each item of Equipment shall begin on the date it is ac=Ptcd by Lessee Tand shall commencement date shown in the related Supplement unless earlier terminated as provided herem. continue from the tent commencement date is the Acceptance Date as recorded on the Acceptance Cartificde. to Total Rea , 4. RENT. Lessee shall pay as basic rent for the full term of this Lease the amount shown m the related Supplement is as, and represents the payment of interest, and Earhrbit *A! attached the rdated and a portion of each rent payment paid of each rent payment during the term. The Total Rem shall be payable m installments Supplement sets forth the interest component forth in the related Supplement plus any applicable sales and use tax thereon. each in the amount of the basic rental payment set Section 5 hereK the Lessee Shall pay teat in installments as shown in the Related Supplement- Except as specifically provided in oonntet claim or rental payments will be absolute and unconditional in all events and will not be subject my recoupment for any reason whatsoever. sufficient to make all rent payments during the term of the Lease and hereby Lessee reasonably believes that funds can be obtained to obtain, maintain and properly request and pi funds from which covenants that it will do all things laovfully within its power on ft= the governing the rent payments may be made The chief °f ~ of the unit shall request ft required board and exhaust all available administt'ative renews and appeals in the event such portion S. NON-APPROPRIATION OF FUNDS. If Lessee periodic aW requests from its legislative body or approve paid to Lessor under this Lease and, notwithstanding the malong to good faith of such request in accordance with 5 procedures and with the exercise of reasonable care and diligence, such legislative body or funding authority does not approve finds to be paid to Lessor AN the Equip, Lessee may, upon prior written notice to Lessor effective 60 days aver the giving of such nice or upon the exhaustion of the fending audiormed for the then current appropriation period, whichever is later, return the Equipment to Lessor at Lessee's expense and thereupon be released orf.its obligation to matte all rental peymem. to L.CS9or due thereafter, provided: (i) the Equipment is returned to Lessor freight prepaid and insured to any location in the cowl United States designated by Lessor in the same condition as when first delivered to Lessee, reasonable wear and tear resetting ad* from authorized use thereof excepted, (n) the foregoing notice states the failure of the legislative body or funding any to appropriate the necessary funds as reason for cancellation, and (iii) the notice is accompanied by payment of all amounts thm doe to Lessor under this L.ease. In the event Lessee returns the Equipment pursuant to the teems of this Section 5,1 r shall maim all sours paid hereunder by Lessee, including any security deposit paid here ande r To the cdcot permitted by haw, if the provisions of this Section 5 are utilized by Lam, Lesser agrees not to purchase, lease or rent eqWPmCIIt pig fiv>ctim similar to those pe li I through the use of the Equipment or to obtain from any sonrce the services or iafcrmatiam which the Equipment was to pctfiusm or provide, for the balance of the appropriation period following Lessee's exercise of its termination right hereunder. This Section 5 will not be construed so as to permit Lessen to terminate this Lease in order to acquire any other equipment or to allocate fmds dnectly or indirectly to perform essentially the same application far which the equipment is intended. 6. REPRESENTATIONS AND WARRANTIES OF LESSSEE.. Lessee represents and warrants and, so long as this Lease is in a ffed or any part of Lessee's obligations to Lessor remain unfizIffIled, shall continue to warrant at all times, that (a) Lessee is a State, a Territory or a possession of the United States, the District of Columbia, or a political subdivision of nay of the foregoing within the meaning of Section 103(a) of the Internal Revenue Code of 1986, as amended, and Treasury Regulations and Rulings related thereto. If Lessee is incorporated, it is duly organized and existing under the Constitution and laws of its jurisdiction of incorporation and well do or cause to be done all things necessary to preserve and keep such aeon and existence in full force and e$ect (b) Lessee has been duty authorized by the Constitution and laws of the applicable jurisdiction and by a resolution of its governing body (which resolution, if requested by Lessor, is attached hereto) to execute and deliver this Lease and each Supplement and to carry out its obligations hereunder (c) All re qum meats have becn met, and procedures have occurred in order to insure the enforceability of this Lem and Lessee has complied with such public bidding reguiremerds, if any, as may be applicable to the transactions coaciuphatod by this Lease. (d) The Fquipment will be used by Lessee only for the purpose of performing one or more governmental or p 9 functions of Lessen consistent with the pmnissble scope of Lessee's authority and will not be used in a trade or business of nay person or entity other than Lessee. (e) lessee has finds available to pay seat until the end of its current app opziatim Prod, and it will mqueSt funds to maim payments in each appropriation period, f3mm now until the end of the term of this I MW (f) This Lease constitutes a valid, legal and binding obligation of Lessee enforceable against Legere in accordance: with the respective terms hereof amended and (g) This Lease is not an arbitrage bond for purposes of Section 148 of the Internal Revenue Cade of 19 from 86 Lessor and its assigns are entitled to treat the interest portion of the payments to be made hereunder as a mempt tars under Section 103 (a) of the Internal Revenue Code of 1986, as amended (h) Lessee shall maintain records relating to the Lessor and its assigns sufficient to comply with the nog ation requiremtnts of Section 149(a) of the Internal Revenue Cade of 1986, as amended (i) Lessee does not reasonably anticipate that it will issue tax exempt obligations (not including 'private activity bends' as defined in Section 141 of the Internal Revenue Code of 1986, as amended) in an aggregate emeremt in excess of $10 minim during the calendar year in which this Lease term commences, and this Lease is designate d as a qualified tax exearpt obli gatioa far of Section 265 (b) (3) of the Internal Revenue Code of 1986 relating to deductibility of interest by financial rnstit 5. LP (q) This Lease is not and shall not became 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 states of the interest component of the payments made and to be made under this Lease, including, without inin attan, the investment and rebate provisions of Section 148, the prohibition against federal guaraaries trntler 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 rehance upon any statements or representations made by Lessor. LESSOR MAKES NO WARRANTY WITH RESPECT TO THE EQUIPMENT, EXPRESSED OR IMPLIED , AND LESSOR SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE AND ANY LIABH TIY FOR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE EQUIPMENT. Lessee agrees to make 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 manuf=urcr, vendor or carrier thereof should any item of Equipment for any reason be de6ec'tive- 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 rnooorse to Lessor, any warranty received by Lessor. s. 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 Defanit, as that term is defined in Section 20 hereat or (ii-) in the event thatbe purchase if has not been exercised prior to the expiration date thereof; title will immeat vest in Lessor or its assignee. For as long as long as title to the Equipment vests in Lessee ,Lessee at its expense shall protect and defend the We and beep it free of all claims shall and liens other than the rights of Lessee hereunder and claims and liens created by or arising through Les=. The Equps~ remain personal property regardless of its attachment to realty, and Lessee agrees to take such action at its c q)cn a as may be necessary to prevent any third parry from acquiring any interest in the Equipment as a result of its anwhment to realty 9. SECURITY AGREEMENT; FURTHER ASSURANCES. To secure the performance of all Lessee's obligations hereunder, Lessee hereby grants to Lessor a security inuavsst constituting a first lien on the Equipment and on all additions, attachments, replacements and modifications thereto or therefor, including all after-acquired Equipment of Lessee, and on any proceeds therefrom. Lessee agrees to execute or deliver such additional documents, inciudin& without lion, financing stateents, opinions of counsel, notices and similar instruments, in form dory to Lessor, which Lessor deems necessary or app mpri me to establish and maintain its security interest in the Equipment or for the confirmation or perfection of this Lease and Iessor~s rights hereunder. Lessor is hereby authorized to file financing statements signed only by Lessor in accordance with the Uniform Commercial Code or signers 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 hereafter imposed by any governmental body or agency upon the Equipment or its use or the rentals hereunder excluding, however, any taooes on or measured by Lessor's net income. Upon request by Lomm, Lessee shall Prcparc and file an tax returns relating to takes for which Lessee is responsible hereunder which lessee is permitted to file under the laws of the applicable taxing jnrisdirtion. 11. INDE[1e4nY. Lessee hereby indemnifies and agrees to save I== harmless from any and all liability and agmse arising exit of the ordering, ownership, use, condition or operation of each item of Equipment during the tern 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 . defending any claim brought to enforce any such liability or expense, but excluding any habiky for eqxnses in 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 encumber or permit a lien arising through Lessee to east on ar against any interest in this Luse or the Equipment or remove the Equipment from in all or any pot of the its location referred to above. Lessor may assign its interest in this Lease and sell or grant security i>omer>at 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 9 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 maintain the Equipment in good repair, condition and working order and will furnish all parts and services required therdme, all at its expense. All such parts when furnished' shall immediately become the property of Lessor and part of the Equipment for all purposes hereof: 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 rearson, or in the event of condemnation or seimre of any item of Equipment, I.essoe shall Promptly pay Lessor (a) the amount of all rent and other amounts payable by Lessee hereunder with respect to such item doe 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 p=hase 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 win trarSler to Lessee, without reco urse or warranty, all of Lassoes right, title and interest therein, the rent 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 render this paragraph and Lessee shall be entitled to any surplas. 16. 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 vahx 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 lass 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 sack policy or the cancellation thereof; and a clause specifying that no action or misrepon by Lessee shall invalidate such policy. l,eseor 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 shall not comply with the requirement thereof: In the event that Lessee has been permitted to self-insure, Lessee will fbruish Lessor with a letter or certificane to sucli affect. 17. RETURN OF THE EQUu%IENT. 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 desigivAm Lessee shall pay all transportation and other expenses relating to such delivery. 18. ADDITIONAL ACTION. Lessee will promptly execute and deliver to Lessor such further documents and tale such further action as Lessor may request in order to more effectively carry out the intent and purpose of this,Lease, including the execntign and delivery of appropriate financing statements to fully protect Lessor's interest hereunder in accordanc c with the UnOrm Cormmercial Code or other applicable law. Lessee will firrinsh• fmin time to time on request, a copy of Lessee's latest auroral balance sheet and income statement. 19. LATE CHARGES. If any installment of basic rent is not paid when due or within 5 days them, lessor may impose a late charge of up to 5% of the amount of the installment but in any event not in= than permitted by applicable law. Payments thereafter received shall be applied first to delinquent installments and then to current installments. evems shall constitute an "Event of Default' hereunder. (a) lessee sball fail to pay whm.due Z0. DEFAULT. Each of the following to observed or Pam by Lessee any installment on basic rem (b) Lessee shall fail to observe or perform any other agreement thereof for 10 calendar clays following written notice thereof by Lessor to Lessee; (c) any why, reeprresentaesenta and the continuance roves to have been false or misleading is any representation or statement tirade or furnished to Lessor by or on behalf of Law= for liquidation, ro maflerial respect; or (d) Lessee shall voluntarily file, or have filed against it involuntarily, a petition ' other P~ or fituue federal or state advent of debt, or similar relief under the federal or state Banlarptcy Code or any assets. bankruptcy or insolvency law, or a trustee, receiver, or liquidator shall be appointed of it or all of a substantial part of its 21. REMEDIES. Lessor and Lessee agree that Lessor's damages suffered by reason of an Event of Default are uncertain and not capable of exact measurement at the time this Lease is exec because the valve of the Equipment at the eaxpiration of this Lem is shall be the rout of the uncertain, and therefore they agree that for purposes of this Section 21 "Lessor's Loss" as of any date 4 S following. (1) the amount of all rent and other amounts payable by Lessee hereunder due but unpaid as of soch dame, 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 De&* specified in Section 20 (d), an amount equal to Lessor's Loss as of the date of such occurrence shall automatically be and became immediately due and payable without notice or demand of any kind. A. Lessor may, by written notice to Lessee, terminate this Lease and declare an amount equal to Lessoes Lass 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 witlmat further notice or demand, and all rights of Lessee to use the Equipment shall terminate but Lessee shall be and retrain liable as provided in this Section 21. Lessee shall at its expense promptly deliver the Equipment to Leer at a location or locations within the dal United States designated by Lessor. Lessor may also ether upon the premises where the Equipment is located and talm immedi possession of and remove the same with or without instituting legal proceedings. B. Lessor may proceed by appropriate court action to MR= Performance by Lessee of the applicable covenamts of tlris Lease or to recover, for breach of this Lease, Lessor's Loss as of the date Lessor's Loss is declared due and payablehereunder, provided, however, that upon recovery of Lessor's Loss from Lessee in any such action without having to repossess and dispoose of the Equipment, Lessor shall transfer the Equipment to Lessee at its then location upon payment of any additional amount due under ciaose (C, D, E) below. C. In the event Lessor repossesses the Equipment, Lessor shall either retain the Equipment in full satisfaction of Lessee's obligati hereunder or sell or lease each item of Equipment in such a mater 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 Lessoes Loss and any additional amomt doe under clause (D, E) below- Lessee shall be entitled to any surplus and Lessee shall remain liable for any deficiency. For purposes of this subparagWk the proceeds of any lease of all or any part of the Equipment by LA=or shall be the amount reasonably assigned by Lessor as the cost of such Equipment in determining the reel 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 91/6 perms E. Lessor may exercise any other right or remedy available to It by law or by agreement, and may in any event recover legal foes and other expeuses incurred by reason of an Event of Delaalt or to the exercise of any remedy hereunder, i g expenses of repossession, repair, storage, transportation,-and disposition of the Equipment No remedy given in this section is intended to be cw1usive, and each shall be c umnlative but only to the extort necessary to permit Lessor to recover amounts for which Lessee is liable hereunder. No express or implied waiver by Lessor Of any Event of Defaalt shall constitute a waiver of any other Event of Defaut 22. NOTICES- Any written notice hereunder to Lessee shall be deemed to ltave been given when delivered personally or deposited in the United States mails, postage prepaid, addressed to Lessee at its address set forth above or at such other address as may be last ]mown to Lessor. 23. NET LEASE AND UNCONDPITONAL OBLIGATION. This Lease is a completely net lease and Lessee's obligation to pay the rent and amounts payable by Lessee under Sections 15 and 21 is unconditional and not subject to any abatement, mh c& n, setoff' Or defense of any kind except as expressly provided henna. 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 Value on the Exhibit A attached to said Supplement. 25. NON-CANCE2 ABLE LEASE. This Lease cannot be ==led or terminated except as espCsdy WW'ded berie'm 5 26. SURVIVAL OF INDEIWMM& Lee's obligations under Sections 10 and 11 d mU survive termhuition of this Lease 27. MISCELLANEOUS. Any provision of this Lease which is >nienfar+ceable m any jurisdiction shall. as to jmisdictiam4 be ineffective to the extent of such =ennwcmbihty without invalidating the remmnm provisions of this lease, and ay sock unenfor>xabrtity in nay jurisdiction shall not- render uamforceable such provision in ay other juri m Mlis Lease shaU in all n qm= be governed by, and construed in a=rdance with, the substanfive laws of the state in whiu3r the Ixssee is located. Dated: March 28, 2003 Lessee: Town of Avon, Colorado By. Its: Lessor. Wells -A, F" o Brokerage Services, LLC By C . 7.+A- Its: Investment Banker 6 Wells Fargo Brokerage Services, LLC 1740 Broadway, MAC C7300-011 Denver, Colorado 80274 SUPPLEMENT TO GOVERNMENTAL LEASE-PURCHASE AGREEMENT Name and address of Lessee: Town of Avon 400 Benchmark Road Avon, Colorado 81620 This is the Supplement to the Governmental Lease-Purchase Agreement dated December 14, 2006, between Lessor and Lessee. Pursuant to the Governmental Lease-Purchase Agreement and this Supplement, Lessor is leasing to Lessee, and Lessee is leasing from Lessor, the Equipment described below. Fni immF mT nF.Cr'R TPTTnN Quantity VIN or Serial Number Please see attached Schedule ! Location of Equipment if different from Lessee's address SCHEDU LE OF RENT PAYMENTS Basic Rental Number Of Advance Payments Payments Payments Acceptance Date: December 14, 2006 $39,005.79 5 -0- Tenn in months (assuming all Renewal Terms) Interest Rate First Payment Final Purchase Due Option Price 60 months 4.20%% Dec. 14 2007 $1.00 Rental payment penod (check one) ® Annually Lease No.: 0900-010 AMOUNT: $172,675.54 AL RENT: Additional Provisions: LESSOR: Wells Fargo Brokerage Services, LLC LESSEE By By Cynthia M. Slawson Its: Its: Assistant Vice President Date: Date: December 14.2006 Town of Avon, Colorado December 14.2006 1~ Equipment Town of Avon Exhibit A Costs Funded Payment Rate $172,675.54 4.20% 5 Payments 1 per year Level Payment $39,005.79 Closing Fees $0.00 Average Life 3.08 years 4.200% Rate Fctr=.225891 37.0 months Commencement: Dec 14, 2006 Closing Date: Dec 14, 2006 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 $172,675.54 Dec 14, 2006 1 $39,005.79 $7,252.37 $31,753.42 $140,922.12 $140,922.12 Dec 14, 2007 2 $39,005.79 $5,918.73 $33,087.07 $107,835.05 $107,835.05 Dec 14, 2008 3 $39,005.79 $4,529.07 $34,476.72 $73,358.33 $73,358.33 Dec 14, 2009 4 $39,005.79 $3,081.05 $35,924.74 $37,433.58 $37,433.58 Dec 14,2010 5 $39,005.79 $1,572.21 $37,433.58 $0.00 $1.00 Dec 14, 2011 By: Its: Dated as of 1LIr, Town of Avon, Colorado Lease No. 0900-010 SCHEDULEI (Held by Lessor) YEAR DESCRIPTION VIN # OR SN# TITLE RECD. 2006 Chevrolet Silverado 3500 1GBJK34G96E285269 Motorola Radios & Accessories 25 Bobcat SIN: A00311514 Toro Z-Master S/N: 260000194