HomeMy WebLinkAboutRES.216.09-02-1986 EXFiIBIT "A"
,.-•.
BILL �10. 86-140 RESOLUTION N0. /
A RESOLUTION AUTEiORIZING THE CITY MANAGER TO
ENTER INTO A MUNICIPAL LEASE AND OPTION
AGREEMENT WITH AMERILEASE , A DIVISION OF
PADUCAH BANK & TRUST CO. , FOR GOLF COURSE
EQUIPMENT
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE
GIRARDEAU , MISSOURI , AS FOLLOWS :
SECTION 1 . The City Manager on behalf of the City of Cape
Girardeau , Missouri , is hereby authorized to enter into a
Hunicipal Lease and Option Agreemen� in substantially the same
form as herein presented with AmeriLease, A Division oF Paducah
Bank & Trust Co . , for golf course equipment . A copy of this
agreement is attached to this resolution and made a part hereof .
PASSED AND ADOPTED THIS �.ul� DAY OF , 1986 .
�
ancis E . Rho es , ayor
ATTEST:
Alvin M . Stoverink , City Clerk
�
EXHIBIT "B"
OPINION OF COUNSEL
�
, 19
AmeriLease, a Division of Paducah Ban & Trust Co .
555 Jefferson
P . 0. Box 2600
Paducah , Kentucky 42001
RE : Municipal Lease Agreement Dated
Gentlemen :
I have acted as Counsel to the City of Cape Girardeau ,
Missouri , ( the "Lessee" ) with respect to that certain Municipal
Lease Agreement ( the "Lease" ) dated � by
and between AmeriLease, a Division of Paducah Bank & Trust Co, and
the Lessee . I have reviewed the Lease and such other documents,
records and certificates of Lessee and appropriate public
officials as I have deemed relevant and am of the opinion that :
l . The Lessee is a municipal corporate agency and a
political subdivision of the State of Missouri .
2 . That execution, delivery and performance by the Lessee of �,.
the Lease have been duly authorized by all necessary action on the
part of the Lessee .
3 . The Lease constitutes a legal , valid and binding
obligation of the Lessee enforceable in accordance with its term.
Very truly yours ,
M. Catherine Hartnett
Attorney for the Lessee
�
EXHIBIT "C"
CERTIFICATE AS TO ARBITRAGE
WE , THE UNDERSIGNED, CITY OF CAPE GIRARnEAU, MISSOURI ( the
'� "Lessee" ) being the persons duly charged, with others , with
responsibility for issuing tt�e L,essee ' s obligation in the form of
that certain agreement entitled "Municipal Lease and Option
Agreement" ( the "Agreement" ) dated and issued
said date hereby certify that :
1 . The Agreement was issued by the Lessee under and pursuant
to the law of finance the acquisition of certain equipment
described herein .
2 . Pursuant to the Agreement, the Lessee is entitled to
receive said equipment in consideration for the obligation of the
Lessee under the Agreement . Said Equipment will be used in
furtherance of the public purposes of the Lessee . The Lessee does
not intend to sell said equipment or said Agreement or to
otherwise dispose of said equipment during the term of the
Agreement .
3 . The Lessee expects to make payments under the Agreement
from its general funds on the basis of annual appropriations in
amounts equal to the required payments under the Agreement . The
remaining general funds of the Lessee are not reasonably expected
to be used to make such payments and no other monies are pledged
to the Agreement or reasonably expected to be used by pay
principal and interest on the Agreemento
.�•.
4 . The Lessee has not received notice that its Certificate
may not be relied upon with respect to its own issues nor has it
been advised that any adverse action by the Commissioner oF
Internal Revenue is contemplated.
To the best of our knowledge , information and belief the
expectations herein expressed are reasonable and there are no
facts , estimates or circumstances other than those expressed
herein that would materially affect the expectations herein
expressed .
IN WITNESS WHEREOF , we have hereunto set our hands
this day of , 19
Gary A. Eide , City Manager
/'1
EXHIBIT "D"
DESCRIPTION OF EQUIPMENT
�
The equipment which is the subject o� the attached Municipal Lease
and Option Agreement is as follows :
30 - Gas powered golf carts Model G1A, Yamaha 1986 , equiped
with sweater baskets
SR# SR#
SR# SR# SR#
SR# S�# SR#
SR# SR# SR#
SR# SR# SR#
SR# SR# SR#
SR# SR# SR#
SR# SR# SR#
SR# SR# SR#
SR# SR# SR#
SR#
Lessee hereby certifies that the description of the personal
property set forth above constitutes an accurate description of
the " Equipment" , as defined in the attached Municipal Lease and
Option Agreement .
LESSEE
CITY OF CAPE GIRARDEAU, MISSOURI
�
Gary A. Eide, City Manager
�
EXHIBIT "E"
PAXMENT BEGINNING DEBT REMAINING
NUMBER BALANCE SERVICE INTEREST PRINCIPAL BALANCE
�-�,
' edown Sep 1986 0 . 00 68 , 000 . 00
1 Oct 1986 68 ,000 . 00 1 , 675 . 52 0 . 00 1 , 675 . 52 66 , 324 . 48
2 Nov 1986 66 , 324 . 48 1 , 675 , 52 490 . 10 1 , 185 . 42 65 , 139 . 06
3 Dec 1986 65 , 139 . 06 1 , 675 . 52 481 . 34 1 , 194 . 18 63 , 944 , 88
4 Jan 1987 63 , 944 . 88 1 , 675 . 52 472 . 51 1 , 203 . 01 62 , 741 .87
5 Feb 1987 62 , 741 . $7 1 , 675 . 52 463 . 63 1 , 211 . 89 61 , 529 . 98
6 Mar 1987 61 , 529 . 98 1 ,675 . 52 454 . 67 1 , 220 . 85 60 , 309 . 13
7 Apr 1987 60 , 309 . 13 1 ,675 .52 445 . 65 1 , 229 . 87 59 , 079 . 26
8 May 1987 59 , 079 . 26 1 , 675 . 52 436 . 56 1 , 238 . 96 57 , 840 . 30
9 Jun 1987 57 , 840 . 30 1 , 675 . 52 427 . 41 1 , 248 . 11 56 , 592 . 19
10 Jul 1987 56 , 592 . 19 1 , 675 . 52 418 . 18 1 , 257 . 34 55 , 334 . 85
11 Aug 1987 55 , 334 . 85 1 , 675 . 52 408 . 89 1 , 266 . 63 54 ,068 . 22
12 Sep 1987 54 , 068 . 22 1 , 675 , 52 399 . 53 1 , 275 .99 52 , 792 , 23
13 Oct 1987 52 , 792 . 23 1 , 675 . 52 390 . 10 1 , 285 . 42 51 , 506 . 81
14 Nov 1987 51 , 506 . 81 1 , 675 . 52 380 . 60 1 , 294 . 92 50 , 211 .89
15 Dec 1987 50 , 211 . 89 1 ,675 . 52 371 , 04 1 , 304 . 48 48 , 907 . 41
16 Jan 1988 48 , 907 . 41 1 , 675 . 52 361 . 40 1 ,314 . 12 47 ,593 . 29
17 Feb 1988 47 ,593 . 29 1 , 675 . 52 351 . 69 1 , 323 . 83 46 , 269 . 46
18 Mar 1988 46 , 269 . 46 1 ,675 . 52 341 . 90 1 ,333 . 62 44 ,935 . 84
19 Apr 1988 44 ,935 . 84 1 , 675 . 52 332 . 05 1 , 343 . 47 43 , 592 . 37
20 t9ay 1988 43 , 592 . 37 1 , 675 . 52 322 . 12 1 , 353 . 40 42 , 238 . 97
21 Jun 1988 42 , 238 . 97 1 , 675 . 52 312 . 12 1 , 363 . 40 40 ,875 . 57
22 Jul 1988 40 ,875 . 57 1 , 675 . 52 302 . 05 1 , 373 . 47 39 ,502 . 10
^ 23 Aug 1988 39 ,502 . 10 1 , 675 . 52 291 . 90 1 , 383 . 62 38 , 118 . 48
24 Sep 1988 38 , 118 . 48 1 ,675 . 52 281 . 67 1 , 393 . 85 36 ,724 . 63
25 Oct 1988 36 ,724 . 63 1 , 675 . 52 271 . 37 1 , 404 . 15 35 , 320 . 48
26 Nov 1988 35 , 320 . 48 1 , 675 . 52 261 . 00 1 , 414 . 52 33 ,905 .96
27 Dec 1988 33 , 905 . 96 1 , 675 . 52 250 . 54 1 , 424 . 98 32 , 480 . 98
28 Jan 19II9 32 , 480 . 98 1 , 675 . 52 240 . 02 1 , 435 . 50 31 ,045 . 48
29 Feb 1989 31 , 045 . 48 1 , 675 . 52 229 . 41 1 , 446 . 11 29 , 599 . 37
30 Mar 1989 29 , 599 . 37 1 , 675 . 52 218 . 72 1 , 456 . 80 28 , 142 . 57
31 Apr 1989 28 , 142 . 57 1 , 675 . 52 207 . 96 1 , 467 . 56 26 , 675 . 01
32 May 1989 26 , 675 . 01 1 , 675 .52 197 . 11 1 ,478 . 41 25 , 196 . 60
33 Jun 1989 25 ,196 . 60 1 , 675 . 52 186 . 19 1 , 489 . 33 23 , 707 . 27
34 Jul 1989 23 ,707 . 27 1 , 675 . 52 175 . 18 1 ,500 . 34 22 , 206 . 93
35 Aug 1989 22 , 206 . 93 1 , 675 . 52 164 . 10 1 , 511 . 42 20 , 695 . 51
36 Sep 1989 20 , 695 . 51 1 , 675 . 52 152 . 93 1 ,522 . 59 19 , 172 . 92
37 Oct 1989 19 , 172 . 92 1 , 675 . 52 141 . 68 1 , 533 . 84 17 , 639 . 08
38 Nov 1989 17 , 639 . 08 1 , 675 . 52 130 . 34 1 ,545 . 18 16 ,093 . 90
39 Dec 1989 16 , 093 . 90 1 , 675 . 52 118 .92 1 , 556 . 60 14 , 537 . 30
40 Jan 1990 14 ,537 . 30 1 , 675 .52 107 . 42 1 ,568 . 10 12 ,969 . 20
41 Feb 1990 12 ,969 . 20 1 , 675 . 52 95 . 83 1 , 579 . 69 11 , 389 . 51
42 Mar 1990 11 , 389 . 51 1 , 675 .52 84 . 16 1 ,591 . 36 9 , 798 , 15
43 Apr 1990 9 , 798 . 15 1 , 675 . 52 72 . 40 1 , 603 . 12 8 , 195 .03
44 MIay 1990 8 , 195 . 03 1 ,675 . 52 60 . 56 1 , 614 .96 6 ,580 . 07
45 Jun 1990 6 ,580 . 07 1 , 675 . 52 48 . 62 1 , 626 . 90 4 , 953 . 17
46 Jul 1990 4 ,953 . 17 1 , 675 . 52 36 . 60 1 , 638 .92 3 ,314 . 25
'"^ 47 Aug 1990 3, 314 . 15 1 , 675 . 52 24 . 49 1 , 651 . 03 1 ,663 . 22
48 Sep 1990 1 ,663 . 22 1 ,675 .52 12 . 30 1 ,663 .22 0 .00
TOTAL 80, 424 . 6 12 , 4� � ,�0��0
EXHIBIT "F"
ACCEPTANCE CERTIFICATE
...:
The undersigned, as Lessee under the Municipal Lease and
Option Agreement ( the "Agreement" ) dated ,
with AmeriLease ( "Lessor" ) , acknowledges receipt in goo condition
of all of the Equipment described in the Agreement and in Exhibit
" D" thereto this day of , and
certifies that Lessor has fully and satisfactorily performed all
of its covenants and obligations required under the Agreement to
date .
Lessee confirms that the Commence Date of the Agreement
is , and it will commence payments in
accordance with Article VI of the Agreement .
The Undersigned Lessee hereby reaffirms in all respects the
Certificate as to Arbitrage attached as Exhibit "C" to the
Agreement and represent that, to the best of their knowledge,
information and belief , the expectations therein expressed were
reasonable as of the date on which they were made, and are
reasonable as of the Commencement Date , and there were, and are as
of the Commencement Date, no facts , estimates or circumstances
other than those expressed therein that would materially affect
the expectations expressed therein .
LESSEE
CITY OF CAPE GIRARDEAU, MISSOURI `�=
Gary A. Eide, City Manager
�
ESSENTIAL USE/SOURCE OF FUNDS LETTER
�
T0: AmeriLease, A Division of Paducah Bank & Trust Co .
P. O. Box 2600
Paducah , KY 42001
RE: Municipal Lease and Option Agreement
Gentlemen:
Reference is made to that certain Municipal Lease and Option
Agreement , dated , 19 ( "Lease" ) , between
Lessor and us , as Lessee, leasing the personal property
( "Property" ) described in Exhibit "D" to such Lease. This
confirms and affirms that the Property is essential to the
function of the undersigned as or to the service we provide to our
citizens .
Further , we have an immediate need for , and expect to make
immediate use of , substantially a.11 the property, which need is
not temporary or expected to diminish in the forseeable future .
The property will be used by us only for the purpose of performing
one or more of our governmental or proprietary functions
consistent with the permissable scope of our autt�ority.
,� We expect and anticipate adequate funds to be available for
all future payments of rent due after the current fiscal year
inasmuch as there will be a continued need for such property.
Very truly yours ,
Gary A. Eide
City t�lanager
,�-�
LESSEE INSURANCE AUTHORIZATION FORM
DATE :
AGENT' S NAME `�
ADDRESS
CITY , STATE, ZIP
PHONE
This is to notify you that AMERILEASE, A DIVISION OF PADUCAH BANK
& TRUST C0. is leasing to the City of Cape Girardeau, Missouri ,
the following equipment :
30 - Gas powered golf carts Model G1A, Yamaha 1986 , equipped
with sweater baskets
SR# ' s :
with a value of $68 , 000 . 00 , located at P. 0. Box 617 , 401
Independence Street , Cape Girardeau , MO 63701 .
Under the terms of the lease, you are hereby instructed to supply
AMERILEASE with evidence of the coverage or coverages listed below:
._.-
$50 ,000 PHYSICAL DAMAGE INSURANCE
Coverage against all risks of direct physical loss or damage for
the actual cost of the equipment . AMERILEASE is to be named LOSS
PAYEE under the property damage provisions .
$100 ,000/300 , 000 LIABILITY INSURANCE
Coverage shall be at least $100 , 000/300 ,000 for bodily injury and
$50 ,00 for property damage . AMERILEASE and its assigns are to be
named ADDITIONAL INSURED under the liability provisions .
Further , you are hereby requested to provide for 30 days notice of
cancellation or alteration to AMERILEASE . The policies or
certificates furnished should carry such endorsement ( s ) , and
should be sent to:
AMERILEASE
P . 0. Box 2600
Paducah , Kentucky 42001
LESSEE: CITY OF CAPE GIRARDEAU By
Gary A. Eide, City Manager
...�
,�"�
BILL N0. 86-140 RESOLUTION N0.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
ENTER INTO A MUNICIPAL LEASE AND OPTION
AGREEMENT WITH AMERILEASE, A DIVISION OF
PADUCAH BANK & TRUST CO. , FOR GOLF COURSE
EQUIPMENT
BE TT RFSOLVED BY THF COUNCI� OF THE CITY OF CAPE
GIRARDEAU, MISSOURI , AS FOLL06�S:
SECTION 1 . The City h9anager on behalf of the City of Cape
Girardeau, Missouri , is hereby authorized to enter into a
Municipal Lease and Option Agreement in substantially the same
form as herein presented with AmeriLease, A Division of Paducah
Bank & Trust Co. , for golf course equipment . A copy of this
agreement is attached to this resolution and made a part hereof .
�_.
PASSED AND ADOPTED THIS �=�� D�1Y OF , 1986 .
<
�`'' ancis E . Rhodes , Mayor
ATTEST:
,
r
lvin M. S overink , City Clerk
�
MUNICIPAL LEASE AND OPTION AGREEMENT
LESSOR: AmeriLease, A Division of Paducah Bank & Trust Co . �
POB 2600
Paducah , KY 42001
T�ESSEE: City of Cape Girardeau
401 Independence Street
P. 0. Box 617
Cape Girardeau , MO 63701
THIS MUNICIPAL LEASE AND OPTION AGREEMENT ( the "Agreement" )
entered into between AmeriLease, a Division of Paducah Bank &
Trust Co . , a corporation duly organized and existing under the
laws of the State of Kentucky ( "Lessor" ) and the City of Cape
Girardeau , Missouri ( "Lessee" ) , a body, corporate and politic,
duly organized and existing under the laws of the State of
Missouri ( "State" ) ,
W I T N E S S E T H
4�HEREAS, Lessor desires to lease the Equipment, as
hereinafter defined, to Lessee, and Lessee desires to lease the
Equipment from Lessor , subject to the terms and conditions of,
and for the purposes set forth in, this Agreement; and
WHEREAS, Lessee is authorized under the Constitution and
laws of the State to enter into this Agreement for the purposes `"�
set forth herein;
NOW, THEREFORE, for and in consideration of the promises
hereinafter contained, the parties hereby agree as follows :
ARTICLE 1
COVENANTS OF LESSEE . Lessee represents , covenants and
warrants , for the benefit of Lessor and its assignees , as
follows :
(a ) T,essee is a public body, corporate and politic, duly
organized and existing under the Constitution and laws of the
State .
( b ) Lessee will do or cause to be done all things
necessary to preserve and keep in full force and effect its
existence as a body corporate and politic.
( c) Lessee is authorized under the Constitution and laws
of the State to enter into this Agreement and the transaction
contemplated hereby, and to perform all of its obligations
hereunder .
( d) Lessee has been duly authorized to execute and deliver
this Agreement under the terms and provisions of the Resolution `�
of its governing body, attached hereto as Exhibit "A" , or by
� other appropriate official approval , and further represents ,
covenants and warrants that all requirements have been met, and
procedures have occurred in order to ensure the enforceability
of this Agreement, and Lessee has complied with such public
bidding requirements as may be applicable to this Agreement and
the acquisition by Lessee of the Equipment hereunder . Lessee
shall cause to be executed an opinion of its counsel
substantially in the form attached hereto as Exhibit "B" .
( e) During the term of this Agreement, the Equipment will
be used by Lessee only for the purpose of performing one or
more governmental or proprietary functions of Lessee consistent
with the permissible scope of Lessee ' s authority and will not
be used in a trade or business of any person or entity other
than the Lessee .
( f ) During the period this Agreement is in force, Lessee
will provide Lessor with current financial statements, budgets ,
proof of appropriation for the ensuing fiscal year and such
other financial information relating to the ability of Lessee
to continue this Agreement as may be reasonably requested by
Lessor or its assignee .
(g ) The Equipment will have a useful life in the hands of
the Lessee that is substantially in excess of the Original Term
and all Renewal Terms .
i-�..
(h ) The Equipment is , and shall remain during the period
this Agreement is in force, personal property and when subject
to use by Lessee under this Agreement , will not be or become
fixtures .
Definitions . The following terms will have the meanings
indicated below unless the context clearly requires otherwise:
"Agreement" means this Municipal Lease and Option
Agreement , including the Exhibits attached hereto, as the same
may be supplemented or amended from time to time in accordance
with the Terms hereof .
"Commencement Date" is the date when the term of this
Agreement begins and Lessee ' s obligation to pay rent accrues ,
which date shall be the date on which the Equipment is accepted
by Lessee as indicated on the Certificate of Acceptance
attached hereto as Er.hibit "F" .
"Equipment" means the property described in Exhibit "D" and
which is the subject of this Agreement .
"Lease Term" means the Original Term and all Renewal Terms
provided for in this Agreement under Section 4 . 01 , but in no
.--.
-2-
event longer than the number of months set forth in Exhibit "E"
of this Agreement .
"Lessee" means the entity �ahich is described in the first `�
paragraph of this Agreement and which is leasing the Equipment
from Lessor under the provisions of this Agreement .
"Lessor" means ( i ) AmeriLease, A Division of Paducah Bank
& Trust Co, a corporation , acting as Lessor hereunder ; ( ii )
any surviving, resulting or transferee corporation; and ( iii )
except where the context requires otherwise, any assignee(s ) of
Lessor .
"Original Term" means the period from the Commencement Date
until the end of the fiscal year of Lessee in effect at the
Commencement date .
"Purchase Price" means the amount which Lessee may, in its
discretion, pay to Lessor in order to purchase the Equipment,
as set forth in Exhibit "E" hereto .
"Renewal Term(s ) " means the automatic renewal terms of this
Agreement as provided for in Article IV of this Agreement, each
having a duration of one ( 1 ) year and a term coextensive with
the Lessee ' s fiscal year except the last of such automatic
renewal terms which shall end on the anniversary of the
Commencement Date therein ,
"Rental Payments" means the basic rental payments payable `"'
by Lessee pursuant to the provisions of this Agreement during
the Lease Term, payable in consideration of the right of Lessee
to use the Equipment during the then current portion of the
Lease Term. Rental Payments shall be payable by Lessee to the
Lessor or its assignee in the amounts and at the times during
the Lease Term as set forth in Exhibit "E" of this Agreement .
"Vendor " means the manufacturer of the Equipment as well as
the agents or dealers of the manufacturer from whom Lessor
purchased or is purchasing the Equipment .
ARTICLE III
Lease of Equipment: Lessor hereby demises, leases and lets
to Lessee , the Lessee rents , leases and hires from Lessor , the
Equipment , in accordance with the provisions of this Agreement,
to have and to hold for the Lease Term.
ARTICLE IV
LEASE TERM
Section 4 , 01 Commencement of Lease Term.
The Original Term of this Agreement shall commence on the
Commencement Date as indicated in Exhibit "F " and shall `�
-3-
terminate the last day of Lessee ' s current fiscal year . The
Lease Term will be automatically renewed at the end of the
^ Original Term or any Renewal Term for an additional one ( 1 )
year , unless the Lessee gives written notice to Lessor not less
than sixty ( 60 ) days prior to the end of the Original Term or
Renewal Term then in effect, or such greater notice as may be
provided in Article VI , of Lessee ' s intention to terminate this
Agreement at the end of the Original Term or the then current
Renewal Term pursuant to Article XI or Article VI , as the case
may be. The Rental Payments shall be as provided in Exhibit
"E" of this Agreement .
Section 4 . 02 Termination of Lease Term.
The Lease Term will terminate upon the earliest of any of
the following events :
(a ) The expiration of the Original Term or any Renewal
Term of this Agreement and the nonrenewal of this Agreement in
the event of nonappropriation of funds pursuant to Section 6 . 06 .
(b) The exercise by Lessee of the option to purchase the
Equipment granted under the provisions of Article IX or XI of
this Agreement .
(c ) A default by Lessee and Lessor ' s election to terminate
this Agreement under Article XITI .
�
(d ) The payment by Lessee of all Rental Payments
authorized or required to be paid by Lessee hereunder .
ARTICLE V
Enjoyment of Equipment . Lessor hereby covenants to provide
Lessee during the Lease Term with quiet use and enjoyment of
the Equipment, and Lessee shall during the Lease Term peaceably
and quietly have and hold and enjoy the Equipment, without
suit, trouble or hindrance from Lessor , except as expressly set
forth in this Agreement .
Lessor shall have the right at all reasonable times during
business hours to enter into and upon the property of Lessee
for the purpose of inspecting the Equipment .
ARTICLE VI
RENTAL PAYMENTS
Section 6 . 01 Rental Payments to Constitute a Current
Expense of Lessee .
Lessor and Lessee understand and intend that the obligation
of Lessee to pay Rental Payments hereunder shall constitute a
^ current expense of Lessee and shall not in any way be construed
-4-
to be a debt of Lessee in contravention of any applicable
constitutional or statutory limitations or requirements
concerning the creation of indebtedness by Lessee, nor shall
anything contained herein constitute a pledge of the general �
tax revenues , funds or monies of Lessee .
Section 6 . 02 Payment of Rental payments ,
Lessee shall pay Rental Payments , exclusively from legally
available funds , in lawful money of the United States of
America to Lessor , or in the event of assignment by Lessor , to
its assignee, in the amounts and on the dates set forth in
Exhibit "E" hereto . Rental Payments shall be in consideration
for Lessee 's use of the Equipment during the applicable year in
which such payments are due .
Section 6 . 03 Interest and Principal Components .
A portion of each Lease Rental Payment is paid as , and
represents payment of, interest, and the balance of each Rental
Payment is paid as, and represents payment of, principal .
Exhibit "E" hereto sets forth the interest component and the
principal component of each Rental Payment during the Lease
Term.
Section 6 .04 Rental Payments To Be Unconditional .
The obligations of Lessee to make payment of the Rental
Payments required under this Article VI and other sections '"'
hereof , and to perform and observe the covenants and agreements
contained herein , shall be absolute and unconditional in all
events , except as expressly provided under this Agreement .
Notwithstanding any dispute between Lessee and Lessor , any
Vendor or any other person, Lessee shall make all payments of
Rental Payments when due and shall not withhold any Rental
Payments pending final resolution of such disputes , nor shall
Lessee assert any right of setoff or counterclaim against its
obligation to make such payments required under this
Agreement . Lessee ' s obligation to make Rental Payments during
the Original Term or tt�e then current Renewal Term shall not be
abated through accident or unforeseen circumstances .
Section 6 . 05 Continuation of Lease Term By Lessee .
Lessee intends , subject to the provisions of Section 6 . 06 ,
to continue the Lease Term through the Original Term and all of
the Renewal Terms and to pay the Rental payments hereunder ,
Lessee reasonably believes that legally available funds of an
amount sufficient to make all Rental Payments during � the
Original Term and each of the Renewal Terms can be obtained .
Lessee further intends to do all things lawfully within its
power to obtain and maintain funds from which the Rental
Payments may be made, including making provision for such
payments to the extent necessary in each biannual or annual
�
-5-
budget submitted and adopted in accordance with applicable
� provisions of state law, to have such portion of the budget
approved.
Section 6 . 06 Nonappropriation .
In the event sufficient funds shall not be appropriated for
the payment of the Rental Payments required to be paid in the
next occurring Renewal Term, and if Lessee has no funds legally
available for Rental Payments from other sources , then Lessee
may terminate this Agreement at the end of the then current
Original Term or Renewal Term, and Lessee shall not be
obligated to make payment of the Rental Payments provided for
in this Agreement beyond the then current Original or Renewal
Term. Lessee agrees to deliver notice to Lessor of such
termination at least sixty ( 60 ) days prior to the end of the
then current Original or Renewal Term. If this Agreement is
terminated under this Section 6 . 06 , Lessee agrees , at Lessee ' s
cost and expense, peaceably to deliver the Equipment to Lessor
at the location specified by Lessor . To the extent lawful ,
Lessee shall not , until the date on which the next occurring
Renewal Term would have ended , expend any funds for the
purchase or use of equipment similar to the Equipment subject
to this Agreement .
ARTICLE VII
'� TITLE TO EQUIPMENT; SECURITY INTEREST
Section 7 .01 Title to The Equipment .
During the term of this Agreement , title to the Equipment
any and all additions , repairs , replacements or modifications
shall vest in Lessee, subject to the right of Lessor under this
Agreement . In the event of default as set forth in Section
13 . 02 or nonappropriation as set forth in Section 6 . 06 , Title
to the Equipment shall immediately vest in Lessor , and Lessee
will reasonably surrender possession of the Equipment to
Lessor , Lessee, irrevocably, hereby designates , makes ,
constitutes and appoints Lessor (and all persons designated by
Lessor ) as Lessee ' s true and lawful attorney (and
agent-in-fact ) with power , at such time of default or
nonappropriation , in Lessee ' s or Lessor ' s name, to endorse the
name of Lessee upo►� any Bill of Sale , document, instrument ,
invoice , freight bill , bill of lading or similar document
relating to trie Equipment in order to vest title in Lessor and
transfer possession to Lessor .
Section 7 , 02 Sec«rity Interest ,
To secure the payment of all of Lessee ' s obligations under
this Agreement , Lessee grants to Lessor a security interest
.,., constituting a first lien on the Equipment and on all
additions , attachments accesions and substitutions thereto, and
-6-
on any proceeds therefrom. Lessee agrees to execute such
additional documents , including financing statements ,
certificates of title , affidavits , notices and similar
instruments , in form satisfactory to Lessor , which Lessor deems `"�
necessary or appropriate to establish and maintain its security
interest , and upon assignment , the security interest of any
assignee of Lessor , in the Equipment ,
ARTICLE VIII
MAINTENACE; MODIFICATION, TAXES , INSURANCE AND OTHER CHARGES .
Section 8 , 01 Maintenance of Equipment by Lessee .
Lessee agrees that at all times during the Lease Term
Lessee will , at Lessee ' s own cost and expense, maintain ,
preserve and keep the Equipment in good repair , working order
and condition as when delivered to and accepted by Lessee under
this lease, ordinary wear and tear excepted, and that Lessee
will from time to time make or cause to be made all necessary
and proper repairs , replacements and renewals . Lessor shall
have no responsibility in any of these matters or for the
making of improvements or additions to the Equipment. The
Lessee may from time to time add further parts or accessories
to any item of leased Equipment, provided such addition does
not affect or impair the value or utility of such item of
F,quipment . Any part or accessory so added, if not required as
a replacement hereunder , shall remain the property of the
Lessee and may be removed at any time prior to the expiration `-'
of the lease term of such item, provided such removal does not
affect or impair the value or utility of such item of
Equipment . Any parts of accessories not so removed shall
become the property of the Lessor .
Section 8 . 02 Taxes , Other Government Charges and Utility
Charges .
The parties to this Agreement contemplate that the
Equipment will be used for a governmental or proprietary
purpose of Lessee and, therefore, that the Equipment will be
exempt from all taxes presently assessed and levied with
respect to personal property. In the event that the use,
possession or acquisition of the Equipment is found to be
subject to taxation in any form (except for income taxes of
Lessor ) , Lessee will pay during the Lease Term, as the same
respectively come due, all taxes and governmental charges of
any kind whatsoever that may at any time be lawfully assessed
or levied against or with respect to the Equipment and any
equipment or other property acquired by Lessee in substitution
for , as a renewal or replacement of , or a modification ,
improve�ent or addition to the Equipment , as well as all gas ,
water , steam, electricity, heat, power , telephone, utility and
all other charges incurred in the operation, maintenance, use,
occupancy and upkeep of the Fquipment ; provided that, with
�
-7-
respect to any governmental charges that may lawfully be paid
� in installments over a period of years , Lessee shall be
obligated to pay only such installments as have accrued during
the time this Agreement is in effect .
Section 8 .03 Provisions Regarding Insurance .
At its own expense, Lessee shall cause casualty, public
liability and property damage insurance to be carried and
maintained , or shall demonstrate to the satisfaction of Lessor
that adequate self-insurance is provided with respect to the
Equipment , sufficient to protect the Full Insurance Value (as
that term is hereinafter defined ) of the Equipment . All
insurance proceeds from casualty losses shall be payable as
hereinafter provided in this Agreement . Lessee shall furnish
to Lessor Certificates evidencing such coverage throughout the
Lease term. Alternatively, Lessee may insure the Equipment
under a blanket insurance policy or policies which cover not
only the Equipment but other properties . If Lessee shall
insure similar properties by self-insurance, Lessee will insure
the Equipment by means of an adequate insurance fund .
The term " Full Insurable Value" as used herein shall mean
the full replacement value of the Equipment or the then
applicable Purchase Price , whichever is greater .
� Any insurance policy pursuant to this Section 8 .03 shall be
so written or endorsed as to make losses , if any, payable to
Lessee and Lessor as their respective interests may appear .
Each insurance policy provided for in this Section 8 . 03 shall
contain a provision to the effect that the insurance company
shall not cancel the policy or modify it materially and
adversely to the interest of Lessor without first giving
written notice thereof to Lessor at least ten ( 10 ) days in
advance of such cancellation .
Section 8 . 04 Advances .
In the event Lessee shall fail to maintain the full
insurance coverage required by this Agreement or shall fail to
keep the Equipment in good repair and operating condition,
Lessor may (but shall be under no obligation to ) purchase the
required policies of insurance and pay the premiums on the same
or may make such repairs or replacements as are necessary and
provide for payment thereof ; and all amounts so advanced
therefor by Lessor shall become additional rent for the then
current Original Term or Renewal Term, which amounts Lessee
agrees to pay, together with interest thereof at the rate of
/'1
-8-
twelve percent _ ( 12$ ) per annum or the }Iighest rate permitted by
applicable law, whichever is less .
ARTICLE IX �
DAMAGES, DESTRUCTION AND CONDEMNATION; USE OF NET PROCEEDS
Section 9 . 01 Damages, Destruction and Condemnation.
If all or any part of the Equipment is lost, stolen,
destroyed, or damaged, Lessee will give Lessor prompt notice of
such event and will repair or replace the same at Lessee 's cost
within sixty ( 60 ) days after such event, and any replaced
Equipment will be substituted in this Lease by appropriate
endorsement . If Lessee fails or refuses to make the required
repair or replacement, Lessee will buy out the individual piece
of Equipment not repaired or replaced, at the next payment date
as set forth in Exhibit "E" . No loss , theft, destruction, or
damage to the Equipment will impose any obligation on Lessor
under this Lease, and this Lease will continue in full force
and effect regardless of such loss , theft, destruction , or
damage . Lessor does not assume any risk and/or liability for
loss , theft , destruction , or damage to the Equipment and for
injuries or deaths of persons and damage to property however
arising, whether such injury or death be with respect to agents
or employees of Lessee or of third parties , and whether such
damage to property is �o Lessee 's property or to the property
of others .
.�
Section 9 . 02 Insufficiency of Net Proceeds .
Provided, the Equipment is deemed to be a total loss ,
Lessee shall if Lessee is not in default hereunder , cause the �
repair , replacement or restoration of the Property and pay the
cost thereof. In the event of total destruction or damage to
the Equipment , whether or not Lessee is in default, at Lessor 's
option , Lessee shall pay to Lessor on the rent payment due date
next succeeding the date of such loss ( "Rent Payment Due Date" )
the amount of the Purchase Price applicable to such Rent
Payment Due Date, and, upon such payment, the Lease Term shall
terminate and Lessor ' s security interest in the Equipment shall
terminate as provided in Article XI of this Agreement . The
amount of the Net Proceeds in excess of the then applicable
Purchase Price, if any, may be retained by Lessee . Lessee
agrees that if the Net Proceeds are insufficient to pay in full
Lessee 's obligations hereunder , Lessee shall make such payments
to the extent of any such deficiency. Lessee shall not be
entitled to any reimbursement therefore from Lessor nor shall
V
-9-
Lessee be entitled to any diminution of the amounts payable
under Article VI hereof .
r� '
ARTICLE X
DISCLAIMER OF �9ARRANTIES ; VENDOR ' S WARRANTIES ; USE OF THE
EQUIPMENT
Section 10 . 01 Disclaimer of Warranties .
Lessor makes no warranty or representation , either express
or implied, as to the value , design , condition , merchantability
or fitness for particular purposes or fitness for use of the
Equipment, or warranty with respect thereto . In no event shall
Lessor be liable for an incidental , indirect, special or
consequential damage in connection with or arising out of this
Agreement or the existence , furnishing, functioning or Lessee ' s
use of any item or products or services provided for in this
Agreement .
Section 10 . 02 Vendor 's Warranties ,
Lessor hereby agrees to assign to Lessee , without recourse ,
and solely for the purpose of making and prosecuting against
Vendor for breach of warranty or other representation
respecting the equipment, all manufacturer warranties and
guarantees , express or implied , pertinent to the Equipment, and
^ Lessor authorizes Lessee to obtain the customary services
furnished in connection with such guarantees and warranties at
Lessee ' s expense, subject to Lessee 's obligation to reassign to
Lessor all such warranties and guarantees upon Lessor ' s
repossession of the Equipment . Lessee 's sole remedy for the
breach of such warranty, indemnification or representation
shall be against the Vendor of the Equipment, and not against
Lessor , nor shall such matter have any effect whatsoever on the
rights and obligations of Lessor with respect to this
Agreement , including the right to receive fully and timely
payments hereunder . Lessee expressly acknowledges that Lessor
makes , and has made, no representation or warranties whatsoever
as to the existence or availability of such warranties of the
Vendor of the Equipment .
Section 10 . 03 Use of The Equipment .
Lessee will not install , use , operate or maintain the
Equipment improperly, carelessly, in violation of any
applicable law or in a manner contrary to that contemplated by
this Agreement . Lessee sha11 provide all permits and licenses ,
if any, necessary for the installation and operation of the
Equipment , In addition , Lessee agrees to comply in all
respects ( including, without limitation, with respect to the
use , maintenance and operation of each item of the Equipment )
with all laws of the jurisdictions in which its operation
^ involving any item of Equipment may extend and any legislative ,
-10-
executive, administrative or judicial body exercising any power
or jurisdiction over the items of the Equipment; provided,
however , that Lessee may contest in good faith the validity or
application of any such law or rule in any reasonable manner `�
which does not, in the opinion of Lessor , adversely affect the
estate of Lessor in and to any of the items of the Equipment or
its interest or rights under this Agreement .
ARTICLE XI
Option to Purchase . At the request of Lessee, Lessor ' s
security interest in the Equipment will be terminated and this
Agreement shall terminate :
( a ) At the end of the Lease Term ( including Renewal
Terms ) , upon payment in full Rental Payments and other
amounts payable by Lessee hereunder ; or
(b ) At the end of the Original Term or any Renewal
Term, upon payment by Lessee of the then applicable
Purchase Price; or
( c ) If the Lease Term is terminated pursuant to
Article IX of this Agreement . •
ARTICLE XII
ASSIGNMENT; SUBLEASING; INDEMNIFICATION; MORTGAGING AND SELLING
v
Section 12 . 01 Assignment By Lessor .
This Agreement , and the obligations of Lessee to make
payments hereunder , may be assigned and reassigned in whole or
in part to one or more assignees or subassignees by Lessor at
any time subsequent to its execution , without the necessity of
obtaining the consent of Lessee. Lessor agrees to give notice
of assignment to Lessee by certified mail and upon receipt of
such notice Lessee agrees to make all payments to the assignee
designated in the assignment, notwithstanding any claim,
defense, setoff or counterclaim whatsoever (whether arising
from a breach of this Agreement or otherwise ) that Lessee may
from time to time have against Lessor , or the assignee. Lessee
agrees to execute all documents , including notices of
assignment and chattel mortgages or financing statements which
may be reasonably requested by Lessor or its assignee to
protect their interests in the Fquipment and in this Agreement .
Section 12 . 02 No Sale, Assignment or Subleasing By Lessee .
This Agreement and the interest of Lessee in the Equipment
may not be sold, assigned or encurnbered by Lessee without the
prior written consent of Lessor , which consent shall not be
unreasonably withheld .
`.
-11-
Section 12 . 03 Release and Indemnification Covenants .
'"�"' To the extent permitted by the laws and Constitution of the
State of Missouri , Lessee shall protect , hold harmless and
indemnify Lessor from and against any and all liability,
obligations , losses , claims and damages whatsoever , includinq ,
the ownership of any item of the Equipment, the use, operation ,
condition , delivery, rejection , storage or return of any item
of the Equipment or any accident in connection with the
operation, use, condition, possession storage or return of any
item of the Equipment resulting in damage to property or injury
to or death of any person . The indemnification arising under
this paragraFh shall continue in full force and effect
notwithstanding the full payment of all obligations under this
Agreement or the termination of the Lease Term for any reason .
Lessee agrees not to withhold or abate any portion of the
payments required pursuant to this Agreement by reason of any
defect, malfunctions , breakdowns , or infirmities of the
Equipment .
ARTICLE XIII
EVENTS OF DEFAULT BY LESSEE AND REMEDIES THEREUPON
Section 13 . 01 Event of Default by Lessee Defined.
With respect to Lessee , the following shall be "Events of
^ Default" under this Agreement and the terms "Event of Default"
and "Default" shall mean , whenever they are used in this
Agreement , any one or more of the following events :
(a ) Failure by Lessee to pay any Rental Payment or
other payment required to be paid hereunder at the time
specified herein; or
(b ) Failure by Lessee to observe and perform any
covenant, condition or agreement on its part to be observed
or performed, other than as referred to in Section
13 . 01 (a ) , for a period of thirty ( 30 ) days after written
notice by certified mail , specifying such failure and
requesting that it be remedied as given to Lessee by
Lessor , unless Lessor shall agree in writing to an
extension of such time prior to its expiration; provided ,
t�owever , if the failure stated in the notice cannot be
corrected within the applicable period, Lessor will not
unreasonably withhold its consent to an extension of such
time if corrective action is instituted by Lessee within
the applicable period and diligently pursued until the
default is corrected; or
( c ) Breach of any material representation or warranty
by Lessee under this Agreement ; or
^ (d ) Commencement by Lessee of a case or proceeding
under the Federal bankruptcy laws or filing by Lessee of
-12-
any petition or answer seeking reorganization , arrangement,
composition , readjustment, liquidation or similar relief
urider any existing or future bankruptcy, insolvency or
other similar law or any answer admitting or not contesting '`'
the material allegations of a petition filed against Lessee
in any such proceeding; or
(e ) A petition against Lessee in a proceeding under
any existing or future bankruptcy, insolvency or other
similar law shall be filed and not withdrawn or dismissed
within thirty ( 30 ) days thereafter .
The foregoing provisions of this Section 13 . 01 are subject
to ( i ) the provisions of Section 6 . 06 hereof with respect to
nonappropriation; and ( ii ) if by reason of force majeure
Lessee is unable in whole or in part to carry out its agreement
on its part herein contained, other than the obligations on the
part of Lessee contained in Article VI hereof, Lessee shall not
be deemed in default during the continuance of such inability.
The term "force majeure" as used herein shall mean, without
limitation , the following: Acts of God, strikes , lockouts , or
other industrial disturbances; acts of public enemies , order or
restraints of any kind of the government of the United States
of America or of the State wherein Lessee is located or any of
their departments , agencies or officials , or any civil or
military authority, insurrections , riots , landslides ,
earthquakes , fires , storms , droughts , floods , or explosions .
Section 13 . 02 Remedies on Default . `-
Whenever any event of default referred to in Section 13 . 01
hereof shall have happened and be continuing, Lessor shall have
the right, at its sole option without any further demand or
notice, to take one or any combination of the following
remedial steps :
(a ) Terminate this Lease, repossess the Equipment,
and lease ( free and clear of any interest of Lessee in the
Equipment ) all or any portion of the Equipment to such
other persons as Lessor may elect , applying the proceeds of
any such lease (after deducting Lessor 's cost of
repossessing, repairing, storing, moving, and leasing the
Equipment , including attorneys ' fees ) against any rent
unpaid for the remainder of the Original or Renewal Term
then in effect and any other amounts owed to Lessor under
this Lease ( exclusive of rent payments for any Renewal Term
not then in effect ) at the time of Lessor ' s election under
this paragraph;
(b ) T�rminate this Lease , repossess the Equipment,
and sell ( free and clear of any interest of Lessee in the
Equipment ) all or any portion of the Equipment at any
public or private sale without demand or notice of
intention to sell , applying the proceeds of such sale
�
-13-
( after deducting the costs of repossessing , repairing ,
storing, moving, and selling the Equipment, including
'^ attorneys ' fees ) against the rent unpaid for the remainder
of the Original or Renewal Term then in effect and any
other amounts owed to Lessor under this Lease ( exclusive of
rent payments for any Renewal Term not then in effect ) at
the time of Lessor ' s election under tliis paragraph;
(c) Require Lessee at Lessee 's risk and expense to
promptly return the Equipment in the manner and in the
condition set forth in Section 6 . 06 and 8 .01 hereof;
(d) If the Lessor is unable to repossess the
Equipment for any reason , the Equipment shall be deemed a
total loss and Lessee shall pay to Lessor the amount due
pursuant to Article IX hereof ; and
( e) Take whatever action at law or in equity may
appear necessary or desirable to enForce its rights as the
owner of the Equipmen� .
Section 13 . 03 No Remedy Exclusive.
No remedy l�erein conferred upon or reserved to Lessor is
intended to be exclusive and every such remedy shall be
cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in
�'* equity. No delay or omission to exercise any right or power
accruing upon any default shall impair any such right or power
or shall be construed to be a waiver thereof, but any such
right and power may be exercised from time to time and as often
as may be deemed expedient .
ARTICLE XIV
LESSOR' S WARRANTIES
Section 14 . 01 Lessor ' s Warranties .
As to each item of leased Equipment to be leased hereunder ,
the Lessor warrants that :
( a ) It has the right to lease the same to Lessee .
(b) It will keep each item of leased Equipment free
of security interests except for the security interest
provided for in Section 7 . 02 of this Agreement .
(c ) It will do nothing to disturb Lessee ' s full right
of possession and enjoyment thereof and the exercise of
Lessee ' s rights with respect to the Equipment leased
hereunder subject to compliance by Lessee of the terms of
this Agreement .
�.
-14-
ARTICLE XV
MISCELLANEOUS
..�
Section 15 . 01 Notices .
All notices , certificates or other communications hereunder
shall be sufficiently given and shall be deemed given when
delivered or mailed by certified mail , postage prepaid, to the
parties at their respective places of business .
Section 15 . 02 Binding Effect .
This Agreement shall inure to the benefit of and shall be
binding upon Lessor and Lessee and their respective successors
and assigns .
Section 15 .03 Severability.
In the event any provision of this Agreement shall be held
invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof .
Section 15 . 04 Amendments .
The terms of this Agreement shall not be waived, altered,
modified, supplemented or amended in any manner whatsoever
except by written instrument signed by the Lessor and the �
Lessee; nor shall any such amendment that affects the rights of
Lessor ' s assignee be effective without such assignee 's consent .
Section 15 . 05 Execution in Counterparts .
This Agreement may be executed in several counterparts ,
each of which shall be an original and all of which shall
constitute but one and the same instrument .
Section 15 . 06 Applicable Law .
This Agreement shall be governed by and construed in
accordance with the laws of the State .
Section 15 .07 Captions .
The captions or headings in this Agreement are for
convenience only and in no way define, limit or describe the
scope or intent of any provisions of sections of this Agreement .
Section 15 . 08 Entire Agreement .
This Agreement constitutes the entire Agreement between
Lessor and Lessee. No waiver consent, modification or change
of terms of this Agreement s�all bind either party unless in
.�
-15-
writing signed by both parties , and then such waiver , consent ,
modification or change shall be effective only in the specific
r� instance and for the specific purpose given. There are no
understandings , agreements , representations or warranties ,
express or implied, not specified herein regarding this
Agreement or the Equipment leased hereunder . Any terms and
conditions of any purchase order or other document (with the
exception of Supplernents ) submitted by Lessee in connection
with this Agreement which are in addition to or inconsistent
with the terms and conditions of this Agreement will not be
binding on Lessor and will not apply to this Agreement . Lessor
and Lessee by their signatures acknowledge that each has read
this Agreement, understands it, and agrees to be bound by its
terms and conditions , and certifies that each signature is duly
authorized and empowered to execute this Agreement on behalf of
their respective principals .
IN WITNESS WHEREOF, Lessor has executed this Agreement in
its corporate name with its corporate seal hereunder affixed
and attested by its duly authorized officers, and Lessee has
caused this Agreement to be executed in its corporate name with
its corporate seal hereunto affixed and attested by its duly
�
�''1
-16-
authorized officers . All of the above occurred as of the date
first written below.
LESSOR �"'
AMERILEASE, A DIVISION OF PADUCAH
BANK & TRUST C0.
BY:
TITLE:
DATE:
ATTEST:
TITLE :
LESSEE
CITY OF CAPE GIRARDEAU, MISSOURI
Gary A. Eide , City Manager
DATE:
ATTEST: ---
Alvin M . Stoverink , City Clerk
�
-17-