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1988-084-RES WHEREAS, the City Council did at it's regular meeting on January 11, 1988, in Resolution No. 88-001, RESOLUTION NO. 88-084 WHEREAS, the City Council did at it's regular meeting on January 11, 1988, in Resolution No. 88-001, authorize Mayor, Billy Joe Burnett to execute a Lease-Purchase Agreement for one New Model Hydraulic Excavator with Conley- Lott-Nichols Machinery Co.; and, WHEREAS, said Lease-Purchase Agreement is dated July 15, 1988, a date subsequent to the expiration of Mayor, Billy Joe Burnett's term of office and therefore it would not be appropriate for Mayor Burnett to execute the same and it would be appropriate for Mayor, Eric S. Clifford, to be authorized to execute the same; and, WHEREAS, the Lease-Purchase Agreement attached hereto as Exhibit A reflects terms in accordance with the bid let by Resolution No. 88-001, the form of which should be approved; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, That the Lease-Purchase Agreement in the form of Exhibit A attached hereto is approved; and, BE IT FURTHER RESOLVED, That the Mayor of the City of Paris, Eric S. Clifford, be, and he is hereby authorized and directed to execute on behalf of the City of Paris a Lease- Purchase Agreement in the form attached hereto as Exhibit A with City First Financial Company, assignee of Conley-Lott- Nichols Machinery, Co. Passed and adopted this 22nd day of August, 1988. ATTEST: ~~~.~,~~~~ Mattie Cunn~ng am, C~ y er ttorney Lease Number Date of Lease Acceptance Date: 880715 July 15, 1988 ,; City First Financial Company Municipal Equipment Lease-Purchase Agreement Lessor: Address: City First Financial Co. P. O. Box 10531 Conway, Arkansas 72032 Lessee: Address: City of Paris P. O. Box 1037 Paris, Texas 75460 Lessor agrees to lease to Lessee and Lessee agrees to items of equipment (the "Equipment") described in Exhibit Equipment Lease-Purchase Agreement (the "Lease"), upon the conditions: lease from Lessor the A attached to this following terms and 1. DELIVERY AND ACCEPTANCE. Lessee or, if Lessee so requests, Lessor will cause the Equipment to be delivered to Lessee at the location specified in Exhibit A (the "Equipment Location"). Lessee will pay all transportation and other costs, if any, incurred in connection with the delivery of the Equipment. Lessee will accept the Equipment as soon as it has been delivered and is operational or, in the event that the manufacturer or vendor allows a pre-acceptance test period, as soon as the test period has expired. Lessee will evidence its acceptance of the Equipment by executing and delivering to Lessor an Acceptance Certificate (herein so called) in the form provided by Lessor. 2. TERM. This Lease will become effective upon the execution hereof by Lessor. The term of this Lease will commence on the date the Equipment is accepted pursuant to Section 1 above and, unless earlier terminated as expressly provided for in this Lease, will continue until the Expiration Date set forth in Exhibit B attached hereto (hereinafter the "Lease Term"). 3. RENT. Lessee agrees to pay to Lessor or its assignee the Lease Payments (herein so called), including the interest portion, equal to the amounts specified in Exhibit B. The Lease Payments will be payable without notice or demand at the office of the Lessor (or such other place as Lessor or its assignee may from time to time designate in writing), and will commence on the first Lease Payment Date as set forth in Exhibit B and thereafter on the dates set forth in Exhibit B. Any payments received later than ten (10) days from the due date will bear interest at the highest lawful rate from the due date. Except as specifically provided in Section 4 hereof, the obligation of the Lessee to make Lease Payments will be absolute and unconditional in all events and will not be subject to any set-off, defense, counterclaim or recoupment for any reason whatsoever. Lessee reasonably believes that funds can be obtained sufficient to make all Lease Payments during the Lease Term and hereby covenants that it will do all things lawfully within its power to obtain, maintain and properly request and pursue funds from which the Lease Payments may be made, including making provisions for such payments to the extent necessary in each budget submitted for the purpose of obtaining funding, using its bonafide best efforts to have such portion of the budget approved and exhausting all available administrative reviews and appeals in the event such portion of the budget is not approved. It is Lessee's intent to make Lease Payments for the full Lease Term if funds are legally available therefore, and in that regard Lessee represents that the use of the Equipment is essential to its proper, efficient and econom~c op~ration. 4. NONAPPROPRIATION OF FUNDS. In the event no funds or insufficient funds are appropriated and budgeted or are otherwise available by any means whatsoever in any fiscal period for Lease Payments under this Lease, then the Lessee will immediately notify the Lessor or its assignee of such occurrence and this Lease shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to Lessee of any kind whatsoever, except as to the portions of Lease Payments otherwise available. In the event of such termination, Lessee agrees to peaceably surrender possession of the Equipment to Lessor or its assignee on the date of such termination, packed for shipment in accordance with manufacturer specifications and freight prepaid and insured to any location in the continental United States designated by Lessor. Lessor will have all legal and equitable rights and remedies to take possession of the Equipment. Notwithstanding the foregoing, Lessee agrees that: [i] it will not cancel this Lease under the provisions of this Section if any funds are appropriated to it, or by it, for the acquisition, retention or operation of the Equipment or other equipment performing functions similar to the Equipment for the fiscal period in which such termination occurs or the next succeeding fiscal period thereafter and Iii] it will not during the Lease Term give priority in the application of funds to any other functionally similar equipment. This paragraph will not be construed so as to permit Lessee to terminate this Lease in order to acquire any other equipment or to allocate funds directly or indirectly to perform essentially the same application for which the Equipment is intended. 5. LIMITATION ON WARRANTIES. Lessee acknowledges and agrees that the Equipment is of a size, design, and capacity selected by Lessee, that Lessor is neither a manufacturer nor a vendor of such equipment and that LESSOR HAS NOT MADE, AND DOES NOT HEREBY MAKE ANY REPRESENTATION, WARRANTY, OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, CONDITION, QUALITY, DURABILITY, DESIGN, OPERATION, FITNESS FOR USE, OR SUITABLILITY OF THE EQUIPMENT IN ANY RESPECT WHATSOEVER OR IN CONNECTION WITH OR FOR THE PURPOSES AND USES OF THE LESSEE, OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT THERETO, AND LESSOR SHALL NOT BE OBLIGATED OR LIABLE FOR ACTUAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF OR TO LESSEE OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE EQUIPMENT AND THE MAINTENANCE THEREOF. Lessor hereby assigns to Lessee during the Lease Term, so long as no Event of Default has occured hereunder and its continuing, all manufacturer's warranties, if any, expressed or implied with respect to the Equipment, and Lessor authorizes Lessee to obtain the customary services furnished in connection with such warranties at Lessee's expense. 6. AUTHORITY AND AUTHORIZATION. Lessee represents, covenants and warrants and, as requested by Lessor, will deliver an opinion of counsel to the ,effect that: (i) Lessee is a fully constituted political subdivision or agency of the State of the Equipment Location; (ii) the execution, delivery and performance by the Lessee of this Lease have been duly authorized by all necessary action on the part of the Lessee; and (iii) this lease constitutes a legal, valid and binding obligation of the Lessee enforceable in accordance with its terms. Lessee agrees that: (i) it has complied with all bidding requirements where notification presented this Lease for approval and obligation on its part; necessary and by due adoption as a valid (ii) it has sufficient appropriations or other funds available to pay all amounts due hereunder for the current fiscal period; (iii) it is an entity described in Section l03(c)(1) of the Internal Revenue Code of 1986, as amended. (iv) the obligation represented by which is issued to "advance refundlf Section l49(d)(S) of the Code l49(d)(2),(3), or (4) of the Code; this any or Lease does not constitute a Bond (1) other bond as that term is defined in (2) a bond described in Section (v) the obligation of the Lessee represented by this Lease is not "Federally Guaranteed" as that term is defined in Section l49(b)(2) of the Code; (vi) Lessee will do or cause to be done all things necessary to preserve its existence as an entity described in Section l03(c) of the Code; (vii) the "Arbitrage obligation represented by this Lease does not constitute Bond" as that term is defined in Section l48(a) of the Code; an (viii) Lessee Bond Issues", Code. shall execute an "Information Return for Tax Exempt Governmental form 8038-G or 8038-GC as prescribed in Section l49(e) of the 7. TITLE. Upon acceptance of the Equipment by Lessee hereunder, title Equipment will vest in Lessee; however, (i) in the event of termination Lease by Lessee pursuant to Section 4 hereof; (ii) upon the occurrence of of Default hereunder and as long as such Event of Default is continuing; in the event that the Purchase Option has not been exercised prior Expiration Date, title will immediately vest in Lessor or its assignee. to the of this an Event or (iii) to the 8. SECURITY INTEREST. In order to secure all of its obligations hereunder, Lessee hereby: (i) grants to Lessor a first and prior security interest in any and all right, title and interest of Lessee in the Equipment anq, in all additions, attachments, accessions and substitutions thereto, and on any proceeds therefrom; (ii) agrees that this Lease may be filed as a financing statement evidencing such security interest; and (iii) agrees to execute and deliver all financing statements, certificates of title and other instruments necessary or appropriate to evidence such security interest. 9. PERSONAL PROPERTY. The Equipment is and will remain personal property and will not be deemed to be affixed to or a part of the real estate on which it may be situated, notwithstanding that the Equipment or any part thereof may be or hereinafter become in any manner physically affixed or attached to real estate or any building there. If requested by Lessor, Lessee will, at Lessee's expense, furnish a landlord or mortgage waiver with respect to the equipment. 10. USE; REPAIRS. Lessee will use the Equipment in a careful manner for the use contemplated by the manufacturer for the Equipment and shall comply with all laws, ordinances, insurance policies and regulations relating to and will pay all costs, claims, damages, fees and charges arising out of its possession, use or maintenence. Lessee, at its expense, will keep the Equipment in good repair and furnish all parts, mechanisms and devices required therefore. If the Equipment is such as is customarily covered by a maintenance agreement, Lessee will furnish Lessor with a maintenance agreement with a party satisfactory to Lessor. 11. ALTERATIONS. Lessee will not make any alterations, additions or improvements to the Equipment withouts Lessor's prior written consent unless such alterations, additions or improvements may be readily removed without damage to the Equipment. 12. LOCATION; INSPECTION. The Equipment will not be removed from or, if the Equipment consists of rolling stock, its permanent base will not be changed from the Equipment location without Lessor's prior written consent which will not be unreasonably witheld. Lessor will be entitled to enter upon the Equipment location or elsewhere during reasonable business hours to inspect the Equipment or observe its use and operation. 13. LIENS AND TAXES. Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances except those created under this Agreement. Lessee shall pay, when due, all charges and taxes (local, state and federal) which may now or hereinafetr be imposed upon the ownership, leasing, rental, sale, purchase, possession or use of the Equipment, excluding however all taxes on or measured by Lessor's income. If Lessee fails to pay said charges and taxes when due, Lessor shall have the right, but shall not be obligated, to pay said charges and taxes. If Lessor pays any charges or taxes for which Lessee is responsible or liable under this Agreement, Lessee shall reimburse Lessor therefor. 14. RISK OF LOSS; DAMAGE; DESTRUCTION. Lessee assumes all risk of loss of or damage to the Equipment from any cause whatsoever, and no such loss of or damage to the Equipment nor defect therein, nor unfitness or obsole~cence thereof shall relieve Lessee of the obligation to make Lease Payments or.to"petform any other obligation under this Lease. In the event of damage to any item of Equipment, Lessee will immediately place the same in good repair with the proceeds of any insurance recovery applied to the cost of such repair. If Lessor determines that any item of Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee at the option of the Lessor will either: (a) replace the same with like equipment in good repair;or(b) on the next Lease Payment date, pay Lessor: (i) all amounts then owed by Lessee to Lessor under this Lease, including the Lease Payment due on such date; and (ii) an amount equal to the applicable Concluding Payment set forth in Exhibit B. 15. INSURANCE. Lessee will, at its expense, maintain at all times during the Lease Term fire and extended coverage, public liablity and property damage insurance with respect to the Equipment in such amounts, covering such risks, and with such insurers as shall be satisfactory to Lessor or, with Lessor's prior written consent, may self-insure against any or all such risks. In no event will the insurance limits be less the amount of the then applicable Concluding Payment with respect to such Equipment. Each insurance policy will name Lessee as an insured and Lessor or its assigns as an additional insured and loss payee and will contain a clause requiring the insurer to give Lessor at least thirty (30) days prior written notice of any alteration in the terms of such policy or the cancellation thereof. The proceeds of any such policies will be payable to Lessee and Lessor or its assigns as their interests may appear. Upon acceptance of the Equipment and upon each insurance renewal date, Lessee will deliver to Lessor a certificate evidencing such insurance. In the event that Lessee has been permitted to self-insure, Lessee will furnish Lessor with a letter or certificate to such effect. In the event of any loss, damage, injury or accident involving the Equipment, Lessee will promptly provide Lessor with written notice thereof and make available to Lessor all information and documentation relating thereto. 16. INDEMNIFICATION Lessee shall indemnify Lessor to the extent allowed by law against, and hold Lessor harmless from, any and all claims, actions, proceedings, expenses, damages or liabilities, including attorney's fees and court costs, ar1s1ng in connection with the Equipment, including but not limited to its selection, purchase, delivery, possession, use, operation, rejection or return and the recovery of claims under insurance policies thereon. 17. PURCHASE OPTION. Upon thirty (30) days prior written notice from Lessee to Lessor, and provided that there is no Event of Default or an event which with notice or lapse of time, or both, could become an Event of Default then existing, Lessee will have the right to purchase the Equipment on certain Lease Payment dates set forth in the Exhibit B by paying to Lessor, on such a date, the Lease Payment then due together with the Concluding Payment amount set forth opposite such date. Upon satisfation by Lessee of such purchase conditions, Lessor will transfer any and all of its right, title and interest in the Equipment to Lessee as is without warranty expressed or implied, except that Lessor will warrant to Lessee that the Equipment is free and clear of any liens created by Lessor. 18. ASSIGNMENT AND REGISTRATION REQUIREMENTS. Without Lessor's prior written consent, Lessee will not either: (i) assign, transfer, pledge, hypothecate, grant any security interest in or otherwise dispose of this Lease .!O~ the Equipment or (ii) sublet or lend the Equipment or permit it to be used by anyone other than the Lessee or the Lessee's employees. Lessor may assign its right, title and interest in and to this Lease, the Equipment and any other documents executed with respect to this Lease and/or grant or assign a security interest in this Lease and the Equipment, in whole or in part. Any such assignees shall have all of the rights of Lessor under this Lease. Subject to the foregoing, this Lease inures to the benefit of and is binding upon the heirs, executors, administrators, successors and assigns of the parties hereto. No assignment or reassignment of any of Lessor's right, title or interest in this Lease or the Equipment shall be effective unless and until Lessee shall have received a duplicate original counterpart of the document by which the assignment or reassignment is made, disclosing the name and address of each such assignee; however, if such assignment is made to a bank or trust company as paying or escrow agent for holders of certificates of participation in the Lease, it shall thereafter be sufficient that a copy of the agency agreement shall have been deposited with Lessee until Lessee shall have been advised that such agency agreement is no longer in effect. During the Lease Term, Lessee shall keep a complete and accurate record of all such assignments in form necessary to comply with the United States Internal Revenue Code and the regulations, proposed or existing, from time to time promulgated thereunder. 19. EVENTS OF DEFAULT. The occurrence of anyone or more term "Event of Default", of the following events: as used herein, means the (a) Lessee fails to make any Lease Payment (or any other payment) as it becomes due in accordance wiith the terms of this Lease, and any such failure continues for ten (10) days after the due date thereof; or (b) Lessee fails to perform or observe any other covenant, condition or agreement to be performed or observed by it hereunder and such failure is not cured within twenty (20) days after written notice thereof by Lessor; or (c) The discovery by Lessor that any statement, representation or warranty made by Lessee in this Lease or in any writing ever delivered by Lessee pursuant hereto or in connection herewith is false, misleading or erroneous in any material respect. 20. REMEDIES. Upon the occurence of an Event of Default and as long as of Default is continuing, Lessor may, at its option, exercise anyone the following remedies: such Event or more of (a) By written notice to Lessee, declare an amount equal due under this Lease to be immediately due and payable, shall become immediately due and payable; to all amounts then whereupon the same (b) By written notice to the Lessee, request Lessee to (and Lessee agrees that it will), at Lessee's expense, promptly return the Equipment to Lessor in the manner set forth in Section 4 hereof; Lessor, at its option, may enter upon the premises where the Equipment is located and take immediate possession of and remove the same; (c) Sell or lease the Equipment or sublease it for the account of Lessee, holding Lessee liable for all Lease Payments and other payments due to the effective date of such selling, leasing or subleasing add for the difference between the purchase price, rental and other amounts paid" by the purchaser, lessee or sublessee pursuant to such sale, lease or sublease and the amounts payable by Lessee hereunder; or (d) Exercise any other right, remedy or privilege which may be available to it under applicable laws of the state of the Equipment Location or any other applicable law or proceed by appropriate court action to enforce the terms of this Lease or to recover damages for the breach of this Lease or to rescind this Lease as to any or all of the Equipment. In addition, Lessee will remain liable for all covenants and indemnities under this lease and for all legal fees and other costs and expenses, including court costs, incurred by Lessor with respect to the enforcement of any of the remedies listed above or any other remedy available to the Lessor. 21. NOTICES. All notices to be given under this Lease shall be made in writing and mailed by certified mail, return receipt requested, to the other party at its address set forth herein or at such address as the party may provide in writing from time to time. Any such notice shall be deemed to have been received five (5) days subsequent to mailing. 22. SECTION HEADINGS. All section headings contained herein are convenience of reference only and are not intended to define or limit the any provision of this Lease. fur ilie scope of 23. GOVERNING LAW. This Lease shall be construed in accordance with and governed by the laws of the state of the Equipment Location. 24. DELIVERY OF RELATED DOCUMENTS. Lessee will execute or provide, as requested by Lessor, such other documents and information as are reasonably necessary with respect to the transaction contemplated by this Lease. At the request of Lessor, Lessee will furnish Lessor annual financial audit of Lessee when it is available after the end of the Lessee's fiscal year. 25. ENTIRE AGREEMENT; WAIVER. This Lease, together with the Acceptance Certificate and other attachments hereto, and other documents or instruments executed by Lessee and Lessor in connection herewith constitute the entire agreement between the parties with respect to the lease of the Equipment, and this Lease shall not be modified, amended, altered or changed except with the written consent of Lessee and Lessor. Any provision of this Lease found to be prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of this Lease. The waiver by Lessor of any breach by Lessee of any term covenant or condition hereof shall not operate as a waiver of any subsequent breach thereof. 26. ADDITIONAL PROVISIONS. Any amendments to will be set forth in Exhibit C attached hereto, the standard language of this Lease if applicable. IN WITNESS WHEREOF, the parties Lease-Purchase Agreement. City First Financial Company By: Title: President hereto have executed Lessee: this Equipment By: Title: STATE OF TEXAS COUNTY OF LAMAR I, Mattie Cunningham, hereby certify that I am the duly appointed, qualified and acting City Clerk of the City of Paris, Paris, Texas, and as such I have in my possession in the Office of City Cl erk of the City of Pari s, all of the Ordi nances, Reso 1 uti ons and Minutes of the City Council of the City of Paris, and that the foregoing Resolution No. 88-084, is a true and correct copy of the original of said instrument, which was passed by the City Council on the 22nd day of August, 1988. ~RY~~'Ca~ City of Paris, Paris, Texas