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HomeMy WebLinkAboutResolution_02-96/97_11/14/1996 RESOLUTION NO. 2 -96/97 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, DETERMINING THAT A TRUE AND REAL NEED EXISTS FOR THE ACQUISITION OF TWO AMBULANCES TO BE USED SOLELY FOR ESSENTIAL GOVERNMENTAL FUNCTIONS; DETERMINING THAT THE ACQUISITION OF SUCH EQUIPMENT HAS BEEN PURSUANT TO APPLICABLE LAW; APPROVING THE TERMS OF A MUNICIPAL LEASE AND OPTION AGREEMENT WITH COMMERCIAL AND MUNICIPAL CAPITAL, LLC AND AUTHORIZING THE VILLAGE MANAGER TO EXECUTE THE MUNICIPAL LEASE AND OPTION AGREEMENT AND ANY RELATED DOCUMENTS NECESSARY TO THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THE MUNICIPAL LEASE AND OPTION AGREEMENT. WHEREAS, the Village Council of the Village of Tequesta has determined that a true and very real need exists for the acquisition of two ambulances as described in the Municipal Lease and Option Agreement with Commercial and Municipal Capital, LLC; and WHEREAS, the Village Council has determined that the ambulances will be used solely for essential governmental functions and not for private business use; and WHEREAS, the Village Council of the Village of Tequesta has taken the necessary steps, including legal requirements, under applicable law to arrange for the acquisition of such equipment. NOW, THEREFORE, be it resolved by the Village Council of the Village of Tequesta, Palm Beach County, Florida as follows: Section 1. The foregoing recitals are hereby ratified and confirmed. Section 2. The Village of Tequesta hereby approves the Municipal Lease and Option Agreement as the same has been found to be in the best interest of the Village of Tequesta for the acquisition of the ambulance equipment. Section 3. The Village of Tequesta hereby approves the Municipal Lease and Option Agreement. A copy of the Municipal Lease and Option Agreement is attached hereto, marked Exhibit "A" and made a part hereof. Section 4. The Village Manager is hereby authorized to execute the Municipal Lease and Option Agreement with Commercial and Municipal Capital, LLC and any related documents necessary to the consummation to the transactions contemplated by the Municipal Lease and Option Agreement. THE FOREGOING RESOLUTION was offered by Councilmember PYleder , who moved its adoption. The motion was seconded by Councilmember Schauer , and upon being put to a vote, the vote was as follows: FOR ADOPTION AGAINST ADOPTION i Joseph N. Capretta Carl C. Hansen Ron T. Mackai Michael R. Meder E lizabeth A. Schauer The Mayor thereupon declared the Resolution duly passed and adopted this 14th day of November 1996. i MAYOR OF TEQUESTA ATTEST: , 1 roann Manga ello Village Clerk I ' EXHIBIT "A" MUNICIPAL LEASE - PURCHASE AGREEMENT • LESSOR: Commercial & Municipal Capital, LLC 201 E. Kennedy Blvd, Suite 712 Tampa, Florida 33602 LESSEE: Village of Tequesta P.O. Box 3273 Tequesta, Florida 33469 -0273 FLA DOC This Municipal Lease - Purchase Agreement (the "Agreement ") entered into between Commercial & Municipal Capital, LLC ( "Lessor "), and Village of Tequesta( "Lessee "), a body corporate and politic duly organized and existing under the laws of the State of Florida ( "State "); WITNESSETH: WHEREAS, 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 premises hereinafter contained, the parties • hereby agree as follows: ARTICLE I COVENANTS OF LESSEE Section 1.01 Lessee represents, covenants and warrants, for the benefit of Lessor and its assignees, as follows: (a) Lessee 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. • FLA DOC 1 • (e) During the term of this Agreement, the Equipment will be used by Lessee only for the purpose of performing one or more essential 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 annually provide Lessor with such current financial statements, budgets, proof of appropriation for ensuing fiscal year or such other financial information relating to the decision 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. (h) The Equipment is, and during the period this Agreement is in force will remain, personal property and when subjected to use by the Lessee under this Agreement, will not be or become fixtures. ARTICLE II DEFINITIONS Section 2.01 The following terms will have the meanings indicated below unless the context clearly requires otherwise: "Agreement" means this Municipal Lease - Purchase 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 Lessor, having received and approved all executed documents and exhibits, accepts, signs and dates the Municipal Lease and Option Agreement. "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. "Lessee" means the entity which 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) Commercial & Municipal Capital, LLC, 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 indicated with respect to any date after payment of all Rental Payments (defined below) due through such date, all as set forth in Exhibit E hereto, or Supplemental Exhibit E hereto, as the case may be_ "Renewal Terms" means the automatic renewal terms of this Agreement as provided for in Article IV of this Agreement, each having a duration of one year and a term co- extensive with the Lessee's fiscal • year, except the last of such automatic renewal terms which shall end on the due date of the last Rental Payment set forth in Exhibit E to this Agreement. 2 "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 Section 3.01 Lessor hereby demises, leases and lets to Lessee, and 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 N LEASE TERM Section 4.01. Commencement of Lease Term The Original Term of this Agreement shall commence on the Commencement Date and shall terminate on the last day of Lessee's current fiscal year. Lessee may renew this Agreement beyond the expiration of the Original Term, or beyond the expiration of . any subsequent Renewal Term, up to the number of additional fiscal years provided in Exhibit E of this Agreement by appropriating sufficient funds to make scheduled Rental Payments for the ensuing fiscal year (each a "Renewal Term "). Terms and conditions during any Renewal Term shall be the same as the terms and conditions during the Original Term, except that 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 6.07; (b) The exercise of Lessee of the option to purchase the Equipment before expiration of this Agreement granted under the provisions of Articles IX or M of this Agreement; or (c) A default by Lessee and Lessor's election to terminate this Agreement under Article X111. (d) Payment by Lessee of all Rental Payments authorized or required to be paid by Lessee hereunder. Section 4.03. Return of Equipment on Termination Upon expiration or earlier termination of the Original Term or any Renewal Term under any provision of this Agreement at a time when Lessee does not exercise its option to purchase the Equipment granted under the provisions of Articles IX or XI of this Agreement, Lessee hereby agrees to deliver the Equipment to Lessor packaged or otherwise prepared in a manner suitable for shipment by truck or rail common carrier at a location specified by Lessor. All • expenses resulting from the return of Equipment on Termination will be borne by Lessee. 3 • ARTICLE V ENJOYMENT OF EQUIPMENT Section 5.01 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 out of its available non -ad valorem revenues and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitations or requirements concerning the creation of indebtedness by Lessee. Nothing contained herein shall constitute a pledge of the Lessee's general tax revenues, funds or monies. Section 6.02. Payment of Rental Payments During the Original Term and during each Renewal Tenn elected by Lessee, 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. Additional Interest in the Event the Interest is Taxable Lessee acknowledges that Lessor's yield with respect to this Agreement is dependent upon the full amount of each lease rental payment being excluded from Lessor's income pursuant to Section 103(a) of the United States Internal Revenue Code of 1986 as amended (the "Code "). Accordingly, if at any time, as a result of a determination that Lessee has breached a representation or covenant contained herein, or as a result of any change in the Code, any payment of either the interest component or the principal component of any lease rental payment is, in the opinion of counsel for the Lessor, subject to or affected by any income, preference, excess profits, minimum or other federal tax, Lessee shall pay, as additional interest, an amount which is necessary to provide to Lessor the same net income as Lessor would have received but for such event. Lessor's calculations of such additional interest shall be binding upon Lessee in the absence of manifest error. Section 6.05. Rental Payments to. be. Unconditional During the Original Term and during each Renewal Term elected by Lessee, 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 agrees to pay all Rental Payments when due and shall not withhold any 4 Rental Payments pending final resolution of such dispute, nor shall Lessee assert any right of set-off or counterclaim against its obligation to make such payments when required under this Agreement. Lessee's obligation to make Rental Payments during the Original Term or the then current Renewal Term elected by Lessee shall not be abated through accident or unforeseen circumstances. Section 6.06. Continuation of Lease Tenn b Lessee Lessee intends, subject to the provisions of Section 6.07, to continue the Lease Term through the Original Term and all the Rental Payments hereunder. Lessee reasonably believes that legally available funds from non -ad valorem tax sources in 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 budget submitted and adopted in accordance with applicable provisions of state law, to have such portion of the budget approved, and to exhaust all available reviews and appeals in the event such portion of the budget is not approved. Section 6.07. Termination by Nonappropriation In the event Lessee does not appropriate sufficient funds for the payment of the Rental Payments scheduled to be paid in the next occurring Renewal Term 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 end of the then current Original or Renewal Term. Lessee agrees to deliver notice to Lessor of such termination at least 30 days prior to the end of the then current Original or Renewal Term. Section 6.08. Late Charges If any Rental Payment is not paid in full to Lessor within fifteen (15) days after the payment first became due and payable, Lessee shall immediately pay to Lessor an additional one time late charge equal to five (5 1 /6) percent of each such amount past due along with the Rental • Payment. Partial payments by Lessee shall be applied first to repayment of interest on Lessor advances pursuant to Section 8.04 if any, then to the accrued interest component of past due Rental Payments and the balance to the remaining principal component of past due rental payments. Section 6.09. Prepayment Lessee shall have the right to prepay principal components of Lease Rental Payments in whole on any date set forth in Exhibit E by paying the then applicable Purchase Price set forth in Exhibit E on such date. Lessee shall have the right to prepay principal components of Lease Rental Payments in part on any date set forth in Exhibit E by giving Lessor written notice at least 30 days prior to such date and by paying a portion of the then applicable Purchase Price set forth in amount at least equal to 20% of the initial Purchase Price set forth in the Exhibit E. All prepayments in part shall be applied to reduce the Purchase Price to reflect the amount of the payment. Lessor shall then prepare a revised schedule of Rental Payments, based upon amortization of the adjusted Purchase Price over the remaining term. ARTICLE VII TITLE TO EQUIPMENT Section 7.01. Title to the Equipment During the term of this Agreement, tide to the Equipment and any and all additions, repairs, replacements or modifications shall vest in Lessee, subject to the rights of Lessor under this Agreement. In the event of default as set forth in Section 13.02 or nonappropriation as set forth in Section 6.07, Lessee agrees to surrender possession of the Equipment to Lessor. Lessee and Lessor intend for federal income tax purposes under the Internal Revenue Code of 1986, as amended; that this Agreement constitutes a financing lease or an installment sale contract rather than a true lease. • 5 • Section 7.02. Notice Filing Lessee agrees to execute a notice filing financing statement and such additional documents in form satisfactory to Lessor to protect Lessor's interest in the Equipment from claims of other creditors of Lessee during the term of this Agreement. ARTICLE VIII MAINTENANCE; 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, 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. Section 8.02. Taxes Other Governmental Charges and Utility Charges The parties to this Agreement contemplate that the Equipment will be used for a governmental or proprietary purposes 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, improvement or addition to the Equipment, as well as all gas, water, steam, electricity, heat, power, telephone, utility and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the Equipment; provided that, with 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 Insurable Value (as that term is hereinafter defined) of the Equipment, and to protect Lessor from liability in all events. 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 insures similar properties by self- insurance, Lessee will insure the Equipment by means of an adequate insurance fund. The "Full Insurable Value" as used herein shall mean the full replacement value of the Equipment. 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. The Net Proceeds (as defined in Section 9.01) of the insurance required in this Section 8.03 shall be applied as provided in Article IX hereof. 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 30 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 6 premiums necessary and provide for payment thereof, and all amounts so advanced therefore by Lessor shall become additional rent for the then current Original Term or Renewal Term, which amounts, together with interest thereon at the rate of 12% per annum, Lessee agrees to pay. ARTICLE IX DAMAGE, DESTRUCTION AND CONDEMNATION: USE OF NET PROCEEDS Section 9.01. Damage. Destruction and Condemnation Unless Lessee shall have exercised its option to purchase the Equipment by making payment of the Purchase Price as provided herein, if prior to the termination of the Lease Term (a) the Equipment or any portion thereof is destroyed (in whole or in part) or is damaged by fire or other casualty or (b) title to, or the temporary use of the Equipment or any part thereof or the estate of Lessee or Lessor in the Equipment or any part thereof shall be taken under the exercise of the power eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, Lessee and Lessor will cause the Net Proceeds of any insurance claim or condemnation award to be applied to the prompt repair, restoration, modification or improvement of the Equipment. Any balance of the Net Proceeds remaining after such work has been completed shall be paid to Lessee. For purposes of Section 8.03 and this Article IX, the term "Net Proceeds" shall mean the amount remaining from the gross proceeds of any insurance claim or condemnation award after deducting all expenses (including attorney's fees) incurred in the collection of such claims or award. Section 9.02. Insufficiency of Net Proceeds If the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 9.01 hereof, Lessee • shall either (a) complete the work and pay any cost in excess of the amount of Net Proceeds, and Lessee agrees that if by reason of any such insufficiency of the Net Proceeds, Lessee shall make any payments pursuant to the provisions of this Section 9.02, Lessee shall not be entitled to any reimbursement therefore from Lessor nor shall Lessee be entitled to any diminution of the amounts payable under Article VI hereof or (b) if Lessee is not in default hereunder, Lessee shall pay to Lessor the amount of the then applicable Purchase Price, and, upon such payment, the Lease Term shall terminate and Lessor's 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. ARTICLE X DISCLAIMER OF WARRANTIES; VENDOR'S WARRANTIES; USE OF 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 PURPOSE OR FITNESS FOR USE OF THE EQUIPMENT, OR WARRANTY WITH RESPECT THERETO. In no event shall Lessor be liable for any 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 irrevocably appoints Lessee its agent and attorney -in -fact during the Lease Term, so long as Lessee shall not be in default hereunder, to assert from time to time whatever claims and rights, including warranties of the Equipment, which Lessor may have against the Vendor 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 the 7 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 full 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 shall 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 operations involving any item of Equipment may extend and any legislative, 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 the 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 Section 11.01 At the request of Lessee, Lessor's interest in the Equipment and additional Rental Payments will be terminated and this Agreement shall terminate: (a) At the end of the final Renewal Term, upon payment by Lessee of all Rental Payments scheduled • as set forth in Exhibit E to this Agreement; or (b) if the Lease Term is terminated pursuant to Article IX of this Agreement, in the event of total damage, destruction or condemnation of the Equipment; or (c) any time when Lessee is not on such date in default under this Agreement, upon payment by Lessee of the then applicable Purchase Price to Lessor. Upon the occurrence of any of such events, Lessor shall deliver a Bill of Sale of its remaining interest in the Equipment to Lessee "AS IS - WHERE IS" without additional cost or payment by Lessee. ARTICLE XH ASSIGNMENT, SUBLEASING, INDEMNIFICATION MORTGAGING AND SELLING Section 12.01. Assipment 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 and subassignees by Lessor at any time subsequent to its execution, without the necessity of obtaining the consent of Lessee; provided, however, that no such assignment or reassignment shall be effective unless and until (i) Lessee shall have received notice of the assignment or reassignment disclosing the name and address of the assignee or subassignee, and (ii) in the event that such assignment is made to -a bank or trust company as trustee for holders of certificates representing interest in this Agreement, such bank or trust company agrees to maintain, or cause to be maintained, a book -entry system by which a record of names and addresses of such holders as of any particular time is kept and agrees, upon request of the Lessee, to furnish such information to Lessee. Upon receipt of notice of assignment, Lessee agrees to is reflect in a book entry assignee designation in such notice of assignment, and to make all payments to the 8 assignee designated in the notice of 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 which may be reasonably requested by Lessor or its assignee to protect their interests 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 encumbered by Lessee without the prior written consent of Lessor or assignee. Section 12.03. Release and Indemnification Covenants To the extent permitted by the laws and Constitution of the State, Lessee shall protect, hold harmless and indemnify Lessor from and against any and all liability, obligations, losses, claims and damages whatsoever, regardless of cause thereof, and expenses in connection therewith, including, without limitation, counsel fees and expenses, penalties and interest arising out of or as the result of the entering into this Agreement, the ownership of any item of the equipment, the ordering, acquisition, use, operation, condition, purchase, 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 paragraph 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 defects, malfunctions, breakdowns or infirmities of the equipment. ARTICLE XIII • EVENTS OF DEFAULT AND REMEDIES Section 13.01. Events of Default Defined 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; and (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 30 days after written notice, 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 the expiration, provided, however, 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. The foregoing provisions of this Section 13.01 are subject to (i) the provisions of Section 6.07 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 employee relations disturbances; acts of public enemies; orders or restraints of any kind of the government of the United States of America or 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. • 9 • Section 13.02. Remedies on Default Whenever any event of default referred to in Section 13.01 hereof shall have happened and be continuing, Lessee agrees to return the equipment to Lessor and Lessor shall have the right at its sole option without any further demand or notice, to take either one or both of the following remedial steps: (a) Accept surrender from Lessee of the equipment for sale or release by Lessor in a commercially reasonable manner. All proceeds of such sale or re- letting shall inure to Lessor, provided, however, if such proceeds after deduction of Lessor's reasonable costs and expenses, including attorneys' fees, incurred to recover possession, restore or clean -up and sell or release the equipment, exceed an amount equal to the sum of the past due but unpaid Rental Payments and an amount equal to the then applicable purchase price, Lessor shall remit the amount of such excess to Lessee; or (b) Institute an action in a court of competent jurisdiction to recover Lessor's compensatory damages resulting from Lessee's default. Lessor agrees that it shall not have a right to seek any remedy of specific performance nor shall Lessor have any "self- help" right to take possession of the equipment absent Lessee's voluntary surrender thereof. Section 13.03. Waiver 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 hereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. ARTICLE XIV • MISCELLANEOUS Section 14.01. Notices All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, to the parties at their respective places of business. Section 14.02. 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 14.03. 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 14.04. Amendments The terms of the 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 14.05 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 14.06. Applicable Law This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Section 14.07. Captions. The captions or headings in this Agreement are for convenience only and • do not define, limit or describe the scope or intent of any provisions of sections of this Agreement. 10 Section 14.08. Entire Agreement This Agreement and the executed Exhibits attached hereto constitute the entire agreement between Lessor and Lessee. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing signed by both parties, and then such waiver, consent, modification or change shall be effective only in the specific 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 Supplements) 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. Lessee by the signature below of its authorized representative acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions. IN WITNESS WHEREOF, Lessor has executed this Agreement in its corporate name with its corporate seal hereunto 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 authorized officers. All of the above occurred as of the date first written below; this Agreement shall be binding on Lessee beginning on the date it is accepted and executed by Lessor. LESSOR Commercial & Municipal Capital, LLC Execute: • By: Title: Agreement Number: Date: (Commencement Date) LESSEE: Village of Tequesta Attest: Execute: : /�! Title: Title: Date: • 11