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HomeMy WebLinkAboutCCVFD Pierce firetruck 2001 i r.tLt Ivo.cos u,): cf t/c h9+ V4;s( ill:U HH;<: 2b2393 i PAGE 2 i . Lease Number: 0936 1 Equipment Schedule: 0I i 1 ACCEPTANCE CERTIFICATE l We the undersigned, hereby certify that we are duly qualified and acting offices of the Co-Lessees identified below and with respect to the above referenced Equipment Schedule and Lease, that I L The Equipment described below has been delivered and installed in accordance with Co- Lessee's t : specifications, is in good working order and is fully operational and has been Fully accepted by Co- Lessees on or before 3 the date indicated below: One (1) New Pierce Quantum Fire Truck VJN#4P1CT02S62A002116 2. Attached are (a) evidence of insurance with respect to the Equipment in compliance with Article ViI of thc Agreement; (b) Vendor invoice(s) and/or bill(s) of sale relating to the Equipment, and if such invoices have been paid by Co- Lessees, evidence of payment thereof (evidence of official intent to reimburse such payment as n:quired by the Code i having been delivered separately by Co- Lessees); and (c) financing statements executed by Co-Lessees as debtor and/or the original certificate of title or manufacturer's certificate of origin and title application, if any, for any Lquipment ] which is subject to certificate of title laws. 3. Rental Payments shall be due and payable by Co- Lessees on the dates and in the amounts indicated on the 4 Payment Schedule attached to the Equipment Schedule. Co- Lessees have appropriated and/or taken other lawful actions i necessary to provide moneys Sufficient to pay all Rental Payments required to be paid under the Lease during the current Fiscal Year of Co- Lessees. Such moneys will be applied in payment of all such Rental Payments due and payable 1 during such current Fiscal Year. Co-Lessees anticipate that sufficient funds shall be available to make all Rental 1 Payments due in subsequent Fiscal Years. i r. 4. Co- Lessees hereby authorize and direct Lessor to fund the Acquisition Cost of the Equipment rent by paying, or directing the payment from the Escrow Account u t (if applicable) of, the invoice prices to the Vendor(s), in each case as set , forth above, or by reimbursing Co- Lessees in the event such invoice prices have been previously paid by Co-Lessees. . X 5. Final Acceptance Certificate. 'This Acceptance Certificate constitutes final acceptanet of all of the Equipment identified in the Equipment Schedule described above. Co-Lessees certify that upon payment in accordance with paragraph 4 above, Lessor shall have fully and satisfactorily performed all of its covenants and obligations under the tease. (CHL:K BOX iF APPLICABLE. j CITY OF CAPE CANAVERAL 1 Co-I .essee i • me . i t 1 Title: City Manager__ _ Date: 7A /off CAPE CANAVERAL PORT AUTHORITY Y Co-I .essee i . 1 Ry: / . . Name: Albert, h • s if C Title: Chief " 'dal Officer I Date: a 0.), { i 1 1 1 1 i 1 1 1 I PIERCE MANUFACTURING INC. AN OSHKO5H TRUCK CORPORATION COMPANY • ISO 9001 CERTIFIED 1 1 2600 AMERICAN DRIVE I POST OFFICE BOX 2017 1 APPLETON, WISCONSIN 54912 -2017 920 - 832 -3000 • FAX 920- 832 -3208 3 i 1 November 13, 2001 1 City of Cape Canaveral & Port Auth 8970 Columbia Rd Cape Canaveral FL 32920 1 a a 4 s it Dear Sir or Madam: i Pierce Manufacturing and Ten -8 Fire would like to thank you for your prepayment in the a amount of $439,905.00 which we received on 10/12/01. The payment has been applied a to your account with Pierce Manufacturing for truck 13134TR. ai Please contact us if you have any questions regarding your payment. 1 4 Sincerely, 4 PIERCE MANUFACTURING INC. a 4 i C c 4,- Laura C. Kober Accounts Receivable i `1 cc: Ten -8 I 1 i i 3 g $ 8 3 1 i i 1 I 1 x I ¢ 4 1 pg J I PIERCE MANUFACTURING INC. 1 AN OSHKOSH TRUCK CORPORATION COMPANY • ISO 900 ( ER "FI[D 1 2600 AMERICAN DRIVE 3 POST OFFICE BOX 2017 APPLETON, WISCONSIN 54912-2017 920- 832 -3000 • FAX 920- 832 -3208 1 1 October 4, 2001 a 4 Chief David Sargeant CAPE CANAVERAL FIRE DEPARTMENT 1 8970 Columbia Road Cape Canaveral FL 32920 SUBJECT: New Fire Apparatus I i Dear Chief Sargeant: I We acknowledge, with thanks, the contract covering ONE (1) PIERCE QUANTUM 105' i AERIAL LADDER, our Shop Order Number 13134TR. I 1 We are pleased to formally accept this order and have enclosed a signed copy of the contract for a your files. Also, enclosed is a 100% Performance Bond in the amount of $439,905 per your I request. i The opportunity to place this PIERCE apparatus in your fire department is greatly appreciated i and we are certain it will fulfill your every requirement. Pierce Mfg. Inc. and your authorized Pierce Representative, Ten -8 Fire Equipment, Inc., acknowledge with thanks your purchase. 1 1 Yours very truly, 1 PIE ' CE MANU ACTURING INC. 1 i 1 .4 ill I ' 1 ,/ U V Jim ' x Vice ' - : dent, Eastern Sales Districts JP /tav Enclosure I c Ten -8 Fire Equipment, Inc. i i i i I I ( i TRAVELERS PERFORMANCE AND OF AMERICA AND SURETY COMPANY PAYMENT BOND Hartford, Connecticut 06156 z Bond Number 103690876 KNOW ALL MEN BY THESE PRESENTS, THAT, PIERCE MANUFACTURING INC., 2600 American Drive, PO Box 2017, Appleton, N WI 54913 -2017 (hereinafter called Principal), as Principal, and TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a corporation organized and existing under the laws of the State of Connecticut with its principal office in the City of Hartford, j Connecticut, (hereinafter called Surety), as Surety, are held and firmly bound unto City of Cape Canaveral and Canaveral Port Authorities 8970 Columbia Rd., Cape Canaveral, FL 32920 (hereinafter called the Owner), and to all persons who furnish labor or material directly to the Principal for use in the prosecution of the work hereinafter named, in the just and full sum of Four Hundred Thirty Nine Thousand Nine Hundred Five and no /100 Dollars ($ 439,905.00 ) to the payment of which sum, well and truly to be made, the said Principal and Surety bind themselves, and their respective heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has entered into a certain written contract with the Owner, dated the 30th day of September, 2001 for One (1) Pierce Quantum 105' Ladder which contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall fully indemnify the Owner from and against any failure on his /her part faithfully to perform the obligations imposed upon him /her under the terms of said contract free and clear of all liens arising out of claims for labor and material entering into the work, and if the said Principal shall pay all persons who shall have furnished labor or material directly to the Principal for use in the prosecution of the aforesaid work, each of which said persons shall have a direct right of action on this instrument in his /her own name and for his /her own benefit, subject, however, to the Owner's priority, then this obligation to be void; otherwise to remain in full force and effect. i PROVIDED, HOWEVER, that no action, suit or proceeding shall be had or maintained against the Surety on this instrument unless the same be brought or instituted and process served upon the Surety within two years after completion of the I work mentioned in said contract, whether such work be completed by the Principal, Surety or Owner; but if there is any maintenance period provided in the contract for which said surety is liable, an action for maintenance may be brought within two years from the expiration of the maintenance period, but not afterwards. BY ACCEPTANCE of this bond, it is hereby acknowledged that the attached Dual Obligee Rider becomes a part of this 1 bond. IN WITNESS WHEREOF the said Principal and Surety have signed and sealed this instrument this 1 30th day of September, 2001 . PIERCE MANUFAC ING INC. i 4� 1 �Ce��21�p�, o, a '^ By I •-' L (SEAL) 1 Witness Principal 1 � VEL s UAL A �J '' i URE COM PA NY OF AMERICA I 7�- d - - -- By - -- - � _ (SEAL) Toni Schinke Witness Rich r J. DeVries , Att. ney -In -Fact Surety i y ! 01/01/01 1 PIERDUOB /BOND 1 -1 1 DUAL OBLIGEE RIDER To be attached to and form a part of bond # 103690876xecuted by TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, as Surety this 30 day of September, 2001 in the amount of Four Hundred Thirty Nine Thousand Nine Hundred Five and no /100 Dollars ($439,905.00) on behalf of Pierce Manufacturing Inc., PO Box 2017, Appleton, WI 54913 - 2017 as Principal, in favor of City of Cape Canaveral and Canaveral Port Authorities, 8970 Columbia Rd., Cape Canaveral, FL 32920, as Obligee. Whereas, upon the request of the Principal and Obligee, the attached bond is hereby amended to add Sun Trust Leasing Corp., 29 W. Susquehannah Ave., Ste 400, Townson, MD 21204 as additional Obligee. The Surety shall not be liable under this bond to the Obligees, or either of them, unless the said Obligees or either of them, shall make payments to the Principal or to the Surety, in case it arranges for the completion of the contract upon default of the Principal, strictly in accordance with the terms of said contract as to payments, and shall perform all the other obligations to be 1 performed under said contract at the time and in the manner therein set forth. In no event shall the Surety be liable in the aggregate to both Obligees for more than the penalty 1 of is Performance Bond, nor shall it be liable except for a single payment for each single breach or default. At the Surety's election, any payment due to either Obligee may be made by its check issued jointly to both. All other terms and conditions of this bond are unchanged except as herein above modified. 3 1 4 TRAVDUOB/BOND . TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA TRAVELERS CASUALTY AND SURETY COMPANY ' FARMINGTON CASUALTY COMPANY Hartford, Connecticut 06183 -9062 s POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEY(S)-IN-FACT KNOW ALL PERSONS BY THESE PRESENTS, THAT TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY, corporations duly organized under the laws of the State of Connecticut, and having their principal offices in the City of Hartford, 1 County of Hartford, State of Connecticut, (hereinafter the "Companies ") hath made, constituted and appointed, and do by these presents make, constitute and appoint: Richard J. DeVries, Toni Schinke, Stacey L. Ryan, Timothy R. Nickels, of Appleton, Wisconsin, their true and lawful Attomey(s) -in -Fact, with full power and authority hereby conferred to sign, execute and acknowledge, at any place within the United States, the following instrument(s): by his/her sole signature and act, any and all 1 bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking and any and all consents incident thereto and to bind the Companies, thereby as fully and to the same extent as if the same were signed by the duly authorized officers of the Companies, and all the acts of said Attorney(s)-in-Fact, y(s) t, pursuant to the authority herein given, are hereby ratified and confirmed. This appointment is made under and by authority of the following Standing Resolutions of said Companies, which Resolutions are now in full force and effect: j 1 VOTED: That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys -in -Fact and Agents to act for and on behalf of the company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her. VOTED: That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is I in writing and a copy thereof is filed in the office of the Secretary. I . VOTED: That any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary, or (b) duly executed (under seal, if required) by one or more Attorneys -in -Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority. This Power of Attorney and Certificate of Authority is signed and sealed by facsimile (mechanical or printed) under and by authority of the following Standing Resolution voted by the Boards of Directors of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY 4 COMPANY, which Resolution is now in full force and effect: 8 I VOTED: That the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys -in -Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney I or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding upon the Company in the future with respect to any bond or undertaking to which it is attached. i i i i f 1 a yp I � P ■ 1 0 1 -00 Standard) l . ) CONTRACT THIS AGREEMENT, made by and between Pierce Manufacturing Inc. Appleton, WI first art and Y g PP party, The Cape Canaveral Fire Department by its authorized representative, second party WITNESSETH: First. The said first party hereby agrees to furnish the apparatus and equipment according to the specifications hereto attached and made a part of this contract, and to delivery the same as hereinafter provided. Second. The first party agrees that all material and workmanship in and about said apparatus and equipment shall comply with said specifications. In the event there is any conflict between Customer Specifications and the Pierce Proposal, the Pierce Proposal will prevail. The standard Pierce Warranty will apply. Third. This contract for fire apparatus conforms with all Federal Department of Transportation (DOT) rules and regulations in effect at the time of contract signing, and with all National Fire Protection Association (NFPA) Guidelines for Automotive Fire Apparatus as published at the time of contract signing, except as modified by customer specifications. An PP P Sig, P Y P Any increased costs incurred by first party because of future changes in or additions to said DOT or NFPA standards will be passed along to the customer as an addition to the price set forth below. Fourth. The said apparatus and equipment shall be ready for delivery from Appleton, calendar Wisconsin, within about 240 calen after the receipt and acceptance of this contract at the first party's office at Appleton, Wisconsin, delays due to strikes, failures to obtain chassis, materials, or other causes beyond its control not preventing, and shall be delivered to said party of Cape Canaveral, Florida. the second part at P a i Fifth. A competent serviceman shall upon request, be furnished by first party to demonstrate said apparatus for second party and to give its employees the necessary instructions in the operation and handling of said apparatus. Sixth. The second party hereby purchases and agrees to pay for said apparatus and equipment, the sum of $599,905.00 less $160,000.00 for trade -in of 1986 Sutphen aerial apparatus to dealer. Final contract amount is Four hundred thirty -nine thousand, nine hundred five dollars and no cents. Dollars ($ 439,905.00 ) Payment shall be made directly to first party at its Appleton, Wisconsin office. Under no circumstances shall 1 payment be made to the dealer or any other party except Pierce Manufacturing Inc. Any representation that payment is authorized to be made to another party is in violation of this agreement. I I I Net payment is due upon acceptance at Pierce Manufacturing Inc., Appleton, Wisconsin, unless otherwise specified herein. If deferred payment arrangements are made, such arrangements shall be in writing, and second party's obligation thereunder shall be evidenced by negotiable paper. pob g I 1 a CONTRACT $ Contract shall be prepaid at time of order entry by Leasing2. Payment must be received within 7 days of order entry to f avoid loss of interest and fiscal year -end price increase. If more than one piece of apparatus is covered by this contract, the above terms of payment shall apply to each .I piece, and an invoice covering each piece shall be rendered in the proper amount. 1 Seventh. In case the second party desires to test the apparatus, such test shall be made within ten (10) days after 1 arrival at destination, and a written report of such test forthwith delivered to the first party at its principal office at Appleton, Wisconsin. If no such test be made, or if no such report be made by the second party within ten (10) days after arrival, then E said apparatus and equipment shall be considered as fully complying with contract specifications. Eighth. It is agreed that the apparatus and equipment covered by this contract shall remain the property of the first part until the entire contract price has been paid, but if more than one pierce of apparatus is covered by this contract, then each piece shall remain the property of the first party until the above listed price for such piece has been paid in full, and in i case of any default in payment the first party may take full possession of the apparatus and equipment, or of the piece or pieces upon which default has been made, and any payments that have been made shall be applied as payment for the use of 1 the apparatus and equipment up to date of taking possession. 1 Ninth. This contract to be binding must be signed and approved by an office of Pierce Manufacturing Inc., or someone authorized by it to do so. This contract and specifications take precedence over all previous negotiations and no representations are considered as entering into this contract except as are contained herein or in the specifications attached hereto. This contract cannot be altered or modified except by mutual agreement signed by the parties. M 1 IN WITNESS WHEREOF, the said parties have caused these presents to be executed and the second party has caused its seal to be affixed, and attested by its authorized representatives on this 28th day of September 2001 s S a �' 1 Pot. , etzlt t 10,E C p - t. PIERCE • t , By o� i he G °F' C,(1L' (Seal) By / P r /1A t '' Sa.G eli Al , Date of Ac 13 . ce } f C�� � *� �� i I 1 7 t i Pierc& t 4 , 1 3 1 1 C i 1 ni i l easing 2 fire education $ public works law enforcement energy management i 1 t government leasing specialists November 8, 2001 Bennett Boucher 1304 deSoto avenue City of Cape Canaveral t suite 304 105 Polk Avenue ,t tamps, fl 33606 -3138 Cape Canaveral, Florida 32920 1 8 °° 287 5'55 Re: Master Lease Agreement 0936 813 258 9888 a , 813 258 9333 0 Dear Bennett: Enclosed for your records, please find fully executed copies of our easing2.com recent lease agreement. Thank you for the trust and confidence you I have placed in Leasing 2 by awarding us this business. 1 As our customer, we value you, your business and our relationship. You can depend on Leasing 2 to continue to provide you with the highest level of leasing expertise and customer care available. 8 I It has been a pleasure working with you and City of Cape Canaveral. If we can ever be of further service, please do not hesitate to I contact me at 800 - 287 -5155. J 1 Best regards, 1 WI-A1a hUt` i 4 Brad Meyers BM /If q encl. 1 P l l I 1 1 3 1 i LEASING 2, INC. MASTER LEASE AGREEMENT LEASE NUMBER: 0936 This MASTER LEASE AGREEMENT (the "Agreement "), dated as of August 15, 2001 is made and entered into by and between LEASING 2, INC., a Florida corporation, as lessor (the "Lessor "), and CITY OF CAPE CANAVERAL, a political subdivision of the State of FLORIDA, as Co- Lessees ( "Cape Canaveral "), and CANAVERAL PORT AUTHORITY, a political subdivision of the State of 4 FLORIDA, as Co- Lessees (the "Port Authority," and together with Cape Canaveral, "Co- Lessees "). 3 In consideration of the mutual covenants herein contained, the parties hereto agree as follows: j ARTICLE I. DEFINITIONS AND EXHIBITS Section 1.1. Definitions. The following terms have the meanings specified below. "Acceptance Certificate" means each Acceptance Certificate delivered by Co- Lessees as part of an Equipment Schedule certifying as to the delivery, installation and acceptance of Equipment. 3 g "Agreement" means this Master Lease Agreement and all Equipment Schedules hereto. "Agreement Date" means the date first written above. Y ' "Code" means the Internal Revenue Code of 1986, as amended, together with Treasury Regulations promulgated from time to time thereunder. "Equipment" means all items of property described in Equipment Schedules and subject to this Agreement. 1 "Equipment Group" means each group of Equipment listed in a single Equipment Schedule. "Equipment Schedule" means each sequentially numbered schedule executed by Lessor and Co- Lessees with respect to an Equipment Group. "Escrow Account" means the equipment acquisition account established by Lessor pursuant to the Agreement. a "Events of Default" means those events described in Section 12.1. 1 1 "Fiscal Year" means each 12 -month fiscal period of Co- Lessees. f "Interest" means the portion of a Rental Payment designated as and comprising interest as provided in a Payment Schedule. I "Lease" means, with respect to each Equipment Group, this Agreement and the Equipment Schedule relating thereto, which together shall constitute a separate contract between Lessor and Co- Lessees relating to such Equipment Group. "Lease Date" means, with respect to each Lease, the date so designated in the related Equipment Schedule and the commencement date of the interest component as provided in the related Payment Schedule. "Lease Term" means, with respect to each Equipment Group, the period during which the related Lease is in effect as specified in Section 3.1. "Net Proceeds" means any insurance proceeds or condemnation awards paid with respect to any Equipment remaining after payment therefrom of all expenses incurred in the collection thereof. • "Non- Appropriation" means the failure of both Co- Lessee's, or such Co- Lessees' respective governing body, or, if applicable, the governmental entity from which such Co- Lessee obtains its operating and/or capital funds to appropriate money for any Fiscal Year sufficient for the continued performance by such Co- Lessee of all of Co- Lessee's obligations under this Agreement, as evidenced by the passage of an ordinance or resolution specifically prohibiting such Co- Lessees from performing its obligations under this Agreement with respect to any Equipment, and from using any moneys to pay any Rental Payments due under this Agreement for a designated Fiscal Year and all subsequent Fiscal Years. 1 "Payment Date" means each date upon which a Rental Payment is due and payable as provided in a Payment Schedule. "Payment Schedule" means the schedule of Rental Payments attached to an Equipment Schedule. 9/10/01 :LES- BQ•ESR.DOC /rev. 5/01 /lessor /L2 1 IS , T ' f 3 "Principal" means the portion of any Rental Payment designated as and comprising principal as provided in a Payment Schedule. 1 "Prepayment Price" means the amount so designated and set forth opposite a Payment Date in a Payment Schedule indicating the amount 1 for which Co- Lessees may purchase the related Equipment Group as of such Payment Date after making the Rental Payment due on such 1 Payment Date. "Rental Payment" means each payment due from Co- Lessees to Lessor on a Payment Date. "Specifications" means the bid specifications and/or purchase order pursuant to which Co- Lessees has ordered any Equipment from a Vendor. "State" means the state or commonwealth in which Co- Lessees are situated. { "Vendor" means each of the manufacturers or vendors from which Co- Lessees has ordered or with which Co- Lessees has contracted for the manufacture, delivery and/or installation of the Equipment. 1 Section 1.2. Fxhihit5. Fxhihit A: Equipment Schedule including form of Acceptance Certificate and form of Payment Schedule. Exhibit R -1: Form of Tax Agreement and Arbitrage Certificate (Escrow). Fxhihit C -1: Form of Resolution of the Governing Body of Co- Lessees relating to each Lease (Escrow). 1 Fxhihit 1): Form of Incumbency Certificate as to each officer or representative of Co- Lessees executing this Agreement or any Lease. Exhibit F. Form of Opinion of Independent Counsel to Co- Lessees. Fxhihit F:. Form of Payment Request Form. 1 Fxhihit G -1: Form of Confirmation of Outside Insurance. 1 Fxhihit G -7• Form of Questionnaire for Self - Insurance and Addendum to Equipment Schedule Relating to Self- Insurance. t ARTICLE II. LEASE OF EQUIPMENT 4 Section 2.1. Acquisition of Equipment. Prior to the addition of any Equipment Group, Co- Lessees shall provide Lessor with a 1 description of the equipment proposed to be subject to a Lease hereunder, including the cost and vendor of such equipment, the expected delivery date and the desired lease terms for such equipment, and such other information as the Lessor may require. If Lessor, in its sole discretion, determines the proposed equipment may be subject to a Lease hereunder, Lessor shall furnish to Co- Lessees a proposed Equipment Schedule relating to the Equipment Group for execution by Co- Lessees and then Lessor. By execution hereof, Lessor has made no commitment to lease any equipment to Co- Lessees. J Section 2.2. Disbursement. Lessor shall have no obligation to make any disbursement to a Vendor or reimburse Co- Lessees for any payment made to a Vendor for an Equipment Group (or, if the escrow procedure described in Section 2.4 hereof is utilized, consent to a disbursement) until five (5) business days after Lessor has received all of the following in form and substance satisfactory to Lessor: (a) a completed Equipment Schedule executed by Co- Lessees; (b) an Acceptance Certificate in the form included with Exhibit A hereto; (c) a 1 resolution or evidence of other official action taken by or on behalf of each Co- Lessee to authorize the acquisition of the Equipment Group on the terms provided in such Equipment Schedule; (d) a Tax Agreement and Arbitrage Certificate in the form of Exhibit B -1 (as t applicable) attached hereto from each of the Co- Lessees; (e) evidence of insurance with respect to the Equipment Group in compliance ? with Article VII of this Agreement; (f) Vendor invoice(s) and/or bill(s) of sale relating to the Equipment Group, and if such invoices have 1 been paid by Co- Lessees, evidence of payment thereof and evidence of official intent to reimburse such payment as required by the Code; (g) financing statements executed by Co- Lessees as debtor and/or the original certificate of title or manufacturer's certificate of origin and title application, if any, for any Equipment which is part of such Equipment Group and is subject to certificate of title laws; (h) a completed s and executed Form 8038 -G or 8038 -GC, as applicable, or evidence of filing thereof with the Secretary of Treasury; (i) an opinion of counsel to the Co- Lessees substantially in the form of Exhibit E hereto, and (j) any other documents or items reasonably required by Lessor. Section 7 3. Lease; Possession and Ilse. Lessor hereby leases the Equipment to Co- Lessees, and Co- Lessees hereby lease the Equipment from Lessor, upon the terms and conditions set forth herein. Co- Lessees shall have quiet use and enjoyment of and peaceably have and hold each Equipment Group during the related Lease Term, except as expressly set forth in this Agreement. i Section 2.4. Escrow Procedure. If Lessor and Co- Lessees agree that the cost of an Equipment Group is to be paid from an Escrow Account: (a) Lessor and Co- Lessees shall execute an Equipment Schedule relating to such Equipment Group; and (b) Lessor shall deposit j an amount into the Escrow Account sufficient to cover the cost of the Equipment Group at delivery. All amounts deposited by Lessor into the Escrow Account shall constitute a loan from Lessor to Co- Lessees that shall be repaid by the Rental Payments due under the related Lease. ARTICLE III. TERM Section 3.1. Term. This Agreement shall be in effect from the Agreement Date until the earliest of (a) termination under Section 3.2 or (b) termination under Section 12.2; provided, however, no Equipment Schedules shall be executed after any Non- Appropriation or Event of Default. Each Lease with respect to an Equipment Group shall be in effect for a Lease Term commencing upon the Lease Date and ending as provided in Section 3.5. i 9 /10 /01.LES- BQ- ESR.DOC/rev. 5 /01/lessor/L2 2 i 1 i ) , 1 ' , l 1 T i I Section 3.2. Termination by Co-Lessees. In the sole event of Non-Appropriation, this Agreement and each Lease hereunder shall terminate, in whole, but not in part, as to all Equipment effective upon the last day of the Fiscal Year for which funds were appropriated, in i the manner and subject to the terms specified in this Article. Co-Lessees may effect such termination by giving Lessor a written notice of 1 i termination and by paying to Lessor any Rental Payments and other amounts which are due and have not been paid at or before the end of i their then current Fiscal Year. Co-Lessees shall endeavor to give notice of such termination not less than ninety (90) days prior to the end i of the Fiscal Year for which appropriations were made, and shall notify Lessor of any anticipated termination. In the event of termination i of this Agreement as provided in this Section, Co-Lessees shall comply with the instructions received from Lessor in accordance with , Section 12.3. 1 1 Section 3.3. Effect of Termination. Upon termination of this Agreement as provided in Section 3.2, Co-Lessees shall not be responsible i for the payment of any additional Rental Payments coming due in succeeding Fiscal Years, but if Co-Lessees have not complied with the 1 i instructions received from Lessor in accordance with Section 12.3, the termination shall nevertheless be effective, but Co-Lessees shall be i i responsible for the payment of damages in an amount equal to the amount of the Rental Payments that would thereafter have come due if i this Agreement had not been terminated and which are attributable to the number of days after which Co-Lessees fail to comply with 1 Lessor's instructions and for any other loss suffered by Lessor as a result of Co-Lessees' failure to take such actions as required. i I Section 3.4. Termination of Lease Term. The Lease Term with respect to any Lease will terminate upon the occurrence of the first of i the following events: (a) the termination of this Agreement by Co-Lessees in accordance with Section 3.2; (b) the payment of the , i Prepayment Price by Co-Lessees pursuant to Article V; (c) an Event of Default by Co-Lessees and Lessor's election to terminate such i Lease pursuant to Article XII; or (d) the payment by Co-Lessees of all Rental Payments and all other amounts authorized or required to be i I paid by Co-Lessees pursuant to such Lease. 1 i 1 1 ARTICLE IV. RENTAL PAYMENTS i Section 4.1. Rental Payments. The Co-Lessees agree, jointly and severally, to pay the Rental Payments due as specified in the Payment , 1 I Schedule in Exhibit A. A portion of each Rental Payment is paid as interest as specified in the Payment Schedule of each lease, and the i 4 4 first Rental Payment will include Interest accruing from the Lease Date. Lessor is authorized to insert the due date of the first Rental i Payment in the Payment Schedule in Exhibit A. All Rental Payments shall be paid to Lessor, or to such assignee(s) Lessor has assigned as I I stipulated in Article XI, at such places as Lessor or such assignee(s) may from time to time designate by written notice to Co-Lessees. Co- ..1 Lessees shall pay the Rental Payments with lawful money of the United States of America from moneys legally available therefor. Lessor q I . and Co-Lessees confirm their understanding and agreement that (a) all payments due under the Agreement are to be made only from 1 1 1 I Co-Lessees' respective legally available and appropriated revenues from sources other than ad valorem or other taxes, (b) that neither I I Co-Lessee shall be obligated to pay any sums due under the Agreement from the proceeds of ad valorem or other taxes, and (c) that Co-Lessees' contractual obligations to request annual appropriations from which payments due under the Agreement may be made , 1 does not constitute an indebtedness of either Co-Lessee within the meaning of any constitutional or statutory provision or limitation. Section 4.2. Current Expense,. The obligations of Co-Lessees, including their obligation to pay the Rental Payments due in any Fiscal 1 1 I Year of a Lease Term, shall constitute a current expense of each Co-Lessee for such Fiscal Year and shall not constitute an indebtedness of 1 Co-Lessees within the meaning of the Constitution and laws of the State. Nothing herein shall constitute a pledge by Co-Lessees of any i I taxes or other moneys (other than moneys lawfully appropriated from time to time by or for the benefit of Co-Lessees for this Agreement 1 and the Net Proceeds of the Equipment) to the payment of any Rental Payment or other amount coming due hereunder. 1 Section 4.3. Unconditional Rental Payments. The Co-Lessees' obligation to make Rental Payments shall be absolute and unconditional. i I Also, any other payments required hereunder shall be absolute and unconditional. Co-Lessees shall make these payments when due and shall not withhold any of these payments pending final resolution of any disputes. The Co-Lessees shall not assert any right of set-off or counterclaim against their obligation to make these payments. Co-Lessees' obligation to make Rental Payments or other payments shall I not be abated through accident, unforeseen circumstances, failure of the Equipment to perform as desired, damage or destruction to the Equipment, loss of possession of the Equipment or obsolescence of the Equipment. The Co-Lessees shall be obligated to continue to make . payments required of it by this Agreement if title to, or temporary use of, the Equipment or any part thereof shall be taken under exercise of , the power of eminent domain. . Section 4.4. Joint and Several Obliptions. Each obligation of the Co-Lessees' hereunder, including, without limitation, he Co-Lessees' obligation to make Rental Payments, is joint and several. In the event (i) either Co-Lessee fails, or such Co-Lessee's respective governing body, or, if applicable, the governmental entity from which such Co-Lessee obtains its operating and/or capital funds, to appropriate money for any Fiscal Year sufficient for the continued performance by such Co-Lessee of all of Co-Lessee's obligations under this Agreement, (ii) or either Co-Lessee fails to perform its obligations hereunder resulting from an Event of Default or otherwise, such obligations shall be the sole responsibility of the other Co-Lessee. ARTICLE V. OPTION TO PREPAY Section 5.1. Option to Prepay. Co-Lessees shall have the option to prepay their obligations under any Lease in whole but not in part on any Payment Date for the then applicable Prepayment Price as set forth in the related Payment Schedule, provided there has been no Non- l Appropriation or Event of Default. 1 I Section 5.2. Exercise of Option. Co-Lessees shall give notice to Lessor of their intention to exercise their option not less than thirty (30) i , days prior to the Payment Date on which the option will be exercised and shall pay to Lessor not later than such Payment Date an amount equal to all Rental Payments and any other amounts then due or past due under the related Lease (including the Rental Payment due on the 1 Payment Date on which the option shall be effective) and the applicable Prepayment Price set forth in the related Payment Schedule. In the 3 9/10/01 LES-BQ-ESR DOC/rev 5/0 1 /lessor/L2 i event that all such amounts are not received by Lessor on such Payment Date, such notice by Co- Lessees of exercise of shall be void and 1 the related Lease shall continue in full force and effect. Section 5.3. Release of Lessor's Interest. Upon receipt of the Prepayment Price in good funds with respect to any Equipment Group, the 1 1 Lease with respect to such Equipment Group shall terminate and Co- Lessees shall become entitled to such Equipment Group AS IS, WHERE IS, WITHOUT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR p FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY CO- LESSEES, except that such Equipment Group shall not be subject to any lien or encumbrance created by or arising through Lessor. ARTICLE VI. REPRESENTATIONS, WARRANTIES AND COVENANTS ,Section 6.1. Representations and Warranties of Co- Lessees. Each Co- Lessee represents and warrants as of the Agreement Date and as 1 of each Lease Date as follows: (a) Co- Lessee is a state or political subdivision of the State within the meaning of Section 103(c) of the Code, duly organized and 1 existing under the Constitution and laws of the State, and is authorized under the Constitution and laws of the State to enter into this Agreement, each Lease and the transactions contemplated hereby and thereby, and to perform all of their obligations under this Agreement and each Lease. (b) The execution and delivery of this Agreement and each Lease have been duly authorized by all necessary action of Co- Lessee's governing body and such action is in compliance with all public bidding and other State and federal laws applicable to this Agreement, each Lease and the acquisition and financing of the Equipment by Co- Lessee. 1 (c) This Agreement and each Lease have been duly executed and delivered by and constitutes the valid and binding obligation of Co- Lessee, enforceable against Co- Lessee in accordance with their respective terms. (d) The execution, delivery and performance of this Agreement and each Lease by Co- Lessee shall not (i) violate any State or federal i law or local law or ordinance, or any order, writ, injunction, decree, or regulation of any court or other governmental agency or body , applicable to Co- Lessee, or (ii) conflict with or result in the breach or violation of any term or provision of, or constitute a default under, any note, bond, mortgage, indenture, agreement, deed of trust, lease or other obligation to which Co- Lessee is bound. (e) There is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Co- Lessee's knowledge, threatened against or affecting Co- Lessee, challenging Co- Lessee's 1 authority to enter into this Agreement or any Lease or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement or any Lease. 1 (0 No lease, rental agreement, lease - purchase agreement, payment agreement or contract for purchase to which Co- Lessee has been a party at any time during the past ten (10) years has been terminated by Co- Lessee as a result of insufficient funds being appropriated in 1 any Fiscal Year. No event has occurred which would constitute an event of default under any debt, revenue bond or obligation, which Co- Lessee has issued during the past ten (10) years. 1 (g) Co- Lessee or Co- Lessee's governing body has appropriated and/or taken other lawful actions necessary to provide moneys sufficient to pay all Rental Payments during the current Fiscal Year, and such moneys will be applied in payment of all Rental Payments 1 due and payable during such current Fiscal Year. (h) Co- Lessee has an immediate need for, and expects to make immediate use of, the Equipment, which need is not temporary or 1 expected to diminish during the applicable Lease Term. Co- Lessee presently intends to continue each Lease hereunder for its entire Lease Term and to pay all Rental Payments relating thereto. ,Section 6.2. Covenants of Co- Lessees. Each Co- Lessee agrees that so long as any Rental Payments or other amounts due under this i Agreement remain unpaid: i (a) Co- Lessee shall not install, use, operate or maintain the Equipment improperly, carelessly, in violation of any applicable law or 1 regulation or in a manner contrary to that contemplated by this Agreement. Co- Lessee shall obtain and maintain all permits and licenses necessary for the installation and operation of the Equipment. Co- Lessee shall not, without the prior written consent of Lessor, affix or install any accessory equipment or device on any of the Equipment if such addition would change or impair the originally intended 1 functions, value or use of such Equipment. (b) Co- Lessee shall provide Lessor access at all reasonable times to examine and inspect the Equipment and provide Lessor with such access to the Equipment as may be reasonably necessary to perform maintenance on the Equipment in the event of failure by Co- Lessee to perform its obligations hereunder. `S (c) Co- Lessee shall not, directly or indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or other claim with respect to the Equipment, other than the respective rights of Lessor and Co- Lessee as herein provided. Co- Lessee shall promptly, at its own expense, take such actions as may be necessary duly to discharge or remove any such claim if the same shall arise at any time. Co- Lessee shall reimburse Lessor for any expense incurred by Lessor in order to discharge or remove any such claim. I (d) The person or entity in charge of preparing Co- Lessee's budget will include in the budget request for each Fiscal Year the Rental Payments to become due during such Fiscal Year, and will use all reasonable and lawful means available to secure the appropriation of money for such Fiscal Year sufficient to pay all Rental Payments coming due therein. Lessor acknowledges that appropriation for Rental Payments is a governmental function, which Co- Lessee cannot contractually commit itself in advance to perform. Co- Lessee acknowledges that this Agreement does not constitute such a commitment. However, Co- Lessee reasonably believes that moneys in an amount sufficient to make all Rental Payments can and will lawfully be appropriated and made available to permit Co- Lessee's continued utilization of the Equipment in the performance of its essential functions during the applicable Lease Terms. 9 /10 /01:LES- BQ- ESR.DOC /rev. 5 /0 lessor/L2 4 1 / i S (e) ' Co- Lessee shall assure that its obligation to pay Rental Payments is not directly or indirectly secured by any interest in property, other than the Equipment, and that the Rental Payments will not be directly or indirectly secured by or derived from any payments of any type or any fund other than Co- Lessee's general purpose fund. (f) Upon Lessor's request, Co- Lessee shall provide Lessor with current financial statements, budgets, and proof of appropriation for 1 the ensuing Fiscal Year and such other financial information relating to the ability of Co- Lessee to continue this Agreement and each Lease I as may be reasonably requested by Lessor. (g) Co- Lessee shall promptly and duly execute and deliver to Lessor such further documents, instruments and assurances and take l such further action as Lessor may from time to time reasonably request in order to carry out the intent and purpose of this Agreement and I to establish and protect the rights and remedies created or intended to be created in favor of Lessor hereunder. 1 Section 6.3. Tax Related Representations, Warranties and Covenants. (a) Incorporation of Tax Agreement and Arbitrage Certificate. As of each Lease Date and with respect each Lease, each Co- Lessee makes each of the representations, warranties and covenants contained in its Tax Agreement and Arbitrage Certificate delivered with respect to such Lease. By this reference each such Tax Agreement and Arbitrage Certificate is incorporated in and made a part of this I Agreement. (b) Event of Taxability. If Lessor either (i) receives notice, in any form, from the Internal Revenue Service or (ii) reasonably determines, based on an opinion of independent tax counsel selected by Lessor, that Lessor may not exclude any Interest paid under any Lease from its Federal gross income (each an "Event of Taxability"), the Co- Lessees, jointly and severally, shall be obligated to pay to Lessor upon demand (x) an amount which, with respect to Rental Payments previously paid and taking into account all penalties, fines, interest and additions to tax (including all federal, state and local taxes imposed on the Interest due through the date of such event), will restore to Lessor its after -tax yield (assuming tax at the highest marginal tax rate and taking into account the time of receipt of Rental Payments and reinvestment at the after -tax yield rate) on the transaction evidenced by such Lease through the date of such event and (y) as additional Rental Payments to Lessor on each succeeding Payment Date such amount as will maintain such after -tax yield to Lessor. j ARTICLE VII. INSURANCE AND RISK OF LOSS Section 7.1. Liability and Property Insurance, Co- Lessees shall, at their own expense, procure and maintain continuously in effect during each Lease Term: (a) public liability insurance for death or injuries to persons, or damage to property arising out of or in any way connected to the Equipment sufficient to protect Lessor and/or assigns from liability in all events, with a coverage of not less than i $1,000,000 per occurrence unless specified differently in the related Equipment Schedule, and (b) insurance against such hazards as Lessor may require, including, but not limited to, all -risk casualty and property insurance, in an amount equal to the greater of the full replacement cost of the Equipment or the applicable Prepayment Price of each Equipment Group. • i 1 A I , • ' 111 I • 1 • ' I 1 1 •I .. If required by State law, each Co- Lessee shall carry workers' compensation insurance covering all employees on, in, near or about the Equipment, and upon request, shall furnish to Lessor certificates evidencing such coverage throughout the Lease Term. Section 7.3. Insurance Requirements, I (a) Insurance Policies. All insurance policies required by this Article shall be taken out and maintained with insurance companies acceptable to Lessor and shall contain a provision that thirty (30) days prior to any change in the coverage the insurer must provide written notice to the insured parties. No insurance shall be subject to any co- insurance clause. Each insurance policy shall name Lessor and /or its i assigns as an additional insured party and loss payee regardless of any breach of warranty or other act or omission of Co- Lessees and shall l include a lender's loss payable endorsement for the benefit of Lessor and/or is assigns. Prior to the delivery of Equipment, Co- Lessees shall deposit with Lessor evidence satisfactory to Lessor of such insurance and, prior to the expiration thereof, shall provide Lessor 1 evidence of all renewals or replacements thereof. (b) Self Insurance. With Lessor's prior consent, Co Lessees may self - insure the Equipment by means of an adequate insurance fund I set aside and maintained for that purpose which must be fully described in a letter delivered to Lessor in form acceptable to Lessor. (c) Evidence of Insurance. Co- Lessees shall deliver to Lessor upon acceptance of any Equipment evidence of insurance which complies with this Article VII with respect to such Equipment to the satisfaction of Lessor, including, without limitation, the confirmation of insurance in the form of Exhibit G -1 attached hereto together with Certificates of Insurance, when available, or the Questionnaire for Self - Insurance and Addendum to Equipment Schedule Relating to Self - Insurance in the form of Exhibit G -2 attached hereto, as applicable. Section 7.4. Risk of Loss. To the extent permitted by the applicable laws of the State, as between Lessor and Co- Lessees, Co- Lessees assume all risks and liabilities from any cause whatsoever, whether or not covered by insurance, for loss or damage to any Equipment and for injury to or death of any person or damage to any property. Whether or not covered by insurance, Co- Lessees, jointly and severally, hereby assume responsibility for and agree to indemnify Lessor from all liabilities, obligations, losses, damages, penalties, claims, actions, costs and expenses, including reasonable attorneys' fees, imposed on, incurred by or asserted against Lessor that relate to or arise out of this Agreement, including but not limited to, (a) the selection, manufacture, purchase, acceptance or rejection of Equipment or the ownership of the Equipment, (b) the delivery, lease, possession, maintenance, use, condition, return or operation of the Equipment, (c) the condition of the Equipment sold or otherwise disposed of after possession by Co- Lessees, (d) the conduct of either Co- Lessee, its officers, employees and agents, (e) a breach by either Co- Lessee of any of its covenants or obligations hereunder, (f) any claim, loss, cost or expense involving alleged damage to the environment relating to the Equipment, including, but not limited to investigation, removal, cleanup and remedial costs, and (g) any strict liability under the laws or judicial decisions of any state or the United States. This provision shall survive the termination of this Agreement. 9/ 10/ 01: LES- BQ- ESR.DOC /rev.5 /01 /lessor/L2 5 1 ,Section 7.5. Destruction of Equipment. Co- Lessees shall provide a complete written report to Lessor immediately upon any loss, theft, I damage or destruction of any Equipment and of any accident involving any Equipment. Lessor may inspect the Equipment at any time and from time to time during regular business hours. If all or any part of the Equipment is stolen, lost, destroyed or damaged beyond repair ( "Damaged Equipment "), Co- Lessees shall within thirty (30) days after such event either: (a) replace the same at Co- Lessees' sole expense ' with equipment having substantially similar Specifications and of equal or greater value to the Damaged Equipment immediately prior to the time of the loss occurrence, such replacement equipment to be subject to Lessor's approval, whereupon such replacement equipment shall be substituted in the applicable Lease and the other related documents by appropriate endorsement or amendment; or (b) pay the 1 applicable Prepayment Price of the Damaged Equipment determined as set forth in the related Equipment Schedule. Co- Lessees shall I notify Lessor of which course of action it will take within fifteen (15) days after the loss occurrence. If, within forty-five (45) days of the loss occurrence, (a) Co- Lessees fail to notify Lessor; (b) Co- Lessees and Lessor fail to execute an amendment to the applicable Equipment Schedule to delete the Damaged Equipment and add the replacement equipment or (c) Co- Lessees have failed to pay the applicable Prepayment Price, then Lessor may, at its sole discretion, declare the applicable Prepayment Price of the Damaged Equipment, to be immediately due and payable. The Net Proceeds of insurance with respect to the Damaged Equipment shall be made available by Lessor 1 to be applied to discharge Co- Lessees' obligation under this Section. ARTICLE VIII. OTHER OBLIGATIONS OF CO- LESSEES Y Section 8.1. Maintenance of Equipment. Co- Lessees shall notify Lessor in writing prior to moving the Equipment to another address and shall otherwise keep the Equipment at the address specified in the related Equipment Schedule. Co- Lessees shall, at their own expense, maintain the Equipment in proper working order and shall make all necessary repairs and replacements to keep the Equipment in such condition including compliance with State and federal laws. Any and all replacement parts must be free of encumbrances and liens. All such replacement parts and accessories shall be deemed to be incorporated immediately into and to constitute an integral portion of the 1 Equipment and as such, shall be subject to the terms of this Agreement. 1 Section R.2. Taxes. Co- Lessees shall pay all taxes and other charges which are assessed or levied against the Equipment, the Rental 1 Payments or any part thereof, or which become due during the Lease Term, whether assessed against Co- Lessees or Lessor, except as ' expressly limited by this Section. Co- Lessees shall pay all utilities and other charges incurred in the operation, maintenance, use, , : occupancy and upkeep of the Equipment, and all special assessments and charges lawfully made by any governmental body that may be secured by a lien on the Equipment. Co- Lessees shall not be required to pay any federal, state or local income, succession, transfer, franchise, profit, excess profit, capital stock, gross receipts, corporate, or other similar tax payable by Lessor, its successors or assigns, unless such tax is made as a substitute for any tax, assessment or charge which is the obligation of Co- Lessees under this Section. 1 Section 8.3. Advances. If Co- Lessees shall fail to perform any of their obligations under this Article, Lessor may take such action to cure 1 such failure, including the advancement of money, and Co- Lessees shall be obligated to repay all such advances on demand, with interest '1 at the rate of 18% per annum or the maximum rate permitted by law, whichever is less, from the date of the advance to the date of 1 repayment. ARTICLE IX. TITLE Section 9.1. Title. During the Lease Term, ownership and legal title of all Equipment and all replacements, substitutions, repairs and modification shall be in Co- Lessees and Co- Lessees shall take all action necessary to vest such ownership and title in Co- Lessees. Lessor does not own the Equipment and by this Agreement and each Lease is merely financing the acquisition of such equipment for Co- Lessees. 1 Lessor has not been in the chain of title of the Equipment, does not operate, control or have possession of the Equipment and has no control over the Co- Lessees or the Co- Lessees' operation, use, storage or maintenance of the Equipment. Section 9.2. Security Interest. All provisions referencing Lessor having a security interest in the Equipment are hereby cancelled and shall not have any force or effect. Lessor and Co- Lessees agree that the Agreement does not result in the creation of any lien, charge, security interest or other encumbrance upon the Equipment or any other asset of Co- Lessees. Section 9.3. Modification of Equipment. Co- Lessees will not, without the prior written consent of Lessor, affix or install any accessory equipment or device on any of the Equipment if such addition will change or impair the originally intended value, function or use of the I Equipment. Section 9.4. Personal Property. The Equipment is and shall at all times be and remain personal property and not fixtures. i t 1 ARTICLE X. WARRANTIES Section 10.1. Selection of Equipment. Each Vendor and all of the Equipment have been selected by Co- Lessees. Lessor shall have no l i responsibility in connection with the selection of the Equipment, the ordering of the Equipment, its suitability for the use intended by Co- Lessees, the acceptance by any Vendor or its sales representative of any order submitted, or any delay or failure by such Vendor or its sales 1 representative to manufacture, deliver or install any Equipment for use by Co- Lessees. 1 Section 10.2. Vendor's Warranties. Lessor hereby assigns to Co- Lessees for and during the related Lease Term, all of its interest, if any, in all Vendor's warranties, guarantees and patent indemnity protection, express or implied issued on or applicable to an Equipment Group, and Co- Lessees may obtain the customary services furnished in connection with such warranties and guarantees at Co- Lessees' expense. Lessor has no obligation to enforce any Vendor's warranties or obligations on behalf of itself or Co- Lessees. 1 Section 10.3. Disclaimer of Warranties. CO- LESSEES ACKNOWLEDGE THAT THE EQUIPMENT IS OF A SIZE, DESIGN, CAPACITY, AND MANUFACTURE SELECTED BY CO- LESSEES. CO- LESSEES ACKNOWLEDGE THAT THEY SELECTED 1 1 THE EQUIPMENT WITHOUT ASSISTANCE OF LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR IS NOT A 6 9/ 10/ 01: LES- BQ- ESR.DOC /rev.5 /0lessor /L2 1/ I f 1 ,t MANUFACTURER OF THE EQUIPMENT OR A DEALER IN SIMILAR EQUIPMENT, AND DOES NOT INSPECT THE EQUIPMENT BEFORE DELIVERY TO CO- LESSEES. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, QUALITY, DURABILITY, SUITABILITY, MERCHANT - ABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY CO- LESSEES ' OF THE EQUIPMENT, OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE EQUIPMENT. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE EQUIPMENT OR CO- LESSEES' USE OF THE EQUIPMENT. ARTICLE XI. ASSIGNMENT AND SUBLEASING Section 11.1. Assignment by Lessor. Lessor, without Co- Lessees' consent, may assign and reassign all of Lessor's right, title and/or 1 interest in and to this Agreement or any Lease, including, but not limited to, the Rental Payments and other amounts payable by Co- Lessees and Lessor's interest in the Equipment, in whole or in part to one or more assignees or subassignee(s) by Lessor at any time. No such assignment shall be effective as against Co- Lessees unless and until written notice of the assignment is provided to Co- Lessees. When presented with a notice of assignment, Co- Lessees will acknowledge in writing receipt of such notice for the benefit of Lessor and any : assignee. Co- Lessees shall keep a complete and accurate record of all such assignments. 1 Section 11.2. Assignment and Subleasing by Co-1 Lessees. Neither this Agreement nor any Lease or any Equipment may be assigned, subleased, sold, transferred, pledged or mortgaged by Co- Lessees. 4 ARTICLE XII. EVENTS OF DEFAULT AND REMEDIES Section 12.1. Events of Default Defined. The occurrence of any of the following events shall constitute an Event of Default under this Agreement and each Lease: (a) Co- Lessees' failure to pay, within ten (10) days following the due date thereof, any Rental Payment or other amount required to be paid to Lessor (other than by reason of Non- Appropriation). (b) Co- Lessees' failure to maintain insurance as required by Article VII. (c) With the exception of the above clauses (a) & (b), Co- Lessees' failure to perform or abide by any condition, agreement or covenant for a period of thirty (30) days after written notice by Lessor to Co- Lessees specifying such failure and requesting that it be remedied, unless Lessor shall agree in writing to an extension of time prior to its expiration. I (d) Lessor's determination that any representation or warranty made by either Co- Lessee in this Agreement was untrue in any material respect upon execution of this Agreement or any Equipment Schedule. (e) The occurrence of an Event of Taxability. (f) The filing of a petition in bankruptcy by or against either Co- Lessee, or failure by either Co- Lessee promptly to lift any execution, garnishment or attachment of such consequence as would impair the ability of Co- Lessee to carry on its governmental functions or assignment by Co- Lessee for the benefit of creditors, or the entry by either Co- Lessee into an agreement of composition with creditors, or the approval by a court of competent jurisdiction of any adjustment of indebtedness of either Co- Lessee, or the dissolution or liquidation of either Co- Lessee. Section 12.2. Remedies on Default. In the event of default by Co- Lessees under the Agreement, Lessor's sole remedies shall be to sue Co- Lessees (or either of them) for compensatory damages, which Co- Lessees, jointly and severally, agree to pay and which are hereby , agreed to be the Prepayment Price applicable to the immediately preceding rental payment due date, as set forth on the Payment Schedule, plus any rental payments accrued and unpaid as of the date default, provided that in the event that Co- Lessees voluntarily returns the Equipment to Lessor to a location specified by Lessor, at Co- Lessees' sole risk, cost and expense and in the condition required by Section 8.1 of the Agreement, Lessor shall not have any further remedies against Co- Lessees. Lessor shall also have the right in the event of default to exercise any other right, remedy or privilege which may be available to it, including without limitation proceedings by appropriate court action to require specific performances of any provision of the Agreement other than Co- Lessees' covenant to return possession of and title to the Equipment, which covenant shall not be subject to enforcement by specific performance. Co- Lessees shall remain liable for all legal fees and other costs and expenses; including court costs, incurred by Lessor in the enforcement of its remedies under the Agreement except to the extent prohibited by the Constitution and laws of the State of Florida. Section 12.3. Return of Equipment: Release of Co- I,essees' Interest. With respect to any provision of the Agreement requiring Co- Lessees to return all or any portion of the Equipment to Lessor or to transfer title to all or any portion of the equipment to Lessor, Co- Lessees agree to voluntarily do so. In the event that Co- Lessees fail or refuse to return or transfer the Equipment or title thereto voluntarily as set forth above, Lessor acknowledges that the Agreement does not and shall not create a right in Lessor to involuntarily dispossess Co- Lessees of title to or possession of all or any item of the Equipment. In lieu of such right Lessor shall be entitled to and Co- Lessees agree to pay to Lessor immediately, but only from Co- Lessees' legally available and appropriated revenues from sources other than ad valorem or other taxes, the Prepayment Price applicable to the immediately preceding rental payment due date, as set forth on the Payment Schedule, plus any rental payments accrued and unpaid as of the date of such payment. Section 12.4 I,ate Charge. Lessor shall have the right to require late payment charge for each Rental Payment or any other amount due hereunder which is not paid within 10 days of the date when due equal to the lesser of 5% of each late payment or the legal maximum. 6 This Section is only applicable to the extent it does not affect the validity of this Agreement. ARTICLE XIII. MISCELLANEOUS PROVISIONS 9/ 10/ 01. LES- BQ- ESR.DOC /rev.5 /0essor/L2 7 1A Section 13.1. Notices. All written notices to be given under this Agreement shall be given by mail to the party entitled thereto at its address specified beneath each party's signature, or at such address as the party may provide to the other parties hereto in writing from time to time. Any such notice shall be deemed to have been received 72 hours after deposit in the United States mail in registered or certified " form, with postage fully prepaid, or, if given by other means, when delivered at the address specified in this Section 13.1. Section 13.2. Binding Effect. This Agreement and each Lease hereunder shall be binding upon and shall inure to the benefit of Lessor and Co- Lessees and their respective successors and assigns. Specifically, as used herein the term "Lessor" means any person or entity to 1 whom Lessor has assigned its right to receive Rental Payments under any Lease. 1 Section 13.3. Severahility. In the event any provision of this Agreement or any Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Sectin►L13.4. Entire Agreement; Amendments. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous writings, understandings, agreements, solicitation documents and 1 representations, express or implied. This Agreement may be amended or modified only by written documents duly authorized, executed x and delivered by Lessor and Co- Lessees. i Section 13.4. Captions. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the 1 scope or intent of any provisions, Articles, Sections or Clauses hereof. Section 13.6. Further Assurances and Corrective Instruments. Lessor and Co- Lessees agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Equipment hereby leased or intended so to be, or 1 for otherwise carrying out the expressed intention of this Agreement. ,Section 13.7. Governing 1,aw. This Agreement shall be governed by and construed in accordance with the laws of the State. Sectij p 13.R. usury. It is the intention of the parties hereto to comply with any applicable usury laws; accordingly, it is agreed that, notwithstanding any provisions to the contrary herein or in any Equipment Schedule, in no event shall this Agreement or any Lease hereunder require the payment or permit the collection of Interest or any amount in the nature of Interest or fees in excess of the maximum amount permitted by applicable law. Any such excess Interest or fees shall first be applied to reduce Principal, and when no Principal remains, refunded to Co- Lessees. In determining whether the Interest paid or payable exceeds the highest lawful rate, the total amount of 4 Interest shall be spread through the applicable Lease Term so that the Interest is uniform through such term. SeetirlrL13.9. Co- Lessees' Performance. A failure or delay of Lessor to enforce any of the provisions of this Agreement or any Lease shall in no way be construed to be a waiver of such provision. Section 13.10. Waiver of Jury Trial. Lessor and Co- Lessees hereby waive any right to trial by jury in any action or proceeding with respect to, in connection with or arising out of this Agreement. 1 1 [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] , 1 j 1 I ] t 1 i I 1 i 4 1 1 t ] 1 1 9 l 1 I i 1 E 3 9 /10 /01:LES- BQ- ESR.DOC /rev. 5/01 /lessor /L2 8 i i EXECUTION PAGE OF MASTER LEASE AGREEMENT LEASE NUMBER: 0936 IN WITNESS WHEREOF, Lessor has caused this Agreement to be executed in its corporate name by its duly authorized officer, and each Co- Lessee has caused this Agreement to be executed in its name by its duly authorized officer. : CITY OF CAPE CANAVERAL LEASING 2, INC. , Co- Lessees Lessor 1 AI �� 'v By: .l e: Bennett Bouc er Name: Br yers Title: City Manager Title: President I Date: ?/1" ` ` Date: 1 °— % ' ° 1 1 t i Address: 105 Polk Avenue Address: 1304 DeSoto Avenue, Suite 304 1 Cape Canaveral, FL 32920 Tampa, FL 33606 I Telephone: 321 - 868 -1230 Telephone: 813- 258 -9888 1 Facsimile: 321 - 868 -1224 Facsimile: 813 - 258 -9333 i CANAVERAL PORT AUTHORITY i Co- Lessees i I By: i , - Name: Albert J. Francis II, 'A Title: Chief Financial Offic - r 1 Date: 9 / /O/ 1 Address: P. O. Box 267 Cape Canaveral, FL 32920 Telephone: 321- 783 -7831 i Facsimile: 321 - 783 -4317 i 9 9/ 10/01: LES- BQ -ESR. DOC /rev.5 /01 /lessor /L2 i 1 , L , . 1 , 1 i 1 ■ ' EXHIBIT A 1 1 EQUIPMENT SCHEDULE NO. 01 Y i TO MASTER LEASE NO: 0936 1 ; ; The following Equipment comprises an Equipment Group which is the subject of the Master Lease Agreement dated as August 1 15, 2001 (the "Agreement") between the undersigned Lessor and Co-Lessees. The Agreement is incorporated herein in its entirety, and I Co-Lessees hereby reaffirm each of their representations, warranties and covenants contained in the Agreement. Co-Lessees warrant that no Non-Appropriation and no Event of Default, or event which, with the passage of time or the giving of notice or both, would constitute 1; an Event of Default, has occurred under the Agreement. An Acceptance Certificate and Payment Schedule are attached to this Equipment ..; ; Schedule and by reference are made a part hereof. The terms capitalized in this Equipment Schedule but not defined herein shall have the i meanings assigned to them in the Agreement. 1 , i FQI JIPMENT GROI JP i The cost of the Equipment Group to be funded by Co-Lessees under this Lease is Four hundred thirtynine thousand nine hundred 1 1 five dollars (S439,905 00) (the "Acquisition Cost"). The Equipment Group consists of the following Equipment which has been or shall be 1 1 purchased from the Vendor(s) named below for the prices set forth below: 1 1 I One (1) New Pierce Quantum Fire Truck 1 1 VIN: ;1 i 1 The Equipment Group is or will be located at the following address(es). Prior to relocation of the Equipment Group or any portion thereof during the Lease Term, Co-Lessees will provide written notice to Lessor: 1 i City of Cape Canaveral: 190 Jackson Avenue, Cape Canaveral, FL 32920 1 Canaveral Port Authority: 8970 Columbia Road, Station #52, Cape Canaveral, FL 32920 1 EQUIPMENT SCHEDULE LEASE DATE: August 15, 2001 i I CITY OF CAPE C.: AVERAL Co-Lessees le LEASING 2, INC. Lessor i i di e ,Alle ' By: WPF I , ame: Bennett Bouc er Name: Brad ers , Title: City Manager r r Title: President 1 , Date. 7/4/-70/ Date: (0 0 1 , , Address: 105 Polk Avenue Address: 1304 DeSoto Avenue, Suite 304 Cape Canaveral, FL 32920 Tampa, FL 33606 , Telephone: 321-868-1230 Telephone: 813-258-9888 Facsimile: 321-868-1224 Facsimile: 813-258-9333 CANAVERAL PORT AUTHORITY Co-Lessees By ,4,6 F z Name: Albert J. Franci II, CP Title: Chief Finan *al Offer Date: ? v V 0 / :• I Address: P. 0. Box 267 I Cape Canaveral, FL 32920 1 i Telephone: 321-783-7831 Facsimile: 321-783-4317 1 9/10/01 LES-BQ-ESR DOC/rev 5/0 Ulessor/L2 I 1 , , ' ACCEPTANCE OF OBLIGATION # TO COMMENCE RENTAL PAYMENTS UNDER PAYMENT SCHEDULE RE: Master Lease Agreement dated August 15, 2001 ( "Lease "), between Leasing 2, Inc. (Lessor) and City of Cape Canaveral f ( "Cape Canaveral ") and Canaveral Port Authority ( "Port Authority ", and together with Cape Canaveral, "Co- Lessees ") 1 I I, the undersigned, hereby certify that I am a duly qualified representative of City of Cape Canaveral (the "Co- Lessee ") and have been given the authority by the governing body of Co- Lessee to sign this Acceptance of Obligation to Commence Rental Payments 1 with respect to the above referenced Lease. I hereby certify that: i 1. The Equipment described in the Equipment Schedule has not been delivered, installed or available for use as of the Lease Date of this Equipment Schedule; , l 2. Co- Lessee acknowledges and requests Lessor to pay Pierce Manufacturing an amount sufficient to pay the total cost of the Equipment identified in Exhibit A immediately upon the execution of Lease; 1 3. The principal amount of the Rental Payments in the Payment Schedule accurately reflects the cost of the Equipment; Notwithstanding that the Equipment has not been delivered to, or accepted by, Co- Lessee on the Lease Date hereby warrants that: (a) Co- Lessee's obligation to commence Rental Payments as set forth in Payment Schedule is absolute and unconditional as of the Lease Date and on each date set forth in Payment Schedule thereafter, subject to the terms and conditions of the Lease; (b) immediately upon delivery and acceptance of all the Equipment, Co- Lessee will notify Lessor of Co- Lessee's final acceptance of 1 ) the Equipment by delivering to Lessor the "Acceptance Certificate" in the form attached to the Equipment Schedule; : (c) in the event that any surplus amount is on deposit in the Escrow Account and the Agreement is terminated pursuant to Section 3.2 1 (Termination by Co- Lessee) or Section 12.1 (Event of Default) thereof, those amounts shall be forwarded to Lessor or its assignee, if assigned, to be applied as provided in the Agreement. Co- Lessee shall have no further interest therein. Any surplus amount remaining after payment of all of the Equipment to be leased under the Agreement will be forwarded to Lessor, or to its assignee, if assigned, for application toward the next Rental Payment due. (d) regardless of whether Co- Lessee delivers a final Acceptance Certificate, all Rental Payments paid prior to delivery of all the Equipment shall be credited to Rental Payments as they become due under the Lease as set forth in Payment Schedule. Notwithstanding any other provision of this Acceptance of Obligation, the Lease shall remain in full force and effect with respect to all or the portion of the Equipment accepted by Co- Lessee as provided in this Lease. [NOTE: EXECUTE SEPARATELY] CITY OF CAP • NAVERAL Co- Lessee : • . 0,1 5 1 1 ). . r . , 141a: I I I il I r- 4 I lir �/40.-- 2 ame: Bennett Boucher Title: City Manager Date: 4 9/10/0 I LES -BQ -ES R. DOC /rev. 5/01 /lessor/L2 ACCEPTANCE OF OBLIGATION TO COMMENCE RENTAL PAYMENTS UNDER PAYMENT SCHEDULE RE: Master Lease Agreement dated August 15, 2001 ( "Lease "), between Leasing 2, Inc. (Lessor) and City of Cape Canaveral ( "Cape Canaveral ") and Canaveral Port Authority ( "Port Authority ", and together with Cape Canaveral, "Co- Lessees ") I, the undersigned, hereby certify that I am a duly qualified representative of Canaveral Port Authority (the "Co- Lessee ") and have been given the authority by the governing body of Co- Lessee to sign this Acceptance of Obligation to Commence Rental Payments with respect to the above referenced Lease. I hereby certify that: 4. The Equipment described in the Equipment Schedule has not been delivered, installed or available for use as of the Lease j Date of this Equipment Schedule; 5. Co- Lessee acknowledges and requests Lessor to pay Pierce Manufacturing an amount sufficient to pay the total cost of the Equipment identified in Exhibit A immediately upon the execution of Lease; 6. The principal amount of the Rental Payments in the Payment Schedule accurately reflects the cost of the Equipment; Notwithstanding that the Equipment has not been delivered to, or accepted by, Co- Lessee on the Lease Date hereby warrants that: (e) Co- Lessee's obligation to commence Rental Payments as set forth in Payment Schedule is absolute and unconditional as of the Lease Date and on each date set forth in Payment Schedule thereafter, subject to the terms and conditions of the Lease; (f) immediately upon delivery and acceptance of all the Equipment, Co- Lessee will notify Lessor of Co- Lessee's final acceptance of the Equipment by delivering to Lessor the "Acceptance Certificate" in the form attached to the Equipment Schedule; (g) in the event that any surplus amount is on deposit in the Escrow Account and the Agreement is terminated pursuant to Section 3.2 (Termination by Co- Lessee) or Section 12.1 (Event of Default) thereof, those amounts shall be forwarded to Lessor or its assignee, if assigned, to be applied as provided in the Agreement. Co- Lessee shall have no further interest therein. Any surplus amount remaining after payment of all of the Equipment to be leased under the Agreement will be forwarded to Lessor, or to its assignee, if assigned, for application toward the next Rental Payment due. (h) regardless of whether Co- Lessee delivers a final Acceptance Certificate, all Rental Payments paid prior to delivery of all the Equipment shall be credited to Rental Payments as they become due under the Lease as set forth in Payment Schedule. Notwithstanding any other provision of this Acceptance of Obligation, the Lease shall remain in full force and effect with respect to all or the portion of the Equipment accepted by Co- Lessee as provided in this Lease. [NOTE: EXECUTE SEPARATELY] CANAVERAL PORT AUTHORITY Co- Lessee By: as Name: Albert J. Franci II, CP Title: Chief Fin cial Officer Date: 4 a_ y/3/ 9/10/01 :LES- BQ -ESR. DOC /rev. 5/01 /lessor /L2 . { Lease Number: 0936 Equipment Schedule: 01 i PAYMENT SCHEDULE The Lease Date with respect to the above referenced Equipment Group shall be August 15, 2001. The Annual Interest Rate applicable to the Equipment Group shall be 4.919 %. Co- Lessees will make Rental Payments each consisting of Principal and Interest as set forth below for a term of seven years. The first Rental Payment is due on May 1, 2002 and subsequent payments are due annually on like date thereafter. 1 1 1 1 Payment Payment Total Interest Principal Pre - Payment _. Gunther Dale Payment Component Component Price* 1 5/1/02 $74,804.75 $15,568.65 $59,236.10 $393,759.51 2 5/1/03 $74,804.75 $18,725.88 $56,078.87 $334,206.20 3 5/1/04 $74,804.75 $15,967.25 $58,837.50 $272,346.22 1 1 4 5/1/05 $74,804.75 $13,072.91 $61,731.84 $208,090.23 5 5/1/06 $74,804.75 $10,036.19 $64,768.56 $141,345.42 6 5/1/07 $74,804.75 $6,850.10 $67,954.65 $72,015.39 7 5/1/08 $74,804.75 $3,507.27 $71,297.48 $0.00 1 Grand Totals $523,633.25 $83,728.25 $439,905.00 1 i i 3 t 1 1 CITY OF CAPE CANAVERAL Co- Lessees 4 1 4 ��� /I ar 011111r - 1 ame: Bennett Boucher 1 Title: City Manager , Date: ty 1/ 1 i i 1 1 CANAVERAL PORT AUTHORITY Co- Lessees e ` i By:4 // =' _ _4r e Name: Albert J. Francis , CPA 1 Title: Chief Financial Officer I/. a- Date: 5 1/0/ 1 1 1 z * After payment of Rental Payment due on such date. „ i 9 /10 /01:LES- BQ -ESR. DOC /rev.5 /01 /lessor/L2 EXHIBIT B -1 [Escrow] Lease Number: 0936 I Equipment Schedule: 01 . TAX AGREEMENT AND ARBITRAGE CERTIFICATE, 1 This TAX AGREEMENT AND ARBITRAGE CERTIFICATE (this "Certificate ") is issued by City of Cape Canaveral ( "Co- Lessee ") in favor of LEASING 2, INC. ( "Lessor ") in connection with that certain Master Lease Agreement dated as of August 15, 2001 (the "Agreement "), by and between Lessor and CITY OF CAPE CANAVERAL and CANAVERAL PORT AUTHORITY. The terms capitalized herein but not defined herein shall have the meanings assigned to them in the Agreement. Section 1. In General. 1.1. This Certificate is executed for the purpose of establishing the reasonable expectations of Co- Lessee as to future events regarding the financing of certain equipment (the "Equipment ") to be acquired by Lessor and leased to Co- Lessee pursuant to and in accordance with 1 the Equipment Schedule referenced above (the "Equipment Schedule ") executed under the Agreement (together with all related documents executed pursuant thereto and contemporaneously herewith, the "Financing Documents "). As described in the Financing Documents, Lessor shall apply Four hundred thirtynine thousand nine hundred five dollars ($439,905.00) (the "Principal Amount ") toward the acquisition of the Equipment and Co- Lessee shall make Rental Payments under the terms and conditions as set forth in the Financing Documents. / 1.2. The individual executing this Certificate on behalf of Co- Lessee is an officer of Co- Lessee delegated with the responsibility of 1 reviewing and executing the Financing Documents, pursuant to the resolution or other official action of Co- Lessee adopted with respect to the Financing Documents, a copy of which has been delivered to Lessor. 1.3. The Financing Documents are being entered into for the purpose of providing funds for financing the cost of acquiring, equipping and installing the Equipment which is essential to the governmental functions of Co- Lessee, which Equipment is described in the Equipment Schedule. The Principal Amount will be deposited in escrow by Lessor on or after the Lease Date of the Equipment Schedule and held pending acquisition of the Equipment under the terms of the Agreement. 1 1.4. Co- Lessee will timely file for each payment schedule issued under the Lease a Form 8038 -G (or, if the invoice price of the Equipment under such schedule is less than $100,000, a Form 8038 -GC) relating to such Lease with the Internal Revenue Service in accordance with I Section 149(e) of the Internal Revenue Code of 1986, as amended (the "Code "). 1.5. Co- Lessee has not issued, and reasonably anticipates that it and its subordinate entities, if any, will not issue, tax - exempt obligations (including the Lease) in the amount of more than $10,000,000 during the current calendar year. Co- Lessee hereby designates the Lease as a "qualified tax - exempt obligation" within the meaning of Section 265(b)(3) of the Code and agrees that it and its subordinate entities, if any, will not designate more than $10,000,000 of their obligations as "qualified tax- exempt obligations" during the current calendar year. ,Section 2. Non- Arhitragr Certifications. 2.1. The Rental Payments due under the Financing Documents will be made with monies retained in Co- Lessee's general operating fund (or an account or subaccount therein). No sinking, debt service, reserve or similar fund or account will be created or maintained for the payment of the Rental Payments due under the Financing Documents or pledged as security therefor. 2.2. There have been and will be issued no obligations by or on behalf of Co- Lessee that would be deemed to be (i) issued or sold within fifteen (15) days before or after the date of issuance of the Financing Documents, (ii) issued or sold pursuant to a common plan of financing with the Financing Documents and (iii) paid out of substantially the same source of funds as, or deemed to have substantially the same claim to be paid out of substantially the same source of funds as, the Financing Documents. 2.3. Other than the Principal Amount held in the Escrow Account , Co- Lessee does not and will not have on hand any funds that are or will be restricted, segregated, legally required or otherwise intended to be used, directly or indirectly, as a substitute, replacement or separate source of financing for the Equipment. 2.4. No portion of the Principal Amount is being used by Co- Lessee to acquire investments which produce a yield materially higher than the yield realized by Lessor from Rental Payments received under the Financing Documents. 2.5. The Principal Amount does not exceed the amount necessary for the governmental purpose for which the Financing Documents were entered into. Such funds are expected to be needed and fully expended for payment of the costs of acquiring, equipping and installing the Equipment. 2.6. Co- Lessee does not expect to convey, sublease or otherwise dispose of the Equipment, in whole or in part, at a date which is earlier than the final Payment Date under the Financing Documents. Section 3. Disbursement of Funds; Reimbursement to Co- I,essee. 3.1. It is contemplated that the entire Principal Amount deposited in escrow will be used to pay the acquisition cost of Equipment to the vendors or manufacturers thereof, provided that, if applicable, a portion of the principal amount may be paid to Co- Lessee as reimbursement for acquisition cost payments already made by it so long as the conditions set forth in Section 3.2 below are satisfied. 3.2. Co- Lessee shall not request that it be reimbursed for Equipment acquisition cost payments already made by it unless each of the following conditions have been satisfied: (a) Co- Lessee adopted a resolution or otherwise declared its official intent in accordance with Treasury Regulation § 1.150 -2 (the "Declaration of Official Intent "), wherein Co- Lessee expressed its intent to be reimbursed from the proceeds of a borrowing for all or a 9/10/01 LES- BQ -ESR. DOC /rev. 5/01 /lessor/L2 ) portion of the cost of the Equipment, which expenditure was paid to the Vendor not earlier than sixty (60) days before Co- Lessee adopted the Declaration of Official Intent; (b) The reimbursement being requested will be made by a written allocation before the later of eighteen (18) months after the expenditure was paid or eighteen (18) months after the items of Equipment to which such payment relates were placed in service; 1 (c) The entire payment with respect to which reimbursement is being sought is a capital expenditure, being a cost of a type properly 1 chargeable to a capital account under general federal income tax principles; and (d) Co- Lessee will use any reimbursement payment for general operating expenses and not in a manner which could be construed as 1 an artifice or device under Treasury Regulation § 1.148 -10 to avoid, in whole or in part, arbitrage yield restrictions or arbitrage rebate requirements. Section 4. Use and Investment of Funds; Temporary Period. 4.1. Co- Lessee has incurred or will incur, within six (6) months from the date of issuance of the Financing Documents, binding obligations to pay an amount equal to at least five percent (5 %) of the Principal Amount toward the costs of the Equipment. An obligation is not binding if it is subject to contingencies within Co- Lessee's control. The ordering and acceptance of the items of Equipment will proceed with due diligence to the date of final acceptance of the Equipment. i 4.2. An amount equal to at least eighty-five percent (85 %) of the Principal Amount will be expended to pay the cost of the Equipment by the end of the three -year period commencing on the date of this Certificate. No portion of the Principal Amount will be used to acquire investments that do not carry out the governmental purpose of the Financing Documents and that have a substantially guaranteed yield of four (4) years or more. 1 4.3. (a) Co- Lessee reasonably expects to cause the Equipment to be acquired by April 1, 2002. ) (b) Co- Lessee will provide evidence to Lessor that the rebate amount has been calculated and paid to the Internal Revenue Service in accordance with Section 148(0 of the Code unless (i) the entire Principal Amount is expended on the Equipment by the date that is the six - I month anniversary of the Financing Documents or (ii) the Principal Amount is expended on the Equipment in accordance with the following schedule: At least fifteen percent (15 %) of the Principal Amount and interest earnings thereon will be applied to the cost of the Equipment within six months from the date of issuance of the Financing Documents; at least sixty percent (60 %) of the Principal Amount and interest earnings thereon will be applied to the cost of the Equipment within 12 months from the date of issuance of the Financing Documents; and one hundred percent (100 %) of the Principal Amount and interest earnings thereon will be applied to the cost of the Equipment prior to eighteen (18) months from the date of issuance of the Financing Documents. (c) Co- Lessee hereby covenants that (i) Co- Lessee is a governmental unit with general tax powers; (ii) the Lease is not a "private activity bond" under Section 141 of the Code; (iii) at least ninety-five percent (95 %) of the Principal Amount is used for the governmental activities of Co- Lessee; and (iv) the aggregate principal amount of all tax - exempt obligations (including the Lease) issued by Co- Lessee and its subordinate entities, if any, during the current calendar year is not reasonably expected to exceed $5,000,000. Accordingly, the 1 rebate requirements of Section 148(0 of the Code are treated as being met, in lieu of the spending exceptions set forth in paragraph (b) a above. i 1 Section 5. Escrow Account. I The Financing Documents provide that the monies deposited in escrow shall be invested until payments to the vendor(s) or manufacturer(s) I of the Equipment are due. Co- Lessee will ensure that such investment will not result in Co- Lessee's obligations under the Financing Documents being treated as an "arbitrage bond" within the meaning of Section 148(a) of the Internal Revenue Code of 1986, as amended (the "Code "), respectively. Any monies which are earned from the investment of these funds shall be labeled as interest earned. All such monies will be disbursed on or promptly after the date that Co- Lessee accepts the Equipment. Section 6. No Private Ilse; No Consumer Loan. 6.1. Co- Lessee will not exceed the private use restrictions set forth in Section 141 of the Code. Specifically, Co- Lessee will not permit more than 10% of the Principal Amount to be used for a Private Business Use (as defined herein) if, in addition, the payment of more than ten percent (10 %) of the Principal Amount plus interest earned thereon is, directly or indirectly, secured by (i) any interest in property used or to be used for a Private Business Use or (ii) any interest in payments in respect of such property or derived from any payment in respect of property or borrowed money used or to be used for a Private Business Use. In addition, if both (A) more than five percent (5 %) of the Principal Amount is used as described above with respect to Private Business Use and (B) more than five percent (5 %) of the Principal Amount plus interest earned thereon is secured by Private Business Use property or payments as described above, then the excess over such five percent (5 %) (the "Excess Private Use Portion ") will be used for a Private Business Use related to the governmental use of the Equipment. Any such Excess Private Use Portion of the Principal Amount will not exceed the portion of the Principal Amount used for the governmental use of the particular project to which such Excess Private Use Portion is related. For purposes of this paragraph 6.1, "Private Business Use" means use of bond proceeds or bond financed - property directly or indirectly in a trade or business carried on by a natural person or in any activity carried on by a person other than a natural person, excluding, however, use by a state or local governmental unit and excluding use as a member of the general public. 6.2. No part of the Principal Amount or interest earned thereon will be used, directly or indirectly, to make or finance any loans to non- governmental entities or to any governmental agencies other than Co- Lessee. 9 /10 /01:LES- BQ -ESR. DOC /rev. 5/01 /lessor /L2 Section 7. No Federal Guarantee. 7.1. Payment of the principal or interest due under the Financing Documents is not directly or indirectly guaranteed, in whole or in part, by the United States or an agency or instrumentality thereof. 1 7.2. No portion of the Principal Amount or interest earned thereon shall be (i) used in making loans the payment of principal or interest of which are to be guaranteed, in whole or in part, by the United States or any agency or instrumentality thereof, or (ii) invested, directly or indirectly, in federally insured deposits or accounts if such investment would cause the financing under the Financing Documents to be "federally guaranteed" within the meaning of Section 149(b) of the Code. 1 Section 8. Miscellaneous. , 8.1. Co- Lessee shall keep a complete and accurate record of all owners or assignees of the Financing Documents in form and substance satisfactory to comply with the registration requirements of Section 149(a) of the Code unless Lessor or its assignee agrees to act as Co- Lessee's agent for such purpose. 1 8.2. Co- Lessee shall maintain complete and accurate records establishing the expenditure of the Principal Amount for a period of five (5) years after payment in full under the Financing Documents. 8.3. To the best of the undersigned's knowledge, information and belief, the above expectations are reasonable and there are no other facts, estimates or circumstances that would materially change the expectations expressed herein. 1 IN WITNESS WHEREOF, this Tax Agreement and Arbitrage Certificate has been executed on behalf of Co- Lessee as of August 15, 2001. 4 [NOTE: EXECUTE SEPARATELY] CITY OF CAP ANAVERAL 1 Co- Lessees By: L / + � '41 ) �/ ame: Bennett Boucher 4 Title: City Man ger Date: l/ ] 1 i 1 1 i i , 5 3 1 g e 7 g t 11 d 3 ] i 3 1 I 1 s 9 3 4 1 9/10/01 LES-BQ-ESR DOC /rev. 5/01 /lessor /L2 a a 1 1 EXHIBIT B -1 [Escrow] Lease Number: 0936 i 1 Equipment Schedule: 01 TAX AGREEMENT ANT) ARBITRAGE CERTIFICATE, i This TAX AGREEMENT AND ARBITRAGE CERTIFICATE (this "Certificate ") is issued by Canaveral Port Authority ("Co- , Lessee ") in favor of LEASING 2, INC. ( "Lessor ") in connection with that certain Master Lease Agreement dated as of August 15, 2001 1 (the "Agreement "), by and between Lessor and CITY OF CAPE CANAVERAL and CANAVERAL PORT AUTHORITY. The terms capitalized herein but not defined herein shall have the meanings assigned to them in the Agreement. Section 1. In General. i 1.1. This Certificate is executed for the purpose of establishing the reasonable expectations of Co- Lessee as to future events regarding the financing of certain equipment (the "Equipment ") to be acquired by Lessor and leased to Co- Lessee pursuant to and in accordance with the Equipment Schedule referenced above (the "Equipment Schedule ") executed under the Agreement (together with all related documents executed pursuant thereto and contemporaneously herewith, the "Financing Documents "). As described in the Financing Documents, 1 Lessor shall apply Four hundred thirtynine thousand nine hundred five dollars ($439,905.00) (the "Principal Amount ") toward the acquisition of the Equipment and Co- Lessee shall make Rental Payments under the terms and conditions as set forth in the Financing 1 Documents. 1.2. The individual executing this Certificate on behalf of Co- Lessee is an officer of Co- Lessee delegated with the responsibility of reviewing and executing the Financing Documents, pursuant to the resolution or other official action of Co- Lessee adopted with respect to the Financing Documents, a copy of which has been delivered to Lessor. 1.3. The Financing Documents are being entered into for the purpose of providing funds for financing the cost of acquiring, equipping and 1 installing the Equipment which is essential to the governmental functions of Co- Lessee, which Equipment is described in the Equipment Schedule. The Principal Amount will be deposited in escrow by Lessor on or after the Lease Date of the Equipment Schedule and held pending acquisition of the Equipment under the terms of the Agreement. 1.4. Co- Lessee will timely file for each payment schedule issued under the Lease a Form 8038 -G (or, if the invoice price of the Equipment I under such schedule is less than $100,000, a Form 8038 -GC) relating to such Lease with the Internal Revenue Service in accordance with ,1 Section 149(e) of the Internal Revenue Code of 1986, as amended (the "Code "). -_. _: .: ....'.. • . -, .x- exempt obfigaiians J' (including the Lease) in t e amou . . f ill t 111 durin_ the current calendar year. Co- Lessee hereby designates the Lease as s a "qualified tax - exempt obligation" within the meaning of Section 265(b)(3 o t e of - . .. L . - . • - . • ' bordinate entities, if i .. ....... • I i Section 2. Non-Arbitrage Certifications. 2.1. The Rental Payments due under the Financing Documents will be made with monies retained in Co- Lessee's general operating fund (or an account or subaccount therein). No sinking, debt service, reserve or similar fund or account will be created or maintained for the I payment of the Rental Payments due under the Financing Documents or pledged as security therefor. 2.2. There have been and will be issued no obligations by or on behalf of Co- Lessee that would be deemed to be (i) issued or sold within I fifteen (15) days before or after the date of issuance of the Financing Documents, (ii) issued or sold pursuant to a common plan of fmancing with the Financing Documents and (iii) paid out of substantially the same source of funds as, or deemed to have substantially the 1 same claim to be paid out of substantially the same source of funds as, the Financing Documents. I 2.3. Other than the Principal Amount held in the Escrow Account , Co- Lessee does not and will not have on hand any funds that are or will be restricted, segregated, legally required or otherwise intended to be used, directly or indirectly, as a substitute, replacement or separate source of financing for the Equipment. 2.4. No portion of the Principal Amount is being used by Co- Lessee to acquire investments which produce a yield materially higher than the yield realized by Lessor from Rental Payments received under the Financing Documents. 2.5. The Principal Amount does not exceed the amount necessary for the governmental purpose for which the Financing Documents were entered into. Such funds are expected to be needed and fully expended for payment of the costs of acquiring, equipping and installing the Equipment. 2.6. Co- Lessee does not expect to convey, sublease or otherwise dispose of the Equipment, in whole or in part, at a date which is earlier than the final Payment Date under the Financing Documents. Section 3. Dishnrsementpf Funds; Reimbursement to Co- Lessee. 3.1. It is contemplated that the entire Principal Amount deposited in escrow will be used to pay the acquisition cost of Equipment to the vendors or manufacturers thereof, provided that, if applicable, a portion of the principal amount may be paid to Co- Lessee as reimbursement for acquisition cost payments already made by it so long as the conditions set forth in Section 3.2 below are satisfied. 3.2. Co- Lessee shall not request that it be reimbursed for Equipment acquisition cost payments already made by it unless each of the following conditions have been satisfied: (a) Co- Lessee adopted a resolution or otherwise declared its official intent in accordance with Treasury Regulation § 1.150 -2 (the "Declaration of Official Intent "), wherein Co- Lessee expressed its intent to be reimbursed from the proceeds of a borrowing for all or a 9/10/01 .LES- BQ -ESR. DOC /rev.5 /01 /lessor /L2 portion of the cost of the Equipment, which expenditure was paid to the Vendor not earlier than sixty (60) days before Co- Lessee adopted the Declaration of Official Intent; (b) The reimbursement being- requested will be made by a written allocation before the later of eighteen (18) months after the i expenditure was paid or eighteen (18) months after the items of Equipment to which such payment relates were placed in service; (c) The entire payment with respect to which reimbursement is being sought is a capital expenditure, being a cost of a type properly : chargeable to a capital account under general federal income tax principles; and (d) Co- Lessee will use any reimbursement payment for general operating expenses and not in a manner which could be construed as an artifice or device under Treasury Regulation § 1.148 -10 to avoid, in whole or in part, arbitrage yield restrictions or arbitrage rebate requirements. ,Section 4. Use and Investment of Funds; Temporary Perim. 4.1. Co- Lessee has incurred or will incur, within six (6) months from the date of issuance of the Financing Documents, binding obligations to pay an amount equal to at least five percent (5 %) of the Principal Amount toward the costs of the Equipment. An obligation is not i binding if it is subject to contingencies within Co- Lessee's control. The ordering and acceptance of the items of Equipment will proceed with due diligence to the date of final acceptance of the Equipment. 4.2. An amount equal to at least eighty-five percent (85 %) of the Principal Amount will be expended to pay the cost of the Equipment by the end of the three -year period commencing on the date of this Certificate. No portion of the Principal Amount will be used to acquire investments that do not carry out the governmental purpose of the Financing Documents and that have a substantially guaranteed yield of four (4) years or more. i 4.3. (a) Co- Lessee reasonably expects to cause the Equipment to be acquired by April 1, 2002. (b) Co- Lessee will provide evidence to Lessor that the rebate amount has been calculated and paid to the Internal Revenue Service in accordance with Section 148(0 of the Code unless (i) the entire Principal Amount is expended on the Equipment by the date that is the six - month anniversary of the Financing Documents or (ii) the Principal Amount is expended on the Equipment in accordance with the following schedule: At least fifteen percent (15 %) of the Principal Amount and interest earnings thereon will be applied to the cost of the i Equipment within six months from the date of issuance of the Financing Documents; at least sixty percent (60 %) of the Principal Amount and interest earnings thereon will be applied to the cost of the Equipment within 12 months from the date of issuance of the Financing Documents; and one hundred percent (100 %) of the Principal Amount and interest earnings thereon will be applied to the cost of the ))) Equipment prior to eighteen (18) months from the date of issuance of the Financing Documents. ,, bond" under Section ■ • at least ninety-five percent (95 %) of the Principal Amount is used for the governmental activities of Co- Lessee; and (iv) the aggregate principa amo• • : . - u •t obligations (including the Lease) issued by Co- Lessee and its subordinate entities, if any, during the current calendar year is not reasonably expecte• • - - . :. 1 11 110. Accordingly, the ,Section 5. Escrow Account. The Financing Documents provide that the monies deposited in escrow shall be invested until payments to the vendor(s) or manufacturer(s) of the Equipment are due. Co- Lessee will ensure that such investment will not result in Co- Lessee's obligations under the Financing Documents being treated as an "arbitrage bond" within the meaning of Section 148(a) of the Internal Revenue Code of 1986, as amended (the "Code "), respectively. Any monies which are earned from the investment of these funds shall be labeled as interest earned. All such monies will be disbursed on or promptly after the date that Co- Lessee accepts the Equipment. ,Section 6. No Private lase; No Consumer Loaq. 6.1. Co- Lessee will not exceed the private use restrictions set forth in Section 141 of the Code. Specifically, Co- Lessee will not permit more than 10% of the Principal Amount to be used for a Private Business Use (as defined herein) if, in addition, the payment of more than ten percent (10 %) of the Principal Amount plus interest earned thereon is, directly or indirectly, secured by (i) any interest in property used or to be used for a Private Business Use or (ii) any interest in payments in respect of such property or derived from any payment in respect of property or borrowed money used or to be used for a Private Business Use. In addition, if both (A) more than five percent (5 %) of the Principal Amount is used as described above with respect to Private Business Use and (B) more than five percent (5 %) of the Principal Amount plus interest earned thereon is secured by Private Business Use property or payments as described above, then the excess over such five percent (5 %) (the "Excess Private Use Portion ") will be used for a Private Business Use related to the governmental use of the Equipment. Any such Excess Private Use Portion of the Principal Amount will not exceed the portion of the Principal Amount used for the governmental use of the particular project to which such Excess Private Use Portion is related. For purposes of this paragraph 6.1, "Private Business Use" means use of bond proceeds or bond financed- property directly or indirectly in a trade or business carried on by a natural person or in any activity carried on by a person other than a natural person, excluding, however, use by a state or local governmental unit and excluding use as a member of the general public. 6.2. No part of the Principal Amount or interest earned thereon will be used, directly or indirectly, to make or finance any loans to non- governmental entities or to any governmental agencies other than Co- Lessee. 9/10/01 LES- BQ -ESR. DOC /rev. 5/01 /lessor /L2 1 Section 7. No Federal Guarantee. 7.1. Payment of the principal or interest due under the Financing Documents is not directly or indirectly guaranteed, in whole or in part, by the United States or an agency or instrumentality thereof. 7.2. No portion of the Principal Amount or interest earned thereon shall be (i) used in making loans the payment of principal or interest of which are to be guaranteed, in whole or in part, by the United States or any agency or instrumentality thereof, or (ii) invested, directly or indirectly, federally y insured deposits or accounts if such investment would cause the financing under the Financing Documents to be "federally guaranteed" within the meaning of Section 149(b) of the Code. Section 8. Miscellaneous. 8.1. Co- Lessee shall keep a complete and accurate record of all owners or assignees of the Financing Documents in form and substance satisfactory to comply with the registration requirements of Section 149(a) of the Code unless Lessor or its assignee agrees to act as Co- ' Lessee's agent for such purpose. 8.2. Co- Lessee shall maintain complete and accurate records establishing the expenditure of the Principal Amount for a period of five (5) years after payment in full under the Financing Documents. 8.3. To the best of the undersigned's knowledge, information and belief, the above expectations are reasonable and there are no other facts, estimates or circumstances that would materially change the expectations expressed herein. , IN WITNESS WHEREOF, this Tax Agreement and Arbitrage Certificate has been executed on behalf of Co- Lessee as of August 15, 2001. [NOTE: EXECUTE SEPARATELY] CANAVERAL ORT AUTHO' TY Co- Lessees By: Name: Albert J. Francis 11, •.'A Title: Chief Financial Officer Date: 4-22/-401 1 � 1 9/10/01 LES- BQ -ESR. DOC /rev.5 /01 /lessor/L2 EXHIBIT C -1 [Escrow] Lease Number: 0936 Equipment Schedule: 01 I RESOLUTION OF GOVERNING BODY At a duly called meeting of the governing body of Co- Lessees held in accordance with all applicable legal requirements, including open meeting laws, on the day of , , the following resolution was introduced and adopted: RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF A MASTER LEASE AGREEMENT, EQUIPMENT SCHEDULE NO. 01, AND RELATED INSTRUMENTS, AND DETERMINING OTHER MATTERS IN CONNECTION THEREWITH. 1 WHEREAS, the governing body of City of Cape Canaveral ( "Co- Lessee ") desires to obtain certain equipment (the "Equipment ") ] described in Equipment Schedule No. 01 to the Master Lease Agreement (collectively, the "Lease ") with Leasing 2, Inc., the form of 1 . which has been available for review by the governing body of Co- Lessee prior to this meeting; and WHEREAS, the Equipment is essential fo Co- Lessee to perform its governmental functions; and WHEREAS, the funds made available under th ease will be deposited into an Escrow Account pursuant to the Lease and will be i applied to the acquisition of the Equipment in accor ce with the Lease; and 1 WHEREAS, Co- Lessee has taken the necessary steps, r iicluding those relating to any applicable legal bidding requirements, to arrange for the acquisition of the Equipment; and \,, WHEREAS, Co- Lessee proposes to enter into the Lease withIeasing 2, Inc. su 'ally in the form presented to this meeting. NOW, THEREFORE, BE IT RESOLVED BY THE GOVEh4ING B Y OF C - LESSEE AS FOLLOWS: r 3 Section 1. It is hereby found and determined that the terms of the Lu* and related instruments (collectively, the "Financing Documents ") in the forms presented to this meeting and incorporated in this res are in the best interests of Co- Lessee for the acquisition of the Equipment. I Section 2. The Financing Documents and the acquisition and financing Of the Equipment under the terms and conditions as described in the Financing Documents are hereby approved. The CityManager of Co- Lessee and any other officer of Co- Lessee who shall have power to execute contracts on behalf of Co- Lessee be, and each of them hereby is, ,ithorized to execute, acknowledge and deliver the Financing Documents with any changes, insertions and omission's therein as may be apprNed by the officers who execute the Financing Documents, such approval to be conclusively evidenced by such execution and delivery of the Financing Documents. The City Manager of the Co- Lessee and any other officer of Co- Lessee who shall have power to do so be, and each of them hereby is, authorized to affix the official seal of Co- Lessee to the Financing Documents and attest the same. Section 3. The proper officers of Co- Lessee be, and each of them hereby is, authorized and directed to execute and deliver any and all papers, instruments, opinions, certificates, affidavits and other documents and to do or cause to be done any and all other acts and things necessary or proper for carrying out this resolution and the Financing Documents. Section 4. Pursuant to Section 265(b) of the Internal Revenue Code of 1986, as amended (the "Code "), Co- Lessee hereby specifically designates the Lease as a "qualified tax - exempt obligation" for purposes of Section 265(b)(3) of the Code. The undersigned further certifies that the above resolution has not been repealed or amended and remains in full force and effect and further certifies that the Lease executed on behalf of Co- Lessee is the same as presented at such meeting of the governing body of Co- Lessee, excepting only such changes, insertions and omissions as shall have been approved by the officers who executed the same. [NOTE: EXECUTE SEPARATELY] Date: , / 0;� CITY OF CAPE CANAVERAL �/ Co- Lessees i I By: ,L/ Name: Bennett Boucher t- � Title: City Manager Attested By: (Signature of one additional person who can witness the passage of this Resolution) Name: Title: 9/10/01 LES- BQ -ESR. DOC /rev.5 /01 /lessor /L2 J EXHIBIT D a Lease No.: 0936 Equipment Schedule: 01 , 1 1 1 3 INCIJMBFNCY CERTIFICATF, 1 I do hereby certify that I am the duly elected or appointed and acting as /V9,,el . of City of Cape Canaveral, 1 a political subdivision duly organized and existing under the laws of the State of Florida/that I have custody of the records of such entity, and that, as of the date hereof, the individuals named below are the duly elected or appointed officers of such entity holding the offices set forth opposite their respective names. [ I further certify that the signatures set opposite their respective names and titles are their true and authentic signatures and ii fY i �) � PP p � (� ) such officers have the authority on behalf of such entity to enter into that certain Master Lease Agreement dated as of August 15, 2001 between such entity and Leasing 2, Inc.. 1 NAME TITLE ■ _ail Kennett Boucher City Manager /!�. I i I i [ 1 1 t 1 1 IN WITNESS WHEREOF, I have duly executed this certificate as of this f el day of A • J i I [NOTE: EXECUTE SEPARATELY] By: 2 I Name: c----114971/ 3A1/4 Title: & I . y [ - /P / /L . ] I 1 i ) i 1 a i i ■ i 9 /10 /01:LES- BQ -ESR. DOC /rev.5 /01 /lessor /L2 EXHIBIT D Lease No.: 0936 Equipment Schedule: 01 / k 1 n Y a 1 a 3 INCIJMRENCY CERTIFICATE, 1 I do hereby certify that I am the duly elected or appointed and acting• of Canaveral Port Authority, a political subdivision duly organized and existing under the laws of the State of Florida, that I h ve custody of the records of such entity, and that, as of the date hereof, the individuals named below are the duly elected or appointed officers of such entity holding the offices set forth opposite their respective names. I further certify that (i) the signatures set opposite their respective names and titles are their true and authentic signatures and (ii) such officers have the authority on behalf of such entity to enter into that certain Master Lease Agreement dated as of August 15, 2001 between such entity and Leasing 2, Inc.. t I NAME TITI .F, 1 - I % 1 . Chief Finanr.ial Officer - - 1 i 1 I 1 t I IN WITNESS WHEREOF, I have duly executed this certificate as of this oZ? day of , 0 ! i i 1 I [NOTE: EXECUTE SEPARATELY] By: 1 • i $ Name: n L , 1 Title: c !4 • 44-etell i 9/10/01 LES -BQ -ES R. DOC /rev. 5/0 1/lessor/L2 1 I FROM : FAX NO : I Oct. 12 2001 10: 40AM P1 I , i 1 5 1 ease Number: 0936 1 Equipment Schedule; 01 i 1 • 1 EXHIBIT F 1 A PAYMENT RE:QUEST FORM NO 1 1 1 Master Lease Agreement dated as of August 15, 2001 (the "Agreement") by and between Leasing 2, Inc- ("Lessor") and City of Cape Canaveral and Canaveral Port Authority, as Co-Lessees ("Lessee") 1, 1 4 i Lessor is hereby requested to pay from the Escrow Account to the person or entity designated below as payee, the amount I set forth opposite each such name, in payment of the Acquisition Costs of the Equipment designated opposite such payee's J name and described on thc attached page(s). i Payee, Amount Equipment I WiItt_o: I 1 Bank of America NA S439,905.00 Pre-payment of one (1) 1 I 231 S. LaSalle St. Pierce fire apparatus 1 Chicago, EL 60697 i I ABA #071000039 I Account Name: Pierce Manufacturing, Inc_ , i Account Number: 86661-11009 ] I 1 i please reference invoice number M006802/Cane Canaveral on wire 1 , I The Lessee hereby certifies that: 1 1 1. Attached hereto is a duplicate original or certified copy of the following documents relating to the order, delivery 1 and acceptance of the Equipment described in this Payment Request Form (a) a manufacturer's or dealer's invoice; and (b) unless this Payment Request Form relates to partial payment of a Vendor in connection with a purchase order approved by . i , Lessor, Lessee's Acceptance Certificate relating to the Equipment. , 1 ! 2. The representations and warranties contained in the Lease are true and correct as of the date hcroof. i i 3. No Non-Appropriation or Event of Default, or event which with thc giving of notice or passage of time or both t ' would constitute an Event of Default, has occurred. i i , City of Cape Ca i averal Canaveral Port Authority Co-Lessee , Co-Lessz± : . tt:r...• ..6...' By: • ' - _ . — */ : Bennett Boucher Name: Albert J. F cis, 11. CPA , Title: City Manaker Title: Chief Financial Officer Date: /°,4,22 A/ Datc: - SunTrust Leasing Corporation Lessor By: _ Post-ir Fax Note 7671 Date k°I\ P la86 k Name: --- ,., 1.° 1 Title: Co./Dept. Co. Date: phone a Phone* • . . 1- i 1 1 EXHIBIT G -1' Lease No.: 0936 Equipment Schedule: 01 i I DATE: i TO: i Insurance Agent Name & Address 1 Phone Number and Fax Number a Gentlemen: g CITY OF CAPE CANAVERAL has entered into a Master Lease Agreement dated as of August 15, 2001 with LEASING 2, INC.. In accordance with the Agreement, Lessee certifies that it has instructed the insurance agent named above to issue: 1 a. All Risk Physical Damage Insurance on the leased Equipment evidenced by a Certificate of Insurance and Long Form Loss Payable Clause naming Leasing 2, Inc. and /or its assigns as Loss Payee. a ' The Coverage Required is Four hundred thirtynine thousand nine hundred five dollars ($439,905.00). g 1 b. Public Liability Insurance evidenced by a Certificate of Insurance naming Leasing 2, Inc. and /or its assigns as Additional 1 Insured. 4 The following minimum coverage is required: 1 1 Liability: $ 500,000.00 per person Liability - Bodily Injury: $1,000,000.00 aggregate Liability - Property Damage: $1,000,000.00 property damage liability , 1 PROPERTY: One (1) New Pierce Quantum Fire Truck I LOCATION: City of Cape Canaveral: 190 Jackson Avenue, Cape Canaveral, FL 32920 R 1 1 Upon issuance of the coverage outlined above, please mail a certificate of insurance to Leasing 2, Inc., 1304 DeSoto Avenue, Suite 304, Tampa, FL 33606 Your courtesy in issuing and forwarding the requested certificate at your earliest convenience will be appreciated. Very truly yours, CITY OF C , ' ANAVE iv /o, � , �— �/ 1 ame: Bennett : oucher Title: City Manager Date: 7,` / v/ 1 I 1 r 1 1 1 i I d 1 a i 1 9 /10 /01:LES- BQ -ESR. DOC /rev. 5 /01 /lessor/L2 1 1 EXHIBIT G-1 Lease No.: 0936 Equipment Schedule: 01 DATE: TO: VF-D ; Po box a - 1 YoRK, P4 17405 Insurance Agent Name & Address Phone Number and Fax Number 4 Gentlemen: z CANAVERAL PORT AUTHORITY has entered into a Master Lease Agreement dated as of August 15, 2001 with LEASING 1 2, INC.. In accordance with the Agreement, Lessee certifies that it has instructed the insurance agent named above to issue: 1 a. All Risk Physical Damage Insurance on the leased Equipment evidenced by a Certificate of Insurance and Long Form Loss Payable Clause naming Leasing 2, Inc. and/or its assigns as Loss Payee. The Coverage Required is Four hundred thirtynine thousand nine hundred five dollars ($439,905.00). 1 b. Public Liability Insurance evidenced by a Certificate of Insurance naming Leasing 2, Inc. and/or its assigns as Additional Insured. 1 The following minimum coverage is required: 3 Liability: $ 500,000.00 per person 1 Liability - Bodily Injury: $1,000,000.00 aggregate Liability - Property Damage: $1,000,000.00 property damage liability PROPERTY: One (1) New Pierce Quantum Fire Truck LOCATION: Canaveral Port Authority, 8970 Columbia Road, Station #52, Cape Canaveral, FL 32920 Upon issuance of the coverage outlined above, please mail a certificate of insurance to Leasing 2, Inc., 1304 DeSoto Avenue, Suite 304, Tampa, FL 33606 Your courtesy in issuing and forwarding the requested certificate at your earliest convenience will be appreciated. Very truly yours, CANAVERAL PORT AUTHOR Y • t By: Name: Albert J. Francis I, CP Title: Chief Financial Officer Date ?A Y% / 9/10/01 LES-BQ-ESR DOC/rev 5/01 /lessor/L2 1 } Lease No.: 0936 Equipment Schedule: 01 1 I NOTICE AND ACKNOWLEDGMENT OF ASSIGNMENT Dated: August 15, 2001 1 LEASING 2, INC. ( "Assignor ") hereby gives notice that it has assigned and sold to SunTrust Leasing Corporation ( "Assignee ") all of Assignor's right, title and interest in and to the rental payments and other amounts due under the Master Lease Agreement (the "Lease ") by and between Assignor and CITY OF CAPE CANAVERAL and CANAVERAL PORT l AUTHORITY ( "Co- Lessees "). All rental payments and other amounts coming due pursuant to the Lease on and after the date hereof are payable to and should be remitted to Assignee at the following address: I 1 I SunTrust Leasing Corporation P.O. Box 79194 1 Baltimore, MD 21279 -0194 Co- Lessees hereby acknowledge the effect of the assignment and absolutely and unconditionally agree to deliver all rental payments 1 and other amounts coming due under the Lease in accordance with the terms thereof on or after the date of this Notice and 1 Acknowledgment of Assignment. 1 Co- Lessees agree that (i) Assignee shall have all the rights of lessor under the Lease and all related documents, including, but not limited to, the right to issue or receive all notices and reports, to give all consents, to receive title to the equipment, to declare a default I and to exercise all remedies thereunder, and (ii) Co- Lessees shall pay Assignee all installment payments and other amounts due under the Lease as and when due, without deduction or offset, notwithstanding any claim Co- Lessees may have against the original lessor, Assignor, Assignee or relative to the equipment, or any other claim of Co- Lessees arising prior to the assignment and sale of the Lease to Assignee, and (iii) Co- Lessees have an unconditional obligation to make payments to Assignee and its assigns under the Lease and the Lease may be terminated (in whole hut not in part) by Co- Lessees prior to all payments having been made only pursuant to non - appropriation. 1 Assignor and Co- Lessees agree and acknowledge that this Notice and Acknowledgment of Assignment is made for and inures to the benefit of Assignee and its assigns. The Lease remains in full force and effect, has not been amended and no non - appropriation or event of default (or event which with the passage of time or the giving of notice or both would constitute a default) has occurred thereunder. I i Any inquiries of Co- Lessees related to the Lease and any requests for escrow disbursements, if applicable, should be directed as follows: Y l I SunTrust Leasing Corporation I 29 West Susquehanna Avenue, Suite 400 CMD2424 Towson, MD 21204 i s CITY OF CAPE CANAVERAL LEASING 2, INC. Co- Lessees Assignor 04 B y na By: �. . City Ma Title: Pre tli Date: // '��, Date: t (.) - $ - 0 CANAVERAL PORT AUTHORITY Co- Lessees By; /0---.--;,-- 11?- Title: Chief Financi fficer Date: 9'/•1 yA 9/10/01 LE S -B Q -E S R. DOC /rev. 5/01 /lessor /L2 4 , . . r. , ■ 4 . 1 i i LEASING 2, INC. AMENDMENT TO 1 MASTER LEASE AGREEMENT 1 LEASE NUMBER: 0936 1 : l This document will serve as an amendment to the MASTER LEASE AGREEMENT (the "Agreement "), dated as of August 15, 2001 made and entered into by and between LEASING 2, INC., a Florida corporation, as lessor (the "Lessor "), and and CITY OF CAPE a CANAVERAL, a political subdivision of the State of FLORIDA, as Co- Lessees ( "Cape Canaveral "), and CANAVERAL PORT 1 AUTHORITY, a political subdivision of the State of FLORIDA, as Co- Lessees (the "Port Authority," and together with Cape Canaveral, "Co- Lessees "). The sections that follow will replace the corresponding sections from the Agreement. Secti,nnii 1. Tax Related Representations, Warranties and Covenants. (b) Event of Taxability. If Lessor either (i) receives notice, in any form, from the Internal Revenue Service or (ii) reasonably 1 determines, based on an opinion of independent tax counsel mutually selected by Co -I .essees and Lessor, that Lessor may not exclude any Interest paid under any Lease from its Federal gross income (each an "Event of Taxability"), the Co- Lessees, jointly and severally, shall be obligated to pay to Lessor upon demand (x) an amount which, with respect to Rental Payments previously paid and taking into account all penalties, fines, interest and additions to tax (including all federal, state and local taxes imposed on the Interest due through the date of such event), will restore to Lessor its after -tax yield (assuming tax at the highest marginal tax rate and taking into account the time of receipt of Rental Payments and reinvestment at the after -tax yield rate) on the transaction evidenced by such Lease through the date of such event and (y) as additional Rental Payments to Lessor on each succeeding Payment Date such amount as will maintain such after -tax yield to Lessor. ,Section 12.2. Remedies on Default. In the event of default by Co- Lessees under the Agreement, Lessor's sole remedies shall be to sue Co- Lessees (or either of them) for compensatory damages, which Co- Lessees, jointly and severally, agree to pay and which are hereby agreed to be the Prepayment Price applicable to the immediately preceding rental payment due date, as set forth on the Payment Schedule, plus any rental payments accrued and unpaid as of the date default, provided that in the event that Co- Lessees voluntarily returns the Equipment to Lessor to a location specified by Lessor, at Co- Lessees' sole risk, cost and expense and in the condition required by Section 8.1 of the Agreement, Lessor shall not have any further remedies against Co- Lessees. Lessor shall also have the right in the event of default to exercise any other right, remedy or privilege which may be available to it, including without limitation proceedings by appropriate court action to require specific performances of any provision of the Agreement other than Co- Lessees' covenant to return possession of and title to the Equipment, which covenant shall not be subject to enforcement by specific performance. Prevailinn party will he entitled to reimbursement of . . - . all legal fees and other costs and expenses incurred; including court costs, inettrred-by-Lessor in enftYreement of remedies -un er Agreement except to the extent prohibited by the Constitution and laws of the State of Florida. Section 13.9. Co- Lessees' Performance. A failure or delay of Lessor to enforce any of the provisions of this Agreement or any Lease shall in no way be construed to be a waiver of such provision. Lessor.... wi.11he-bnund...hu...ank_ applicable... statute... of: 1. i. m. itati .ons.._stare...or..:federal relative to enforcement of provisions in this Agreement. 1 1 t i i 4 1 a i a • 3 I IN WITNESS WHEREOF, Lessor has caused this Amendment to Master Lease Agreement to be executed in its corporate name by its duly authorized officer, and each Co- Lessee has caused this Agreement to be executed in its name by its duly authorized officer. CITY OF CAPE CANAVERAL LEASING 2, INC. Co- Lessees Lessor 3 Add O I By: `�i�;`� B • By Name: Bennett Boucher Name: Brad O-rs Title: City Manager Title: President Date: �e/c->/ Date: b 0 1 Address: 105 Polk Avenue Address: 1304 DeSoto Avenue, Suite 304 Cape Canaveral, FL 32920 Tampa, FL 33606 i , Telephone: 321- 868 -1230 Telephone: 813 - 258 -9888 Facsimile: 321- 868 -1224 Facsimile: 813 - 258 -9333 i CANAVERALPORT AUTHORITY Co- Lessees By: t° Name: Albert J. Francis I1, CP Title: Chief Financial Officer Date: 4 .2 SI/ / Address: P. O. Box 267 Cape Canaveral, FL 32920 Telephone: 321- 783 -7831 Facsimile: 321 - 783 -4317 • t BILLING INFORMATION Please indicate below how you would like us to bill you for the lease payments due under this Agreement, including a contact name, if applicable: — 6 1Y) Contact Name: Pap�'GS ajed i L Company: OLOaciela / I o/ T 111,4 0 rl 0 or e 0;:macerai Street Address or Box #: Po Sox ,26,7 Cit State, Zip: OCCPC C V era / 30( 90 26 l I Telephone: (3`9/) 9 o 3 - / ef'3 / / Fax (3a / ) 90c 3" '7'3/ 2 3 I (PLEASE NOTE: Due to system limitations, we can only send billing to one party.) 1 - Mam / //2 Vo /6es (2ariatiera_i �ag orIl � �i o r d a Vela l Fii)ct4Ge Depac /n err+ F a,ce r74 en Po Box , Po ?ox 3 � On-Pe e-0-7v a l r ,)wo e e Cara ve& / 3c) 9/10/01 ALES- BQ -ESR. DOC /rev.5 /O1 /lessor /L2 FILE No.544 10/04 '01 PM 03:06 ID:CMC3500 FAX:8132589333 PAGE 2 1 1 4 Frxm 8038.6 Information Return for Tax - Exempt Governmental Obligations (Rev. November 2000) ' Under Internal Revalue Code section 149(1) men Net ie.s -o�2o rasienneini le see separate rnstruadons reasury wx xov n,e 1h° Su ac C aution: It the Issue price is under f100,00fb use Form 8038•GC. Re porting Author ty _ If Amended Return, check here ■ Q 1 Issuer's name 2 Issuer's employer Identification number 1 City of Caps Canaveral and Canaveral Port Authority 59 : 0974636 and 69 3 Number and street (or P.O. box if mail is not delivered to street address) Room/euite 4 Report number 105 Polk Avenue and P.O. Box 267 3 5 City, town, or post office, state, and ZIP code 6 Date or il:sua Cape Canaveral, Florida 32920 ._ _ August 15, 2001 7 Name of issue 5 CusiP number i Master tease Agreement 9 Name and title of officer or legal representative wham the IRS may call for more information 10 Telephone numbs of Of kilt x reoreserRYNi Bert Francis, CFO 321- 783 -7831 Bennett Boucher (321 )868 -1230 City Mngr i',it' ii Type of Issue (check ap Ip Icabie box(es) and enter the Issue price) See instructions and attach schedule 11 IJ Education 11 I 12 ❑ Health and hospital 12 r 13 ❑ Transportation 13 14 ® Public safety 14 $ 438,806 16 ❑ Environment (including sewage bonds) 16 18 ❑ Housing 16 17 ❑Utilities 17 18 ❑ Other. Describe ► - 18 19 it obligations are TANs or RANs, check box le ❑ If obligations are BANS, check box le ❑ .g '%> %?! %q: 20 If oblig etions are In the form of a (ease or installment salo. check box _ . , , te 0 2s! .- ;2j %� .& 1'.,, t III Descrkition of Obligations. Complete for the entire issue for which this form Is being filed. (a0 revel maturity del. A!1 Issue lxicu k1 Stated r n arjay n,wky hd Yield 21 May 1, 2008 $ 439,005 $ 430,905 7 years 4.919 % I 'Al I II/ Uses of Proceeds of Bond issue (Including underwriters' discount) 22 Proceeds used for accrued interest 22 23 Issue price of entire issue (enter amount from line 21. column (b)) 3 t 439,906 24 Proceeds used for bond issuance costs (Including underwriters' discount) . "A ' .�� / ..; 25 Proceeds used for credit enhancement m s�,,�,, 26 Proceeds allocated to reasonably required msorvo or replacement fund 26 ; 27 Proceeds used to curronndy refund prior issues t7 28 Proceeds used to advance refund prior issues 28 / 29 Total (add lines 24 through 28) , • 0 N- -fund' .2 • • - -ds of the issue a •. :c line 29 from line 23 and enter amount : : , $ 439,906 I',,, r tr Description of Refunded Bonds (Complete this part *nix for refunding bonds) 31 Enter the remaining weighted average maturity of the bonds to be currondy refunded • , , • years 32 Enter the remaining weighted average maturity of tho bonds to be advance refunded . • — yon 33 Enter the last data on which the refunded bonds will be celled le 34 Enter the dates) the refunded bonds were Issued ► Rill l V I 'Miscellaneous 36 Enter the amount of tho state volume cap allocated to the issue under section 141(b)(5) )5 38e Enter the amount of gross proceeds invested or to be Invested in a guaranteed investment contract (see instructions) Sea b Enter the final maturity date of the guaranteed investment contract ► 37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units 37a _ b If thls issuo Is a loan made from the proceeds of another tax- exempt issue. chock box • ❑ and enter the name of the issuer ► - and the date of the issue O. 38 If the issuer has designated the issue under section 265(b)(3)(B)(n(III) (Small Issuer oxcepuon), check box . . . le ❑ 39 If the issuer has elected to p__ : penalty In lieu of arbitrage rebate. check box tr ❑ 40 if the issuer has idont'fie •../ ch • box ► II Under pprnilt" .'27,-.— , ! ,..ia — u, this return and accompanying Schedule* aria statements. and to tho bout of my nwr.ape and bath el r �! � }!1 � � _ � . ■ Sign —4011, ` %� F Bennett Boucher. City Manager Here r► -- y x. or Issuers autha►a . traprosentnnvtt Date Type J . Francis a /I , Sigroia CPA. CFO ' ype prkt name and UUe For Paperwork Reduction Act Modica, see page 2 of the Instructions. Cat, No. 637735 Form 5038 -G (Rev. 1 +•2000) 1 1 ■ i I i J LAW OFFICES ; , i AMARI & THERIAC, P.A. , , Attorneys and Counselors At Law Richard S. Amari Mariner Square i Kohn Bennett Reply to: Cocoa Post Office Box 96 Willard Street, Suite 302 J Brad ly Roger Bettin, Sr. Post Office Box 1807 1 , t Mitchell S. Goldman Cocoa, Florida 32923-1807 1 J. Wesley Howze Telephone (321) 639-1320 1 David R. Martin Fax (321) 639-6690 i 1 Matthew J. Monaghan 1 Mark N. McQuagge Imperial Plaza I Mark S. Peters Suite B104 I David M. Presnick 6769 N. Wickham Road i Charles R. Steinberg Melbourne, Florida 32940 4 1 James S. Theriac, III Telephone (321) 259-6611 i Fax (321) 259-6624 a ' Of Counsel: 1 Mary E. Lytle, P.A. 1 i 1 September 18, 2001 i ! i -; i LEASING 2, INC. > i 1 1304 DeSoto Avenue , Suite 304 i Tampa, FL 33606 1 1 I RE: Master Lease Agreement dated as of August 15, 2001 (the "Agreement") by and between I LEASING 2, INC. ("Lessor") and CITY OF CAPE CANAVERAL and CANAVERAL i I PORT AUTHORITY , 1 1 1 Ladies and Gentlemen: 1 1 We have acted as counsel to City of Cape Canaveral ("Co-Lessee") with respect to the i i Agreement described above and various related matters, and in this capacity have reviewed a I duplicate original or certified copy thereof and Equipment Schedule No.1 executed pursuant thereto i (together with the Agreement, (the "Lease"). The terms capitalized in this opinion, but not defined I i herein, shall have the meanings assigned to them in the Lease. Based upon the examination of these i 1 and such other documents as we have deemed relevant, it is our opinion that: , i 1. Co-Lessee is a political subdivision of the State of Florida (the "State") within the , meaning of Section 103(c) of the Internal Revenue Code of 1986, as amended, and is duly organized, , existing and operating under the Constitution and laws of the State. ' 2. Co-Lessee is authorized and has the power under applicable law to enter into the Lease, and to carry out its obligations thereunder and the transactions contemplated thereby. 3. The Lease has been duly authorized, executed and delivered by and on behalf of Co- Lessee, and is a legal, valid and binding obligation of Co-Lessee enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. ,_ l a Leasing 2, Inc. 1 September 18, 2001 q Page 2 4. The authorization and execution of the Lease and all other proceedings of Co- Lessee relating to the transactions contemplated thereby have been performed in accordance with all applicable open meeting, public records, public bidding and all other laws, rules and regulations of the State. i I 5. The execution of the Lease and the appropriation of moneys to pay the Rental Payments coming due thereunder do not and will not result in the violation of any constitutional, statutory or other limitation relating to the manner, form or amount of indebtedness which may be incurred by Co- Lessee. I 6. There is no litigation, action, suit or proceeding pending or before any court, administrative agency, arbitrator or governmental body that challenges the organization or existence of Co- Lessee, the authority of Co- Lessee or its officers or its employees to enter into the Lease, the proper authorization and/or execution of the Lease or the documents contemplated thereby, the appropriation of moneys to make Rental Payments under the Lease for the current Fiscal Year of Co- / / Lessee, or the ability of Co- Lessee otherwise to perform its obligations under the Lease and the transactions contemplated thereby. To the best of our knowledge, no such litigation, action, suit or proceeding is threatened. 7. The Equipment is personal property, and when used by Co- Lessee will not be or become fixtures under the laws of the State. ? / 8. Resolution No. 01 -20 of the governing body of Co- Lessee was duly and validly adopted fi by such governing body on July 17, 2001, and such resolution has not been amended, modified, supplemented or repealed and remains in full force and effect. This opinion may be relied upon by the addressee thereof and its successors and assignees of interests in the Lease, but only with regard to matters specifically set forth herein. Very truly yours, i L5 Mark McQuagge Attorney for City of Cape Canaveral I RESOLUTION NO. 01 -20 A RESOLUTION OF THE CITY OF CAPE CANAVERAL, 1 BREVARD COUNTY, FLORIDA TO AUTHORIZE THE CITY MANAGER AND CITY ATTORNEY TO ENTER INTO A LEASE FINANCING AGREEMENT WITH LEASING (2) FOR THE PURCHASE OF A PIERCE 105 QUANTUM LADDER TRUCK; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Cape Canaveral has determined that a true and very r eal need exists for the acquisition of the Equipment described in the Lease - Purchase 1 Agreement presented to this meeting; and has further determined that the Equipment will be used solely for essential governmental functions and not for private business use; and WHEREAS, the City of Cape Canaveral has taken the necessary steps, utilizing the Lake County, Florida bids, under applicable law to arrange for the acquisition of such equipment. I NOW THEREFORE BE IT RESOLVED, by the City Council of the City of Cape �.. Canaveral, that the terms of said Lease - Purchase Agreement are in the best interest O - of the City of Cape Canaveral for the acquisition of such equipment, and the City of v Cape Canaveral designates and confirms the following persons to execute and Ca deliver, and to witness (or attest) respectively, Bennett Boucher, City Manager, and w Kohn Bennett, City Attorney, a Lease - Purchase Agreement and any related CC CC documents necessary to the consummation of the transactions contemplated by the I Lease-Purchase Agreement. im c� SECTION 1. This Resolution shall take effect immediately upon its adoption. ADOPTED BY the City Council of the City of Cape Canaveral, Florida, this 17 dayofJuly,2001. (20 CAI 1 & Rocky Randels, MAYOR - ATTEST: FOR AGAINST Burt Bruns Second Susan Stills; , - CLERK Buzz Petsos Motion Rocky Randels X Richard Treverton Absent APPRO EP AS TO FOR 4 : it 710‘ Larry Weber X WATS OF FLORIDA �� COUNTY OF BREVARD rds to to certify that the foregoing) Kohn Bennett,! ATTORNEY •. true and correct copy of 446/2,, 44 oJ-ly Intnseis my hand and official seal thh \\ Cape- nt \cityclerk \CityClk \Resolutions \CCVFD Lease Agreement.doc Th. of f ,. PL. "al Cry Clerk - City of Cape Canaveral. FL. I City of Cape Canaveral, Florida City Council Regular Meeting I July 17, 2001 Page 4 RESOLUTIONS: 13. Motion to Adopt: Resolution No 01 -20; Authorizing the City Manager and City 4 Attorney to Enter Into a Leasing Agreement for the Purchase of a Ladder ' Truck with Leasing (2). I �� i Mayor Randels read Resolution No 01 - 20 by title. A RESOLUTION OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA TO AUTHORIZE THE CITY MANAGER AND CITY ATTORNEY TO ENTER INTO A LEASE FINANCING AGREEMENT WITH LEASING (2) FOR THE PURCHASE OF A PIERCE 105 QUANTUM LADDER TRUCK; PROVIDING FOR AN EFFECTIVE DATE. A motion was made by Mayor Pro Tem Petsos and seconded by Mr. Bruns Authorizing the City Manager and City Attorney to Enter Into a Leasing Agreement for the Purchase of a Ladder Truck with Leasing (2) with the amount up to $219,952.50 for a term of seven (7) years. Mr. Bruns expressed concern with the language "lease /purchase" in I that the City would acquire the truck at the end of the agreement. Chief Sargeant clarified that the City would own the vehicle. Mr. Boucher questioned if the amount of $217, 862.50 was still the current lease /purchase price. Chief Sargeant stated that the amount was half of the amount in the lease /purchase documents. Mr. Boucher stated the price as $219, 952.50. Chief Sargeant replied to Mayor Randels that the vehicle would be picked up within eight months of the agreement's execution. Motion carried 4- 0 with voting as follows: Mr. Bruns, For; Mayor Pro Tem Petsos, For; Mayor Randels, For and Mr. Weber, For. 14. Motion to Adopt: Resolution No. 01 -21; Adopting a Tentative Proposed Millage Rate for the Levy of Ad Valorem Taxes for Fiscal Year 2001/2002. Mayor Randels read the Resolution in its entirety. A motion was made by Mr. Weber and seconded by Mr. Bruns to adopt Resolution No. 01 -21 Adopting a Tentative Proposed Millage Rate for the Levy of Ad Valorem Taxes for Fiscal Year 2001/2002. Mr. Boucher explained that Council could decrease the tentative proposed millage after tonight's meeting, but not increase. Mr. Bruns expressed for clarification that $400,000 is collected in revenue for police services however this year's contract calls for $1.5 million leaving an $800,000 deficiency. He stated that a referendum question would be proposed for this year's ballot. James Blizzard, 366 Coral Drive, questioned if there is anticipated income from the new luxury condominiums in the city. Mr. Bruns explained that the City has been able to absorb the deficit to date through its revenues. Mr. Leo Nicholas related that funding for the police department was done historically without ad valorem taxes. Mr. Bruns clarified that one - third of the police services is funded through ad valorem taxes with two- thirds derived from other revenue sources. Motion carried 4-0 with voting as follows: Mr. Bruns, For; Mayor Pro Tem Petsos, For; Mayor Randels, For; and Mr. Weber, For. ) LAW OFFICES OF STROMIRE, BISTLINE & MINICLIER AN ASSOCIATION OF PROFESSIONAL ASSOCIATIONS 1970 MICHIGAN AVENUE BUILDING E COCOA, FLORIDA 32922 HAROLD T. BISTLINE, P.A. MAIL: POST OFFICE BOX 8248 JOSEPH E. MINICLIER, P.A. COCOA, FLORIDA 32924-8248 LEON STROMIRE E -MAIL: sbmmglaw@aol.com 1931-2001 FAX: (321) 636 -1170 • PHONE: (321) 639 -0505 September 24, 2001 LEASING 2, INC. 1304 DeSoto Avenue - Suite 304 Tampa, FL 33606 Re: Master Lease Agreement dated August 15, 2001 (the "Agreement ") by and between LEASING 2, INC. ( "Lessor") and CITY OF CAPE CANAVERAL and CANAVERAL PORT AUTHORITY Ladies and Gentlemen: We have acted as counsel to the Canaveral Port Authority ( "Co- Lessee ") with respect to the Agreement described above and various related matters, and in this capacity have reviewed a duplicate original or certified copy thereof and Equipment Schedule No. 01 executed pursuant thereto (together with the Agreement, the "Lease "). The terms capitalized in this opinion but not defined herein shall have the meanings assigned to them in the Lease . Based upon the examination of these and such other documents as we have deemed relevant, it is our opinion that: 1. Co- Lessee is a political subdivision of the State of Florida (the "State ") within the meaning of Section 103(c) of the Internal Revenue Code of 1986, as amended, and is duly organized, existing and operating under the Constitution and laws of the State. 2. Co- Lessee is authorized and has the power under applicable law to enter into the Lease and to carry out its obligations thereunder and the transactions contemplated thereby. 3. The Lease has been duly authorized, executed and delivered by and on behalf of the Co- Lessee, and is a legal, valid and binding obligation of Co- Lessee enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. 4. The authorization and execution of the Lease and all other proceedings of Co- Lessee relating to the transactions contemplated thereby have been performed in accordance with all applicable open meeting, public records, public bidding and all other laws, rules and regulations of the State. 5. The execution of the Lease and the appropriation of moneys to pay the Rental Payments coming due thereunder do not and will not result in the violation of any constitutional, statutory or other limitation relating to the manner, form or amount of indebtedness which may be incurred by Co- Lessee. 6. There is no litigation, action, suit or proceeding pending or before any court, administrative agency, arbitrator or governmental body that challenges the organization or existence of Co- Lessee, the authority of Co- Lessee or its officers or its employees to enter into the Lease, the proper authorization and /or • execution of the Lease or the documents contemplated thereby, the appropriation of moneys to make Rental Payments under the Lease for the current Fiscal Year of Co- Lessee, or the ability of Co- Lessee otherwise to perform its obligations under the Lease and the transactions contemplated thereby. To the best of our knowledge, no such litigation, action, suit or proceeding is threatened. 7. The Equipment is personal property, and when used by Co- Lessee will not be or become fixtures under the laws of the State. 8. Resolution No. 2001 -17 of the governing body of Co- Lessee was duly and validly adopted by such governing body on August 15, 2001, and such resolution has not been amended, modified, supplemented or repealed and remains in full force and effect. This opinion may be relied upon by the addressee hereof and its successor and assignees of } interest in the Lease, but only with regard to matters specifically set forth herein. Very truly yours, / /j17-72-- Harold T. Bistline Port Attorney HTB /anr Copy to: Albert J. Francis, II { 9 1 i # er JOE D. M ATHENY 1 , Chairman PORT AUTHORITY RODNEY S. KETCHAM Vice- Chairman I DONALD N. MOUTOR Secretary- Treasurer RALPH J. KENNEDY 3 Commissioner RAYMOND P. SHARKEY Commissioner MALCOLM E. McLOUTH Executive Director 3 1 I I, B. E. Smith, Assistant Secretary of the Canaveral Port Authority, and custodian of its records, hereby certify the attached and foregoing is a true and correct copy of Canaveral Port Authority Resolution 2001 -17, A Resolution Authorizing the Chief Financial Officer and Canaveral Port Authority to Enter into a Lease Financing Agreement with Leasing 2, Inc. for the Purchase of a Pierce 105 Quantum Ladder Truck, adopted at the the regular monthly meeting of the Canaveral Port Authority, held in the Commissioners' Meeting Room of the Canaveral Port Authority office, 200 George J. King Boulevard, Port Canaveral, Florida, on Wednesday, August 15, 2001 at 2 P.M. The original being on file at the offices of the Canaveral Port Authority. I I CANAVERAL PORT AUTHORITY 1 le f. 1 B. E. Smith, Assistant Secretary i 1 I i i PORT CANAVERAL & FOREIGN TRADE ZONE 136 P.O. Box 267 • Cape Canaveral, Florida 32920, USA • 321.783.7831 • Fax: 321.784.6223. 1.888.PORTCAN www. portcanaveral.orp • 1 CANAVERAL PORT AUTHORITY RESOLUTION 2001 -17 A RESOLUTION OF THE CANAVERAL PORT AUTHORITY, BREVARD COUNTY, FLORIDA TO AUTHORIZE THE CHIEF FINANCIAL OFFICER AND PORT ATTORNEY TO ENTER INTO A LEASE FINANCING AGREEMENT WITH LEASING 2, INC. FOR THE PURCHASE OF A PIERCE 105 QUANTUM LADDER TRUCK; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Canaveral Port Authority has determined that a true and very real need exists for the acquisition of the Equipment described in the Lease- Purchase Agreement presented to this meeting; and has further determined that the Equipment will be used solely for essential governmental functions and not for private business use; and WHEREAS, the Canaveral Port Authority has taken the necessary steps, utilizing the Lake County, Florida bids, under applicable law to arrange for the acquisition of such equipment. NOW, THEREFORE, BE IT RESOLVED, by the Commission of the Canaveral Port Authority, that the terms of said Lease- Purchase Agreement are in the best interest of the Canaveral Port Authority for the acquisition of such equipment, and the Canaveral Port Authority designates and confirms the following persons to execute and deliver, and to witness (or attest) respectively, Albert J. Francis II, CPA, Chief Financial Officer, and Harold Bistline, Port Attorney, a Lease- Purchase Agreement and any related documents necessary to the consummation of the transactions contemplated by the Lease - Purchase Agreement. SECTION 1. This resolution shall take effect immediately upon its adoption. DONE, ORDERED AND ADOPTED, this 15 day of August 2001 at Port Canaveral, Brevard County, Florida CANAVERAL PORT AUTHORITY __CtN Chairman ATTES • / r _d&AW C Secretary Treasurer / 1 MINUTES OF THE REGULAR MONTHLY MEETING OF THE CANAVERAL PORT AUTHORITY HELD IN THE COMMISSIONERS' MEETING ROOM OF THE 1 CANAVERAL PORT AUTHORITY OFFICE, 200 GEORGE J. KING BOULEVARD, PORT CANAVERAL, FLORIDA, WEDNESDAY, AUGUST 15, 2001 AT 2 P.M. Q i Meeting called to order at 2 P.M. by Chairman Matheny. a Pledge of Allegiance led by Mr. Bistline. 1 3 a Those present were Commissioners Kennedy, Ketcham, Matheny, Molitor, and Sharkey. Chairman Matheny presided. Also present were Executive Director McLouth, Attorney Bistline, Deputy Executive Director for Engineering Lapolla, Deputy Executive Director of Operations and Administration Bancroft, Chief Financial Officer /Deputy Executive Director Francis, Deputy 1 Executive Director for Business Development Giangrisostomi, Director of Construction Lombroia, Director of Maintenance Fender, Director of Marketing and Trade Development Kotas, Director of Governments Relations and Public Relations Sansom, Director of Environmental Plans and Programs Adame, Eng- ? ineering Consultant Ledford, Charles M. Rowland, and Assistant Secretary Smith. Commissioner Kennedy moved approval of todays (August 15, 2001) Agenda as modified /revised. Motion seconded by Commissioner 1 Molitor and unanimously carried. Commissioner Kennedy moved approval of the minutes of the July 18, 2001 Commission Meeting, and minutes of the May 3, 2001 TEFRA Hearing, as individually received and read. Motion seconded by Commissioner Molitor and unanimously carried. i Laurilee Thompson and Neta Harris, representing the Brevard 1 Nature Alliance, Inc. appeared. They presented the Authority with a Handcarved Plaque of a Brown Pelican in appreciation of continuing support of the Space Coast Birding and Wildlife 1 Festival. Ms. Thompson commented on the success of the 2000 Birding Festival, and the Pelagic Birding Trip out of Port Canaveral. Pelagic birds being, birds which spend their entire life at sea. Ms. Thompson requested the Canaveral Port Authority participate along with the Brevard Nature Alliance, Inc. by advertising the 2001 Space Coast Birding and Wildlife Festival, Commissioner Molitor moved Consent Agenda Item 18 be removed from the Consent Agenda, and moved to Agenda Item C.1, and moved for approval of the payment of $4,000 for advertising in . 1 conjunction with the Space Coast Birding and Wildlife Festival 2001. Motion seconded by Commissioner Sharkey. Motion carried with Commissioners Ketcham, Matheny, Molitor and Sharkey voting for the motion, and Commissioner Kennedy voting against the motion. Fire Chief Dave Sargeant addressed the need and benefits for construction of a fire training tower at the Port Canaveral Maritime Fire Training Facility. Commissioner Sharkey moved to remove Consent Agenda Item 12 from the Consent Agenda, and moved to Agenda Item C.2, and offered a motion authorizing Allen Engineering Work Order A- 0085.2001 -07 and Gee & Jenson Work Order 21- 000.32 in the amounts of $10,840 and $31,000, respectively, for the design of 1 1 1 1 i i 1 4 f a t 1 1 the Fire Training Tower, and authorization to advertise for construction bids of same. Motion seconded by Commissioner Molitor and unanimously carried. Mr. McLouth commented on the July statical reports; the port is now ten months into fiscal year 2001. Versus our budget year to date our passenger revenue is up 2%, cargo revenue is up 5%, 4 total revenue is up 3% over budget estimate. Total revenue cruise passenger count through July is 3,380,342, which exceeds the budget estimate, compared to last year the count is down 5% due to the loss of Premier and Cape Canaveral Cruise 1 Lines. Mr. McLouth predicted that by the end of calender year 2001 the total count would be approximately 2.8 million or about the same as calender year 2000. The following year 1 (2002) the count will be over three (3) million because by then the port count will include the new ship the PRIDE. s 1 Per the Port's enabling legislation, commission residency districts will need to be re -drawn by the first of the year. To meet this timetable Mr. McLouth proposed, as has been done in the past, to direct the attorney to work with staff and prepare drafts of proposed re- districting options for the commissions review, over the next several months. Final 1 approval of a specific plan would need to take place prior to the January 15, 2002 deadline. Mr. McLouth commented on a meeting of the Board of County Commissioners, which the port commissioners, staff and tenants, attended on August 14. Canaveral Port Authority Resolution 2001 -12 requesting leaseholders exemption from fire and law enforcement MSTU tax on real property located in Port Canaveral was on the County agenda. Commissioner Kennedy, along with two tenants spoke on the issue which was opposed in principle by the County Commission. d Dixie Sansom reported on recognition the Canaveral Port Authority received from the American Association of Port Authorities (AAPA) in the 2001 Communications competition. The four awards, three for excellence and one for merit, 4 received were for the Canaveral Port Authority's "Port Canaveral Magazine ", Annual Port Directory, Website and the PBS documentary; Vision in Progress. 1 Bobby G. briefly commented on ongoing business development. 1 Commissioner Molitor moved staff be authorized to go forward with legislature which would return law enforcement fines generated on port property to the Canaveral Port Authority to I be applied to its Law Enforcement Contract. Motion seconded by Commissioner Kennedy and unanimously carried. Consent Agenda Items #14, and #16, were removed from the Consent Agenda for individual discussion and action. Consent Agenda Items 12 and 18 having already been voted on. Commissioner Ketcham moved approval of Consent Agenda Items #1 through #11, #13, #15, #17, and #19 through #26 as follows: (1) Consideration of approving modification to Canaveral Port Authority Tariff #11, Rule 34 -F04, Item 606, Cargo Wharfage rate for Fresh Citrus Exports I (2) Consideration of approving the Litigation Status Report i 1 3 4 1 1 z II i 1 I $ (3) Consideration of issuing a Steamship Agent Permit to Operate to Rice, Unruh, Reynolds Company i 1 (4) Consideration of issuing a Ship Repair Permit to 3 Operate to KMD Ship Repair, Inc. 1 1 (5) Consideration of issuing a Ship Chandler's Permit to a Operate to Liberty Marine Services, Inc. I (6) Consideration of authorizing a new Ten Year Lease for Capt. Scott's to Candy -0 Company effective October 1, 1 2001, contingent upon approval of the lease documents by Port Counsel (7) Consideration of approving Change Order 2 to the ( Watauga Company Contract for CT 3 and 4 Improvements 1 (8) Consideration of authorizing approval for a increase i to Hartman & Associates, Inc. Work Order E 0090 -9904 for Post - Design Services for Miscellaneous Sanitary W Sewer Upgrades in the amount of $8,300 1 (9) Consideration of approving Ardaman & Associates, Inc. 4a Proposal G 0106 - 2001 -02 for Testing and Material Inspection Services for the SR 401 Overpass and the 1 West Turning Basin Cruise Intermodal Gate Project for an amount not to exceed $26,000 i r (10) Consideration of issuing a Miscellaneous Permit to Operate to Petrotech Southeast, Inc. i I 1 (11) Consideration of setting the date and time of Wednesday, September 12, 2001, 2 PM for a Special Commission Workshop on Land Use Consideration for the Master Plan 1 (13) Consideration of approving a One Year Renewal of the Adopt -A -Shore Program Litter Removal Agreement with a Keep Brevard Beautiful 1 (15) Consideration of approving Canaveral Port Authority 1 Resolution 2001 -16, Requesting the U. S. Congress Appropriate Adequate Funds for the Brevard County Shore Protection Project in FY 2002 (17) Consideration of authorizing Work Order 21- 000.49 in the amount of $25,120 to Gee & Jenson for tasks associated with maintaining compliance with National Pollutant Discharge Elimination System (NPDES) Multi- Sector General Permit 1 (19) Consideration of authorizing staff to advertise for sealed bids for a new HVAC Maintenance Inspection and Service Contract (20) Consideration of authorizing the Chief Financial 1 Officer and the Port Attorney to enter into a lease financing agreement with Leasing 2, Inc. for the purchase of a Pierce 105 Quantum Ladder Truck, and approval of Canaveral Port Authority Resolution 2001 -17 authorizing same (21) Consideration of authorizing TEFRA Hearing in 8 1 i 1 1 1 i a 3 l • . 4 conjunction with the Florida Ports Financing Revenue Bonds, Series 1999, authorizing Albert J. Francis II to act as Hearing Officer for same (22) Consideration of authorizing a modification to PBS &J Contract for Design of SR 401 Overpass to add Post Design Services (23) Consideration of approving Canaveral Port Authority Resolution 2001 -18 authorizing Acceptance of the Loan Agreement with the Florida Ports Financing Commission, resulting from the TEFRA Hearing of May 3, 2001 ( Consideration of approving Resolution 2001-19, Authorizing aAme dingrDescription of the Projects Financed by Loan Proceeds from the FSTED Bond Fund (25) Consideration of approving Canaveral Port Authority Resolution 2001 -20 Authorizing Acceptance of the Loan Agreement with the Florida Ports Financing Commis- sion, resulting from the Tefra Hearing of June 25, 2001 (26) Consideration of approving Canaveral Port Authority Resolution 2001 -21, Authorizing Amending the Description of the Projects Financed by Loan Proceeds from the FSTED Bond Fund Motion seconded by Commissioner Sharkey and unanimously carried. Discussion of Consent Agenda Item #14 ensued. Commissioner Kennedy moved approval of Consent Agenda Item #14 as follows: (14) Consideration of approving assignment of Outrigger of Brevard, Inc. (CJ's) Thirty Year Lease dated July 1, 1984 and Thirty Year.Lease dated October 1, 1984 to D &L Port Canaveral, Inc., contingent upon approval of the assignment documents by port counsel Motion seconded by Commission Molitor and unanimously carried. Discussion of Consent Agenda Item #16 ensued. Commissioner Sharkey moved approval of Consent Agenda Item #16 as follows: (16) Consideration of approving Addendum #4 to Agreement dated July 30, 1998 between the Canaveral Port Authority and Johnson Controls World Services, Inc., for the Operation, Maintenance and Concessions at Jetty Park, Freddie Patrick Park, Ports End Park and Glen Cheek Drive, as amended Motion seconded by Commissioner Ketcham and unanimously carried. Mr. Bancroft, using visual aids, addressed proposed Canaveral Port Authority Policy 2001 -3, "Policy for Leasing Land from the Canaveral Port Authority ". 1