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LEASE/PURCHASE SANITATION TRUCKS I I 141 KDCH KOCH FINANCIAL CORPORATION ,~ ""'" ,.'" ''It":'\ 1 "'7 \'<~, ~, Ii '" ';)'., 'i:-. '-" "-'-<' t1; ~,ft ) Ii::" ,,;,.,,;J ~': '.;'; .r .~' '. .- February 3, 1999 , "", H '000(1 FE 8 fJ ii ~ c~ ..I'J ,.0"'-''''' nor. p~r ,..... ~-'V {"~ ),,~; < 1\ t.""~t~}.:,l l. t,., ~, I- ',_.~~r_.f,;...;..i -.;. '" City of Clearwater P.O. Box 4748 Clearwater, Florida 34618 Re: Contract for Installment Sale and Purchase ("Agreement"), dated as of January 281\ 1994 by and between The City of Clearwater ("Lessee") and Security Capital Corporation ("Lessor"), thereafter Bankers Trust. Dear Sir or Madam: According to our records, you have fulfilled your obligation regarding the above mentioned transaction. Enclosed you will find the following original documents and titles if applicable. Thank you for your business and we look forward to establishing new relationships with you in the future. If you have any questions, please call me at (316)-828-2072. Sincerely, 9~~ Jennifer Morris Accounting Assistant Encls. 4111 East 37th Street North · Wichita, Kansas 67220 · 800/532-6864 · FAX 316/828-4321 Website www,kochfinancial.com ct': __",'//". (':"' I l qq FJ / l StauU-h~Y) CITY OF CLEARWATER CONTRACT FOR INSTALLMENT SALE AND PURCHASE (THIRD PARTY FINANCING AGENT) This Contract is made and entered into by and between the city of Clearwater, P.O. Box 4748, Clearwater, Florida 34618, hereinafter referred to as Buyer, and security Capital Corporation, hereinafter referred to as Seller, this 28th day of January, 1994 as Contract ~ of the Line of Credit Agreement approved on September 14, 1993. ~ ~\)~ ~~, WITNESSETH, that whereas the BUye~1Shes to purchase the equipment described below, and has entered into an agreement with Metro Tech Equipment Corp., hereinafter referred to as Vendor, who offers for sale such equipment, and whereas Seller wishes to provide financing for such equipment purchase, NOW THEREFORE, for and in recognition of the good and valuable considerations to be exchanged between the parties as hereinafter provided, Seller agrees to purchase, or to cause to be purchased, said equipment from Vendor and simultaneously sell the same equipment to the Buyer in accord with the following terms and conditions. Buyer is an Entity of State Government or an Entity of Local Government which is a Political Subdivision of the State. EQUIPMENT: Each unit of the Equipment contemplated to be sold and purchased under this Contract shall be separately identified and each shall be referred to as a Commercial unit. The phrase "Commercial Unit" shall be defined as provided in Section 672.105(6), Florida Statutes. This Contract including all attachments hereto constitutes the sole Contract between Seller and Buyer for the sale and purchase of the Equipment described below. All purchase orders relating to the subject Commercial Unites) of Equipment issued by Buyer shall supplement this Contract to the extent that the terms of such purchase order are not inconsistent with the terms of this contract: DESCRIPTION OF EOUIPMENT NUMBER OF COMMERCIAL UNITS UNIT PRICE Sanitation Trucks 3 119,914.00 Further descriptions of the equipment are provided in the original vendor invoices which are submitted to the Seller together with this Contract. 1 I The total price of the Equipment described above shall be stated below, and shall include cost of delivery F.O.B. Buyer's designated place of installation and shall include cost of installation unless otherwise provided for on line 4 below, and Seller's warranty. 1) 2) 3) 4) PRICE Price Less Credits a) Equity Credit b) Trade-In Allowance (Equipment Cash Sale Price [Line 1 less Line 2 (a + b)] Equipment Placement Charges and Appropriate Rigging Charges 5) 6) Total Cash Sale Price (Line 3 + Line 4) $ 359.742.00 $ $ N/A N/A Cash Down Payment (Optional) a) Down Payment (optional) b) Equipment Placement Charges (Same as Line 4) 7) 8) c) Total Cash Down Payment Cash Price (Principal) Balance (Line 5 less 6c) $ 359.742.00 $ N/A Interest (APR) 4.9288 $ 359.742.00 $ $ $ $ N/A N/A N/A N/A $ 359.742.00 $ 46.801.80 9) Time Balance (Line 7 + 8) $ 406.543.80 10) Time Sale Price (Line 9 + 6c) $ 406.543.80 NOTE: There shall be no additional charges due Seller from Buyer for taxes, insurance premiums, official fees, delivery costs, or any other charges except as specifically provided in this Contract. Interest is computed on a basis of 360 days per year. PAYMENT Buyer promises to pay the total cash down payment in full, if applicable, within thirty (30) days of delivery and installation in good working order in accordance with then current installation and start up specifications applicable to each Commercial Unit purchased hereunder. The total balance due for purchase of each Commercial Unit of the Equipment shall be paid in accordance with Exhibit A (Payment Schedule) which is incorporated herein for all purposes. Notwithstanding any claim or dispute which may hereafter 2 I I arise between Buyer and Seller, Buyer will make all payments as required under this contract when due unless there is a breach of the whole contract. Buyer hereby covenants to take such actions as are necessary under the Laws of Florida to plan and budget for receipt of a sufficient appropriation of funds to discharge its obligations to make all payments required under this contract when due. TITLE Title and ownership of each Commercial unit of the Equipment and any and all replacements, substitutions and repairs thereto, shall pass to Buyer upon acceptance of the equipment in satisfactory working condition. By executing this agreement, Buyer hereby acknowledges such acceptance. The Equipment shall remain personal property and shall not become real property. Buyer will not suffer or permit any lien or encumbrance of any kind against the Equipment. As title holder and owner of each Commercial Unit of the Equipment acquired hereunder, Buyer shall pay when due any and all taxes, assessments, franchise fees, levies, or other governmental charges lawfully levied against any such Commercial unit of the Equipment or its use. Buyer shall timely contest the levy of any tax, assessment, franchise fee, levy or other governmental charge deemed by Buyer to be unlawfully levied. It is hereby acknowledged between the parties hereto that Buyer considers itself a nontaxable entity and not usually and customarily subject to the imposition of any tax, assessment, franchise fee, levy, or other governmental charge levied for Buyer'S ownership or use of any Commercial Unit of the Equipment. WARRANTIES Seller hereby assigns to Buyer all rights and benefits that Seller may now or hereafter have under any warranty, guaranty or indemnity with respect to the equipment against the Vendor or manufacturer of the equipment. Buyer'S sole remedy for the breach of such warranty, indemnification or representation shall be against the Vendor of the equipment, and not against the seller, and any such breach shall have no effect whatsoever on the rights and obligations of Buyer or Seller with respect to this agreement. Buyer expressly acknowledges that Seller makes, and has made, no representations or warranties whatsoever as to the existence or availability of any such warranties whatsoever as to the existence or availability of any such warranties of the Vendor or manufacturer of the equipment. INSURANCE If Buyer is covered under a program of self-insurance, Buyer hereby certifies the existence of a continuing self-insurance program insuring the full insurable value of each Commercial Unit of the Equipment against loss from those fire and other hazards which are customarily insured by extended coverage pursuant to Section 284.01, Florida Statutes, during the term of this contract. In such event Buyer shall provide a minimum of ten (10) days written notice to Seller of any change or cancellation of said self- insurance program. In the event said self-insurance program is unavailable 3 I I or terminated, Buyer agrees to procure and maintain with a carrier authorized to do business in Florida and acceptable to Seller, which acceptance shall not be unreasonably withheld, fire, theft, and extended coverage insurance on the Equipment, insuring the full insurable value against risk of loss or damage, and providing for a minimum of ten (10) days written notice of change or cancellation to Seller. Buyer shall provide Seller with copies of certificates of the insurance carrier or carriers evidencing such insurance coverage. This Contract does not provide for or require insurance coverage for bodily injury and property damage to others. Buyer shall bear the entire risk of loss, theft, destruction or damage to the Equipment from any cause whatsoever or requisition of the Equipment by any governmental entity, or the taking of the Equipment by eminent domain or otherwise (collectively, Loss). Buyer shall advise Seller in writing within ten (10) days of any such Loss. Except as provided below, no such Loss shall relieve Buyer of the obligation to make payments hereunder. In the event of any such Loss, Seller at its own option may: (a) if the Loss has not materially impaired the Equipment (in Seller's reasonable judgment), require Buyer, upon Seller's demand, to place the Equipment in good condition and repair reasonably satisfactory to Seller; or (b) if the Loss has materially impaired the Equipment (in Seller's reasonable judgment), require Buyer, upon Seller's demand, to pay Seller the following amounts on the date payment is due: (i) all amounts that are then owed to Seller by Buyer under the Payment Schedule, including the payment due on such date, and (ii) an amount equal to the principal balance set forth in the Payment Schedule for such date. In the event that Buyer is obligated to make such payment with respect to less than all of the Equipment, Seller will advise Buyer of the principal balance to be paid by Buyer with respect to such equipment that has suffered the Loss, which amount Buyer shall promptly pay Seller, and Seller shall revise the Payment Schedule accordingly. Buyer will take actions reasonably necessary to attempt to secure subsequent appropriations to pay said remaining unpaid balance, less unearned interest. Seller will make the proceeds of any property insurance maintained by Buyer under this Contract available to Buyer for the purposes of this section if no default has occurred and is continuing. DEFAULT Time is of the essence hereof and if Buyer shall fail to pay when due any installment, or otherwise fail to observe, keep, or perform any provision of this Contract required to be observed, kept, or performed, then Buyer shall be deemed to be in default with respect to the purchase of each Commercial unit of Equipment directly affected by such failure and unless Buyer causes such default to be cured within thirty (30) days after receipt of written notice thereof from Seller, at the expiration of such notice period the balance of all installment payments due or which will become due hereunder with respect to the purchase of each such Commercial Unit of Equipment, less unearned interest, shall immediately become due and payable. If any of the foregoing occurs, Seller shall have all the rights and remedies of default available under Florida Law, except that Seller shall not be entitled to recover any indirect or consequential damages or loss resulting from Buyer failing to pay an installment to become due with respect to any Commercial Unit of Equipment so affected after such default has occurred. 4 I I If seller shall fail to transfer to Buyer good and marketable title, free of liens or encumbrances of any kind whatsoever, for any Commercial Unit of the Equipment purchased under this Contract, or if Seller shall repudiate performance under this Contract, or if Seller shall otherwise fail to observe, keep, or perform any provision of this Contract required to be observed, kept, or performed, then, unless the default substantially impairs the value of the whole contract, Seller shall be in default with respect only to such Commercial Unites) which are directly affected by the default or failure of Seller and unless Seller causes such default to be cured with.in thirty (30) days after receipt of written notice thereof from Buyer, upon default by Seller, Buyer shall be possessed of all the rights and remedies of a Buyer in due course under the provisions of the Florida Uniform Commercial Code. The foregoing rights and remedies of Buyer may be exercised without impairing Buyer'S interest in and title to any Commercial unit of the Equipment acquired under this Contract and without limitation to or waiver of any rights or remedies available to Buyer by law. USE AND LOCATION OF EQUIPMENT Each Commercial unit of the Equipment shall be kept at its installation address and shall not be moved without Buyer providing prior written notice thereof to Seller. Buyer shall not use or deal with any Commercial Unit of the Equipment in any manner which is inconsistent with the terms of this Contract, any policy of insurance referred to herein, or any applicable laws, codes, ordinances and regulations. Buyer shall not allow any Commercial Unit of Equipment to be misused, abused, or wasted, or allowed to deteriorate, except for ordinary wear and tear resulting from its intended use. Seller shall have the right to inspect any Commercial Unit of the Equipment at any reasonable time, wherever located. PREPAYMENT At any time during the term of this Contract, Buyer shall be entitled to prepay the principal balance in whole or in part without penalty of any kind. However, an administrative fee of fifty dollars ($50) may be charged Buyer by Seller on any such prepayment within twelve (12) months from the effective date hereof. ASSIGNMENT Buyer shall give Seller not fewer than thirty (30) days prior written notice of any proposed resale, lease, or assignment of any Commercial Unit of the Equipment acquired during the term of this Contract or any assignment hereof. Such notice shall identify each Commercial Unit of the Equipment to be resold, leased, or assigned, and the date upon which such sale, lease, or assignment is to be effective. If any Commercial Unit of the Equipment is to be resold, leased, or assigned, Buyer, at Seller's option, will pay to Seller within thirty (30) days from the effective date thereof, the total unpaid balance of installments due or which will become due hereunder, with respect to each such Commercial Unit of Equipment less any interest then unearned. Seller may assign any part or all of its interests under this Contract upon prior written notice to Buyer. In the event of an assignment, Buyer shall thereafter perform all the promises provided in this Contract to be 5 I I performed by Buyer to such assignee or transferee. However, no such assignment or transfer shall impair Seller's obligation to provide Buyer with the performance provided in this Contract and, in the event of any such assignment or transfer Buyer's rights to assert any claim or defenses it may have under this Contract shall not be impaired as against Seller, its assignee, or transferee. NOTICES It is agreed that thirty (30) calendar days shall constitute reasonable notice for the exercise of any right held by either party to this Contract. All notices or other communications required or permitted to be given pursuant to this Contract and by law shall be in writing and shall be valid and sufficient if delivered by hand or dispatched through the U.S. Postal Service by Registered or certified first-class mail, Return Receipt Requested, postage prepaid to the addressees) set forth first herein, or such other addresses as either party shall notify the other in writing. No additional notice need be given to the installation address (es) . Notices dispatched through the U.S. Postal Service by Registered or certified first-class mail, Return Receipt Requested, shall be given upon the date received by addressee, as indicated in the executed Return Receipt. In the event any notice, which has been dispatched in accordance with this paragraph, is refused acceptance of delivery by the party to whom addressed, notice shall be deemed to have been given as of the date of the first attempt by the U.S. Postal Service to deliver same. GENERAL No delay or omission to exercise any right, power, or remedy accruing to Seller or Buyer upon breach or default by either party under this Contract shall impair any such right, power, or remedy of Seller or Buyer; not shall any such delay or omission be construed as a waiver of any such breach or default, or any similar breach or default thereafter occurring; nor shall any waiver of a single breach of default be deemed a waiver of any such subsequent breach or default. All waivers must be in writing. This Contract shall be deemed to have been executed and entered into within the State of Florida and any dispute arising hereunder shall be governed by the laws of Florida. Any provision of this Contract in violation of the laws of the State of Florida shall be ineffective to the extent of such violation, without invalidating the remaining provisions of this Contract. This Contract shall not be construed against a party because that party wrote it. The Section headings used herein are for convenience only and shall have no significance in the interpretation of this Contract. If delivery of the Equipment is not made at the time of the execution of this Contract, Seller may insert the serial number and other marks used by Seller to identify the Equipment on this Contract. 6 I I FUNDING Buyer, as an entity of Government, is subject to the appropriation of funds by its city Commission in an amount sufficient to allow continuation of its performance in accordance with the terms and conditions of this Contract for each and every fiscal year following the fiscal year in which this Contract is executed and entered into and for which this Contract shall remain in effect. Buyer shall, upon receipt of notice that sufficient funds are not available to continue its full and faithful performance under this Contract, provide prompt written notice to Seller of such event and effective thirty (30) days after the giving of such notice, or upon the expiration of the period of time for which funds were appropriated, whichever occurs first, be thereafter released of all further obligations in any way related to such Equipment. In such event, Buyer may within sixty (60) days thereafter sell, lease, or otherwise dispose for fair consideration, which in no event shall be less than the balance of all installment payments due or which will become due hereunder, each Commercial unites) of the Equipment so affected and from the proceeds thereof pay to Seller all remaining sums due under the terms of this Contract, pursuant to Exhibit A, less any interest then unearned, or may return to Seller each Commercial Unites) of the Equipment so affected, as follows: (i) Buyer shall deliver unencumbered title of the Equipment to Seller, and (ii) the Equipment returned to Seller shall be in good condition, reasonable wear and tear excepted. However, Buyer agrees (1) not to cancel the contract under this provision if any funds are appropriated to it for the acquisition (by purchase, lease, or otherwise) of other functionally equivalent equipment for the fiscal year of termination provided such action is not contrary to any expressed legislative intent, and (2) to expressly include in its appropriation request each year of the Contract a request for an appropriation to fund the Contract. Buyer and Seller understand and intend that the obligation of Buyer to make payments hereunder shall constitute a current expense payable solely from non-ad-valorem funds of the Buyer and shall not in any way be construed to be a debt of the Buyer in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness by the Buyer, nor shall anything contained herein constitute a pledge of the ad-valorem tax revenues, funds or moneys of Buyer. Seller shall have no right to require or compel Buyer to levy ad-valorem taxes for the payments due hereunder. In the event Buyer returns any of the Equipment for failure of appropriations, Seller shall retain all sums paid by Buyer under this Contract with respect to such Equipment and Buyer shall transfer to Seller good and marketable title, free of liens or encumbrances of any kind whatsoever, of the Equipment. However, if during such sixty (60) day period Buyer identifies another political subdivision of the State of Florida (as that term is defined in Section 103 of the Internal Revenue Code of 1986, as amended) that is willing to assume all of the obligations of the Buyer under the Contract (and Seller determines that such transfer would not affect the tax-exempt nature of the obligation created under the Contract and that such entity demonstrates acceptable creditworthiness) Buyer may transfer such duties and obligations to such entity, thereby terminating Buyer's liabilities for any duties or obligations to Seller 7 I I under this C0ntract that are assumed by such entity. Seller shall be reimbursed by Buyer or such other entity for any costs or expenses resulting from such transfer of duties and obligations. Thereafter, the successor agency shall be responsible for performing all the obligations of Buyer described in this Contract. ESSENTIAL USE Buyer represents that: (a) the use of the Equipment is essential to its proper, efficient and economic functioning or to the services that it provides to its citizens; (b) Buyer has an immediate need for and expects to make immediate use of substantially all the Equipment, which need is not temporary or expected to diminish in the foreseeable future; and (c) the equipment shall be used by the Buyer only for the purpose of performing one or more of its governmental or proprietary functions consistent with the permissible scope of its authority. FORM 8038G Buyer shall complete and file on a timely basis, Internal Revenue Service form 8038G in the manner set forth in section 149 (e) of the Internal Revenue Code of 1986, as amended. Buyer will take and will cause its officers, employees and agents, to take all actions legally within its power necessary to ensure that the Interest Portion of the Rental Payments does not become subject to federal income taxation under the Internal Revenue Code of 1986 and treasury regulations promulgated thereunder. Buyer represents, warrants and covenants that it shall not do, cause to be done or fail to do any act if such act or failure to act will cause this Contract or any transaction hereunder to be an arbitrage bond within the meaning of section 148 of the Internal Revenue Code of 1986, as amended, or a private activity bond within the meaning of Section 141 of the Internal Revenue Code of 1986 as amended. SELLER OR ASSIGNEE LIABLE FOR OWN ACTS The Buyer expressly recognizes that Seller or its Assignee shall not be held liable to Buyer except for the acts or omissions of their respective officers, employees, or agents, and shall not be otherwise liable to Buyer for damages sustained by Buyer as a result of Buyer's use or possession of the Equipment. DISCLAIMER OF WARRANTIES BY SELLER Seller is not a manufacturer of the Equipment or a Dealer in similar Equipment, does not inspect the Equipment prior to delivery to Buyer and has not made and does not make any representation, warranty, or covenant, expressed or implied, with respect to the Equipment. The Vendor shall remain directly liable to Buyer under its warranty. Buyer shall look directly to Vendor in the event of any claim for breach of such warranty. ENTIRE CONTRACT This Contract for Installment Sale and Purchase constitutes one contract between Buyer and Seller with reference to the purchase of each Commercial 8 I I Unit of the Equipment described above, which contract supersedes any and all prior written or oral agreements. This Contract consists of nine numbered pages and Exhibit A, Payment Schedule. This Contract shall not be modified except in writing signed by both parties. NOTICE TO SELLER Buyer hereby represents that it is a governmental entity, that it has the capacity and authority to enter into this Contract, subject to the availability of lawfully appropriated funds, and that the person executing on behalf of Buyer has authority to do so. It is not the Buyer's intent to become a reseller or re-marketer of equipment purchased pursuant to this Contract. NOTICE TO BUYER 1. Do not sign the contract before you read it or if it contains any blank spaces. 2. You are entitled to an exact copy of the contract you sign. 3. Under the law you have the right to payoff in advance the full amount due and under certain circumstances avoid the payment of additional interest. BUYER ACKNOWLEDGES RECEIPT OF A TRUE COPY HEREOF AND THE AGREEMENT HEREIN REFERRED TO. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective representatives hereunto duly authorized, all as of the day and year first above written. City of Clearwater Buyer ATTEST: V(}~~ ~. ~ ~~QtM9JQ,~lli~ By: ~..ok~~~ Title: Assistant Finance Director ATTEST: ~// 9 -I S~URJTY CAPITAL ..., ' I . 1913~ill"1:1 p.e:z CITY 011' CLl!:ARWA'l'ER - SECURITY CAPITAL CORPQRATIOlf In5tallment Sale and Purchase Amortization Sohedule Exhibit A Master A9reeman~ Dated September 14, 1993 Schedule Number. 2 Equipment Description: San1tation Trucks Charge Debt Serv1ce to~ 566-06610 Total PurchasQ prioe: $3591742.00 Contract Date: 1/~8/94 First Payment Datel 1/31/94 I Days to First Paymen~t 62 Index Rate in Percent: 5.03 Contraot Rate Percent: 4.9288 Pmt Date Total PInt ...-..-.......~- -........-....- 3/31/94 6/30/94 9/30/94 1~/31/94 3/31/95 6/30/95 9/30/95 12/31/95 3/31/96 6/30/96 9/30/96 1'2/31/96 3/31/97 6/30/97 0/'3.0/01 J.2/ JJ./9'/ 3/31/98 6/30/98 9/30/98 12/31/98 Adjustmant Totals 20,327.19 20,327.19 20,327.19 20,327.1~ 20,327.19 20,327.19 20,327.19 20,327.19/ 20,327.19 30,327.19 20,327.19 20,327.19.... 20,327.19 20,327.19 20,327.19 :.!u, :J~.' . 1.Y/ 20,327.19 20,327.19 20,327.19 20,327.19 ---_-4__~__ 406,543.80 --=~=== To~alQ by Fiscal Year --------------------- Fiscal 93-94 60,981.57 Fisoa1 94-95 81,308.76 Fisoal 95-96 81,308.76 Fiscal 96~91 81,308.76 Fiscal 97-98 81,~08.76 Fisoal 98-99 20,327.19 ---------- 406,543.80 =====--- Interest ..~~~_.._~ 3,053.67 4,219.90 4,021.42 ~,820.50 3,617.11 3,411. 21 3,202.77 2,991.76 2,778.15 2,561.91 ~,34J.01 2,121.41 1,897.08 1,669.98 1,440.09 1., :.!U'J .:$6 971. 77 733.27 491.83 247.42 0.18 --------- 46,801.80 ======--.; 11,294.99 14, O!51. !59 10,674.83 7,128.56 3,404.23 247.60 -------- principal --------- 17,273.52 16,107.29 16,305.77 16,506.69 16,710.08 16,915.98 17,124.42 17,335.43 17,549.04 17,765.28 17,984.18 18,205.78 18,430.11 18,657.21 18,887.10 1Y,1.1.!i.IIJ 19,355.42 1.9,593.92 19,835.36 20,079.77 (0.18) -----..---- 359,742.00 ~=== 49,686.!58 67,2!57.17 70,633.93 74,180.20 77,904.53 20,079.59 46,801.80 359,742.00 --....--=~ ~..-__-.:a ---------- princ Bal ----.......-..- 342,468.48 326,361.1.9 310,055.42 293,548.73 276,838.65 259,922.67 242,798.25 225,462.82 207,913.78 190,1.48.50 172,164.]2 153,958.54 135,528.43 116,871. 22 97,984.12 78,864.29 59,508.87 39,914.95 20,079.59 CO.l8) 0.00 ----------