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2010R16A-Master Lease Agreement-Parks
RESOLUTION NO. 10-R-16 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A MASTER LEASE AGREEMENT FOR THE PARKS, RECREATION, AND COMMUNITY SERVICES DEPARTMENT; AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City Council (the "City Council") of the City of Schertz, Texas (the "City") has determined that it is in the best interest of the City to enter into a master lease agreement and related documentation for certain Parks, Recreation, and Community Services Department equipment;. WHEREAS, the City may acquire such equipment and enter into such master lease agreement by utilizing the State-approved Buy Board Purchase Program; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manger to execute and deliver a master lease agreement and related documentation for the Parks, Recreation, and Community Services Department to acquire the equipment set forth on Schedule A hereto (the "Equipment"). Such master lease agreement shall have terms consistent with the terms set forth on Schedule B hereto. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, as amended, Texas Government Code. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. 50307164.1 PASSED AND ADOPTED, this 30th day of March, 201 . CITY F CHE Z, TEXAS Mayor ATTEST: Secretary (CITY SEAL) 50307164.1 SCHEDULE A EQUIPMENT LIST DESCRIPTION QTY. Jacobsen HR 9016, 90hp Kubota Dsl, 4 wd, 16 ft cutting swath 2 Road package kit with accy harness kit 1 50307164.1 A-1 SCHEDULE S GENERAL TERMS lease/lease-purchase Price of Equipment - $148,294.30 Maximum term - 48 months from Equipment acceptance by the City Interest rate - Lease Payment - $3,225.40/month, plus the lessor's personal property taxes on the equipment Purchase option -yes, fair market value purchase option at end of lease term Subject to annual appropriation by City Council -yes Tax-exempt - yes, subject to review and approval of covenants by City Attorney Qualified Tax-Exempt Obligation - no Certificates of Participation - no General contract terms -subject to City Manager's approval, with advice of City Attorney 50307164.1 B-1 Capital Solutions Lessee: City of Schertz Date: 03/11/2010 Master Lease # 8446916 Lease Schedule# 001 This is a cover letter indicating that the documents listed below need to be completed so we can process your lease. PLEASE SIGN THE ENCLOSED DOCUMENTS AND RETURN THE FOLLOWING TO US. ® Master Lease Agreement to be signed by: Authorized Signer ® Master Lease Schedule to be signed by: Authorized Signer ® Insurance Letter to be returned ® Delivery and Acceptance to be signed by: Authorized Signer ® Opinion of Counsel to be returned on Lessee's Counsel Letterhead ~ ~ rev. 9/99 fluster Lease Agreement SLG Commercial Pricing ' ~ Capifiai So(utions~ Agreement # $446916 "MasterAgreement" shall mean this Master Lease Agreement. "Schedule" shall mean any Lease Schedule signed by you and us which incorporates the terms of this Master Agreement. "Lease" shall mean this Master Agreement and any Schedule. E ~ - 1. COMMENCEM NT OF SCHEDULE. Commencement of a Schedule (the'Commencement Date"j and endorsements on dreclcs you send to us wGl not reduce youroblgations to us. We maycharge you a return dredc i acceptance of the Equipment shall occur upon delivery of the Equipment to you. You agree to inspect the or ran-suffident turKk d~arge of $25.00 fa any dredc, which is returned by the bank fa any reason (rat to exceed Equipment upon delivery and verity by telephone a in writing such information as we may require. The Equip- the maximum amount permitted bylaw). merit is accepted by you under the Lease unless you notify us within three (3j days of delivery that you do not 5. LATE CHARGES. Fa any payment, which is not received within thirty (30) days of its due date, you agree accept the Equipment and spedfy the defect or malfunction. In that event, we will replace the defective item of to pay a late dtarge equal to the higher of 10°h of the amount due a $22.00 (not to exceed the maximum amount Equipment or this Lease will be canceled and you will assume all our rights under any purchase order or permitted bylaw) as reasonable collection costs. agreement entered into by us to buy the Equipment. If you signed a purchase order a similar agreement fa the 6.OWNERSHIP USE MAINTENANCE AND REPAIR. In the case of a $1 Lease, you shall have tide to the purchase of the Equipment by signing a Schedule you assign a us au of your rights, but none of your obligations Equipment immediatety upon delivery and shall be the owner of the Equipment and we reserve a security interest under il. All attachments, accessories, replacements, replacement parts, subst8utions, additions and repairs to in the Equipment to secure all of your obligations under the Lease. In the case of an FMV Lease, we own the the Equipment shall form part of the Equipment under a Schedule. Equipment and you have the right to use the Equipment under the terms of the Lease. If the Lease is deemed to 2. SECURITY DEPOSR. The Secudy Deposit will be held by us, without interest, and may be commingled be a secured transaction, you grant us a severity interest in the Equipment to seare all of your obligations under (unless otherwise required by law), until all obligations under the Lease are satisfied, and may be applied al our the lease. You hereby assign to us aG of your rights, but none of your obligations. under any purchase agreement option against amounts due under the Lease. The Security Deposit will be returned to you upon termination of for the Equipment We hereby assign to you all our rights render any manufacturer or supplier wartanties, so long a Schedule, provided you are not in default a applied to the last Lease Payment a to the amount we may quote as you are not in default hereunder You must keep the Equipment free of Gees. You may not remove the Equipment fa any purdrase a upgrade of the Equipment. from the address indipted on the front of a Schedule without first obtaining our approval. You agree to: (a) keep 3. LEASE PAYMENTS. You agree to remit to usthe Lease Payment (asset forth in the Schedule) and all other the Equipment in your exclusive control and possession; (b) USE THE EQUIPMENT ONLY IN THE LAWFUL sums when due and payable each Billing Period at the address we provide to you from time to time. If the CONDUCT OF YOUR BUSINESS, ANO NOT FOR PERSONAL, HOUSEHOLD OR FAMILY PURPOSES; (c) Commencement Date of a Schedule is not the first or the fdteenth day of any celerniar month (a "Payment Oate"), use the Equipment in conformity with all insurance requirements, manufacturer s insWcGons and manuals; (d) the initial Term of a Schedule shall be extended by the numberof days between the Commencement Date and keep the Equipment repaired and maintained in good working order and as required by the manufacturer's the Payment Date which first occurs after the Commencement Date of such Schedule and your first Lease warranty, certification and standard full service maintenance contract and (e) give us reasonable access to Payment will be increased by 1130"' of the monthly Lease Payments multiplied by the number of days elapsed inspect the Equipment and its maintenance and other records. Fran the Commencement Date to the day immediately preceding the Payment Date which occurs after such 7. INDEMNfTY. You are responsible fa aq k>sses, damage, dawns, infdrgement claims, injuries and attorneys' Commencement Date. Lease Payments are due whether a not you are invoiced. You aulhor¢e us to adjust the fees and costs ("Gaims'~, incurred or asserted by any person, in any manner relating to the Equipment indudrg Lease Payments by not rtare than 15% to netted any reconfguration of the Equipment or adjustrnents to reflect its use, condition or possession. You agree to defend and indemnid us against all Claims, although we reserve applicable sales taxes or the cost of the Equipment by the manufacturerlsupplier. the right to control the defense and to select a approve defense counsel. Tfus indemnity continues beyond the s 4. LEASE CHARGES. You agree [o: (a) pay all costs and expenses assocated with the use, maintenance, termination of a Schedule, for acts a omissions, which ocarted during the Tenn of a Schedule. You also agree servidng, repair or replacement of the Equipment and (b) pay all premiums and other costs of insuring the that the Lease has been entered into on the assumption that we will be entitled to certain tax benefds available i Equipment. In addition, you will (1) reimburse us for all costs and expenses (including reasonable attorneys' to the owner of the Equipment. In the case of an FMV Lease, you agree to indemnify i fees and oourl costs) incurred in enfadng the Lease and (2) pay all other ousts and expenses for which you are us for the bss of any income tax benefits ceused by your acts or omissions inconsistent with such assumption obligated under the Lease (the'Lease Charges"). If a Schedule provides you with a $1 Purchase Option (a "$1 a the Lease. In the event of any such loss, we may increase the Lease Payments and other amounts due to offssel lease"), you agree to file all required property tax returns and promptly pay all property taxes, which maybe any such adverse effect. assessed against the Equipment. If a Schedule provides you with a Fair Market Value Purchase Option (an 8. LOSS OR DAMAGE. If any item of Equipment is lost stolen or damaged you will, at youroption and cost "FMV Lease', (a) you acknowledge and agree That we wll be the owner of the Equipment throughout the Lease either. (a) promptly repair the item a replace the item with a comparable dem reasonably acceplaf~le to us; or (b) s Tenn and we wGl be assessed personal property taxes, and (b) noiwdhstandirg the fad that you may be exempt pay us the sum of: (i) all past due and current Lease Payments, (ii) the present value of all remaining Lease. from the direct payment of personal property taxes, you agree, at our distxetion, to either ~ reimburse us annually Payments for the item, discounted at the rate of 6 % per annum (or the bwest rate permitted by law, whichever for all personal property and other similar taxes and governmental charges associated with the Ownership, is higher), (iu) ap Lease Cf>arges, and (iv) the Fair Market Value of the Equipment ('rf an FMV Lease). We wGl then possession or use of the Equipment, a (ii) remit to us each Billing Period our estimate of the prorated equivalent transfer to you all our fight title and interest in the Equipment AS-IS ANO WHERE•IS, WITHOUT ANY WAR- i of such taxes and governmental charges. You agree to pay us an administrative tee for the processing of taxes, RAN1Y AS TO CONDITION, TITLE OR VALUE. Insurance proceeds shall be applied toward repair, replacement assessments a fees which may be due and payable under the Lease. We may take on your behalf any action or payment hereunder, as applicable. fn this Master Agreement 'Fair Market Value" o(Ihe Equipment means required under the Lease, which you fail to take, and upon receipt of our invoice you will prompty pay our costs its installed fair madcel value at the end of the Term, assuming good order and condition (except fa ordinary wear (including insurance premiums and other payments to affiliates), plus reasonable processing fees. Restrictive and tear from normal use), as estimated byus. Continued on Page 2 BOTH PARTIES AGREE TO WAIVE ALL RIGHTS TO A JURY TRIAL. BY SIGNING THIS MASTER AGREEMENT, YOU AGREE TO THE TERMS ON BOTH PAGES 1 AND 2. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU AND US FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT. City of Schertz C & M Air Cooled Engine, Inc. run Legal Name DBA C & M Golf and Grounds Equipment Signature d AutFrwrz Nam ~ ~ Name: 1~© E. 1 a- Please Print Title: ~ ~ r Title: C ~ ~l~i~'1~2n' Date: ~ - ~ L-E.O ~ ~ Date: ~ y ~~V Fed Tax I D: ~ ~l - W L ~t 3 y y Date of Signature - 1622(c)-SLG 02103 Page 1 of 2 ADDITIONALTERNISAND CONDI`['[ONS OFAGREEMENI' 9. INSURANCE. You agree, at your cost, to: (a) keep the Equipment insured against all risks of physical bss or vblate any law or agreement; (b) the Lease is signed by your authorized officer or agent acting with the full damage for its full replacement value, naming us as bss payee (or, in the case of a $1 Lease, naming you and us aumor¢ation of your governing body and holding the office indicated below such officefs a agent's signature; (c) as bss payees as our interests may appear); and (b) maintain public liability insurance, covering personal injury me Lease, any documents relative to the acquisitbn of the Equipment and any other documents required to be and Equipment damage for not less than $300,000 per ocarence, naming us as addifronal insured. You have a delivered in cronnedion with the Lease (collectively, the "Documents") have been duly authorized, executed and droice b how you satisfy mere insurance requirements. First, you may obtain coverage on your own and provide delivered by you in accordance with all applicable laws, rules, ordinances and regulations; (d) the Equipment is us with evidence of insurance coverage. If you eled this option, the policy must be issued by an insurance Artier essential to the immediate performance of a govemmental or proprietary function by you within the scope of your rated B+ or better by A.M. Best Company, must provide us with not less than 15 days' prior written notice of authority and shatl be used during me Lease Tenn only to perform such function; (e) you intend to use the Equipment cancellatbn, nonienewal a amendment, and must provide dedudible amounts acceptable to us. Second, you fy the entire Lease Term and shall take all necessary aclbn to indude in your annual budget any funds required may eled to have us directly obtain covemge proteding our interests. UNLESS YOU PROVIDE EVIDENCE OF to fulfill your obligations fy each fiscal year during the lease Term; you have complied fully vrim all applicable THE INSURANCE COVERAGE REQUIRED BYTHIS MASTERAGREEMENT, WE MAY PURCHASE INSURANCE law governing open meetings, public bidding and appropriations required in connedion vnth the Lease and the AT YOUR EXPENSE TO PROTECT OUR INTEREST IN THE EQUIPMENT THIS INSURANCE MAY, BUT NEED acquisition of the Equipment; (g) your obligation to remit Lease Payments under the Lease constitutes a curtenl NOT, PROTECT YOUR IfdTERESTS. THE COVERAGE THAT WE PURCHASE MAY NOT PAY ANY CLAIM THAT expense and not a debt under applicable state law: (h) no provisbn of this Lease constitutes a pledge of your tax YOU MAKE OR ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION WITH THE EQUIPMENT. YOU orgeneral revenues, and any provisbn which is so construed by a court of competent jurisdidtion is void from the MAY LATER CANCFIANY INSURANCE PURCHASED BY US, BUT ONLYAFTER PROVIDING EVIDENCE THAT inception of the Lease; (i) all Lease Payments due and to became due during your curent fscal year are wihin the YOU HAVE OBTAINED INSURANCE AS REQUIRED BY THIS MASTER AGREEMENT. IF WE PURCHASE fiscal budget of such year; and are included within an unrestricted and unencumbered appropriation curently INSURANCE FOR THE EQUIPMENT, YOU WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, available for the lease or leaselpurchase of the Equipment; and Q) all finandal infortnalion you have provided to INCLUDING THE INSURANCE PREMIUM, INTERESTAND ANY OTHER CHARGES VJE NAY IMPOSE INCON- us is accurate and complete and faidy represents your finandal condition. The lease is the entire agreement NECTION WfTli THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTNE DATE OF CANCELLATION between us, and cannot be modRed except by another document signed by us. The Lease is binding on you and OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO YOUR TOTAL your successors and assigns. You auttar¢e us or our agent lo: (1) obtain credit reports and make credit inquiries; OUTSTANDING BALANCE OR OBLIGATION. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE (2) famish payment history to credit reporting agendes; and (3) be your attorney-in-fact for the sole purpose of COST OF INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR OWN. The insurance coverage we obtain signing UCC finandng statements. Any claim you have against us must be made within two (2) years after the maybe through an insurance artier, which may be afl;liated with our assignee or us. There will be no deductible event, which pused'A. If a court finds any provision of the Lease b he unenforoeable, all other terms shatl remain arxi the coverage will include protection fa earthquakes, foods and employee theft. We will pay the premium, but in ef(ed and enforceable. You authorize us to insert or coned missing information on the Lease, including your you must reimburse us. Each Billing Period, you must pay us with your Lease Payment the pro-rated portion of the proper legal name, serial numbers and any other informaton describing the Equipment If you so request, and we insurance premium. At the end of the Term you must pay us any remaining portion of the premium. permit the earty termination of a Sdiedule, you agree to pay a fee forsuch privilege. THE PARTIES INTEND THIS 10. DEFAULT. You wiu tie in defaufl under me Lease tl: (a) you fail to remit b us any payment within ten (10) days TO BE A "FINANCE LEASE" UNDER ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE ("UCC"). YOU ofthe due date a breach any omerobligation render this Lease; (b) a petition is filed by oragainst you crony Guaranty WANE ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE 8Y ARTICLE 2A OF THE UCC. under any bankruptcy or insolvency law; or (c) you default under any other agreement with us. 18. TIME PRICE. In the case of a $1 Lease, you understand that the Equipment maybe purchased for Ash (the 11. REMEDIES. If you default, we may do one or more of me following: (a) recover from you, AS LIQUIDATED °Equipment Cost") or it may be purchased pursuant to the lease for a Time Price equal to the Lease Payment fines DAMAGES FOR LOSS OF BARGAIN AND NOT AS A PENALTY. the sumo(: (i) all past due and current Lease the number of Lease Payments, plus the Doament Fee, all as set forth on a Schedule, plus the Purchase Option Payments, (ii) the present value of all remaining Lease Payments, discounted at the rate of 6% per annum (or the amount, and by executing the Lease you have chosen to purchase the Equipment for that Time Price. bwest rate permitted by law, whichever is higher), (iii) all Lease Charges, and (iv) the Fair Market Value of the 17. LEASE RATE FACTOR. Each Lease Payment includes a part of our investment in the Equipment Cosl and Equipment (if an FMV Lease); (b) declare any other agreements between us in de(autt; (c) require you to return all a return on our investrnent in me lease. The total return on our investment (the total finance charge) is determined of the Equipment in the manneroutlined in Sedion 12, or take possession of the Equipment, in which case we shall by mulfiptying the Lease Payment times the number of Lease Payments, then adding the Document Fee and not beheld responsible for any losses directly or indiredly arising out of, or by reason of me presence and/or use Purchase Option amount (all as set forth on each Schedule), then deduding the Equipment Cost (as determined of any and all proprietary information residing on orvrithin the Equipment, and to lease or sell me Equipment or any above). The difference so determined is the return to us on our investrnent (the total finance charge). The rate of portion thereof, and to apply the proceeds, less reasonable selling and administrative expenses, to the amounts return (finance rate) may be determined by deducting the Security Deposit from the Equipment Cost, and then due hereunder, (d) charge you interest on all amounts due us from the due dale until paid at the rate of t-112% per applying to the amount so determined, the rate that will amortae that amount down to the Purchase Option amount monm, but in no event more Than me lawful maximum rate; (e) charge you fa expenses incurred in connedion with by applying as payments, me Lease Payments and the Document Fee. For purposes of mat amortization. each the enforcement of our remedies including, wtlhout limitation, repossession, repair and collectlon costs, attorneys' Lease Payment, including the Advance Payment, will be considered received on me dale it is required to be paid tees and court costs. These remedies are cumulative, are in addition to any other remedies provided for bylaw, under the Lease and the Document Fee will be considered received on the date of me Lease. aril may be exerdsed concurrently or separately. Any failure or delay by us to exerdse any right shall not operate 18. YOUR REPRESENTATK)NS. You hereby represent and wartant to us mat as of the date of mis Lease, and as a waiver of any other right or future right. throughout the Lease Term: (a) you are the entity indicated in the Lease as Lessee; (b) you are a State or a fully 12. END OF TERM OPTIONS• RETURN OF EQUIPMENT. In me case of a $1 Lease and if you are not indefautt, constituted political subdivision or agency o(lhe State in which you are orated; (c) you are duly organized and we wiA release any security interest which we may have in the Equipment al the end of the Tenn. In the case of existing under the laws of the Constitution and laws of me State in which you are located; (d) you are aumorized an FMV lease, at the end of the Term and upon 30 days prior written notice to us, you shall either (a) return all of to enter into and carry out your obligations under the Lease, any documents relative to the acquisition of the the Equipment, or (b) purchase all of the Equipment AS-IS AND WHERE-IS, WfTHOUT ANY WARRANTY AS TO Equipment and any Omer documents required to be delivered in connection with the Lease (collectively, the CONDITION, TITLE OR VALUE, forme Fair Markel Value ,plus applicable sales arnf omer taxes. The Lease shall °Documents (e) the tbcuments have been duly auhorized, exectted and delivered to you in aaordance with continue on amonth-totnonm basis and you shall pay us me same Lease Payments and Lease Charges as applied all applicable laws, rules, ordinances and regulations. The Documents are valid, legal, and binding agreements, during me Tenn until me Equipment is returned to us or you pay us me applicable purchase price (and taxes). If enforceable in accordance vrith their terns. The person(s) sgning the Documents have me aumaity to do so, are you are in default or, in the case of an FMV Lease, you do not purchase me Equipment at the end of me Term (or acting win me full authorization of your governing body, and hold the respective offices indicated below each of arty month4o-monm renevral term), you shall return all of me Equipment, height and insurance prepaid at your cost meir signatures, each of which are genuine; (f) me Equipment is essential to me immediate performance of a and risk, to wherever we indicate in the continental United States, win all manuals and bgs, in good order and govemmental or propdetary function by you vnthin the scope of your authority and shall be used during the entire condtion (except for oMinary wear and tear from normal use), packed per me shipping companys spedfirations, Lease Tenn ony to perform such function, (g) you intend to use the Equipment for the entire Lease Tenn and shag and pay an inspection, restocking and handling fee of $100, not to exceed the maximum permitted bylaw, as take atl necessary aclion to indude in your annual budgetary funds required to fuKiN your obligations (or each fiscal reasonable compensation for our costs in processing retuned equipment You will pay us for any loss in value year dudng the Lease Term; (h) you have complied fully win alt applicable law governing open meetings, public resulting from the failure to maintain the Equipment in accordance win mis Master Agreement or fa damages biddings and appropriations required in connection win the Lease and the acquisition of me Equipment; (i) your incurred in shipping and handling. obfgafions to remit Lease Payments constitute a curtemt expense and not a debt under applicable State law. No 73. ASSIGNMENT. You may not assign ordispose of any rights orobligations underihe Lease asub-lease the provision of the Lease constitutes a pledge of your tax orgeneral revenues, and any provision which is so Equipment, without our prior written consent. We may, without notifying you, (a) assgn the Lease or our interest construed by a court of competent jurisdiction is void from the inception of the Lease; Q) all payments due and to in the C-quipment; and (b) release information we have about you and me Lease to tfte manufacturer, supplier a any become due during your wrrent fiscal year are within the fiscal budget of such year, and are included within an prospective investor, participant or purchaser of the Lease. If we do make an assignment under subsection 13(a) unrestrded and unenambered appropriation artently available for me leaselpurchase of me Equipment; (k) you above, our assignee will have all of our rights under the Lease, but none of ow obligatiars. You agree not b assert shall not do a cause to be done any ad which shall cause, or by omission of any ad allow, me interest podion against ourassignee claims, offsets adefenses you may have against us. of any Lease payment to become included in our gross income fa Federal income laxalbn purposes under me 14. NONAPPROPRIATION. Fa each Lease commenced hereunder. you intend to remit all Lease Payments and Federal Income Tax Code (the'Code"); (I) you shall maintain a wmplete and accurate record of any and all Lease Charges when due d funds are legaly available to you. H at any time dudng the Lease Tenn (a) you are not assignments of me Lease in the form suffident to compy win the book entry requirements of Section 149(a) of me granted an appropriation of funds the Equipment subjed to mat Lease, (b) operating funds are not otherwise Code and the regulations prescribed thereunder from lime to time; (m) you shall comply win the information avalable to you to pay me Lease Payments and Lease Charges due or to become due under mat lease, and (c) reporting requirements of Section t49(e) of the Code. Such compliance shall indude but not be limited to, the there is no omen legal procedure or available funds by or win which payment can be made to us under that Lease execution of 8038-G or 8038-GC Infortna6on Returns; (n) all finandal iniormalbn that you have provided to us is (a'NarAppropriatbn') you shall have the right to velum me Equipment sut>jed to that Lease in accordance win true and accrete and provides a good representation of your finandal condition; {o) the Equipment is personal Ser~on 12 hereof and terminate mat Lease on me last day of me fiscal perbd for which appropriations were received property and when subjected to use by the you as Lessee will not be or become a 6zlure under applicable law; wrfhout penalty a expense to you, except as to the portion of Lease Payments and Lease Charges for which funds and (p) the Equipment shall be used for business or commerdal purposes onty, and not for consumer, home, family shall have been appropriated and budgeted. In the event of aNon-Appropriation, 2t least mirty (3D) days prig to the or agricultural puposes. end of me last fiscal year for whiclt funds shall have been appropriated and budgeted, your chief exewtive off icer 19. LIMITATIONS ON CHARGES. This Section controls over every otf~er part of mis Master Agreement and over a legal counsel shall certify ur writing that (1) funds have not been appropriated for me upceming fiscal period, and all Omer documents now or later pedaining to the Lease. We both intend to comply with all applicable laws. In {2) you have exhausted all (ands legally available fa me payment of Lease Payments and Lease Charges. Hyou no event will we charge or collect any amounts in excess of those allowed by applicable law. Any parr of this fertninate a Lease as a result of a Nan-Appropriatbn, you may not purchase, lease or rent any equipment that Master Agreement that eouk, but for this Section, be read under any drarmstarxx b albw for a d>arge tugher Than performs functbns similar to Base pedomred by the Equipment fa a period of twelve (12) months folowirg the date chat allowable under any applipble legal limtt, is limited and modified by this Section to limit the amounts of tenninatbn. This Section 14 shall not permA you to terminate any Lease in order to acquire any other Equipment chargeable under the Lease to the maximum amount allowed under the legal limit. If in any droumstance, any or b albcate Funds directly a indirectty to perform essentially me appliption fywhich the Equipment is intended. amount in excess of that allowed by law is charged ar received, any such charge vnll be deemed limited by the 15. MISCELLANEOUS. Notices must be in writing and will be deemed given 5 days after mailing to your (orour) amount legally allowed and any amount received by us in excess of that legally alowed will be applied by us to business address. You represent mat (a) you have authority to enter into the Lease and byso doing you will not me payment of amounts legally owed under the lease, or refunded to you. 1622(c)-SLG 02103 Page 2 of 2 AMENDMENT TO MASTER LEASE AGREEMENT This Amendment to the Master Lease Agreement No. 8446916 (this "Amendment"), dated ,Ap ~?16 , 2010 is made and entered into by and between C & M Air Cooled Engine, Inc. dba C & M Golf and Grounds Equipment ("Lessor"), and City of Schertz ("Lessee"). WHEREAS, Lessee and Lessor entered into that certain Master Lease Agreement No. 8446916 dated of even date . herewith (the "Agreement"); and WHEREAS, Lessee and Lessor desire to amend the Agreement as hereafter set forth. NOW, THEREFORE, for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessee and Lessor hereby agree as follows: 1. Section 2 is hereby deleted in its entirety. 2. The seventh sentence of Section 6 is hereby amended and restated, in its entirety, as follows: You agree to remove the Equipment from the address indicated on the front of a Schedule solely for use by the Lessee in Lessee's ordinary course of business. 3. Section 7 is hereby amended and restated, in its entirety, as follows: CLAIMS. We are not responsible for any injuries, damages, penalties, claims or losses, including legal expenses ("Claims"), incurred by you or any other person caused by the transportation, installation, manufacture, selection, purchase, lease, ownership, possession, modification, maintenance, condition, operation, use, return or disposition of the Equipment. You will not bring any action or file any claim against us or any assignee for any purchase, lease, ownership, possession, modification, maintenance, condition, operation, use, return or disposition of the Equipment. You also agree that the Lease has been entered into on the assumption that we will be entitled to certain tax benefits available to the owner of the Equipment. In the case of an FMV Lease, to the extent permitted by law, you agree to indemnify us for the loss of any income tax benefits caused by your acts or omissions inconsistent with such assumption of the Lease. In the event of any such loss, we may increase the Lease Payments and other amounts due to offset any such adverse effect. 4. The language in all capital letters above the signature box on the first page is hereby amended and restated, in its entirety, as follows: TO THE EXTENT PERMITTED BY LAW, BOTH PARTIES AGREE TO WAIVE ALL RIGHTS TO A JURY TRIAL. BY SIGNING THIS MASTER AGREEMENT, YOU AGREE TO THE TERMS ON BOTH PAGES 1 AND 2. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE AGREED NOT TO BE ENFORCEABLE. TO PROTECT YOU AND US FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGEEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS BOTH PARTIES MAY LATER AGREE IN WRTTING TO MODIFY IT. 5. The third sentence of Section 13 is hereby amended and restated, in its entirety, as follows: If we do make an assignment under this Section, our assignee will have all of our rights under the Lease, but none of our obligations. 1 6. The last two sentence of Section 14 are hereby deleted in their entirety. 7. The following text is added at the end of Section 14: The collection of any damages, the exercise of any remedies and the enforceability of any indemnity and any requirements of you relative to Non-Appropriation set forth in this Lease are subject to any limitations imposed by applicable Texas law. Lessor agrees that neither Lessor nor any assignee of Lessor will securitize the Lease Payments or issue any certificates of participation in the Lease Payments without Lessee's prior written consent and any required approval by the Texas Attorney General. 8. The following text is hereby removed from Section 15: The Lease is the entire agreement between us, and cannot be modified except by another document signed by us. and the following is inserted in lieu thereof: The Lease is the entire agreement between us, and cannot be modified except by another document signed by both parties. 9. Subsection (3) of Section 15 is hereby deleted in its entirety. 10. The last sentence of Section 15 is hereby deleted in its entirety. 11. Subsection (d) of Section 18 is hereby amended and restated, in its entirety, as follows: you are authorized to enter into and carry our your obligations under the Lease, any documents executed by you relative to the acquisition of the Equipment and any other documents required to be delivered by you in connection with the Lease (collectively, the "Documents") 12. Subsections (k), (1) and (m) of Section 18 are hereby deleted in their entirety. 13. Lease Schedule #001 shall be amended by revising the third paragraph in all capital letters on the left hand side of Page 1 to read as follows: ALL OF THE TERMS AND CONDITIONS SET FORTH IN THE MASTER AGREEMENT, AS AMENDED, AND HEREBY INCORPORATED 1N'TO THIS SCHEDULE, BY SIGNING THIS SCHEDULE, YOU AGREE TO THE TERMS OF THIS SCHEDULE AND THE MASTER AGREEMENT, AS AMENDED. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE AGREED NOT TO BE ENFORCEABLE. TO PROTECT YOU AND US FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE AND YOU MAY LATER AGREE IN WRITING TO MODIFY IT. BOTH PARTIES AGREE THAT THE LEASE SET FORTH IN THIS SCHEDULE IS NOT A TAX EXEMPT TRANSACTION. 14. Except as expressly modified hereby or by express written amendments thereof, the terms and provisions of the Agreement or any other documents or instruments executed in connection with the foregoing are and shall remain in full force and effect. In the event of a conflict between this Amendment and any of the foregoing documents, the terms of this Amendment shall be controlling. 2 15. This Amendment and the documents referred to herein represent the entire understanding of the parties hereto regarding the subject matter hereof and supersede all prior and contemporaneous oral and written agreements of the parties hereto with respect to the subject matter hereof. 16. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts and all of such counterparts shall together constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective duly authorized officers as of the date first above written. LESSOR: C & M AIR COOLED ENGINE, INC. dba C & M GOLF AND GROUNDS EQUIPMENT By: Na Title: LESSEE: CITY OF SCHERTZ By: Name: `Ocj~c~. G. • '_Tca,,~1 - Title:~ ~ 3 SLG Commercial Pricing :~I Lease Schedule # oo1 Cap~~a°t ~c~it~~i€~I~i Master t_easeAgreement# $446916 ~ Contracted Hours (FMV only) Equipment Model & Description Serial Number 0-600 601-900 901-1200 Jacobsen HR 9016, 90hp Kubota Dsl, 4wd, 16 ft, cutting swath X Jacobsen HR 9016, 90hp Kubota Dsl, 4wd, 16 ft, cutting swath 3 Road Package Kit with accy harness kit E ui mentLocation rfdiferentfrom BilingAddress) 10 Commercial Pl., Schertz, TX 781.54 - - ~ . ` E a C & M Air Cooled Engine Inc. DBA C & M Golf and Grounds Equipment Fair Market Value Nartte 6612 W. Hwy. 84 ? $t,QQ 'LEASE RATE TX 76712 "LEASE RATE FACTOR Waco ' _ - Zp (•requlredonlyforgt OOpurchaseoptlon) _ _ I _ _ - "Master Agreement" shall mean the above referenced Master Lease Agreement. Lease Payment $ 3+225.40 "Schedule" shall mean this Lease Schedule. "Lease" shall mean this Schedule 148 294.30 (plus applicable taxes); and the Master Agreement. Equipment Purchase Price $ Sales Tax Term 48 months YOU HAVE SELECTED THE EQUIPMENT. YOU ARE AWARE OF THE NAME OF THE MANU• TDtaI PUfCtlaSe PnCe $ FACTURER OF EACH ITEM OF EQUIPMENT AND YOU WILL CONTACT EACH MANUFAC- Billing Period (monthly ii not checked) TURER FOR A DESCRIPTION OF YOUR WARRANTY RIGHTS. WE MAKE NO WARRAN- TIES TO YOU, EXPRESS OR IMPLIED, AS 70 THE MERCHANTABILITY, FRNESS FORA aMonthly ~Quarteriy ? Semi-Annually? Annually PARTICULAR PURPOSE, SURABILITY, OR OTHERWISE. WE PROVIDE THE EQUIPMENT The following additional payments are due on the date this Agreement is signed by you: TO YOU AS-IS. WE SHALL NOT BE LIABLE FOR CONSEQUENTIAL OR SPECIAL OAM- / n AGES. ' SECURITY DEPOSIT $ lv EXCEPT AS PROVIDED IN SECTION 3 YOUR PAYMENT OBLIGATIONS ARE ABSOLUTE ~ A _•'A I~ AND UNCONDRIONAL ANO ARE NOT SUBJECT TO CANCELLATION, REDUCTION OR ADVANCE PAYMENT $ lus applicable taxes) pp led to: first ast SETOFF FOR ANY REASON WHATSOEVER. BOTH PARTIES AGREE TO WANE ALL RIGHTS (p TO A JURY TRIAL. ~ DOCUMENT FEE $175.00 (included on first invoice) _ - - _ - _ _ _ , I ALL OF THE TERMS ANO CONDITIONS SET FORTH IN THE MASTER AGREEMENT ARE - - - HEREBYINCORPORATED INTO THIS SCHEDULE. BY SIGNING THIS SCHEDULE, YOU e AGREE TO THE TERMS OF THIS SCHEDULE AND THE MASTER AGREEMENT. ORAL Cit of Schertz ~ AGREEMENTS OR COMMRMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR Y FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR FuALegalName RENEW SUCH DEBT ARE NOT ENFORCEABLE TO PROTECT YOU AND US FROM MISUN- s ~ OERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH ! i MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLU- 1400 Schertz Parkway i SNE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE Bilkng Pddress IN WRTING TO MODIFY R. ' Schertz TX 78154 i ' ~ late La a ~ ! ~G.VtOf C & M Air Cooled Engine, Inc. ContactName Phone E,nadaddress ) OB M Golf and Grounds Equipment V By: X s BJ • ~ Slanature of Aullror¢ed SianeT j Name. :Name: Please Pdnt ~ Title: ` Titles r'~iZY ~`-rc ~ 1~ ;Date: ~ ~ ~~U Fed Tax ID 1 y - ~ ~i y ateo ianature__-.__.__.. Date: ~ Documentation Checklist:: Other supporting documents as requested: o Invoice Delivery and Acceptance UCCFinancingStatements Purchase Order Copy of Bid and Award Copy of Board Minutes t N ~ Opinion of Counsel Amendment (for certain states) n Certificate of Insurance Assignment Certif of In cumbencylResolution Other Other ~ Page 1 of 1 Please Complete and Return with Signed Lease Agreement ***send a copy of this to your insurance provider*** Lease Number (Application or MLA): 8446916-001 Lessee Name: City of Schertz Address: 1400 Schertz Parkway City, State, Zip: Schertz, TX 78154 PROPERTY INSURANCE CARRIER INFORMATION Agency Name: T~xc~s ~.UtA~f.~p~-~ L~o~,c~-~'.~ec~czy~v~a.\ tZLSk l~-cb~ Agent: S„~~ C~.YIG.`'~ 5 Address: ~ l~L~~? Dac~~`ee~ l..- yl~ ~~0~ ~1WY City, State, Zip: ?'1U S~a ~X ~ g 1 S y Telephone Number: ~ (~C7~ 5 'J1 b 6 S ~ ~ ~ 027 LIABILITY INSURANCE CARRIER INFORMATION Agency Name: Agent: Address: ~Q,y1R~ G-S C}.~DOV-Q City, State, Zip: Telephone Number: IMPORTANT Under the terms and conditions of your Lease Agreement, you are required to carry adequate insurance coverage on the leased equipment. Make sure that your agent understands that you are financing or leasing the equipment and that your policy conforms with the following: 1. Property or physical damage coverage for the replacement cost value of the Equipment or the stipulated casualty value, whichever is higher. Maximum Deductible: $10,000.00 2. General Liability Coverage: for all FMV Leases and $1 Leases over $500,000. Amounts of - $1,000,000 per occurrence/combined single limit (or $5,000,000 with respect to registered Equipment) unless stipulated otherwise. Maximum Deductible: $10,000.00 3. Additional InsurecUioss Payee Endorsement naming "General Electric Capital Corporation and its successors and assigns". "Claims-Made Policies" are NOT acceptable. 4. Fifteen (IS) Days written notice of cancellation, non-renewal or amendment, 5. Equipment listed on, or schedule attached to, the evidence of insurance. Insurance Inquires should be made to Customer Service at 1-800-533-9917. Please send an ACORD FORM 27 (sample attached) or ACORD FORM 28 evidencing adequate insurance coverage to: General Electric Capital Corporation Attention: Contracts Department 300 E. John Carpenter Drive Irving, TX 75062-2712 SAMPLE ACORD FORM 27 GATE [MM!DbIYYYYI ACQR[1~, EVIDENCE OF pERSONA~ PROPERTY INSURANCE THIS IS EVIDENCE THAT INSURANCE AS IDENTIFIED BELOW HAS BEEN ISSUED, IS IN FORCE, AND CONVEYS ALL THE RIGHTS. AND PRIVILEGES AFFORDED UNDER. T4iE POLICY. AQENCY - P~fONE CtSMPANY PA% - N : E=e~aa. coDE: sue CooE: ENCY IRAN NUMBER POLICY NUMBER iNSUREO t _ i -r..._ EFFECTIVE BATE--j E%PIRATION DATE CONTINUED UMtI II) ~ TERMINATED IF CHECKED TF1I3 REPLACES PRIOR EVtDENCE DATED: PROPERTY 1 FORMATION tACA710NlOESGRIPTION COVERAGE iN1=UF9MATiQN COYERAGEtP!EfU167FQRMS I AMOUNT OF tttSURANCE d.EDUCTI9LE 1 I1 i I i REMARKS JncludJn & ecJal CnndltJons, CAN.CELLATEON THE POLICY IS SUBJECT TO THE PRF_i'viIUMS, FORMS, AND RULES IN EFFECT FOR EACH POLICY PERIOD. SHOULO THE POLICY BE TERMINATED, THE COMPANY WILL GIVE THE ADDITIONAL INTEREST IDENTIFIED BELOW DAYS WRITTEN NOTICE, AND WILL SEND NOTIFtCATION OF ANY CHANGES TO THE POLICY THAT WOULD AFFECT THAT INTEREST tN ACCORDANCE WITH-THE POLICY PROVISIONS OR AS REQUIRED BY LAW. AnomoNAlr rNrER>rsT. NAME AND ADOWESS MORTGAGEE AWITIOntAL INSURER LOSSPAYEE lAlu1 ~ AUTNOgIZW gEPRESENTATiVE ® ACORQ CORPORATION 1893 ACOR[? 27 {2003!10) END-OF-TERM RETURN CONDITIONS RIDER THIS END-OF-TERM RETURN CONDITIONS RIDER (this "Rider") is made effective as of by and between GENERAL ELECTRIC CAPITAL CORPORATION ("Lessor") and CITY OF SCHERTZ ("Lessee"). Lessor and Lessee are parties to a certain Lease Schedule No. 8446916-001 dated as of ~dri ~ C~ k ot?1 O (the "Lease") pursuant to which Lessee has elected a FMV end-of-term purchase optio with respect to the Equipment described in that Lease. All capitalized terms used in this Rider which are not otherwise defined herein will have the meanings given to such terms in the Lease. 1. END-OF TERM RETURN. (a) With respect to the Equipment described in the Lease, you agree that if you do not exercise your end-of- term FMV purchase option you will, at your cost, immediately return t~ us all, but not less than all, of that Equipment upon expiration of the Lease and pursuant to the terms and conditions set forth in the Lease. (b) You further agree that each item of Equipment upon return will comply with the following: (1) all components, covers, guards, parts, accessories and attachments for that item of Equipment must accompany the return properly installed, in good working order and with only minor sheet metal, plastic or cowling damage; (2) all safety equipment must be in proper working order; (3) all motors must operate smoothly without overheating, leaking, excessive smoking and with all original components attached (i.e.) muffler, starter, etc.); (4) all controls, whether electronic, hydraulic, or manual, must operate per manufacturer's specifications; (5) all electrical systems must function per manufacturer's specifications; (6) all batteries must be in good, clean operating condition with no dead cells or cracked cases capable of passing a load test; (7) all tires must be serviceable, with at least 50% remaining tread, and able to retain proper air pressure, and without repair patches; (8) all oil and grease seals must contain the lubrication within the manufacturer's designed reservoir; (9) all Equipment must have a relatively clean appearance; (10) all Equipment must have no excessive wear requiring material component repair or replacement resulting from a failure to perform the recommended maintenance per the customer operation/maintenance manual furnished with each item of Equipment; (11) all Equipment must have no structural damage, including bent frames; and (12) all hydraulic cylinders must be functional and not be bent, nicked, gouged or leaking. Additionally, each item of Equipment must upon return: (i) operate normally in all directions through all speed ranges or gears; (ii) steer normally right and left in all directions; (iii) have all functions and controls working in normal manner; (iv) be able to stop with its service brakes in a safe distance in all directions; (v) operate without leaking any fluids; (vi) perform its designed functions in manner satisfactory to us; and (vii) all cutting units lower, turn on, run, raise and shut off as they are designed to do. (c) With respect to any item of Equipment subject to an annual hour usage limitation as set forth in the Lease, you will also pay to us for excessive use an amount equal to (1) the total number of hours of use in excess of such annual hour limitation times (2) at the following applicable rate: (i) ,~3 per hourfor any Rotary Mower, or Bunker Rakes (ii) $7 per hourfor any Greens Mower, Trim Mower, Sprayer or Utility Vehicle (iii) $10 perhourfor any Fairway Reel Mowers 2. FAILURE TO MEET RETURN CONDITIONS. If any item of Equipment does not meet the foregoing return conditions, you will pay to us all reasonable amounts, as we or our agent determines, necessary to bring such item of Equipment into compliance with such conditions. 3. REQUIRED PURCHASE. If with respect to any item of Equipment, you fail to discharge your obligations set forth in Section 2 you will pay to us, immediately upon demand, the Fair Market Value applicable to such item of Equipment. - 1 -Jacobsen Retum Condition RIDER Original.doc 3/11/10 4. MISCELLANEOUS. This Rider constitutes a part of the Lease and as such is subject to all terms and conditions set forth therein; provided, however, that if there is a conflict between the terms and conditions of the Rider and of the Lease, the terms and conditions of this Rider will control. This Rider is hereby signed by duly authorized representatives of Lessor and Lessee as of the date of the Lease. GENERAL ELECTRIC CAPITAL CORPORATION CITY OF SCHERTZ By: gy; Name: r~~ryt l~~t° _ Name: ~ bC' Title: Title: G~r' ~iu ACpti 95005.doc (3102) - 2 -Iacobsen Retum Condition RIDER Original.doc 3/11/10