HomeMy WebLinkAboutCC Resolution 10606 (Purchase Aerial Fire Truck)RESOLUTION NO. 10606
A RESOLUTION AUTHORIZING THE EXECUTION AND
DELIVERY OF A LEASE WITH OPTION TO PURCHASE ONE
AERIAL FIRE TRUCK WITH IBIS SECURITIES LLC AND
MUNICIPAL FINANCE CORPORATION, AND AUTHORIZING
CERTAIN ACTIONS IN CONNECTION THEREWITH
WHEREAS, the City of San Rafael (the "City") is a city organized and existing under and
pursuant to the Constitution and laws of the State of California (the "State"); and
WHEREAS, the City desires to provide for financing in the approximate amount of
$500,570.00 for the acquisition of a fire truck (the "Property"); and
WHEREAS, IBIS Securities LLC and Municipal Finance Corporation (the "Corporation")
have proposed a cost-effective lease purchase financing arrangement at a 5.65% interest rate;
NOW, THEREFORE, it is resolved by the City Council as follows:
SECTION 1. Lease with Option to Purchase. The Mayor and City Manager, or his
designee, are hereby authorized to enter into a Lease with Option to Purchase (the "Lease")
with the Corporation, subject to approval as to form by the City Attorney.
SECTION 2. Attestations. The City Clerk is hereby authorized and directed to attest the
signature of the Mayor or City Manager or of such other person or persons as may have been
designated by the Mayor or City Manager, and to affix and attest the seal of the City, as may be
required or appropriate in connection with the execution and delivery of the Lease.
SECTION 3. Other Actions. The Mayor, City Manager and other officers of the City are
each hereby authorized and directed, jointly and severally, to take any and all actions and to
execute and deliver any and all agreements, documents and certificates which they may deem
necessary or advisable in order to carry out, give effect to and comply with the terms of this
Resolution and the Lease. Such actions are hereby ratified, confirmed and approved.
SECTION 4. Qualified Tax -Exempt Obliaations. The Lease is hereby designated as a
"qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Internal
Revenue Code of 1986, as amended (the "Code"). The City, together with all subordinate
entities of the City, do not reasonably expect to issue during the calendar year in which the
Lease is issued more than $10,000,000 of obligations which it could designate as "qualified tax-
exempt obligations" under Section 265(b) of the Code.
SECTION 5. Reimbursement of Prior Expenditures. The City declares its official intent to
be reimbursed from the proceeds of the Lease approved hereby for a maximum principal
amount of $505,000.00 of expenditures occurring no earlier than sixty days prior to the adoption
of this Resolution. All reimbursed expenditures will be capital expenditures as defined in Section
1.150-1(b) of the Federal Income Tax Regulations.
SECTION 6. Effect. This Resolution shall take effect immediately upon its passage.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing
resolution was duly and regularly introduced and adopted at a reaular meeting of the City
Council of said City held on Mondav the 20th day of March , 20 00 , by the following vote, to
wit:
AYES: COUNCILMEMBERS: Cohen, Miller, Phillips and Vice -Mayor Heller
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Mayor Qoro
A dP
JEARVE M. LEONCINI, City Clerk
resolutions\2000\city\fire truck lease reso.doc
LEASE WITH OPTION TO PURCHASE #00 -027 -AF
This LEASE WITH OPTION TO PURCHASE dated March 20, 2000 ("Lease")
is by and between MUNICIPAL FINANCE CORPORATION, ("Corporation") a
corporation duly organized and operating under the laws of the State of
California as lessor and CITY OF SAN RAFAEL, a municipal corporation
duly organized and existing under the laws of the State of California
("Lessee") as lessee.
RECITALS:
WHEREAS, Lessee deems it essential for Lessee to acquire the property
described herein for its own public purposes; and
WHEREAS, it is intended that this Lease be treated as a tax-exempt
obligation of Lessee for federal income tax purposes; and
WHEREAS, Lessee and Corporation agree to mutually cooperate now and
hereafter, to the extent possible, in order to sustain the intent of
this Lease and the bargain of both parties hereto.
WITNESSETH:
NOW, THEREFORE in consideration of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
SECTION 1. Lease. Corporation hereby leases to Lessee, and
Lessee hereby leases and hires from Corporation all property (the
"Property") described in the schedule or schedules (collectively, the
"Schedule") executed by the parties concurrently herewith and hereafter
and made a part hereof. Hereinafter, reference to Corporation means
Corporation and Corporation's assigns for those rights, interests and
obligations that may be assigned by Corporation.
SECTION 2. Term. The terms and conditions of this Lease shall
become effective upon the authorized execution of this Lease by the
parties hereto. The rental term of the Property leased hereunder
commences and terminates on the dates specified in the Schedule.
SECTION 3. Representations and Warranties of Lessee,. Lessee
represents and warrants to Corporation that:
(a) Lessee is a municipal corporation and political
subdivision, duly organized and existing under the Constitution and
laws of the State of California with authority to enter into this Lease
and to perform all of its obligations hereunder.
(b) Lessee's governing body has duly authorized the
execution and delivery of this Lease and further represents and
warrants that all requirements have been met and procedures followed to
ensure its enforceability.
(c) The execution, delivery and performance of this Lease do
not and will not result in any breach of or constitute a default under
any indenture, mortgage, contract, agreement or instrument to which
Lessee is a party or by which it or its property is bound.
(d) There is no pending or, to the knowledge of Lessee,
threatened action or proceeding before any court or administrative
agency which will materially adversely affect the ability of Lessee to
perform its obligations under this Lease.
(e) The Property being leased is essential to Lessee in the
performance of its governmental functions and its estimated useful life
to Lessee exceeds the term of this Lease.
SECTION 4. Representations and Warranties of Corporation.
Corporation represents and warrants to Lessee that:
(a) Corporation is duly organized, validly existing and in
good standing under the laws of the State of California, with full
corporate power and authority to lease and own real and personal
property.
(b) Corporation has full power, authority and legal right to
enter into and perform its obligations under this Lease, and the
execution, delivery and performance of this Lease have been duly
authorized by all necessary corporate actions on the part of
Corporation and do not require any further approvals or consents.
(c) The execution, delivery and performance of this Lease do
not and will not result in any breach of or constitute a default under
any indenture, mortgage, contract, agreement or instrument to which
Corporation is a party by which it or its property is bound.
(d) There is no pending or, to the knowledge of Corporation,
threatened action or proceeding before any court or administrative
agency which will materially adversely affect the ability of
Corporation to perform its obligations under this Lease.
SECTION 5. ProAerty Acouisition: DeDosit of Monevs.
Corporation hereby appoints Lessee as its purchasing agent to acquire
the Property leased hereunder and Lessee hereby accepts said
appointment (hereinafter, the "Agency"). The Agency is limited to i)
negotiation of terms, conditions and acquisition cost of acquiring the
Property from suppliers and contractors (collectively, the "Supplier")
selected by Lessee; ii) to the inspection and acceptance of the
Property upon its delivery and installation; and iii) to the exercise
of any rights or remedies with respect to Property warranties or
guarantees. All warranties and guarantees, either express or implied,
that inure to Corporation by virtue of the Agency are hereby passed
through to Lessee to prosecute at Lessee's sole discretion.
The costs associated with the acquisition and installation of the
Property including appurtenant work and related expenses are set forth
in the Schedule. Corporation and Lessee agree that, in order to ensure
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that moneys sufficient to pay all costs will be available for this
purpose when required, Corporation shall cause the financing amount
designated on the Schedule (the "Financing Amount") to be deposited to
a custodial account (the "Acquisition Account") and held in the name of
Corporation as custodian for the benefit of Lessee. The date said
Financing Amount is initially deposited to the Acquisition Account is
defined as the Lease Issuance Date. Disbursements may be made either
directly to the Supplier or to Lessee as a reimbursement of its prior
expenditures for Property costs. Lessee shall deliver to Corporation a
disbursement authorization form along with Supplier invoices and
required reconciliation documents prior to Corporation making a
disbursement to the Supplier or a reimbursement to Lessee. Corporation
shall receive a $50 fee per disbursement, which Corporation shall
deduct from the Acquisition Account without any further authorization
from Lessee. Corporation shall retain at least ten percent (100) of the
Financing Amount in the Acquisition Account until Lessee delivers to
Corporation a Certificate of Acceptance. Any moneys that remain in the
Acquisition Account (including future earnings thereon) after
completing the disbursements for Property costs shall apply towards the
payment or prepayment (with applicable premium) of the principal
component of succeeding Rental Payments. Upon final disbursement from
the Acquisition Account that shall occur no later than three years from
the Lease Issuance Date, the Acquisition Account shall be closed.
SECTION 6. Lease Proceeds. The Financing Amount deposited to
the Acquisition Account may be invested in interest bearing instruments
pursuant to written direction and authority given by Lessee. Permitted
investments are those specified in Government Code Sections 53601 and
53635. Principal and interest earnings from each investment will be
deposited directly to the Acquisition Account. The Financing Amount
plus earnings thereon shall constitute the Lease Proceeds available for
acquiring the Property (the "Lease Proceeds"). Corporation shall be
responsible for the safekeeping of deposit certificates and other
investment confirmation documents. With the exception of acts of gross
negligence or willful misconduct by Corporation, Corporation will not
be held responsible for any investment losses for any reason whatsoever
and is indemnified and held harmless by Lessee. In the event the Lease
Proceeds are not sufficient to pay for the Property due to insufficient
investment earnings or an increase in such costs subsequent to the
Lease Issuance Date, Lessee shall deposit additional moneys in the
Acquisition Account immediately upon request of Corporation or its
assignee sufficient to pay the remaining Property costs. Failure by
Lessee to deposit the additional moneys will constitute a default under
the Lease.
SECTION 7. Rental Pavments. LESSEE SHALL PAY CORPORATION
RENTAL PAYMENTS (the "Rental Payments") IN THE AMOUNTS AND AT THE TIMES
SET FORTH IN THE SCHEDULE, AT THE OFFICE OF CORPORATION OR TO SUCH
OTHER PERSON OR AT SUCH OTHER PLACE AS CORPORATION MAY FROM TIME TO
TIME DESIGNATE IN WRITING. Should Lessee fail to pay any part of the
Rental Payments herein reserved within fifteen (15) days from the due
date thereof, Lessee shall upon Corporation's written request, pay
interest on such delinquent payment from the date said payment was due
until paid at the rate of twelve percent (12%) per annum or the maximum
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legal rate, whatever is less. Lessee shall pay Rental Payments
exclusively from legally available funds, in lawful money of the United
States of America to the Corporation. The obligation of Lessee to pay
Rental Payments hereunder shall constitute a current expense of Lessee
and shall not in any way be construed to be a debt of Lessee in
contravention of any applicable constitutional or statutory limitations
or requirements concerning the creation of indebtedness by Lessee, nor
shall anything contained herein constitute a pledge of the general tax
revenues of Lessee. Except as specifically provided in Section 29, the
obligation to pay Rental Payments will be absolute and unconditional in
all events, and will not be subject to set-off, defense, abatement,
reduction, counterclaim, or recoupment for any reason whatsoever. The
periodic Rental Payments paid by Lessee shall be conclusive as to its
fair value for the possession, use and/or occupancy of'the Property.
SECTION 8. Securitv Interest. As security for the payment of
all of Lessee's obligations hereunder, Lessee hereby grants
Corporation, its successors or assigns, a security interest in the
Property, its accessions and attachments thereto and replacement
thereof and substitutions therefor and all proceeds of the Acquisition
Account and all proceeds and products of any of the foregoing. Lessee
agrees to execute such additional documents, including financing
statements, which Corporation deems necessary or appropriate to
establish and maintain Corporation's security interest.
SECTION 9. Use. Lessee shall use the Property in a careful and
proper manner and shall comply with and conform to all national, state,
municipal, police, and other laws, ordinances, and regulations in
anyway relating to the possession, use, or maintenance of the Property.
SECTION 10. Acceptance. Lessee shall acknowledge receipt and
inspection of the Property by executing a "Certificate of Acceptance".
SECTION 11. Corporation's Inspection. Upon forty-eight (48)
hours prior notice, the Corporation shall at any and all times during
normal business hours have the right to enter into and upon Lessee's
premises where the Property is located for the purpose of inspecting
the same or observing its use. Lessee shall give Corporation immediate
notice of any attachment or other judicial process affecting the
Property.
SECTION 12. Property Selection and Orderina_. Lessee has
selected or will select the type and quantity of the Property leased
hereunder. Lessee shall ensure that all Property is properly invoiced
to Corporation. Corporation shall not be liable for, nor shall the
validity, enforceability or effectiveness of this Lease be affected by,
any delay in or failure of delivery of the Property. Lessee
acknowledges that it is solely responsible for determining the
suitability of the Property for its intended use. Corporation shall
have no duty to inspect the Property. If the Property is not properly
installed, does not operate as represented or warranted by the
Supplier, or is unsatisfactory for any reason, Lessee shall make any
claim on account thereof solely against the Supplier. Lessee hereby
assumes the risks, burdens and obligations to the Supplier on account
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of nonacceptance of the Property and/or cancellation of this Lease and
upon the occurrence of any such event, Corporation will assign to
Lessee, without recourse or warranty, its rights and title to the
Property and any documents related thereto.
SECTION 13. Disclaimer of Warrantv. CORPORATION NOT BEING THE
MANUFACTURER OR SUPPLIER OF THE PROPERTY NOR A DEALER IN SIMILAR
PROPERTY, HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION, WARRANTY,
OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE DESIGN,
DURABILITY, FITNESS FOR USE, SUITABILITY, OR MERCHANTABILITY OF THE
PROPERTY IN ANY RESPECT, AND AS BETWEEN CORPORATION AND LESSEE, ALL
PROPERTY SHALL BE ACCEPTED AND LEASED BY LESSEE "WHERE IS," "AS IS,"
AND "WITH ALL FAULTS," AND CORPORATION SHALL NOT BE RESPONSIBLE FOR ANY
PATENT OR LATENT DEFECTS THEREIN. LESSEE AGREES TO SETTLE DIRECTLY SUCH
CLAIMS WITH THE SUPPLIER AND WILL NOT ASSERT ANY SUCH CLAIMS AGAINST
CORPORATION.
SECTION 14. Alterations and Attachments. All additions and
improvements that are made to the Property shall belong to and become
the property of the Corporation except that separately identifiable
attachments added to the Property by Lessee may remain the property of
Lessee as long as (i) the attachment is paid for in full by Lessee and
(ii) Lessee agrees to remove the attachment and restore the Property to
substantially as good condition as when received, normal wear and tear
excepted, if and when the Property may be returned to Corporation.
SECTION 15. Relocation. Lessee shall provide Corporation prior
written notice of its intent to relocate the Property. Lessee assumes
all risks of loss to the Property attendant to its movement and
relocation. The Property location shall be under Lessee's full control
for its own governmental purpose.
SECTION 16. Maintenance and Repairs. Lessee, at its own cost
and expense, shall furnish necessary labor and materials to maintain
the Property in good repair, condition, and working order. Lessee's
obligations to maintain the Property does not relieve the Supplier of
its responsibility to fully perform with respect to all applicable
Property warranties and guarantees.
SECTION 17. Risk of Loss: Damaae: Destruction. With the
exception of acts resulting from intentional misconduct or gross
negligence by Corporation, its agents and representatives, Lessee
hereby assumes and shall bear the entire risk of loss and damage to the
Property from any and every cause whatsoever. No loss or damage to the
Property or any part thereof shall impair any obligation of Lessee
under this Leas, which shall continue in full force and effect. Lessee
waives the benefit of Civil Code Sections 1932 (2) and 1933 (4) and any
and all other rights to terminate this Lease by virtue of any damage or
destruction to the Property.
SECTION 18. Phvsical Damage/Public Liabilitv Insurance. Lessee
shall keep the Property insured against risk of loss or damage from any
"special form" peril for not less than the applicable purchase option
value in the Schedule, and Lessee shall carry public liability and
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property damage insurance covering the Property. All said insurance
shall be in form and amount and with reputable companies and shall name
Corporation as an additional insured and loss payee. Lessee shall pay
the premiums therefore and deliver certification of said policies to
Corporation. Each insurer shall agree, by endorsement upon the policy
or policies issued by it or by independent instrument furnished to
Corporation, that it will give Corporation thirty (30) days' written
notice before the policy or policies shall be altered or canceled. The
proceeds of such insurance, at the option of Lessee, shall be applied:
(a) toward the replacement, restoration, or repair of the Property, or
(b) toward payment of the total remaining obligations of Lessee
hereunder; provided, however, that Lessee shall be responsible for the
amount by which such insurance proceeds are insufficient to satisfy the
cost of option (a) or option (b) above, as applicable. Should Lessee
replace, restore, or repair the Property as set out in option (a)
above, this Lease shall continue in full force and effect. Lessee may
self -insure up to specified limits as evidenced by a certificate of
self insurance to be attached hereto in form and amount acceptable to
Corporation. Any self-insurance program in which Lessee is a
participant shall comply with the provisions under this Lease
respecting cancellation and modification and payment of losses to the
Corporation as its respective interests may appear. Such self-insurance
shall be maintained on a basis which is actuarially sound as
established by Lessee's risk manager or an independent insurance
consultant which determination shall be made annually. Any deficiency
shall be corrected within sixty (60) days of Lessee becoming aware of
such deficiency.
SECTION 19. Liens and Taxes. Lessee shall keep the Property
free and clear of all levies, liens, and encumbrances and shall
promptly pay all fees, assessments, charges, and taxes (municipal,
state and federal) which may now or_hereafter be imposed upon the
ownership, leasing, renting, sale, possession, or use of the Property,
excluding, however, all taxes on or measured by Corporation's income.
SECTION 20. Indemnitv. Subject to California law concerning
contribution and enforceability of indemnifications, Lessee shall
indemnify Corporation against and hold Corporation harmless from any
and all claims, actions, suits, proceedings, costs, expenses, damages,
and liabilities, including attorneys' fees, arising out of, connected
with or resulting from the selection, possession, use, operation, or
return of the Property excepting that Lessee shall not be required to
indemnify Corporation in the event that such liability or damages are
caused by the gross negligence or intentional misconduct of
Corporation, its agents or representatives.
SECTION 21. Events of Default. The term "Event of Default", as
used in this Lease, means the occurrence of any one or more of the
following events: (a) Lessee fails to make any Rental Payment (or any
other payment) within fifteen (15) days after the due date thereof or
Lessee fails to perform or observe any other covenant, condition or
agreement to be performed or observed by it hereunder and such failure
to either make the payment or perform the covenant, condition or
agreement is not cured within ten (10) days after written notice
thereof by Corporation; (b) Corporation discovers that any statement,
representation or warranty made by Lessee in this Lease, the Schedule
or in any document ever delivered by Lessee pursuant hereto or in
connection herewith is false, misleading or erroneous in any material
respect; (c) Lessee becomes insolvent, is unable to pay its debts as
they become due, makes an assignment for the benefit of creditors,
applies or consents to the appointment of a receiver, trustee,
conservator or liquidator of Lessee or of all or a substantial part of
its assets, or a petition for relief is filed by Lessee under federal
bankruptcy, insolvency or similar laws.
SECTION 22. Remedies. Upon Lessee's failure to cure an Event of
Default within ten (10) days after Corporation's written notice
thereof, Lessee's rights under this Lease shall terminate and the
Corporation will become entitled to retain all Rental Payments
previously paid and to recover all past due payments together with
interest thereon to the end of Lessee's current fiscal year. The
Corporation may pursue all of its available remedies at law and in
equity including, but not limited to, the repossession and sale of the
Property. No right or remedy conferred upon Corporation is exclusive of
any other right or remedy, but each shall be cumulative of every other
right or remedy given hereunder or now or hereafter existing at law or
in equity or by statute or otherwise, and may be enforced concurrently
therewith or from time to time; provided, however, that notwithstanding
any provisions to the contrary herein, Corporation shall not under any
circumstances have the right to accelerate the Rental Payments that
fall due in future rental periods or otherwise declare any Rental
Payments not then in default to be immediately due and payable.
SECTION 23. Non -Waiver. No covenant or condition to be
performed by Lessee under this Lease can be waived except by the
written consent of Corporation. Forbearance or indulgence by
Corporation in any regard whatsoever shall not constitute a waiver of
the covenant or condition in question. Until performance by Lessee of
said covenant or condition is complete, Corporation shall be entitled
to invoke any remedy available to Corporation under this Lease or by
law or in equity despite said forbearance or indulgence.
SECTION 24. Assignment. Without the prior written consent of
Corporation, Lessee shall not (a) assign, transfer, pledge, or
hypothecate this Lease, the Property, or any part thereof, or any
interest therein, or (b) sublet or lend the Property or any part
thereof, or permit the Property or any part thereof to be used in a
material way by anyone other than Lessee or Lessee's employees. Consent
to any of the foregoing prohibited acts applies only in the given
instance and is not a consent to any subsequent like act by Lessee or
any other person. Corporation shall not assign its obligations under
this Lease with the exception of its obligation to issue default
notices and its obligations pursuant to Section 28. Corporation may
assign its right, title and interest in this Lease, the Rental Payments
and other amounts due hereunder and the Property in whole or in part to
one or more assignees or subassignees at any time, without the consent
of Lessee. Any such assignment by Corporation or its assigns shally
comply with the requirements of Sections 5950-5955 of the California
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Government Code. No such assignment shall be effective as against
Lessee unless and until Corporation shall have filed with Lessee
written notice thereof. Lessee shall pay all Rental Payments hereunder
pursuant tb the direction of Corporation or the assignee named in the
most recent assignment or notice of assignment filed with Lessee.
During this Lease term, Lessee shall keep a complete and accurate
record of all such notices of assignment. Subject always to the
foregoing, this Lease inures to the benefit of, and is binding upon,
the heirs, legatees, personal representatives, successors, and assigns
of the parties hereto.
SECTION 25. Ownership. The Property is and shall at all times
be and remain the sole and exclusive property of Corporation, and
Lessee shall have no right, title, or interest therein or thereto
except as expressly set forth in Sections 27 and 28. Lessee shall take
all actions necessary to insure that legal title to the Property being
acquired by Lessee hereunder, whether by Lessee or by a third party
acting on behalf of Lessee, is vested in Corporation.
SECTION 26. Personal Property. The Property is and shall at all
times be and remain personal property notwithstanding that the Property
or any part thereof may now be or hereafter become in any manner
affixed or attached to or imbedded in, or permanently resting upon,
real property or any building thereon, or attached in any manner to
what is permanent by means of cement, plaster, nails, bolts, screws or
otherwise.
SECTION 27. Purchase Option. If Lessee is not in default of any
term, condition or payment specified hereunder, Lessee may exercise
options to prepay this Lease and purchase not less than all of the
Property in "as -is" and "where -is" condition on the specified dates and
for the specified amounts set forth in the Schedule annexed hereto.
Each purchase option payment specified for a particular date is
exclusive of the Rental Payment due on the same date.
SECTION 28. Release of Liens. Upon Lessee either making all of
the Rental Payments scheduled herein or making a purchase option
payment, Corporation, its successors or assigns shall cause i) legal
title to the Property to be transferred to Lessee and ii) the release
of all liens, encumbrances or security interests on the Property
created pursuant to Corporation's rights under this Lease.
SECTION 29. Earlv Termination. Upon written notice to the
Corporation given not later than thirty (30) days prior to the end of
any fiscal year of Lessee, Lessee may terminate this Lease in its
entirety as of .the end of that fiscal year based solely upon Lessee's
failure to appropriate funds for the subsequent years' Rental Payments
after exercising reasonable efforts to appropriate funds from any and
all of its legally available sources. Upon termination of this Lease
due to Lessee's failure to budget and appropriate funds, Lessee, at its
expense, shall redeliver the Property to the Corporation at a location
within the State of California designated by Corporation in
substantially as good a condition as when received, normal wear and
tear excepted. If Lessee terminates this Lease, Corporation may retain
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all amounts previously paid by Lessee and may collect and retain any
amounts due and unpaid to the end of Lessee's then current fiscal year.
Corporation shall remit to Lessee any proceeds from the subsequent sale
of the Property in excess of the then applicable purchase option price.
SECTION 30. Nonsubstitution. To the extent permitted by State
law, if this Lease is terminated by Lessee with respect to the Property
in accordance with Section 29, Lessee agrees not to purchase, lease or
rent personal property to perform the same function or functions taking
the place of, those performed by such Property and agrees not to permit
such functions to be performed by its own employees or by any agency or
entity affiliated with or hired by Lessee for a period of three hundred
sixty-five (365) days succeeding such termination; provided, however,
that these restrictions shall not be applicable in the event the
Property shall be sold by Corporation and the amount received from such
sale, less all costs of such sale, is sufficient to pay the then
applicable purchase option price relating thereto as set forth on the
Schedule; or if or to the extent that the application of these
restrictions is unlawful and would affect the validity of this Lease.
SECTION 31. Reports/Tax Covenants. Lessee shall cooperate with
Corporation to comply with any and all reporting requirements that may
be mandated by agencies of the United States of America or the State of
California, including the timely filing of IRS Form #8038-G or #8038 -
GC. Lessee covenants to Corporation that:
(a) Throughout the term of the Lease, the Property will be used
for performing one or more governmental functions consistent with the
permissible scope of Lessee's authority and will not be used in a trade
or business of any person or entity other than Lessee except for uses
by community services organizations as prescribed in the California
Government Code.
(b) Lessee will not take any action or omit to take any action
which action or omission, if reasonably expected on the date of this
Lease, would have caused this Lease to be an "arbitrage bond" within
the meaning of Section 148 of the Internal Revenue Code of 1986 (as
amended) (the "Code").
(c) The Rental Payments are not directly guaranteed or indirectly
guaranteed in whole or in part by the United States or any agency or
instrumentality of the United States so as to cause the Rental Payments
to be "federally guaranteed" within the meaning of Section 149(b) of
the Code.
(d) The Lease Proceeds used for reimbursement of prior
expenditures will be made pursuant to and in compliance with Income Tax
Regulations Section 1.150-2.
(e) Lessee hereby designates this Lease for purposes of paragraph
(3) of Section 265(b) of the Code and represents that not more than
$10,000,000 aggregate principal amount of obligations the interest on
which is excludable (under Section 103(a) of the Code) from gross
income for federal income tax purposes (excluding (i) private activity
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bonds, as defined in Section 141 of the Code, except qualified
501(c)(3) bonds as defined in Section 145 of the Code and (ii) current
refunding obligations to the extent the amount of the refunding
obligation does not exceed the outstanding amount of the refunded
obligation), including this Lease, has been or will be issued by
Lessee, including all subordinate entities of Lessee, during calendar
year 2000.
SECTION 32. Extraordinary Costs. In the case of litigation, the
prevailing party shall be entitled to recover from the opposing party
all costs and expenses, including attorneys' fees (which may be the
allocable cost of in-house counsel), incurred by the prevailing party
in exercising any of its rights or remedies hereunder or enforcing any
of the terms, conditions or provisions hereof.
SECTION 33. Severabilitv. If any provision of this Lease shall
be held invalid or unenforceable by a court of competent jurisdiction,
such holdings shall not invalidate or render unenforceable any other
provision of this Lease, unless elimination of such provision
materially alters the rights and obligations embodied in this Lease.
SECTION 34. Entire Aqreement. This Lease, the Schedule, and any
agreements that specifically refer to this Lease that are duly executed
by authorized agents of the parties hereto constitute the entire
agreement between Corporation and Lessee, and it shall not be further
amended, altered, or changed except by a written agreement that is
properly authorized and executed by the parties hereto.
SECTION 35. Notices. Service of all notices under this Lease
shall be sufficient if given personally or mailed to the party involved
at its respective address hereinafter set forth or at such address as
such party may provide in writing from time to time. Any such notice
mailed to such address shall be effective when deposited in the United
States mail, duly addressed and with postage prepaid.
SECTION 36. Titles. The titles to the Sections of this Lease
are solely for the convenience of the parties and are not an aid in the
interpretation thereof.
SECTION 37. Further Assurances and Corrective Instruments,.
Corporation and Lessee 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 be reasonably required for correcting any inadequate or incorrect
description of the Property hereby leased or intended so to be or for
carrying out the expressed intention of this Lease.
SECTION 38. Execution in Counterparts. This Lease may be
executed in several counterparts, each of which shall be original and
all of which shall constitute but one and the same instrument.
SECTION 39. Time. Time is of the essence in this Lease and each
and all of its provisions.
10
SECTION 40. Lease Interpretation. This Lease and the rights of
the parties hereunder shall be determined in accordance with the laws
of the State of California.
IN WITNESS WHEREOF, the parties hereto have caused their authorized
agents to execute this Lease on the dates specified below.
MUNICIPAL FINANCE CORPORATION
23945 Calabasas Road, Suite 103
Calabasas, CA 91302
(1 ssor)
By •`�jJ,,
Titlj MANAGER OF
AUMIIVIb I ht'
Date
/
CITY OF SAN RAFAEL
1400 Fifth Street
San Rafael, CA 94901
s
By
ROD GOULD
Title City Manaqer
Date March 20, 2000
11
—EASE SCHEDULE 400 -027 -AF
This Schedule is issued pursuant to the Lease with Option to Purchase
dated as of March 20, 2000 by and between the undersigned.
A. Property Location: Station 7
3530 Civic Center Dr.
San Rafael, CA 94903
B. Property Description: Fire Truck
C. Name and Address of Supplier(s):
SMEAL FIRE APPARATUS CO.
P. 0. Box 8
Highway 91 West
Snyder NE 68664
D. Financing Amount Summary:
Estimated Property Cost
(including related expenses): $500,750.00
Financing Amount: $500,750.00
E. Lease Term. The full term of this Schedule is thirty-six (36)
months commencing on the Lease Issuance Date and concluding thirty-six
(36) months thereafter. Upon closing, the Lease Issuance Date shall be
inserted in the following blank ( April 10, 2000 ) .
F. Rental Payments. Rental Payments for this Schedule are due in
three (3) consecutive annual payments in accordance with the Payment
Schedule herein. Each payment includes interest at the rate of 5.65%
per annum on the unpaid principal balance. The Financing Amount in
Section D represents the original principal balance.
G. Lease Acquisition Cost. The cost for Lessee to acquire the
Property over the full specified term of this Schedule is
$ 558,370.89
H. Payment Schedule:
Payable annually in arrears
#00 -027 -AF
PMT Due Date
(1) Rental
(2) Purchase
To
To
#
Payment
Option
Principal
Interest
1 04/10/01
$186,123.63
351, 491.72
$157,831.25
28,292.38
2 04/10/02
186, 123 .63
180, 574.28
166, 748 .72
19,374.91
3 04/10/03
186, 123 .63
0.00
176, 170.03
9,953.60
TOTALS: $558,_73 0.89 $500,750.00 $57.620.89
(1) Refer to the paragraph in the Lease entitled "Release of Liens"
(2) Refer to the paragraph in the Lease entitled "Purchase Option and
"Release of Liens." Purchase options are in addition to the rental
payment due on the same day.
Approved and agreed to:
MUNICIPAL FINANCE CORPORATION CITY OF SAN RAFAEL
(les or) ZD
By: 10D� By:
ADMINISTRATION qGOULD
Title: Title: Citv Manaaer
Date: Date: Date: March 20, 2000
NOTICE OF ASSIGNMENT #00 -027 -AF
MUNICIPAL FINANCE CORPORATION (the "Assignor") hereby gives notice to
CITY OF SAN RAFAEL (the "Lessee") of an assignment by Assignor over to
WESTAMERICA BANK, (the "Assignee") in which (i) Assignor assigns to
Assignee all of its rights, title and interest in and to that certain
Lease with Option to Purchase #00 -027 -AF dated as of March 20, 2000
(the "Lease") as it relates specifically to Lease Schedule #00 -027 -AF
annexed thereto; (ii) Assignor assigns to Assignee all of its rights
in and to the Rental Payments and other amounts due or coming due from
Lease Schedule #00 -027 -AF commencing with the first scheduled Rental
Payment; and (iii) Assignor assigns to Assignee all other payments or
amounts resulting from the Lease as it relates specifically to Lease
Schedule #00 -027 -AF. Lessee is instructed to pay and remit Rental
Payments to WESTAMERICA BANK, Credit Admin. Dept. (A -2D), P. 0. Box
1200, Suisun City, CA 94585-1200.
MUNICIPAL FINANCE CORPORATION
( signor)
By /
MANAGER OF
Title _ MAI s ATION
Date
ACKNOWLEDGMENT OF ASSIGNMENT
CITY OF SAN RAFAEL hereby acknowledges receipt of the Notice of
Assignment #00 -027 -AF by MUNICIPAL FINANCE CORPORATION assigning over
to WESTAMERICA BANK all right, title and interest in and to that
certain Lease with Option to Purchase #00 -027 -AF dated as of March 20,
2000 as it relates to Lease Schedule #00 -027 -AF, Rental Payments
coming due under Lease Schedule #00 -027 -AF commencing with the first
scheduled Rental Payment and all other amounts payable under the Lease
as it relates to Lease Schedule #00 -027 -AF.
CITY OF SAN RAFAEL
(Lessee)
By
iOD GOULD
Title City Manager
Date March 20, 2000
ARBITRAGE AND TAX CERTIFICATE #00 -027 -AF
The undersigned hereby certifies that he/she is a duly appointed
authorized agent, of the CITY OF SAN RAFAEL (the "Lessee"), for the
purpose of executing and delivering, on behalf of the Lessee, the
Lease with Option to Purchase dated March 20, 2000 (the "Lease"), by
and between MUNICIPAL FINANCE CORPORATION (the "Corporation") as
lessor and the Lessee as lessee. This Certificate is being issued
pursuant to Section 148 of the Internal Revenue Code of 1986 (the
"Code"), and Treasury Regulations, Sections 1.148-1 through 1.148-11
promulgated thereunder (the "Regulations"). The following facts,
estimates and circumstances are either in existence on the date of
this Arbitrage and Tax Certificate or are reasonably expected to occur
hereafter.
1. Under the Lease, the Corporation is required to acquire the
property described in the schedule attached to the Lease (the
"Property"), and to lease and sell the Property to the Lessee; and the
Lessee is required to lease and purchase the Property from Corporation
by making Rental Payments with respect thereto, comprising principal
and interest, on the dates and in the amounts set forth in the Lease.
2. On the date of Lease issuance, the Lessee will receive not
less than $500,750.00 from the Corporation. Such moneys will be
deposited with the Lessee and used, together with interest earnings
thereon, to pay the Property costs.
3. The Lessee on behalf of the Corporation, will proceed to
acquire and install the Property with due diligence and, based upon
the provisions of the purchase contracts, delivery and acceptance of
the Property is scheduled to occur on or before six months after the
date hereof but in no case later than three years from the date
hereof, and it is expected that all Lease proceeds will be spent by
such date.
4. The original proceeds of the Lease plus the interest earned
thereon, will not exceed by more than 5% the amount necessary for the
governmental purpose for which the Lease is issued.
5. The yield of the Lease, without taking into account costs of
issuance thereon, and on the basis of the initial reoffering price of
the Lease to the Assignee, is not less than 5.30000%.
6. No sinking fund will be maintained for the payment of the
Rental Payments due under the Lease.
7. The term of the Lease is not longer than is reasonably
necessary for the governmental purpose of the Lease, and the weighted
average maturity of the Lease does not exceed 120 percent of the
average reasonably expected economic life of the leased Property.
8. The Property has not been, and is not expected during the
term of the Lease, to be sold or otherwise disposed of by the Lessee.
9. The Lessee and its subordinate entities (as defined in the
Code) will not, in the aggregate, issue more than $5,000,000 of tax-
exempt obligations during calendar year 2000 and, thus, qualifies for
the arbitrage rebate exemption provided for in Section 148(f)(4)(c) of
the Code.
10. To the best of the knowledge and belief of the undersigned,
the expectations of the Lessee, as set forth above, are reasonable,
and there are no present facts, estimates and circumstances which
would change the foregoing expectations.
IN WITNESS WHEREOF, the party
agent to execute this Arbitrage
specified below.
CITY OF SAN RAFAEL
(lessee)
By or
-ROD GOULD
Title Citv Manaaer
hereto has caused its authorized
and Tax Certificate on the date
2
DESIGNATION OF QUALIFICATION #00 -027 -AF
This designation by the CITY OF SAN RAFAEL (the "Lessee") as lessee is
issued pursuant to that certain Lease with Option to Purchase
agreement dated March 20, 2000 (the "Lease") for the financing of
governmental use property.
The Lessee hereby designates the Lease as a qualified tax-exempt
obligation pursuant to Section 265(b) of the Internal Revenue Code of
1986 and the Lessee agrees that it will not designate more than
$10,000,000 of qualified tax-exempt obligations during calendar year
2000 pursuant to Section 265 (b) (3) (D) of the Code.
Further, the Lessee reasonably expects that the aggregate principal
amount of all tax-exempt obligations issued by the Lessee and its
subordinate entities will not exceed $10,000,000 for all of calendar
year 2000.
CITY OF SAN RAFAEL
(lessee)
By
ROD GOULD
Title Citv Manaaer
Date March 20, 2000
This designation was submitted to and approved by the Lessee's
governing body at a meeting duly held on March 20, 2000.
CERTIFICATE OF LESSEE
The undersigned, duly authorized representative of City of San Rafael
("Lessee") as lessee under that Lease with Option to Purchase #00 -027 -AF
dated as of March 20, 2000 ("Lease") with Municipal Finance Corporation
as lessor, hereby certifies as follows:
1. I hold the position noted below and have been duly authorized to
execute and deliver, on behalf of Lessee, the Lease and related
documents pursuant to a resolution adopted by Lessee's governing
body, an original or certified copy of which is attached hereto.
ROD GOULD
Name of Authorized Representative (Print or Type)
City Manager
Title (Print or Type)
2. Lessee has complied with all agreements and covenants and satisfied
all conditions contemplated by the Lease on its part to be performed
or satisfied on or before the date hereof.
3. The representations, warranties and covenants of Lessee contained in
the Lease are true and correct in all material respects as of the
date hereof, as if made on this date.
4. No litigation is pending or, to the best of my knowledge, threatened
(either in state or federal courts) (a) tb restrain or enjoin the
issuance and delivery of the Lease or the collection of revenues to
be used to meet Lessee's obligatioAs under the Lease; (b) in any way
contesting or affecting the authority for the execution or delivery
of the Lease, or the validity of the Lease; (c) in any way
contesting the existence or powers of Lessee, as such existence or
powers in any way relate to the issuance of the Lease or Lessee's
obligations under the Lease, or (d) could materially adversely
affect the financial position of Lessee.
S. The Property being leased pursuant to the Lease is essential to the
function of Lessee and is immediately needed by Lessee. Such need is
neither temporary nor expected to diminish during the Lease term.
The Property is expected to be used by Lessee for a period in excess
of the Lease term.
6. The scheduled Rental Payments for the Property do not exceed the
fair rental value of the Property.
The meaning of the capitalized
those provided in the Lease.
By ROD GOULD, City Manager
Date: March 20, 2000
terms in this Certificate are the same as
INCUMBENCY CERTIFICATE
CITY OF SAN RAFAEL
I do hereby certify that I am the duly appointed and acting
City Clerk of the City of San Rafael, a political subdivision validly
existing under the Constitution and laws of the State of California
(the "City"), and that, as of the date hereof, the individual named
below is the duly appointed officer of the City holding the office set
forth opposite his/her respective name. I further certify -that (i) the
signature set forth opposite his/her respective name and title is true
and authentic and (ii) such officer has the authority on behalf of the
City to enter into that certain Lease with Option to purchase #00 -027 -
AF dated March 20, 2000, between the City and Municipal Finance
Corporation, and all documents relating thereto.
Name Title Signature
ROD GOULD CITY MANAGER
IN WITNESS WHEREOF, I have duly executed this certificate and
of f ixed the seal of the City hereto this 4th day of APRIL ,
2000.
Ci clerk
(SEAL)