HomeMy WebLinkAbout5E OCRDate:
Subject:
From:
City Council Staff Report
February 11, 2021 NEW BUSINESS
APPROVAL OF FIVE-YEAR LEASE AGREEMENT WITH CAPITAL ONE
PUBLIC FUNDING LLC FOR ACQUISITION OF FOURTEEN FORD
INTERCEPTORS AND FIVE FORD EXPLORERS FOR THE POLICE
DEPARTMENT
David H. Ready, City Manager
Prepared by: Marcus L. Fuller, Assistant City Manager
SUMMARY
On January 28, 2021, the City Council authorized the lease-purchase of fourteen Ford
Interceptors and five Ford Explorers for the Police Department, and authorized the City
Manager to accept the financing terms offered by Capital One Public Funding LLC. The
term sheet requires the City to enter into the lease to purchase the vehicles by March
25, 2021. A copy of the Term Sheet is included as Attachment 1. This item will
complete the actions necessary to approve an Equipment Lease Purchase Agreement
with Capital One Public Funding.
Funding for the annual lease payments for the fourteen Ford Interceptors and five Ford
Explorers is budgeted and available in the Motor Vehicle Fund (Fund 510). No funding
for this action is required from the General Fund.
RECOMMENDATION:
Adopt Resolution No. __ , "A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF PALM SPRINGS, CALIFORNIA, AUTHORIZING THE EXECUTION AND
DELIVERY OF AN EQUIPMENT LEASE PURCHASE AGREEMENT, ESCROW
AGREEMENT AND CERTAIN RELATED DOCUMENTS WITH RESPECT TO
LEASING CERTAIN EQUIPMENT."
BUSINESS PRINCIPAL DISCLOSURE:
The lease agreement to finance the vehicles will be entered into with Capital One Public
Funding LLC. Capital One Public Funding LLC is a corporation and wholly-owned
subsidiary of Capital One, National Association, which is a wholly-owned subsidiary of
Capital One Financial Corporation, a Delaware Corporation. Capital One Financial
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2City Council Staff Report February 11, 2021 -Page 2 Approve Lease-Purchase Documents Corporation is a diversified financial services holding company with banking and non-banking subsidiaries, offering a broad array of financial products and services to consumers, small businesses and commercial clients. According to financial information from March 2020, the largest shareholder of Capital One Financial Corporation stock is an investor management fund, Dodge & Cox, with just under 9% of the company, followed by mutual fund operator The Vanguard Group Inc., with a reported 7.82% ownership. No individual owns 5% or more of Capital One Financial Corporation stock. An escrow agreement to hold the proceeds of the lease agreement while the Fire Attack Units are being constructed will be entered into with Capital One and BOKF, N.A. BOKF, N.A. is a corporation and wholly owned subsidiary of BOK Financial Corporation, a publicly traded bank holding company headquartered in Tulsa, Oklahoma. According to financial information from March 2020, the largest shareholder of BOK Financial Corporation stock is George Kaiser, with just under 55% of the company. No other individual owns 1 % or more of BOKF Financial Corporation stock. A copy of the Public Integrity Disclosure Form for 72 Hour LLC dba National Auto Fleet Group is included as Attachment 2. BACKGROUND: On January 28, 2021, the City Council authorized purchase of fourteen Ford Interceptors and five Ford Explorers from National Auto Fleet Group and authorized the City Manager to accept the terms for financing proposed by Capital One Public Funding LLC (Capital One) and return with financing documents for the City Council's approval at a subsequent meeting. The Police Department's fourteen existing patrol vehicles of varying ages and require replacement, as listed below. Unit# Vear Make/Model Mileage 200411 2011 Ford Crown Victoria 89,356 200711 2011 Ford Crown Victoria 84,943 200911 2011 Ford Crown Victoria CSO 95,646 201011 2011 Ford Crown Victoria 74,321 201211 2011 Ford Crown Victoria 98,716 2014 11 2011 Ford Crown Victoria 95,983 201511 2011 Ford Crown Victoria 100,995 202006 2006 Ford Crown Victoria 94,494 202408 2008 Ford Crown Victoria K9 86,664
3City Council Staff Report February 11, 2021 -Page 3 Approve Lease-Purchase Documents 202911 2011 203711 2011 203808 2008 204111 2011 204911 2011 208814 2014 208904 2004 Ford Crown Victoria 96,470 Ford Crown Victoria 57,993 Ford Crown Victoria K9 88,984 Ford Crown Victoria 95,096 Ford Crown Victoria K9 90,841 Ford Police Sedan 53,334 Ford Crown Victoria 88,888 These fourteen patrol vehicles will be declared surplus and replaced with the following new patrol vehicles: Make/Model Cost* (10) Ford Interceptor Utility Hybrid 10 X $54,600 Patrol Vehicles (3) Ford Interceptor Utility K-9 Unit 3 X $54,600 (1) Ford Interceptor CSO 1 X $54,600 Total Estimated Cost The Police Department also has five existing vehicles that are six to eight years old and require replacement, as listed below. Unit# Year Make/Model Mileage 2D0113 2013 Ford Explorer 168,254 2D0212 2012 Ford Fusion 132,919 2D0612 2012 Ford Fusion 123,085 2D1313 2013 Ford Fusion 137,846 2D1514 2014 Ford Fusion 116,651 These five vehicles will be declared surplus and replaced with the following new vehicles: Make/Model Cost* Ford Explorer XL T 5 X $38,000
4City Council Staff Report February 11, 2021 -Page 4 Approve Lease-Purchase Documents I Total Estimated Cost STAFF ANALYSIS: $257,500 In accordance with City Council's prior approval, the financial and legal documents relating to the lease-purchase of the fourteen Ford Interceptors and 5 Ford Explorers have been prepared for City Council's adoption. A resolution approving the execution of these agreements is recommended for approval. The City Council resolution approves the form of the following documents: • An Equipment Lease Purchase Agreement with Capital One Public Funding, LLC, which sets the financing amounts at $955,969.79, the interest rate at 1.50% and establishes the final term of March 1, 2026; and • An Escrow Agreement among Capital One, the City and BOKF, N.A, to hold the proceeds of the Equipment Lease Purchase Agreement while the Police Department Vehicles are on order and to pay the costs of issuance. The form of the Equipment Lease Purchase Agreement is included as Attachment 3. The form of the Escrow Agreement is included as Attachment 4. Alternate Fuel (CNG) Vehicle Policy Section VI of Resolution No. 18834 states: The Fleet Manager shall make eve,y effort to incorporate alternate fuel vehicles within the fleet via purchase or conversion. Whenever a vehicle is replaced, that is operationally suited for alternate fuel usage, there is a proven track record for the specific type of vehicle being replaced, and the specific "engine family" is approved for use in California by the California Air Resources Board, the bid shall include a comparison of gasoline/diesel equipment vs alternate fuel equipment. In accordance with this policy, the requested action includes purchase of fourteen new Ford Interceptor hybrid patrol vehicles. ENVIRONMENTAL IMPACT: The requested City Council action is not a "Project" as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a "Project" means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. According to Section 15378(b), a Project does not include: Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
5City Council Staff Report February 11, 2021 -Page 5 Approve Lease-Purchase Documents FISCAL IMPACT: Staff recommends the City Council authorize the financing of the initial cost of $940,969.79 for the 19 vehicles with Capital One for a 5-year term at an interest rate of 1.50%. The lease financing includes debt issuance cost of $15,000 for bond counsel, Financial Advisor, legal and escrow costs. The total amount to be financed is $955,969.79. The interest rate offered by Capital One is 1.50%, which results in annual debt payments of $199,686 for 5 years. The annual debt payments will be incorporated into the Fiscal Year 2021-2022 Motor Vehicle Fund budget for these types of lease payments. Marcus L. Fuller, MPA, P.E., P.L.S. Assistant City Manager Attachments: ~ J~ ~Reru0s~ City Manager 1. Capital One Public Funding Term Sheet 2. Business Disclosure Forms 3. Form of Equipment Lease Purchase Agreement 4. Form of Escrow Agreement 5. Resolution
6ATTACHMENT 1
7Capital ·· / Public Funding January 21, 2021 Suzanne Harrell s. harrel Vi:nharrcl I co.com Subject:. City of Palm Springs, Califomia Lease Purchase Agreement (the .. Loan") Dear Suzanne: This term sheet is presented in connection with our discussions regarding the above-referenced potential Loan transaction. Capital One Public Funding. LLC: r·COPF"') is very interested in working with City or Palm Springs, Califomia, ("Borrower") in connection with the above-described potential Loan transaction and arc pleased to present the follo,ving summary terms: Structure Eauioment lease-nun:hase between COPF. as lessor. and Borrower. as lessee. Estimated Amount $955.969.79 Use of Proceeds Finance the ourchase of various vehicles and related equipment. Security Pro,·isions / Security interest in eqmpment (lJCC filing). Lease payments subject to appropriation Repavment Sources Fixed Interest Rate 1.50% Payment Assumptions Approximately level semi-annual payments or principal and interest beginning 02/01/22: final maturity 02/01/26. The Loan will be payable in installments on the dates and in the amounts set forth on the payment schedule identil\ing payment dates, principal, interest and total payment due, which shall be attached to the lease. Call Pro,,isions Callable beginning 0'.!i0l/24 in whole at oar on anv interest oavment date. Tax Treatment Tax-exemot Interest Rate Assumptions The above-quoted interest rate is based upon the assumptions set forth above regarding average life and final maturity. Any changes from the assumptions may require an adjustment to the quoted rate. The rate may also be subject to change if the contemplated Loan is not closed by March 25, 2021. Documentation Loan documentation shall be prepared by COPF counsel subject to review by Borrower's counsel. Borrower shall provide. at its expense. an opinion of legal counsel (acceptable to COPF) attesting to the legal. valid, and binding nature of the transaction and the tax-exempt nature of the interest component of the Loan payments. Upon selection of COPF, the Borrower shall provide COPF the draft authorizing document for its review and comment. Costs of Issuance The Borrower shall be responsible for normal borrmNer costs of issuance including a financial advisor, placement agent and bond counsel. No fees will be due to COPF. which shall be responsible for the costs of its own legal review.
8Cap~-/Pubtic Funding Direct Purchase The Loan shall be directly funded/purchased by (and registered in the name ot) COPF and delivered in physical, non-book-entry. certificated form. The Loan shall not be (i) assigned a separate rating by any rating agency; (ii) registered with the Depository Trust Company or any other securities depository; (iii) issued pursuant to any type of official statement, private placement memorandum or other offering document; or (iv) assigned a CUSIP number. Audited Financial Statements Upon request, as soon as available. the Borrower shall send COPF a copy of its audited financial statements as of the end of the fiscal year. Municipal Advisor Rules This term sheet is provided to the Lessee pursuant to and in reliance upon the --bank exemption .. provided under the municipal advisor rules of the Securities and Exchange Commission, Rule 15Ba 1-1 seq. Role of Capital One Public Funding, LLC The Borrower acknowledges and agrees that: (i) the info1mation contained in this term sheet is for discussion purposes only and sets forth certain proposed terms and conditions of an arm's-length commercial transaction between the Borrower and COPF and docs not constitute advice, an opinion or a recommendation by COPF; (ii) the Borrower will make its own determination regarding whether to enter into the proposed transaction and the terms thereof, and will consult with and rely on the advice of its own financial, accounting, tax. legal and other advisors; (iii) COPF is acting solely for its own account in connection with the proposed transaction, and is not acting as a municipal advisor, financial advisor, agent or fiduciary to the Bo1Tower or any other person or entity (including to any financial advisor or placement agent engaged by the Borrower) and the Borrower, its financial advisor and placement agent are free to retain the services of such advisors (including as it relates to structure, timing, terms and similar matters and compliance with legal requirements applicable to such parties) as it deems necessary or appropriate; (iv) COPF has no fiduciary duty pursuant to Section l5B of the Securities Exchange Act of 1934 to the Bo1TOwer with respect to the transaction contemplated hereby and the discussions, undertakings and procedures leading thereto; (v) neither COPF nor any of its affiliates is acting as a broker. dealer, underwriter or placement agent with respect the transactions contemplated hereby; (vi) the only obligations COPF has to the Borrower with respect to the transaction contemplated hereby expressly are set forth in this tetm sheet; and (vii) COPF is not recommending that the Borrower take an action with respect to the transaction contemplated by this term sheet. Before taking any action with respect to the Loan, the Borrower should discuss the infb1mation contained herein with the Borrower's own legal, accounting, tax, financial and other advisors, as it deems appropriate. lf the Borrower would like a municipal advisor in this transaction that has legal fiduciary duties to it, Borrower is free to engage a municipal advisor to serve in that capacity. Other Information To the extent that updated financial and other credit materials have not already been provided to COPF or are not available through public resources. COPF may require and request the following: audited and unaudited financial statements; budgets; information on outstanding bond issues. lease transactions. and contingent/material liabilities; tax base details; and other reasonable and customary information relevant to the BorrO\ver's credit quality and the source of repa)ment. Confidcntialitv The information contained herein is strictly confidential and is intended for review by the parties, their advisors and legal counsel only and may not be disclosed to any other person or entity. except as required by law or otherwise consented to by COPF. City of Palm Springs, California Lease Purchase Agreement January 21, 2021 Page 2
9Closing Closing is anticipated to take place on March 25. 2021. This is not a commitment. rather, the funding of the Loan will occur only after. among other things, COPF, the Borrower, and their respective counsels are fully satisfied with the terms of the Loan documents and all of the tenns and conditions contained herein and in the Loan documents have been met. Term Sheet Expiration This te1m sheet shall expire if not accepted by the Borrower by January 29: 2021. Once accepted, this Term Sheet shall expire if the transaction bas not closed by March 25, 2021. unless extended by COPF at its sole discretion. Subiect to Final Credit Approval Specifically, but without limitation, this Term Sheet has not yet received all necessary internal and committee approvals of COPF. Any obligation of COPF to provide financing or othenvise shall arise only upon the execution of final Loan documents signed by authorized signatories of COPF and not from statements (oral or written) made during the course of discussions among the parties (whether or not prior to or after the date hereof). Should the above-stated terms be acceptable to you, formal approval through COPF's internal credit process will be pursued as quickly as possible. Thank you for the opportunity to offer this term sheet. Should you have any questions. please do not hesitate to contact me at 505.503.7629 or jeffrey.sharp@capitalone.com. Sincerely, / I h .) ' .... . ' .. \. . Jeffrey D. Sharp Senior Vice President, Director of Business Development Capital One Public Funding. LLC cc: Jonathan Lewis, Capital One Public Funding. LLC Brenda Barnes, Capital One Public Funding, LLC ~: .City of Palm Sprin s -..> ~ ~ By Name C;I-,, City of Palm Springs, California Lease Purchase Agreement APPROVED BY crrv COUNCIL P~0~5 oz i-Z&ll qity Cierk :Jtl."'. f ft171,..: .e....r lj,1·,;1[-<(,,-p-f'.>t-) L~ ~1 ( j;__ry., January 21, 2021 Page 3
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11ATTACHMENT 2 ~--·----
121. Name of Entity PUBLIC INTEGRITY DISCLOSURE APPLICANT DISCLOSURE FORM 2. Address of Entity (Principle Place of Business) 3. Local or California Address (if different than #2) ~.e o.s oJa,vc?--4. State where Entity is Registered with Secretary of State & hf 0rvti l<.. If other than California. is the Entity also reaistered in California? n Yes n No 5. Type of Entity C Corporation g_Umited Liability Company D Partnership D Trust D Other (please specify) 6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members. managers and other fiduciaries for the member, manager, trust or other entity ___ tv1_e_l_v_:.A __ c_.-.JO_~~-'---------~ Officer D Director D Member D Manager (name) D General Partner D limited Partner ! i Other ____________ _ _ ,._..( )-=e-==v"-"'6e::..-=---_· _Cou:_·---lfQ_'--e_r _________ ~~cer D Director D Member • Manager lname] O General Partner D Limited Partner LJ Other ____________ _ __________________ 0 Officer O Director D Member fl Manager {Revised 09 13 18) [name] LJ General Partner D Limited Partner 0 Other ______ ~------CITY OF PALM SPRINGS -PUBLIC INTEGRITY DISCLOSURE APPLICANT DISCLOSURE FORM Pagel of 2
137. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity EXAMPLE JANE DOE 50%, ABC COMPANY, Inc. [name of owner/investor) [percentage of beneficial interest in entity and name of entity] A. MeJv,vt Coo~c.:: 5oio , 1.l H~ llL-[name of ow~er/investorl [percentage of beneficial interest in entity and name of entity] B. J?tu Co,f.e.r 5U% t -:/ l. Jlt.XA,,. /_.,t,..C [name C:owner/investor] [percentage of beneficial interest in entity and name of entity] C. [name of owner/investor] {percentage of beneficial interest in entity and name of entity) D. [name of owner/investor] [percentage of beneficial interest in entity and name of entity] E. [name of owner/investor) [percentage of beneficial interest in entity and name of entity] I DECLARE UNDER PENAL TY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT. Signature of Disclo~~arty, Pnnted ~e, Title .,,...,,..-·'"7 d . / ~------·-··· Date 3/15 / !tt _///-p" ( ...----~--/>·~:.:./1/, --L_~~:.....1~<&d.f~.e_~.--A-~Y.~"';c.;...r __ __.__ ___________ __, (Revised 09 13.18) CITY OF PALM SPRINGS -PUBLIC INTEGRITY DISCLOSURE FORM APPLICANT DISCLOSURE FORM Page 2 of 2
14ATTACHMENT 3
15EQUIPMENT LEASE PuRCHASE AGREEMENT THIS EQUIPMENT LEASE PURCHASE AGREEMENT (the "Agreement"), is dated as of March 25, 2021, between CAPITAL ONE PUBLIC FUNDING, LLC, a limited liability company organized and existing under the laws of the State of New York, as Lessor ("Lessor"), and the CITY OF PALM SPRINGS, CALIFORNIA, a political subdivision existing under the laws of the State of California, as Lessee ("Lessee"), wherein the parties hereby agree as follows: Section 1. Definitions. The following terms will have the meanings indicated below unless the context clearly requires otherwise: "Agreement" means this Equipment Lease Purchase Agreement and any other schedule, exhibit or escrow agreement made a part hereof by the parties hereto, together with any amendments to this Agreement. "Code" means the Internal Revenue Code of 1986, as amended. "Commencement Date" is the date when the term of this Agreement and Lessee's obligation to pay rent commences, which date will be the earlier of (i) the date on which the Equipment is accepted by Lessee in the manner described in Section 13, or (ii) the date on which sufficient moneys to purchase the Equipment are deposited for that purpose with an escrow agent. "Equipment" means the property described on the Equipment Schedule attached hereto as Exhibit A, and all replacements, substitutions, repairs, restorations, modifications, attachments, accessions, additions and improvements thereof or thereto. "Event of Default" means an Event of Default described in Section 35. "Issuance Year" is the calendar year in which the Commencement Date occurs. "Lease Term" means the Original Term and all Renewal Terms, but ending on the occurrence of the earliest event specified in Section 6. "Lessee" means the entity described as such in the first paragraph of this Agreement, its successors and its assigns. "Lessor" means the entity described as such in the first paragraph of this Agreement, its successors and its assigns. "Maximum Lease Term" means the Original Term and all Renewal Terms through the Renewal Term including the last Rental Payment Date set forth on· the Payment Schedule. "Net Proceeds" means the amount remaining from the gross proceeds of any insurance claim or condemnation award after deducting all expenses (including attorneys' fees) incurred in the collection of such claim or award. "Original Term" means the period from the Commencement Date until the end of the fiscal year of Lessee in effect at the Commencement Date. "Payment Schedule" means the schedule of Rental Payments and Purchase Price set forth on Exhibit B. "Purchase Price" means the amount set forth on the Payment Schedule that Lessee may, at its option, pay to Lessor to purchase the Equipment. "Renewal Terms" means the optional renewal terms of this Agreement, each having a duration of one year and a term co-extensive with Lessee's fiscal year. "Rental Payment Dates" means the dates set forth on the Payment Schedule on which Rental Payments are due.
16"Rental Payments" means the basic rental payments payable by Lessee pursuant to Section 9. "State" means the State of California. "Vendor" means the manufacturer of the Equipment as well as the agents or dealers of the manufacturer from whom the Equipment is or has been purchased, as listed on Exhibit A. Section 2. Representations and Covenants of Lessee. Lessee represents, warrants and covenants for the benefit of Lessor as follows: (a) Lessee is a political subdivision duly organized and existing under the constitution and laws of the State. Lessee will do or cause to be done all things to preserve and keep in full force and effect its existence as a political subdivision. Lessee has a substantial amount of one or more of the following sovereign powers: (i) the power to tax, (ii) the power of eminent domain, and (iii) police power. (b) Lessee is authorized under the constitution and laws of the State to enter into this Agreement and the transaction contemplated hereby and to perform all of its obligations hereunder. (c) Lessee has been duly authorized to execute and deliver this Agreement by proper action and approval of its governing body at a meeting duly called, regularly convened and attended throughout by a requisite majority of the members thereof or by other appropriate official approval. (d) This Agreement constitutes the legal, valid and binding obligation of Lessee enforceable in accordance with its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally. (e) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the Commencement Date. (f) Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the current fiscal year to make the Rental Payments scheduled to come due during the Original Term and to meet its other obligations for the Original Term, and such funds have not been expended for other purposes. (g) Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the acquisition by Lessee of the Equipment hereunder. (h) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting Lessee to which Lessee is a party, nor to the best knowledge of Lessee is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the transactions contemplated by this Agreement or any other document, agreement or certificate which is used or contemplated for use in the consummation of the transactions contemplated by this Agreement or materially adversely affect the financial condition or properties of Lessee. (i) All authorizations, consents and approvals of governmental bodies or agencies required in connection with the execution and delivery by Lessee of this Agreement or in connection with the carrying out by Lessee of its obligations hereunder have been obtained. (j) The entering into and performance of this Agreement or any other document or agreement contemplated hereby to which Lessee is or is to be a party will not violate any judgment, order, law or regulation applicable to Lessee or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance on any assets of Lessee or the Equipment pursuant to any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which Lessee is a party or by which it or its assets may be bound, except as herein provided. -2-
17(k) The Equipment described in this Agreement is essential to the function of Lessee or to the service Lessee provides to its citizens. Lessee has an immediate need for, and expects to make immediate use of, substantially all the Equipment, which need is not temporary or expected to diminish in the foreseeable future. The Equipment will be used by Lessee only for the purpose of performing one or more of Lessee's governmental or proprietary functions consistent with the permissible scope of Lessee's authority. (1) Neither the payment of the Rental Payments hereunder nor any portion thereof is (i) secured by any interest in property used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code) or in payments in respect of such property or (ii) derived from payments in respect of property, or borrowed money, used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code). No portion of the Equipment will be used directly or indirectly in any trade or business carried on by any non-exempt person (within the meaning of Section 103 of the Code). (m) Lessee will comply with all applicable provisions of the Code, including without limitation Sections 103 and 148 thereof, and the applicable regulations of the Treasury Department to maintain the exclusion of the interest components of Rental Payments from gross income for purposes of federal income taxation. (n) Lessee will use the proceeds of this Agreement as soon as practicable and with all reasonable dispatch for the purpose for which this Agreement has been entered into. No part of the proceeds of this Agreement will be invested in any securities, obligations or other investments or used, at any time, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of issuance of this Agreement, would have caused any portion of this Agreement to be or become "arbitrage bonds" within the meaning of Section 103(b)(2) or Section 148 of the Code and the applicable regulations of the Treasury Department. (o) Lessee has never failed to pay payments coming due under any bond issue, lease purchase agreement or other indebtedness obligation of Lessee. (p) The useful life of the Equipment will not be less than the Maximum Lease Term. (q) The application, statements and credit or financial information submitted by Lessee to Lessor are true and correct and made to induce Lessor to enter into this Agreement and the escrow agreement, if any, and Lessee has experienced no material change in its financial condition since the date(s) of such information. (r) Lessee has provided Lessor with audited financial statements through June 30, 2020. Lessee has experienced no material change in its financial condition or in the revenues expected to be utilized to meet Rental Payments due under this Agreement since June 30, 2020. (s) Lessee shall pay the excess (if any) of the actual costs of acqumng the Equipment under the Agreement over the amount deposited by Lessor in the escrow fund, if any, established under any related escrow agreement and interest earnings thereon. Section 3. Certification as to Arbitrage. Lessee hereby represents as follows: (a) The estimated total costs of the Equipment, together with any costs of entering into this Agreement that are expected to be financed under this Agreement, will not be less than the total principal portion of the Rental Payments. (b) The Equipment has been ordered or is expected to be ordered within six months of the Commencement Date, and the Equipment is expected to be delivered and installed, and the Vendor fully paid, within eighteen months of the Commencement Date. (c) Lessee has not created or established, and does not expect to create or establish, any sinking fund or other similar fund (i) that is reasonably expected to be used to pay the Rental Payments, or (ii) that may be used solely to prevent a default in the payment of the Rental Payments. (d) The Equipment has not been and is not expected to be sold or otherwise disposed of by Lessee, either in whole or in major part, prior to the last maturity of the Rental Payments. -3-
18(e) To the best of our knowledge, information and belief, the above expectations are reasonable. Section 4. Lease of Equipment. Lessor hereby demises, leases and lets the Equipment to Lessee, and Lessee rents, leases and hires the Equipment from Lessor, in accordance with the -provisions of this Agreement, for the Lease Term. Section 5. Lease Term. The Original Term of this Agreement will commence on the Commencement Date and will terminate on the last day of Lessee's current fiscal year. The Lease Term may be continued, solely at the option of Lessee, at the end of the Original Tenn or any Renewal Tenn for an additional Renewal Term up to the Maximum Lease Term. At the end of the Original Tenn and at the end of each Renewal Tenn until the Maximum Lease Term has been completed, Lessee will be deemed to have exercised its option to continue this Agreement for the next Renewal Tenn unless Lessee has terminated this Agreement pursuant to Section 6 or Section 31. The terms and conditions during any Renewal Tenn will be the same as the terms and conditions during the Original Term, except that the Rental Payments will be as provided in the Payment Schedule. Section 6. Termination of Lease Term. The Lease Term will terminate upon the earliest of any of the following events: (a) the expiration of the Original Term or any Renewal Term of this Agreement and the nonrenewal of this Agreement in the event of nonappropriation of funds pursuant to Section 8; (b) the exercise by Lessee of the option to purchase the Equipment under the provisions of Section 31 and payment of the Purchase Price and all amounts payable in connection therewith; (c) a default by Lessee and Lessor's election to terminate this Agreement under Section 36; or (d) the payment by Lessee of all Rental Payments authorized or required to be paid by Lessee hereunder during the Maximum Lease Term. Section 7. Continuation of Lease Term. Lessee currently intends, subject to the provisions of Section 8 and Section 12, to continue the Lease Term through the Original Term and all of the Renewal Terms and to pay the Rental Payments hereunder. Lessee reasonably believes that legally available funds in an amount sufficient to make all Rental Payments during the Original Term and each of the Renewal Terms can be obtained. The responsible financial officer of Lessee will do all things lawfully within his or her power to obtain and maintain funds from which the Rental Payments may be made, including making provision for such Rental Payments to the extent necessary in each proposed annual budget submitted for approval in accordance with applicable procedures of Lessee and to exhaust all available reviews and appeals in the event such portion of the budget is not approved. Notwithstanding the foregoing, the decision whether or not to budget or appropriate funds or to extend this Agreement for any Renewal Term is solely within the discretion of the then current governing body of Lessee. Section 8. Nonappropriation. Lessee is obligated only to pay such Rental Payments under this Agreement as may lawfully be made from funds budgeted and appropriated for that purpose during Lessee's then current fiscal year. In the event sufficient funds will not be appropriated or are not otherwise legally available to pay the Rental Payments required to be paid in the next occurring Renewal Tenn, as set forth in the Payment Schedule, this Agreement will be deemed to be terminated at the end of the then current Original Term or Renewal Tenn. Lessee agrees to deliver notice to Lessor of such termination at least 90 days prior to the end of the then current Original Tenn or Renewal Tenn, but failure to give such notice will not extend the Lease Tenn beyond such Original Term or Renewal Term. If this Agreement is terminated in accordance with this Section, Lessee agrees, at Lessee's cost and expense, to peaceably deliver the Equipment to Lessor at the location or locations specified by Lessor. Section 9. Rental Payments. Lessee will pay Rental Payments, exclusively from legally available funds, in lawful money of the United States of America to Lessor in the amounts and on the dates set forth on the Payment Schedule, such payment to be made by wire or other form of electronic payment in accordance with written instructions provided by Lessor or, with Lessor's consent, by such other commercially reasonable method of payment. Rental Payments will be in consideration for Lessee's use of -4-
19the Equipment during the fiscal year in which such payments are due. Any Rental Payment not received on or before its due date will bear interest at the rate of 10% per annum or the maximum amount permitted by law, whichever is less, from its due date. In the event that it is determined that any of the interest components of Rental Payments may not be excluded from gross income for purposes of federal income taxation, Lessee agrees to pay to Lessor promptly after any such determination and on each Rental Payment Date thereafter an additional amount determined by Lessor to compensate Lessor for the loss of such excludability (including without limitation, compensation relating to interest expense, penalties or additions to tax), which determination shall be conclusive absent manifest error. Section 10. Interest Component. As set forth on the Payment Schedule, a portion of each Rental Payment is paid as, and represents payment of, interest. Section 11. Rental Payments To Be Unconditional. Except as provided in Section 8, the obligations of Lessee to make Rental Payments and to perform and observe the other covenants and agreements contained herein shall be absolute and unconditional in all events without abatement, diminution, deduction, set-off or defense, for any reason, including without limitation any failure by any Vendor to deliver or install the Equipment or otherwise perform any of its obligations for whatever reason, including bankruptcy, insolvency, reorganization or similar event with respect to any Vendor or under any Vendor agreement, disputes with Lessor or the Vendor of any of the Equipment, any defects, malfunctions, breakdowns or infirmities in the Equipment or any accident, condemnation or unforeseen circumstances. Section 12. Rental Payments to Constitute a Current Expense of Lessee. The obligation of Lessee to pay Rental Payments hereunder will constitute a current expense of Lessee, are from year to year and do not constitute a mandatory payment obligation of Lessee in any fiscal year beyond the then current fiscal year of Lessee. Lessee's obligation hereunder will not in any way be construed to be an indebtedness of Lessee in contravention of any applicable constitutional, charter or statutory limitation or requirement concerning the creation of indebtedness by Lessee, nor will anything contained herein constitute a pledge of the general credit, tax revenues, funds or moneys of Lessee. Section 13. Delivery, Installation and Acceptance of the Equipment. Lessee will order the Equipment, cause the Equipment to be delivered and installed at the location specified on Exhibit A and pay any and all delivery and installation costs in connection therewith. When the Equipment has been delivered and installed, Lessee will immediately accept the Equipment and evidence said acceptance by executing and delivering to Lessor an acceptance certificate in form and substance acceptable to Lessor. After it has been delivered and installed, the Equipment will not be primarily moved from the location specified on Exhibit A without Lessor's consent, which consent will not be unreasonably withheld. Section 14. Enjoyment of Equipment. Lessor hereby covenants to provide Lessee with quiet use and enjoyment of the Equipment during the Lease Term, and Lessee will peaceably and quietly have and hold and enjoy the Equipment during the Lease Term, without suit, trouble or hindrance from Lessor, except as otherwise expressly set forth in this Agreement. Section 15. Right of Inspection. Lessor will have the right at all reasonable times during regular business hours to enter into and upon the property of Lessee for the purpose of inspecting the Equipment. Section 16. Use of the Equipment. Lessee will not install, use, operate or maintain the Equipment improperly, carelessly, in violation of any applicable law or in a manner contrary to that contemplated by this Agreement. Lessee will obtain all permits and licenses, if any, necessary for the installation and operation of the Equipment. In addition, Lessee agrees to comply in all respects (including, without limitation, with respect to the use, maintenance and operation of each item of the Equipment) with all applicable laws, regulations and rulings of any legislative, executive, administrative or judicial body; provided, however, that Lessee may contest in good faith the validity or application of any such law, regulation or ruling in any reasonable manner that does not, in the opinion of Lessor, adversely affect the interest of Lessor in and to the Equipment or its interest or rights under this Agreement. -5-
20Section 17. Maintenance of Equipment. Lessee agrees that it will, at Lessee's own cost and expense, maintain, preserve and keep the Equipment in good repair, working order and condition. Lessor will have no responsibility to maintain, or repair or to make improvements or additions to the Equipment. If requested to do so by Lessor, Lessee will enter into a maintenance contract for the Equipment with Vendor. Section 18. Title to the Equipment. During the Lease Term, title to the Equipment and any and all additions, repairs, replacements or modifications will vest in Lessee, subject to the rights of Lessor under this Agreement; provided that title will thereafter immediately and without any action by Lessee vest in Lessor, and Lessee will immediately surrender possession of the Equipment to Lessor upon (a) any termination of this Agreement other than termination pursuant to Section 31 or (b) the occurrence of an Event of Default. It is the intent of the parties hereto that any transfer of title to Lessor pursuant to this Section will occur automatically without the necessity of any bill of sale, certificate of title or other instrument of conveyance. Lessee will, nevertheless, execute and deliver any such instruments as Lessor may request to evidence such transfer. Lessee irrevocably designates, makes, constitutes and appoints Lessor and its assignee as Lessee's true and lawful attorney (and agent in-fact) with power, at such time of termination or times thereafter as Lessor in its sole and absolute discretion may determine, in Lessee's or Lessor's or such assignee's name, to endorse the name of Lessee upon any bill of sale, document, instrument, invoice, freight bill, bill of lading or similar document relating to the Equipment in order to vest title in Lessor and transfer possession to Lessor. Section 19. Security Interest. To secure the payment of all of Lessee's obligations under this Agreement and to the extent permitted by law, Lessor retains a security interest constituting a first lien on the Equipment and on all additions, attachments and accessions thereto and substitutions therefor and proceeds therefrom. Lessee agrees to execute such additional documents in form satisfactory to Lessor, that Lessor deems necessary or appropriate to establish and maintain its security interest. Lessee agrees that financing statements may be filed with respect to the security interest in the Equipment. Lessee will, at Lessee's expense, file an applicati_on for and obtain the first certificate of title for any Equipment constituting a vehicle, designating Lessee as owner and Les·sor as first lienholder, and a certificate of registration issued in Lessee's name. Lessee will, at Lessee's expense, take such action as shall be necessary from time to time to avoid suspension or revocation of any certificates of title and to renew and maintain all certificates of registration. If Lessee is required to obtain any new certificate of title or of registration, Lessee will, at Lessee's expense and with written notice to Lessor of such action, obtain such new certificate of title or of registration in the form described above. Lessee will provide Lessor with all license, registration and vehicle identification numbers relating to each vehicle and will arrange for the registration and titling of all such vehicles. Lessee will notify Lessor of any changes to the certificate of registration or license plate within 10 days of such change. As further security therefor, Lessee grants to Lessor a first priority security interest in the cash and negotiable instruments from time to time comprising the escrow fund, if any, established under any related escrow agreement and all proceeds (cash and non-cash) thereof, and agrees with respect thereto that Lessor shall have all the rights and remedies of a secured party. Section 20. Personal Property. Lessor and Lessee agree that the Equipment is and will remain personal property. The Equipment will not be deemed to be affixed to or a part of the real estate on which it may be situated, notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner physically affixed or attached to such real estate or any building thereon. Upon the request of Lessor, Lessee will, at Lessee's expense, furnish a waiver of any interest in the Equipment from any party having an interest in any such real estate or building. Section 21. Liens, Taxes, Other. Governmental Charges and Utility Charges. Lessee will keep the Equipment free and clear of all liens, charges and encumbrances, except those created under this Agreement. The parties to this Agreement contemplate that the Equipment will be used for a governmental or proprietary purpose of Lessee and, therefore, that the Equipment will be exempt from all property taxes and other similar charges. If the use, possession or acquisition of the Equipment is found to be subject to taxation in any form, Lessee will pay all taxes and governmental charges lawfully assessed or levied against or with respect to the Equipment. Lessee will pay all utility and other charges incurred in the use and maintenance of the Equipment. Lessee will pay such taxes and charges as the same -6-
21become due; provided that, with respect to any such taxes and charges that may lawfully be paid in installments over a period of years, Lessee will be obligated to pay only such installments that accrue during the Lease Term. Section 22. Insurance. At its own expense, Lessee will maintain (a) casualty insurance insuring the Equipment against loss or damage by fire and all other risks covered by the standard extended coverage endorsement then in use in the State and any other risks reasonably required by Lessor in an amount at least equal to the then applicable Purchase Price of the Equipment, (b) liability insurance that protects Lessor from liability in all events in form and amount satisfactory to Lessor, and (c) workers' compensation coverage as required by the laws of the State; provided that, with Lessor's prior written consent, Lessee may self-insure against the risks described in clauses (a) and (b). All insurance proceeds from casualty losses will be payable as hereinafter provided. Lessee will furnish to Lessor certificates evidencing such coverage throughout the Lease Term. All such casualty and liability insurance will be with insurers that are acceptable to Lessor, will name Lessor as a loss payee and an additional insured and will contain a provision to the effect that such insurance will not be cancelled or modified materially without first giving written notice thereof to Lessor at least ten days in advance of such cancellation or modification. All such casualty insurance will contain a provision making any losses payable to Lessee and Lessor, as their respective interests may appear. Section 23. Advances. In the event Lessee fails to maintain the insurance required by this Agreement, pay taxes or charges required to be paid by it under this Agreement or fails to keep the Equipment in good repair and operating condition, Lessor may (but will be under no obligation to) purchase the required policies of insurance and pay the cost of the premiums on the thereof, pay such taxes and charges and make such Equipment repairs or replacements as are necessary and pay the cost thereof. All amounts so advanced by Lessor will become additional rent for the then current Original Term or Renewal Term. Lessee agrees to pay such amounts with interest thereon from the date paid at the rate of 10% per annum or the maximum permitted by law, whichever is less. Section 24. Financial Information. Upon request, Lessee shall furnish or cause to be furnished to Lessor, at Lessee's expense, as soon as available after the close of each fiscal year, the audited financial statement of Lessee at the close of and for such fiscal year, all in reasonable detail, with supporting schedules, audited by and with the report of Lessee's auditor (the "Audit"), which may be in electronic .pdf format. In the event the Audit is filed on the MSRB's "EMMA" website, to satisfy this requirement Lessee may email a link to the posted Audit to Lessor. The electronic Audit or EMMA link may be sent to the following email address (or such other address as Lessor supplies to Lessee in writing): Yvonne2.folev<Zvcapitalone.com (Yvonne Foley). In the event that the Audit is not available, Lessee will furnish unaudited financial statements to Lessor in the manner described in this Section, and will then supply the Audit immediately upon the availability thereof. Section 25. Release and Indemnification. To the extent permitted by law, Lessee will indemnify, protect and hold harmless Lessor from and against any and all liability, obligations, losses, claims and damages whatsoever, and expenses in connection therewith (including, without limitation, counsel fees and expenses and any federal income tax and interest and penalties connected therewith imposed on interest received) arising out of or as the result of (a) the entering into this Agreement, (b) the ownership of any item of the Equipment, (c) the manufacturing, ordering, acquisition, use, operation, condition, purchase, delivery, rejection, storage or return of any item of the Equipment, (d) any accident in connection with the operation, use, condition, possession, storage or return of any item of the Equipment resulting in damage to property or injury or death to any person or (e) the breach of any covenant herein or any material misrepresentation contained herein. The indemnification arising under this paragraph will continue in full force and effect notwithstanding the full payment of all obligations under this Agreement or the termination of the Lease Term for any reason. Section 26. Risk of Loss. Lessee assumes, from and including the Commencement Date, all risk of loss of or damage to the Equipment from any cause whatsoever. No such loss of or damage to the Equipment nor defect therein nor unfitness or obsolescence thereof will relieve Lessee of the obligation to make Rental Payments or to perform any other obligation under this Agreement. -7-
22Section 27. Damage, Destruction, Condemnation; Use of Proceeds. If (a) the Equipment or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other casualty, or (b) title to, or the temporary use of, the Equipment or any part thereof or the interest of Lessee or Lessor in the Equipment or any part thereof will be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, Lessee and Lessor will cause the Net Proceeds of any insurance claim or condemnation award to be applied to the prompt replacement, repair, restoration, modification or improvement of the Equipment, unless Lessee has exercised its option to purchase the Equipment pursuant to Section 31. Any balance of the Net Proceeds remaining after such work has been completed will be paid to Lessee. Section 28. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 27, Lessee will either (a) complete such replacement, repair, restoration, modification or improvement and pay any costs thereof in excess of the amount of the Net Proceeds, or (b) purchase Lessor's interest in the Equipment pursuant to Section 31. The amount of the Net Proceeds, if any, remaining after completing such repair, restoration, modification or improvement or after purchasing the Equipment will be retained by Lessee. If Lessee will make any payments pursuant to this Section, Lessee will not be entitled to any reimbursement therefor from Lessor nor will Lessee be entitled to any diminution of the amounts payable under Section 9. Section 29. Disclaimer of Warranties. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABIUTY OR FITNESS FOR PARTICULAR USE OR PURPOSE OF THE EQUIPMENT OR AGAINST INFRINGEMENT, OR ANY OTHER WARRANTY OR REPRESENTATION WITH RESPECT THERETO. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY ACTUAL, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE EXISTENCE, FURNISHING, FUNCTIONING OR LESSEE'S USE OR MAINTENANCE OF ANY EQUIPMENT OR SERVICES PROVIDED FOR IN THIS AGREEMENT. Section 30. Vendor's Warranties. Lessee may have rights under the contract evidencing the purcha·se of the Equipment; Lessee is advised to contact the Vendor for a description of any such rights. Lessee hereby assigns to Lessor during the Lease Term all warranties running from Vendor to Lessee. Lessor hereby irrevocably appoints Lessee its agent and attorney-in-fact during the Lease Term, so long as Lessee will not be in default hereunder, to assert from time to time whatever claims and rights (including without limitation warranties) related to the Equipment that Lessor may have against the Vendor. Lessee's sole remedy for the breach of any such warranty, indemnification or representation will be against the Vendor, and not against Lessor. Any such matter will not have any effect whatsoever on the rights and obligations of Lessor with respect to this Agreement, including the right to receive full and timely payments hereunder. Lessee expressly acknowledges that Lessor makes, and has made, no representations or warranties whatsoever as to the existence or availability of such warranties by the Vendor. Section 31. Purchase Option; Prepayment. (a) Lessee will have the option to purchase the Equipment, upon giving written notice to Lessor at least 30 days before the date of purchase, at the following times and upon the following terms: (i) On March 1, 2024 and any Rental Payment Date thereafter, upon payment in full of the Rental Payment then due hereunder plus all other amounts due hereunder plus the then-applicable Purchase Price to Lessor; or (ii) In the event of substantial damage to or destruction or condemnation (other than by Lessee or any entity controlled by or otherwise affiliated \vith Lessee) of substantially all of the Equipment, on the day Lessee specifies as the purchase date in Lessee's notice to Lessor of its exercise of the purchase option, upon payment in full of the Rental Payment and all other amounts then due hereunder plus (A) the Purchase Price designated on the Payment Schedule for such purchase date if such purchase date is a Rental Payment Date or the Purchase Price for the immediately preceding Rental Payment Date if such purchase date is not a Rental Payment Date, and (B) if such day is not a Rental Payment Date, an amount equal to the portion of the interest component of the Rental Payment scheduled to come due on the following Rental Payment Date accrued from the immediately preceding Rental Payment Date to such purchase date, computed on the basis of a 360-day year of twelve 30-day -8-
23months. If a Purchase Price is not listed for such date that Lessee has designated as the purchase date, the Purchase Price for that date shall be calculated as the Rental Payment then due at 100% of the then outstanding principal balance of the Lease. Upon the exercise of the option to purchase set forth above, title to the Equipment will be vested in Lessee, free and clear of any claim by or through Lessor. (b) In the event monies remain in any escrow fund established under an escrow agreement, upon receipt by the escrow agent under such escrow agreement of a duly executed certificate of acceptance and payment request identified as the final such request, the remaining monies in such escrow fund shall, first be applied to all reasonable fees and expenses incurred by such escrow agent, if applicable, in connection with such escrow fund as evidenced by its statement forwarded to Lessor and Lessee; and, second be paid to Lessor, for application against the outstanding principal components of Rental Payments, including prepayment of Rental Payments hereunder, unless Lessor directs that payment of such amount be made in such other manner that, in the opinion of nationally recognized counsel in the area of tax exempt municipal obligations satisfactory to Lessor, will not adversely affect the exclusion of the interest components of Rental Payments from gross income for federal income tax purposes. If any such amount is applied against the outstanding principal components of Rental Payments, the Payment Schedule attached hereto will be revised accordingly. Section 32. Determination of Fair Purchase Price. Lessee and Lessor hereby agree and determine that the Rental Payments hereunder during the Original Term and each Renewal Term represent the fair value of the use of the Equipment and that the amount required to exercise Lessee's option to purchase the Equipment pursuant to Section 31 represents, as of the end of the Original Term or any Renewal Term, the fair purchase price of the Equipment. Lessee hereby determines that the Rental Payments do not exceed a reasonable amount so as to place Lessee under a practical economic compulsion to renew this Agreement or to exercise its option to purchase the Equipment hereunder. In making such determinations, Lessee and Lessor have given consideration to (a) the costs of the Equipment, (b) the uses and purposes for which the Equipment will be employed by Lessee, (c) the benefit to Lessee by reason of the acquisition and installation of the Equipment and the use of the Equipment pursuant to the terms and provisions of this Agreement, and (d) Lessee's option to purchase the Equipment. Lessee hereby determines and declares that the acquisition and installation of the Equipment and the leasing of the Equipment pursuant to this Agreement will result in equipment of comparable quality and meeting the same requirements and standards as would be necessary if the acquisition and installation of the Equipment were performed by Lessee other than pursuant to this Agreement. Lessee hereby determines and declares that the Maximum Lease Term does not exceed the useful life of the Equipment. Section 33. Assignment by Lessor. Lessor's interest in, to and under this Agreement and the Equipment may be assigned and reassigned in whole or in part to one or more assignees by Lessor without the necessity of obtaining the consent of Lessee; and such assignment, transfer or conveyance shall be made only to (i) an affiliate of Lessor or (ii) banks, insurance companies or other financial institutions or their affiliates, but no such assignment, transfer or conveyance shall be effective as against Lessee unless and until Lessor has delivered to Lessee written notice thereof that discloses the name(s) and address(es) of the assignee(s) or the Lease Servicer (as hereafter provided). Nothing herein shall limit the right of Lessor or its assignees to sell, assign or grant participation interests in this Agreement to one or more entities listed in (i) or (ii); provided that if such assignment is made pursuant to a participation, custodial or similar agreement under which multiple ownership interests in this Agreement are created, it shall establish a single entity, owner, servicer or other fiduciary or agent to act on behalf of all of the holders of such participation interests (herein referred to as the "Lease Servicer") with respect to the rights and interests of such holders hereunder, including the exercise of rights and remedies thereunder upon the occurrence of an event of default or an event of non-appropriation, and further including the maintenance of a register by which a record of the names and addresses of such holders as of any particular time is kept and agrees, upon request of Lessee, to furnish such information to Lessee. Lessee will retain all notices of assignment as a register of all assignees and will make all payments to the assignee, assignees or Lease Servicer designated in such register. Lessee agrees to execute all documents, including notices of assignment and chattel mortgages or financing statements that may be reasonably requested by Lessor or any assignee to protect its interest in the Equipment and in this Agreement and agrees to the filing of financing statements with respect to the -9-
24Equipment and this Agreement. Lessee will not have the right to and will not assert against any assignee any claim, counterclaim, defense, set-off or other right Lessee may have against Lessor. Section 34. Assignment and Subleasing by Lessee. None of Lessee's right, title and interest in, to and under this Agreement and the Equipment may be assigned or encumbered by Lessee for any reason, except that Lessee may sublease all or part of the Equipment if Lessee obtains the prior written consent of Lessor and an opinion of nationally recognized counsel in the area of tax exempt municipal obligations satisfactory to Lessor that such subleasing will not adversely affect the exclusion of the interest components of the Rental Payments from gross income for federal income tax purposes. Any such sublease of all or part of the Equipment will be subject to this Agreement and the rights of Lessor in, to and under this Agreement and the Equipment. Section 35. Events of Default Defined. Subject to the provisions of Section 8, any of the following will be "Events of Default" under this Agreement: (a) Failure by Lessee to pay any Rental Payment or other payment required to be paid hereunder at the time specified herein; (b) Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred to in Section 35(a), for a period of 30 days after written notice, specifying such failure and requesting that it be remedied, is given to Lessee by Lessor, unless Lessor will agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected; (c) Any statement, representation or warranty made by Lessee in or pursuant to this Agreement or its execution, delivery or performance will prove to have been false, incorrect, misleading or breached in any material respect on the date when made; (d) Any provision of this Agreement will at any time for any reason cease to be valid and binding on Lessee, or will be declared to be null and void, or the validity or enforceability thereof will be contested by Lessee or any governmental agency or authority if the loss of such provision would materially adversely affect the rights or security of Lessor, or Lessee will deny that it has any further liability or obligation under this Agreement; (e) Lessee will (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be unable, fail or admit in writing its inability generally to pay its debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) have an order for relief entered against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors or taking advantage of any insolvency law or any answer admitting the material allegations of a petition filed against Lessee in any bankruptcy, reorganization or insolvency proceeding; or (f) An order, judgment or decree will be entered by any court of competent jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator of Lessee or of all or a substantial part of the assets of Lessee, in each case without its application, approval or consent, and such order, judgment or decree will continue unstayed and in effect for any period of 30 consecutive days. Section 36. Remedies on Default. Whenever any Event of Default exists, Lessor will have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps: (a) By written notice to Lessee, Lessor may declare all Rental Payments and other amounts payable by Lessee hereunder to the end of the then current Original Term or Renewal Term to be due; (b) With or without terminating this Agreement, Lessor may enter the premises where the Equipment is located and retake possession of the Equipment or require Lessee at Lessee's expense to promptly return any or all of the Equipment to the possession of Lessor at a place specified by Lessor, and sell or lease the -10-
25Equipment or, for the account of Lessee, sublease the Equipment, holding Lessee liable for the difference between (i) the Rental Payments and other amounts payable by Lessee hereunder plus the applicable Purchase Price, and (ii) the net proceeds of any such sale, lease or sublease (after deducting all expenses of Lessor in exercising its remedies under this Agreement, including without limitation, all expenses of taking possession, storing, reconditioning and selling or leasing the Equipment and all brokerage, auctioneers' and attorneys' fees) provided that the amount of Lessee's liability under this subparagraph (b) shall not exceed the Rental Payments and other amounts otherwise due hereunder plus the remaining Rental Payments and other amounts payable by Lessee to the end of the then current Original Term or Renewal Term; (c) Lessor may provide written notice of the occurrence of an Event of Default to the escrow agent under any related escrow agreement, and the escrow agent shall thereupon promptly remit to Lessor the entire balance of the escrow fund established thereunder; and (d) Lessor may take whatever other action at law or in equity may appear necessary or desirable to enforce its rights as the owner of the Equipment. In addition, Lessee will remain liable for all covenants and indemnities under this Agreement and for all legal fees and other costs and expenses, including court costs, incurred by Lessor with respect to the enforcement of any of the remedies listed above or any other remedy available to Lessor. Section 37. No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy will be cumulative and will be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default will impair any such right or power or will be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor to exercise any remedy reserved to it in this Agreement it will not be necessary to give any notice, other than such notice as may be required in this Agreement. Section 38. Notices. All notices, certificates or other communications hereunder will be sufficiently given and will be deemed given when delivered or mailed by registered mail, postage prepaid, to the parties at the addresses immediately after the signatures to this Agreement (or at such other address as either party hereto will designate in writing to the other for notices to such party), to any assignee at its address as it appears on the register maintained by Lessee. Section 39. Binding Effect. This Agreement will inure to the benefit of and will be binding upon Lessor and Lessee and their respective successors and assigns. Section 40. Severability. In the event any provision of this Agreement will be held invalid or unenforceable by any court of competent jurisdiction, such holding will not invalidate or render unenforceable any other provision hereof. Section 41. Entire Agreement. This Agreement constitutes the entire agreement between Lessor and Lessee. Section 42. Amendments. This Agreement may be amended, changed or modified in any manner by written agreement of Lessor and Lessee. Any waiver of any provision of this Agreement or any right or remedy hereunder must be affirmatively and expressly made in writing and will not be implied from inaction, course of dealing or otherwise. Section 43. Execution in Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which will be an original and all of which will constitute but one and the same instrument. Section 44. Captions. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement. -11-
26Section 45. Applicable Law. This Agreement \\iill be governed by and construed in accordance with the laws of the State. Section 46. Electronic Transactions. The parties agree that the transaction described herein may be conducted and related documents may be stored by electronic means. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be authentic and valid counterparts of such original documents for all purposes, including the filing of any claim, action or suit in the appropriate court of law. Section 47. Lessee's Notice Filings Related to this Agreement for SEC Rule 15c2-12. In connection with Lessee's compliance with any continuing disclosure undertakings (each, a "Continuing Disclosure Agreement") entered into by Lessee on and after February 27, 2019, pursuant to SEC Rule 15c2-12 promulgated pursuant to the Securities and Exchange Act of 1934, as amended (the "Rule"), Lessor acknowledges that Lessee may be required to file with the Municipal Securities Rulemaking Board's Electronic Municipal Market Access system, or its successor ("EMMA"), notice that Lessee has incurred obligations under this Agreement and notice of certain subsequent events reflecting financial difficulties in connection with this Agreement. Lessee agrees that it shall not file or submit, or permit to be filed or submitted, with EMMA any documentation that includes the following unredacted sensitive or confidential information about Lessor or its affiliates: address and account information of Lessor or its affiliate, e-mail addresses, telephone numbers, fax numbers, names and signatures of officers, employees and signatories of Lessor or its affiliates, or any account information for any related escrow agreement, unless otherwise required for compliance with the Rule or otherwise required by law. Lessee acknowledges that Lessor is not responsible for Lessee's compliance or noncompliance with the Rule or any Continuing Disclosure Agreement. [Signature page follows.] -12-
27IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in their corporate names by their duly authorized officers as of the date first above written. Approved as to Form: City Attorney Approved as to Form: Municipal Advisor CAPITAL ONE PUBLIC FUNDING, LLC By: Name: Catherine DeLuca Title: Vice President Address: 1307 Walt Whitman Road, 3rd Floor Melville, NY 11747 CITY OF PALM SPRINGS, CALIFORNIA By: Name: David H. Ready Title: Interim City Manager Address: 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 CERTIFICATION I, the undersigned, do hereby certify (i) that the officer of Lessee who executed the foregoing Agreement on behalf of Lessee and whose genuine signature appears thereon, is the duly qualified and acting officer of Lessee as stated beneath his or her signature and has been authorized to execute the foregoing Agreement on behalf of Lessee, and (ii) that the fiscal year of Lessee is from July 1 to June 30. DATED: March 25, 2021. By: _____________ _ Name: Anthony J. Mejia, MMC Title: City Clerk -13-
28EXHIBIT A To EQUIPMENT LEASE PuRCHASE AGREEMENT EQUIPMENT SCHEDULE Equipment Description: The Equipment consists of various vehicles and related equipment for use by Lessee, together with any and all substitutions, replacements or exchanges therefor, and any and all insurance and/or proceeds thereof. Equipment Location: The Equipment will be primarily located at the following address: 200 S. Civic Drive Palm Springs, CA 92262 Vendor: The Vendor is National Auto Fleet Group. This Equipment Schedule shall be deemed to be supplemented by the descriptions of the Equipment included in the Certificate of Acceptance and Payment Requests submitted to BOKF, N.A., as escrow agent, pursuant to the Escrow Agreement dated as of March 25, 2021, among Lessor, Lessee and BOKF, N.A., as escrow agent, which descriptions shall be deemed to be incorporated herein. A-1
29EXHIBIT B To EQUIPMENT LEASE PuRCHASE AGREEMENT PAYMENT SCHEDULE Principal Amount: $955,969.79 Interest Rate: 1.50% Rental payments will be made in accordance with Section 9 and this Payment Schedule. Rental Total Interest Principal Purchase Payment Date Rental Payment Portion Portion Price* 03/01/2022 $199,686.15 $13,383.58 $186,302.57 N/A 03/01/2023 199,686.15 11,545.01 188,141.14 N/A 03/01/2024 199,686.15 8,722.89 190,963.26 $390,562.82 03/01/2025 199,686.15 5,858.44 193,827.70 196,735.12 03/01/2026 1991686.15 21951.03 1961735.12 0.00 Totals $998,430.74 $42!460.95 $955!969.79 CITY OF PALM SPRINGS, CALIFORNIA By: Name: David H. Ready Title: Interim City Manager Approved as to Form: City Attorney Approved as to Form: Municipal Advisor * Lessee's option to purchase is subject to provisions of Section 31 of the Agreement. B-1
30ATTACHMENT 4 ------------
31LESSOR: Capital One Public Funding, LLC 1307 Walt Whitman Road, 3rd Floor Melville, NY 11747 LESSEE: City of Palm Springs, California 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 ESCROW AGREEMENT ESCROW AGENT: BOKF, N.A. 200 N. Broadway, Suite 1710 St. Louis, MO 63102 Attention: Corporate Trust Department THIS ESCROW AGREEMENT (this ''Escrow Agreement") dated March 25, 2021 is entered into by and among Capital One Public Funding, LLC ("Lessor"), the City of Palm Springs, California ("Lessee"), and BOKF, N.A. (the "Escrow Agent"). Lessor and Lessee have heretofore entered into that certain Equipment Lease Purchase Agreement dated March 25, 2021 (the "Agreement"). The Agreement contemplates that certain Equipment described therein (the "Equipment") is to be acquired from the vendor(s) or manufacturer(s) thereof. After acceptance of the Equipment by Lessee, the Equipment is to be leased by Lessor to Lessee pursuant to the terms of the Agreement. The Agreement contemplates that Lessor will deposit with the Escrow Agent cash in the amount of $955,969.79, to be held in escrow by the Escrow Agent and applied on the express terms and conditions set forth herein. Such deposit, together with all interest and additions received with respect thereto (hereinafter, the "Escrow Fund"), is to be applied from time to time to pay certain costs of acquiring the Equipment (a portion of which may, if required, be paid prior to final acceptance of the Equipment by Lessee) and to pay certain costs of entering into the Agreement. The parties desire to set forth the terms on which the escrow is to be created and to establish the rights and responsibilities of the parties hereto. NOW, THEREFORE, the parties agree as follows: 1. The Escrow Agent hereby agrees to serve as escrow agent upon the terms and conditions set forth herein. The Escrow Agent agrees that the Escrow Fund shall be held irrevocably in trust for the account and benefit of Lessee and Lessor and all interest earned with respect to the Escrow Fund shall accrue to the benefit of Lessee and shall be applied as expressly set forth herein. To the limited extent required to perfect the security interest granted by Lessee to Lessor in the cash and negotiable instruments from time to time comprising the Escrow Fund, Lessor hereby appoints the Escrow Agent as its security agent, and the Escrow Agent hereby accepts the appointment as security agent, and agrees to hold physical possession of such cash and negotiable instruments on behalf of Lessor. 2. On such day as determined to the mutual satisfaction of the parties (the "Commencement Date"), Lessor shall deposit with the Escrow Agent cash in the amount of $955,969.79 to be held by the Escrow Agent on the express terms and conditions set forth herein. The Escrow Agent agrees to accept the deposit of the Escrow Fund by Lessor, and further agrees to hold the amount so deposited together with all interest and other additions received with respect thereto in escrow on the express terms and conditions set forth herein. 3. The Escrow Agent shall at all times segregate the Escrow Fund into an account maintained for that express purpose, which shall be clearly identified on the books and records of the Escrow Agent as being held in its capacity as Escrow Agent. Securities and other negotiable instruments comprising the Escrow Fund from time to time shall be held or registered in the name of the Escrow Agent (or its
32nominee). The Escrow Fund shall not, to the extent permitted by applicable law, be subject to levy or attachment or lien by or for the benefit of any creditor of any of the parties hereto (except with respect to the security interest therein held by Lessor). 4. Lessee hereby directs the Escrow Agent to invest the cash comprising the Escrow Fund from time to time in Qualified Investments (as hereinafter defined). Interest or other amounts earned and received by the Escrow Agent with respect to the Escrow Fund shall be deposited in and comprise a part of the Escrow Fund. No investment shall be made that would cause the Agreement to be deemed to be an arbitrage bond within the meaning of Section 148(a) of the Internal Revenue Code of 1986, as amended. For the purpose of this paragraph 4, the term "Qualified Investments" means the Federated Treasury Obligation Fund (TOTXX) or, in the event such fund is not at the time available, such other investments as Lessee may specify in writing, to the extent the same are at the time legal for investment of the funds being invested. 5. Lessor and Lessee hereby authorize the Escrow Agent to take the following actions with respect to the Escrow Fund: a. From time to time, the Escrow Agent shall pay the vendor or manufacturer of the Equipment or Lessee or other payee upon receipt of the following: (a) a written request from Lessee (a "Certificate of Acceptance and Payment Request" in the form attached as Exhibit A to this Escrow Agreement duly executed by an Authorized Lessee Representative and approved for payment by Lessor by an Authorized Lessor Representative, (b) the vendor(s) or manufacturer(s) invoice(s) specifying the acquisition price of the Equipment described in the requisition request, (c) in the event that certain costs of entering into this Agreement are described in the requisition request, invoice(s) or other evidence specifying the amount(s) of such costs, and (d) any additional documentation required by Lessor. The Escrow Agent has no duty to ascertain the correctness of any documents submitted in connection with any direction to disburse funds. An "Authorized Lessee Representative" shall be a person designated in the Incumbency Certificate attached hereto as Exhibit B, or on a subsequent Incumbency Certificate of Lessee received and acknowledged by Lessor and the Escrow Agent. An "Authorized Lessor Representative" shall be a person designated in the Certificate of Authorized Lessor Representatives" attached hereto as Exhibit C. Without limiting the foregoing, Lessor shall not be required to approve any such payment unless and until Lessee shall have provided or caused to be provided to Lessor (i) certificates of origin for titled vehicles in accordance with Section 19 of the Agreement and satisfactory to Lessor and (ii) certificates of insurance evidencing coverage in accordance with Section 22 of the Agreement and satisfactory to Lessor. b. Upon receipt of a Certificate of Acceptance and Payment Request for payment of funds from the Escrow Fund, Lessor and the Escrow Agent may, but are not required to seek confirmation of such instructions by telephone call-back to any Authorized Lessee Representative designated on Exhibit B hereto, and Lessor and the Escrow Agent may rely upon the confirmations of anyone purporting to be such Authorized Lessee Representative. Notwithstanding the foregoing, Lessee agrees that neither the Escrow Agent nor the Lessor shall have a duty to seek such confirmation, and shall have no liability for disbursement in accordance with the instructions contained in any Certificate of Acceptance and Payment Request submitted with signature of an Authorized Lessee Representative. The Escrow Agent shall confirm any Certificate of Acceptance and Payment Request by telephone call-back to the person or persons designated for verifying such draw requests on Exhibit C (such person verifying the request shall be different than the person initiating the request). Lessor and Lessee hereby confirm that any call-back performed by the Escrow Agent to verify a disbursement instruction pursuant to a Certificate of Acceptance and Payment Request submitted pursuant to this Section before release shall be made to Lessor only and the Escrow Agent shall have no obligation to call-back Lessee. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Lessor and the Escrow Agent. The parties to this Escrow Agreement acknowledge that such security procedure is commercially reasonable. c. It is understood that Lessor, the Escrow Agent and the beneficiary's bank in any funds transfer may rely solely upon any account numbers or similar identifying number provided by any party hereto to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii) an intermediary bank. -2-
33d. In the event that Lessor provides to the Escrow Agent written notice of the occurrence of an Event of Default or nonappropriation by Lessee under the Agreement, the Escrow Agent shall thereupon promptly remit to Lessor the entire balance of the Escrow Fund. e. Upon receipt by the Escrow Agent of a duly executed Certificate of Acceptance and Payment Request identified as the final such request, the remaining monies in the Escrow Fund shall, first be applied to all reasonable fees and expenses incurred by the Escrow Agent in connection herewith as evidenced by its statement forwarded to Lessor and Lessee; and, second be paid to Lessor, for application against the outstanding principal components of Rental Payments (as defined in the Agreement) under the Lease, as provided therein, unless Lessor directs that payment of such amount be made in such other manner directed by Lessor that, in the opinion of nationally recognized counsel in the area of tax-exempt municipal obligations satisfactory to Lessor, will not adversely affect the exclusion of the interest components of Rental Payments from gross income for federal income tax purposes. If any such amount is used to prepay principal, the Payment Schedule attached to the Agreement will be revised accordingly as specified by Lessor. 6. The reasonable fees and expenses of the Escrow Agent incurred in connection herewith shall be the responsibility of Lessor and are herein defined as the sum of $1,200, for escrow services as described herein; plus any extraordinary expenses incurred by the Escrow Agent at the request of Lessor or Lessee. 7. The Escrow Agent shall have no liability for acting upon any written instruction presented by Lessee and Lessor in connection with this Escrow Agreement which the Escrow Agent in good faith believes to be genuine. Furthermore, the Escrow Agent shall not be liable for any act or omission in connection with this Escrow Agreement except for its own gross negligence, willful misconduct or bad faith. The Escrow Agent shall not be liable for any loss or diminution in value of the Escrow Fund as a result of the investment decisions made pursuant to Section 4, Qualified Investments at the direction of Lessee. 8. To the extent authorized by law, Lessee hereby agrees to indemnify and save the Escrow Agent harmless against any liabilities which it may incur in the exercise and performance of its powers and duties hereunder and which are not due to the Escrow Agent's gross negligence or willful misconduct. No indemnification will be made under this Section or elsewhere in this Escrow Agreement for damages arising solely out of gross negligence, willful misconduct or bad faith by the Escrow Agent, its officers, agents, employees, successors or assigns. 9. The Escrow Agent may at any time resign by giving at least 30 days' prior written notice to Lessee and Lessor, but such resignation shall not take effect until the appointment of the successor Escrow Agent. The substitution of another bank or trust company to act as Escrow Agent under this Escrow Agreement may occur by written agreement of Lessor and Lessee. In addition, the Escrow Agent may be removed at any time, with or without cause, by instrument in writing executed by Lessor and Lessee. Such notice shall set forth the effective date of the removal. In the event of any resignation or removal of the Escrow Agent, a successor Escrow Agent shall be appointed by an instrument in writing executed by Lessor and Lessee. Such successor Escrow Agent shall indicate its acceptance of such appointment by an instrument in writing delivered to Lessor, Lessee and the predecessor Escrow Agent. Upon the effective date of resignation or removal, the Escrow Agent will transfer the Escrow Fund then held by it to the successor Escrow Agent selected by Lessor and Lessee. 10. This Escrow Agreement and the Escrow Fund established hereunder shall terminate upon receipt by the Escrow Agent of the written notice from Lessor specified in Section S(d) or Section S(e) hereof. 11. All notices hereunder shall be in writing, sent by certified mail, return receipt requested, or by mutually recognized overnight carrier addressed to the other party at its respective address shown on page 1 of this Escrow Agreement or at such other address as such party shall from time to time designate in writing to the other parties; and shall be effective on the date or receipt. -3-
3412. This Escrow Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns. No rights or obligations of the Escrow Agent under this Escrow Agreement may be assigned without the prior written consent of Lessor and Lessee. Lessor may at any time assign it rights, duties and obligations hereunder to an assignee who shall thereafter become the Lessor under this Escrow Agreement. 13. This Escrow Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and no waiver, consent, modification or change of terms hereof shall bind any party unless in writing signed by all parties. 14. The Escrow Agent may employ agents, attorneys and accountants in connection with its duties hereunder and shall not be liable for any action taken or omitted in good faith in accordance with the advice of counsel, accountants or other skilled persons. · 15. This Escrow Agreement shall be governed by and be construed and interpreted in accordance with the internal laws of the State of California. 16. This Escrow Agreement may be executed in several counterparts, and each counterpart so executed will be an original. In addition, the parties agree that the transaction described herein may be conducted and related documents may be received, sent or stored by electronic means. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be authentic and valid counterparts of such original documents for all purposes, including the filing of any claim, action or suit in the appropriate court of law. 1 7. The parties acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to this Escrow Agreement agree that they will provide to the Escrow Agent such information as it may request, from time to time, in order for the Escrow Agent to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided. [Signature page follows.] -4-
35IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be duly executed as of the day and year first above set forth. LESSOR: CAPITAL ONE PUBLIC FUNDING, LLC By:------------------Name: Catherine DeLuca Title: Vice President LESSEE: CITY OF PALM SPRINGS, CALIFORNIA By: Name: David H. Ready Title: Interim City Manager Approved as to Form: City Attorney Approved as to Form: Municipal Advisor ESCROW AGENT: BOKF, N.A. By: Name: Victor Zarrilli Title: Senior Vice President -5-
36EXHIBIT A CERTIFICATE OF ACCEPTANCE AND PAYMENT REQUEST BOKF, N.A. (the "Escrow Agent"), as escrow agent under that certain Escrow Agreement dated March 25, 2021 (the "Escrow Agreement"), by and among the City of Palm Springs, California ("Lessee"), Capital One Public Funding, LLC ("Lessor") and the Escrow Agent, is hereby requested to pay from the Escrow Fund established and maintained thereunder, the amount set forth below to the named payee(s). The amount shown is due and payable under a purchase order or contract (or has been paid by and not previously reimbursed to Lessee). The equipment and costs described below are (i) part or all of the Equipment listed in the Equipment Schedule to that certain Equipment Lease Purchase Agreement dated March 25, 2021 (the "Agreement"), between Lessor and Lessee, or (ii) costs incurred in entering into the Agreement: QUANTITY DESCRIPTION OF EQUIPMENT OR FINANCING COST AMOUNT PAYEE* Lessee hereby certifies and represents to and agrees with Lessor as follows with respect to the Equipment described above: (i) the Equipment described above has been delivered and installed at the location(s) set forth in the Equipment Schedule; (ii) a present need exists for such Equipment which need is not temporary or expected to diminish in the near future; (iii) such Equipment is essential to and will be used by Lessee only for the purpose of performing one or more governmental functions of Lessee consistent with the permissible scope of Lessee's authority; (iv) the estimated useful life of such Equipment based upon the manufacturer's representations and Lessee's projected needs is not less than the term of lease with respect to such Equipment; (v) Lessee has conducted such inspection and/or testing of such Equipment as it deems necessary and appropriate and hereby acknowledges that it accepts such Equipment for all purposes as of the date of this Certificate; (vi) such Equipment is covered by insurance in the types and amounts required by the Agreement; (vii) no Event of Default or nonappropriation, as such terms are defined in the Agreement, and no event which with the giving of notice or lapse of time or both, would become an Event of Default or nonappropriation, has occurred and is continuing on the date hereof; and (viii) sufficient funds have been appropriated by Lessee for the payment of all rental payments due under the Agreement during Lessee's current fiscal year. Based on the foregoing, Lessor is hereby authorized and directed to fund the acquisition of the Equipment set forth in the Agreement by paying, or causing to be paid, the manufacturer(s)/vendor(s), Lessee or other payee(s) the amounts set forth on the attached invoices from the Escrow Fund held under the Escrow Agreement in accordance with its terms. The following documents are attached hereto and made a part hereof: (a) Original Invoice(s); (b) Copies of Certificate(s) of Origin, when applicable, designating Lessor as lienholder if any part of the Equipment consists of motor vehicles, and evidence of filing; and (c) certificates of insurance relating to the Equipment required by the Agreement. IF REQUEST IS FOR REIMBURSEMENT, CHECK HERE •. Lessee paid an invoice prior to the commencement date identified in the Equipment Schedule and is requesting reimbursement for such payment. A copy of evidence of such payment together with a copy of Lessee's Declaration of Official Intent and other evidence that Lessee has satisfied the requirements for reimbursement set forth in Treas. Reg. 1.150-2 is hereby attached. * If required, a current IRS Form W-9 for the payee is attached or an IRS Form W-9 has been previously submitted to the Escrow Agent. A-1
37IF REQUEST IS FINAL REQUEST, CHECK HERE •. Lessee hereby certifies that the items of Equipment described above, together with the items of Equipment described in and accepted by Certificates of Acceptance and Payment Requests previously filed by Lessee with Lessor constitutes all of the Equipment subject to the Equipment Schedule. Date: __________ , 20_. Approved for Payment: CAPITAL ONE PUBLIC FUNDING, LLC, as Lessor By:---------------Name: ______________ _ Title: _______________ _ A-2 CITY OF PALM SPRINGS, CALIFORNIA, as Lessee By:--------------Name: ______________ _ Title: _______________ _
38EXHIBIT B INCUMBENCY CERTIFICATE REGARDING AUTHORIZED LESSEE REPRESENTATIVES ESCROW AGREEMENT DATED AS OF MARCH 25, 2021, BY AND AMONG CAPITAL ONE PUBLIC FUNDING, LLC, AS LESSOR, THE CITY OF PALM SPRINGS, CALIFORNIA, AS LESSEE, AND BOKF, N.A., AS ESCROW AGENT The undersigned officer of the City of Palm Springs, California ("Lessee") hereby certifies that the persons listed below are each designated as an Authorized Lessee Representative of Lessee for the Escrow Agreement dated March 25, 2021 (the "Escrow Agreement"), among Lessee, Capital One Public Funding, LLC ("Lessor") and BOKF, N.A., as escrow agent (the "Escrow Agent"), including but not limited to initiating and approving transactions under the Escrow Agreement and confirming such approvals through call-backs from Lessor and the Escrow Agent relating thereto, all on behalf of Lessee. Each such person is the current holder of the office or title indicated, and the signature set forth opposite the name of each such authorized representative is the true and correct specimen of such person's signature: Name /Title /Telephone/ Email David H. Ready Name Interim City Manager Title Telephone# Email Address Name /Title /Telephone /Email Marcus Fuller Name Assistant City Manager Title Telephone# Email Address Dated: March 25, 2021. Specimen Signature Signature Specimen Signature Signature CITY OF PALM SPRINGS, CALIFORNIA By:----------------Approved as to Form: Title: City Clerk City Attorney Approved as to Form: Municipal Advisor B-1
39EXHIBIT C CAPITAL ONE PUBLIC FUNDING, LLC AUTHORIZED LESSOR REPRESENTATIVES FOR ESCROW AGREEMENTS Name /Title /Telephone /Email Jonathan A. Lewis Name ·President Title 631-531-2824 Telephone# Jonathan.lewis@2capita1one.com Email Address Name /Title/ Telephone /Email Drew Scrivener Name Senior Vice President Title 631-776-3844 Telephone# Drew. scrivener@2capitalone.com Email Address Name /Title/ Telephone/ Email Catherine DeLuca Name Vice President Title 631-531-2802 Telephone# Catherine.deluca@capitalone.com Email Address Name/ Title/ Telephone/ Email Pauline Stochla Name Senior Associate Title 631-776-3848 Telephone# Pauline. stochla@capitalone.com Email Address Specimen Signature Signature ~ Initiate D Verify transactions initiated by others Specimen Signature Signature ~ Initiate D Verify transactions initiated by others Specimen Signature ~g~~ D Initiate ~ Verify transactions initiated by others Specimen Signature ,,Jlr &.i,~ ~~ Signature D Initiate ~ Verify transactions initiated by others The Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications believed by it to have been sent or given by the person or persons identified above, including without limitation, to initiate and verify funds transfers as indicated. CAPITAL ONE PUBLIC FUNf ING, LLC --m ~;UJ~ ~~e: M~n Santos Title: Senior Vice President C-1
40ATTACHMENT 5
41RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, AUTHORIZING THE EXECUTION AND DELIVERY OF AN EQUIPMENT LEASE PURCHASE AGREEMENT, ESCROW AGREEMENT AND CERTAIN RELATED DOCUMENTS WITH RESPECT TO LEASING CERTAIN EQUIPMENT WHEREAS, the City of Palm Springs, California (the "City"), a municipal corporation and charter city duly organized and existing under the laws of the State of California, is authorized by the laws of the State of California to enter into the agreements and transactions described herein; and WHEREAS, the City of Palm Springs, California (the "Lessee") is a political subdivision duly organized under the constitution and laws of the State of California; and WHEREAS, it is hereby determined that a true and real need exists for the acquisition of various vehicles and related equipment for use by the Lessee (the "Equipment"); and WHEREAS, it is necessary and desirable and in the best interest of the Lessee, as lessee, to enter into an Equipment Lease Purchase Agreement (the 11Agreement11) with Capital One Public Funding, LLC, as lessor (the "Lessor''), and certain related documents, . for the purposes described therein, including the leasing of the Equipment; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. Defined Terms. Capitalized terms that are used, but not defined, in this Resolution shall have the same meaning as when such terms are used in the preambles to this Resolution. SECTION 2. Equipment Lease Purchase Agreement. The Agreement, in substantially the same form as presented to this meeting, and the terms and performance thereof are hereby approved, and the City Manager or Interim City Manager (or his designee) of the Lessee ( or its designee) is hereby authorized to execute and deliver the Agreement on behalf of the Lessee, with such changes therein as shall be approved by such officer, such approval to be conclusively evidenced by such officer's execution thereof. SECTION 3. Escrow Agreement. The Escrow Agreement (the "Escrow Agreement"), among the Lessee, the Lessor and BOKF, N.A., in substantially the same form as presented to this meeting, and the terms and performance thereof are hereby approved, and the Escrow Agreement is hereby authorized to be executed and delivered on behalf of the Lessee by a duly authorized officer of the Lessee, with such changes 55575.70003\33674502.1
42Resolution No. Page 2 therein as shall be approved by such officer, such approval to be conclusively evidenced by such officer's execution thereof. SECTION 4. Other Actions. The Lessee shall, and the officers, agents and employees of the Lessee are hereby authorized and directed to take such further action and execute such other documents, certificates and instruments as may be necessary or desirable to carry out and comply with the intent of this Resolution, and to carry out, comply with and perform the duties of the Lessee with respect to the Agreement and the Escrow Agreement. SECTION 5. Appointment of Authorized City Representatives. The Mayor, the City Manager and any Interim City Manager of the City are each hereby designated to act as authorized representatives of the City for purposes of executing the Agreement, the Escrow Agreement and related documents (the "Financing Agreements") until such time as the City Council of the City shall designate any other or different authorized representative for purposes of the Financing Agreements. SECTION 6. Severability. If any section, paragraph, clause or provision of this Resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Resolution. SECTION 7. Effective Date. This Resolution shall be effective immediately upon its approval and adoption. 55575. 70003\3367 4502.1
43Resolution No. Page3 ADOPTED this 11th day of February, 2021. ATTEST: Anthony J. Mejia, MMC City Clerk 55575.70003\33674502.1 David H. Ready, Esq., Ph.D. Interim City Manager
44Resolution No. Page4 STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF PALM SPRINGS) CERTIFICATION I, ANTHONY J. MEJIA, City Clerk of the City of Palm Springs, hereby certify that Resolution No. ___ is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on February 11 2021, by the following vote: AYES: NOES: ABSENT: ABSTAIN: IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California this __ day of ______ , 2021. 55575.70003\33674502.1 Anthony J. Mejia, MMC City Clerk