Resolution 073-1989
Municipal Service District
RESOLUTION NO. 073-1989
A RESOLUTION OF THE BOARD OF GOVERNORS OF THE
MUNICIPAL SERVICE DISTRICT OF MONROE COUNTY,
FLORIDA AUTHORIZING THE CHAIRMAN OF THE BOARD TO
EXECUTE A LEASE PURCHASE AGEEMENT BETWEEN FLORIDA
MACHINERY & EQUIPMENT COMPANY AND THE BOARD
CONCERNING A VME FRONT LOADER.
BE IT RESOLVED BY THE BOARD OF GOVERNORS OF THE MUNICIPAL
SERVICE DISTRICT OF MONROE COUNTY, FLORIDA, that the Chairman of
the Board is hereby authorized to execute a Lease Purchase
Agreement between Florida Machinery & Equipment Company and the
Board, a copy of same being attached hereto and made a part
hereof, concerning a VME Front Loader.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the fiA- day of ~tI:9U:~ . A. O. 1989.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BY:
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MAYOR/CHAIRMAN
(Seal)
Attest : DANNY L. KOLHAGE, Clerk
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APPROVEDA$ TO~
AND I. EGM StlFFlCIENcr:-, -""'c~. . /
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KDF BUSINESS FOHIolS INt: DAllAS Tl< 7~220 1214, JSHI99'
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Orana8 Blossom Trail
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Florida Machinern & EqUiGment Company ADDRESS 1964 S.
Name of essor) ellY STATE .;
LEASE ACCT. NO. 8& ZIP CODE Apopka, FL. 32703
DESCRIBE EQUIPMENT fully. including make, kind of unit. model and serial numbers and any other pertinent Information,
One (1) VME Model L120 Wheel Loader, SN 60158
with all present and future attachments, accessories, replacement
parts, repairs, and addi tions, and all proceeds thereof. ' . : .
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(If additional space needed, attach "SCHEDULE A")
LOCATION OF j~-
EQUIPMENT: A. TERM: ,.,.1.3...months".. ' YEARS.
STREET ADDRESS .. .......
Off of Overseas Highway at Mile Marker #68 B, COMMENCEMENT DATE: , ... ....... ........ ....... ......... .... ......,....OR.
. IF NO DATE IS ENTERED, THE DATE OF SHIPMENT TO LESSEE AS
CITY. STATE & ZIP CODE EVIDENCED BY LESSOR'S INVOICE.
Long Key, Florida C, RENTAL PAYMENTS: ......1,?,...... PAYMENTSOFS8}?~~?5. EACH.
COUNTY fol~~~~ ~ one ~UrR-a~ment of i400.00
Monroe 0, A E NTALPA E : IRSTRENTAL NOLAST.,.,...NIA..
RENTAL(S) PLUS APPLICABLE TAXES. .'
LESSEE:
Monroe County Municipal Service District E, PAYME'NT SCHEDULE: THE ADVANCE RENTAL PAYMENT IS PAYABLE
UPON DELIVERY OF THE LEASE APPLICATION TO LESSOR. THE
STREET ADDRESS REMAINING RENTALS ARE PAYABLE
Public Service Building Wing 2B :JIrnMONTHLY 0......
................................. . ..........................................
CITY. STATE & ZIP CODE BEGINNING ..........."..""..'OAYS .AFTER THE COMMENCEMENT DATE.
Key West, Florida TERMINATION VALUE RATE; ....9,!? .,..
COUNTY F. ..%PERANNUM.
Monroe
:~~n~~rsi~:r :;'7~:[7 ,t~all, t~~, t~rr1',S. ~".~, ~r~~iS~~".S ,s~t,f,~~~ .~"., ~~th sides of this ~ease,
LESSEE'S SIGNATURE:
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. Title ,
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IIf corpomtioft. """SIQn6d by lIuthorized officer IInd give corporate title,
If partnership. II gentHIII partner must sign. If owner or partnee stllte whICh.}
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Acceptedon ""..,...,....",.,..,." ......, ,.:c.;;/,;.;......".."".,.. """"'...,..,..",,,..,.,.,., ,.'",.",
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LESSOR ". fJorJgj:!.,. ,M.~~pJD~~.r.Y"..~...J;;q~J p.rn~nt...G9mp.~nY.".... ....
By..,.,..,...."..,...."..::;'...." ............,.........,.........,.......
(Authorized Representative)
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TERMS AND PROVISIONS OF LEASE
1, ~:~~:I:s~::.b~~~~~i ~.'.. .!'~11'1~~~~..i~~~~.~n~e~:~~r~'::(~L~$:::..i.~~~
Lessee hereby hires a I!r~kes f~om Lessor, under and subject to the terms
and provisions hereo yrjtil th'lend of the term specified above ("Term"),
the personal property describea above and on any supplemental schedule
identified as constituting a part of this lease (herein, with all present and
future attachments, accessories, replacement parts. repairs. and additions,
and all proceeds thereof, referred to as "Equipment").
2. TERM AND RENTALS: This lease is for the Term beginning on the com-
mencement date specified above. For the Term or any portion thereof,
Lessee agrees to pay to Lessor aggregate rentals equal to the sum of all
rental payments (including advance rentals) specified above ("Rental Pay-
ments") in accordance with the payment schedule specified above.
3. EFFECTIVE DATE: The terms and provisions hereof and the obligations
and liabilities of Lessee hereunder shall become effective on the date of
lessor's acceptance of this lease, ("Effective Date"), even though the Term
and lessee" obligation to pay the remaining Rental Payments may begin
on a later date,
4, PLACE OF PAYMENT AND OBLIGATION TO PAY: All Rental Payments
are payable without notice or demand. All amounts payable hereunder to
Lessor are payable at Lessor's address set forth herein or at such other
address as Lessor may specify from time to time in writing, Except as
otherwise specifically p'rovided herein, Lessee's obligation to pay the
Rental Payments and all other amounts due or to become due hereunder
shall be absolute and unconditional under all circumstances. regardless of
(i) any set-off, counterclaim. recoupment, defense or other right which
lessee may have or claim to have against Lessor for any reason, or (ii) any
interruption in or cessation of lessee's use or possession ofthe Equipment
for any reason whatsoever.
5. DELINQUENCY CHARGES: For each Rental Payment or other sum due
hereunder which is not paid when due. Lessee agrees to pay Lessor a
delinquency charge calculated thereon at the rate of 1 '12% per month forthe
period of delinquency or. at Lessor's option. 5% of such Rental Payment or
other sum due hereunder. provided that such a delinquency charge is not
prohibited by law, otherwise at the highest rate Lessee can legally obligate
itself to pay and/or lessor can legally collect,
6. NO WARRAN"TIES BY LESSOR, MAINTENANCE, AND COMPLIANCE
\' , o.WS: lessor makes no representations or warranties as 10 the
, ,-,
character of this transaction for tax or other purpo..., L..... acknowl-
edges and agrees that: the Equipment is of a size. design. capacity and
manufacture selected by L..see; Lessor is not the manufacturer of the
Equipment or the manufacturer's agent; LESSEE LEASES THE EOUIP-
MENT"AS IS" AND LESSOR HAS NOT MADE. AND DOES NOT MAKE. ANY
REPRESENTATION OR WARRANTY. EXPRESS OR IMPLIED, AS TO THE
VALUE. CONDITION, QUALITY, MATERIAL. WORKMANSHIP. DESIGN.
CAPACITY. MERCHANTABILITY. DURABILITY. FITNESS OR SUITABILITY
OFTHE EQUIPMENT FOR ANY USE OR PURPOSE. OR ANY OTHER REPRE-
SENTATION OR WARRANTY WHATSOEVER. EXPRESS OR IMPLIED.
Lessee will not assert any claim whatsoever. regardless of cause. against
lessor for loss of anticipatory profits or for consequential damages;
Lessee will not bring any suit orclaim against or make any settlement with
the manufacturer or seller to Lessor of the Equipment (both herein called
"Seller") without Lessor's prior written consent; and the selection. servic-
ing and maintaining of the Equipment shall be entirely at lessee's risk and
expense, Lessee agrees. at its own cost and expense: (al to cause the
Equipment to be operated with care and only by qualified personnel in the
regular cou.... of L.ssee..b6Ial.....; (bl to comply with all applicabl.laws.
rules and regulations relating to the Equipment, with any published
instructions or specifications of the Seller and with all of the terms of any
insurance policy covering the Equipment; (c) to obtain. or sign any docu-
ments Lessor deems ne<:essary to obtain, any certificates of title required
or permitted by law with respect to the Equipment; (dl to maintain the
Equipment in good operating condition. repair and appearance; and (el to
furnish lessor promptly with such financial statements and other informa-
tion as Lessor may reasonably request from time to time.
7, TERMINATION VALUE: "Termination Value" asof any date shall mean an
amount equal to the then present worth of all unaccrued Rental Payments
(determined by discounting such Rental Payments from their respective
due dates at the termination value rate specified above). compounded at
the same intervals as such Rental Payments are payable or. if the first Rental
Payment has not yet become due. Termination Value shall be the total cost
paid or payable by Lessor for the Equipment.
8,LOSS OR DESTRUCTION OF EQUIPMENT: On and atter the Effective
Date. Lessee shall bear all risk. of loss of, damage to, or destruction of the
Equipment, If. for any reason, any of the Equipment is lost. stolen.
destroyed or damaged beyond repair. Lessee shall (al immediately and
fully inform Lessol with regard thereto. and (bl promptly pay to Leuorthe
Termination Value calculated as of the date of payment theraof plus ell
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accrued and unpaid Rent~1 Payments and all otheramoOnts then due and
remaining unpaid. Any amounts actually received by lessor from insur.
ance or otherwise on lessee's behalf for such loss or damage shall be
applied to reduce lessee's obligation under this paragraph. lessor is not
obligated to undertake, by litigation or otherwise, the collection of any
claim against any person for such loss or damage, Except as expressly
provided herein, the total or partial destruction of the Equipment, or the
total or partial loss of use or possession thereof to Lessee, shall not release
or relieve Lessee from its obligations and Eabilities under this lease,
9.INSURANCE: lessee agrees to procure and maintain at all times on and
after the Effective Date such liability, physical damage and other insurance
as lessor may require from time to time, and to immediately furnish
evidence thereof satisfactory to lessor, lessee agrees that all such insur.
ance shall be in form and amount and with insurers satisfactory to Lessor,
and that Lessee will deliver promptly to Lessor certificates or, upon
request, policies satisfactory to Lessor evidencing such insurance, All
liability policies shall name Lessor as an additional insured, and all physical
damage policies shall provide that payment thereof shall be made to
Lessor and Lessee as their interests may appear. Each policy shall provide
that Lessor's interest therein shall not be invalidated by any acts, omissions
or neglect of anyone otherthan Lessor, and shall contain insurer's agree.
ment to give Lessor 30 days prior written notice before cancellation or any
material change in the policy shall be effective as to Lessor, whether such
cancellation or change is at the direction of lessee or the insurer,
10. TAXES: On and after the Effective Date, Lessee agrees to pay promptly to
the appropriate governmental agency or, upon Lessor's request, to Lessor
all taxes, levies, duties, assessments and other governmental charges
(including any penalties and interest, and any fees for titling or registration)
levied or assessed against Lessee, lessor or the Equipment, upon or with
respect to this lease or the purchase, use, operation, leasing, ownership,
value, return or other disposition of the Equipment, or the rent, earnings or
receipts arising therefrom, exclusive, however, of any taxes based on
Lessor's net income, If requested, Lessee agrees to file promptly on behalf
of lessor all requested tax returns and reports concerning the Equipment
in form satisfactory to Lessor, with all appropriate governmental agencies
and to mail a copy thereof to Lessor concurrently with the filing thereof.
Lessee further agrees to keep or cause to be kept and made available to
Lessor any and all necessary records relevant to the use of the Equipment
and pertaining to the aforesaid taxes, assessments and other governmen-
tal charges, The obligations arising under this paragraph shall survive
payment of all other obligations under this lease and the termination of this
lease.
11.lESSOR'S TITLE, STORAGE AND IDENTIFICATION OF EQUIPMENT:
Title to the Equipment will at all times remain in Lessor and lessee will at
all times, at its own cost and expense, protect and defend the title of Lessor
from and against all claims, liens and legal processes of creditors of lessee
and keep the Equipment free and clear from all such claims, liens and
processes, Lessee agrees not to alter or modify the Equipment without first
obtaining in each instance the prior written approval of lessor. Upon the
expiration or terminatirm of this lease, lessee, at Lessee's sole expense,
shall return the Equipment unencumbered to Lessor at a place to be
designated by Lessor, within the city in which the Rental Payments are
payable or, at lessor's option, at such other place as Lessee and lessor may
agree upon, and in the same condition as when received by lessee, reason-
able wear and tear resulting from use thereof alone excepted. lessee shall,
upon lessor's request, and at Lessee's own expense, firmly affix to the
Equipment, in a conspicuous place, such label, sign or other device as
Lessor may supply to identify Lessor as the owner and lessor of the
Equipment.
2. POSSESSION, LOCATION OF EQUIPMENT. RIGHT OF INSPECTION
AND ASSIGNMENT: The Equipment is and shall remain personal prop-
erty and not become part of any real property regardless of the manner of
affixation and will be kept by lessee at the location indicated herein, and
will not be removed from said location without the prior written consent of
Lessor, except that an item of Equipment which is mobile and of a type
normally used at more than one location may be used by lessee away from
said location in the regular course of lessee's business provided, that: (a)
such item is not removed from the State of said location, and (b) if such
item is not returned to said location within 30 days, lessee will immedi-
ately thereafter (and each 30 days thereafter until such item is returned)
report the then current location thereof to lessor in writing. lessor shall
have the right to inspect the Equipment at all reasonable times arid from
time to time as Lessor maY~. equir!j. The foregoing right of entry is subject
to any .applica~le gover" ntal,f1ws, re~ulations and rules concerning
industria. I security. Lessef ~.. . all ni .~, ell; a56lg n, transfer; pledge, encumber,
secrete, sublet or othervllil' diSp e of.the Equipment or any interest of
Lessee In or under this Ib!! wit ut Lessor's prior written consent. This
lease and all rights of les or heteunder will be assignable by Lessor
without Lessee's consent, but lessee will not be obligated to any assignee
of Lessor except after written notice of such assignment from Lessor,
LESSEE HEREBY WAIVES, RELINQUISHES AND DISCLAIMS AS TO ANY
ASSIGNEE OF LESSOR ALL CLAIMS, RIGHTS OF SET-OFF AND DEFENSES
LESSEE MAY HAVE AGAINST lESSOR, INCLUDING THE RIGHT TO WITH.
HOLD PAYMENT OF ANY MONIES WHICH MAY BECOME DUE HERE.
UNDER, LESSEE FURTHER AGREES THAT LESSOR MAY WITHOUT
NOTICE TO OR CONSENT OF LESSEE, SELL OR GRANT A SECURITY
INTEREST IN THE EQUIPMENT AND IN SUCH EVENT LESSEE'S RIGHTS IN
AND TO THE EQUIPMENT SHALL BE SUBJECT AND SUBORDINATE TO
THE INTEREST AND RIGHTS, INCLUDING THE RIGHT OF POSSESSION
OF ANY SUCH PURCHASER OR HOLDER Of A SECURITY INTEREST IN
THE EQUIPMENT. After receiving notice of any assignment by Lessor or of
any sale or grant of a security interest in the Equipment,lessee agrees that
it will not, Without the prior written consent of the assignee, purchaser or
secured party, (i) prepay any amounts owing hereunder; (ii) modify or
amend this lease; or (Iii) exercise any rights which are exercisable only
With the consent of the Lessor. lessee further agrees that at the same time
it s~nds to Lessor any notice hereunder it will send a copy thereof to any
assignee of Lessor or purchaser or holder of any security interest in the
Equipment at the address specified from time to time by such assignee,
purchaser or secured party.
PERFORMANCE OF OBLIGATIONS OF LESSEE BY LESSOR: If lessee fails
to perform duly and promptly any of its obligations under this lease, lessor
may perform the same, but shall not be obligated to do so, for the account
of Lessee to protect the interest of lessor or Lessee or both, at Lessor's
option, Any amuunt paid or oxpense (including reasonable attorney's fees)
penalty or other liability incurred by lessor in such performance shall b~
payable by Lessee upon demand as additional rent for the Equipment.
OEFAUlT AND REMEDIES: An event of default shall occur if: (a) any Rental
:>ayment or any other amount owed by lessee to lessor is not paid
:lromptly when due: (b) lescee breaches any warranty or provision hereof
)r of any ot'ler Instrument, or agreement delivered by lessee to lessor; (c)
essee ceases t<l de htosml'SS as a going concorn, become. InsQlvent
nakes an as~i\ln,np"t tor the benefit of creditors. admltelln writing itS
n,lhli',' cdebtsnltleybecbmedue, or takes advantage of anv law
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receiver is appoInted fOl te_ Of for any subatantial pert of llaproperty.
Upon the occurrence of an event of default Lea," shall be in default
he reu nder and lesso r may; at its'option, with or without notice to l..... (al
declare all sums dUQ and to become due hereunder andallolheuumalhen
owing by lessee to lessor to beimmediatelydue lIf'Id peyable; (b)proc:eed
by appropriate court action or actions or other proc:eedlngs eittler at IllW Of
in equity to enforce performance by les_of any and all provi.ions of this
lease and to recover damages for the breach thereof; lc) require LllIIee to
assemble the Equipment and deliver the same forthwith to lessor It
Lessee's expense at such place as Lessor may de.ignate which is reasona-
bly convenient to both parties; (d) exercise one or more of the rights and
remedies available to a secured party under the Uniform Commercial
Code. whether or not this transaction is subject thereto; and Ie) enter, or ita
agents may enter, without notice or liability or legal process, into any
premises where the Equipment may be, or is believed by lessor to be, and
repossess all or any thereof, disconnecting and separating the same from
any other property and using all force necessary or permitted by applicable
law, lessee hereby expressly waiving all further rights to possession ofthe
Equipment after default and all claims for injuriessufferedthrough or loss
caused by such repossession, lessee agrees that any property other than
Equipment which is in or upon the Equipment at the time of repossession
may be taken and held without liability until Its return is requested by
Lessee. In addition, Lessor, by written notice to Lessee specifying a pay-
ment date 5 or more days after the date of such notice, may require lessee
to pay, and lessee agreesto pa'6 to Lessor on the payment date specified in
such notice, as liquidated damages for loss of the bargain and not as a
penalty, (1) all accrued but unpaid Rental Payments and all other amounts
due and payable on or before the payment date specified in such notice,
plus (2) all expenses of retaking. holding, preparing for sale, selling and the
like, including reasonable attorneys' fees (20% of all sums then owing
hereunder if permitted by law) and other legal expenses. plua(3) a sum
equa I to the excess of the Termination Value of the Equipment overwhich-
ever of the following amounts lessor, In ita sole discretion. shall..,.cify in
such notice: Ii) the then fair martet sales YaIue of the Equipment (aa
determ ined by an appraiser selected by Lessor), (Ii) the then present worth
of the then fair rental value of the Equipment for the remaining 1Mm (as
determ ined by an appraiaerselecledby lesaor). or (Iii) any amount actually
received by Lessor from thtf.....,ease. sale Of, other diapoaltlon of the
Equipment. lessor, at its option, may select Seller as an appraisar. If any
statute governing the proceeding in which IlUChdam.ges are to be proved
specifies the amount of such claim, Lessorshall be entitled to prove as and
for damages for the breach an amount equal to that allowed under such
statute. The provisions of this paragraph shall be without prejudice to any
rights given to lessor by such statute to prove for any amounts allowed
thereby. lessee agrees that Lessor may bring any legal proceedings it
deems necessary to enforce the payment and performance of Lessee's
obi igations hereunder in any court in the State shown in Lessor's address
set forth herein, and service of process may be made upon L..... by
mailing a copy ofthe summons to lessee at its address shown herein. The
inclusion of a trade name 01 division name in tfNl identification of Lessee
hereunder shall not limit lesson right. after the occurrence of an event of
default, to proceed against all of lessee's assets, including those held or
used by Lessee individually or under another trade or division name.
Unless otherwise provided by law. any requirement of reasonable notice
regarding the re-lease, sale or other disposition of the Equipment which
Lessor may be obligated to give will be met if such notice is mailed to
Lessee at its address shown herein at least 10 days before the time of re-
lease, sale or other disposition. Nothing herein contained will require
lessor to re-lease, sell or otherwise dispose of the Equipment. No remedy
of.l-essor hereunder shall be exclusive of any other remedy herein or
provided by law, but each shall be cumulative andin addition to every other
remedy. A waiver of a default shall not be a waiver of any other or a
subsequent default,
15, EXPENSES: Lossee agrees to pay all expenses incurred by Lessor in
enforcing its rights after the occurrence of an event of default hereunder,
including the reasonable fees ahny attorneys nuined by Lessor 120% of
all sums then owing hereunder if permitted by IIIW),
16.INDEMNlTY: lessor (which term n used herein inc:ludes Lessor's suc-
cessors, assigns, agents and servantsl shall h8ve no responsibility or
liability to Lessee, its successors or asai9lls or any other person with
respect to any liabilities (n "liabililiea'" is herein defined I, and lessee
hereby assumes liability for, and hereby agrees, at ita aole cost and
expense, to indemnify, defend. protect and save Lessor and teep it
harm leas from and against, any 8nd all Liabilities. The term "Liabiliti.... as
used herein shall include any and all Iiabillt-. obligations. 1o..ls,
damages, penalties, claims. actiON; auita. costs. expenaes and disburse-
ments of whatsoever kind and nature, including legal fees and expenses,
(whether or not any transaction contemplated hereby is consummated)
imposed on, incurred by or asserted against Lessor or the Equipment
(whether by way of strict or absolute liability or otherwise) and in any way
relating to or arising out of this l~se or the selection. manufacture, pur-
chase, acceptance, ownership, delivery. non-delivef\4 lease, possessicn,
use, o!>eration, condition, servicing, maintenance, repair; improvement,
alteration, replacement, storage, return or other disposition of the Equip-
ment (Including, without limitation, iii claims as a result of latent or patent
defects, whether or not discoverable by Lessor or lessee, (ii) claims for
trademark, patent or copyright Infringement, and (iii! tort claims of any
kind (whether based on lesso.... alleged negligence or otherwisel, inc:lud-
i!1g clai!""s for injury or damage to property, or injury or death to any person
(Including lessee's employees) or. for any interruption of service, loss of
business, anticipatory profits,orconsequentialdam8ges.lesseeegreesto
give Lessor and,llssor a9r88l1O give Lessee promptwritten notice of any
'clalmor. liability hereby indemnified agdinst. The indemnities arising
und"lr thiS paragraph shall survive payment of all other obligations under
this lease and the termination of this lease,
17, NOTICES AND FURTHER ASSURANCES: All notices relating hereto wi II
either be delivered in person to an officer of Lessor or lessee, or be mailed
certified to lessor or Lessee at its respective address shown on the face
hereof or at any later address last known to the sendeJ: a..es- agrees to
execute and deliver to Lessor; upon lessor's request. such documents and
assu ra nces as lessor deems necessary or advisabJefortheconfirmation or
perfection ofthis lease and lessor'srightshereunde(. inc:Judjng such docu-
ments as lessor may require for filing or recording,
18. ~EV~RA81L1TY: Any provisions hereof contrary to. prohibited by or
Invalid under applicable laws or regulations shall be inapplicable and
deemed omitted herefrom, but shall not invalidate the remaining provi-
sions hereof. ,
19, ENTIRE AGRE_NT: This ......net any Ildd.ndI Nf.rred to herein
constitute the entire agreemMttof the parties hentto. No oqf agreement.
lIuar~nty, promi,.! condition. repreuntMion O1WIItrMJY....1I be binding,
All pnor conversations, agree~Ol'represent8tionar.tlllledhenlto and!
or 10 the ~qllipment ii'" ~lJp,r5eded hllrebv, and no modifICation hereof
shllll be binding unless in writing and signed by an Of'IIcierofthe party to be
bound