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Resolution 029-1983 �. Commissioner _ey RESOLUTION NO. T029 -1983 RESOLUTION AUTHORIZING THE CHAIRMAN OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, ACTING AS THE GOVERNING BODY OF THE TRANSLATOR SPECIAL TAX DISTRICT, TO EXECUTE A LEASE PURCHASE AGREEMENT BY AND BETWEEN. THE BOARD OF COUNTY COMMIS- SIONERS OF MONROE COUNTY, FLORIDA, AND EDEN HANNON & COMPANY. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, ACTING AS THE GOVERNING BODY OF THE TRANSLATOR SPECIAL TAX DISTRICT, as follows : That the Chairman of said Board is hereby authorized to execute a Lease Purchase Agreement by and between the Board of County Commis- sioners of Monroe County, Florida, and Eden Ha h6n & Company, a copy of same being attached hereto. Passed and adopted by the Board of County Commissioners of Monroe County, Florida, acting as the governing body of the Trans- lator Special District, at a regular meeting of said Board held on the 21st day of January, A:D. 1983 . BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, acting as the governing body of the Translator Special Tax District e.�;.ys 1�� By / -7., Chairman (Seal) Attest : Ram cum ryl • aiolg..) Clerk APPRO.VE1 AS TO FORM '' .fin l3 ._c/ ' ti ti+id'C,yL�w.I s; : S"d- xnay..4 6iZ.V{%i��'�sJ �+b..[:..'i�'y�Qc<' nlny. 4:�Liacy�J • Date : January 21, 1983 Lease Number : 012183 Lessor : Eden Hannon & Company. 101 North •Columbus Street Suite 400 Alexandria, VA 22314 Lessee.: Board of County Commisioners - Monroe County, Florida Lease Purchase Agreement Lessor , a Virginia corporation, hereby rents and leases to Lessee with the option to purchase and Lessee hereby rents and leases from Lessor , upon the terms and conditions contained • herein, the property . (the "Equipment") set forth and described in Exhibit .D as attached to and made a part of this Lease Purchase Agreement (the "Lease" ) . 1 . LEASE TERM AND PAYMENTS . This Lease shall be effective as of the date of execution, by the Lessee. The term of this Lease for the purpose of lease payments shall commence as of the date of execution by the Lessee of the Acceptance Certificate, Exhibit A, attached hereto and made a part hereof, and shall .continue for twenty-four - (24) months thereafter (the "Original. Term" or "Lease Term") with lease payments to made by Lessee as set forth below and on. Exhibit B attached ,hereto and made a part. hereof. The term of this Lease may be extended for an additional . twenty-four (24) months (the "Renewal Term" ) upon Lessee giving written notice thereof to Lessor no less than one hundred twenty (120) days prior to the expiration of the Original Term All provisions of this Lease are equally applicable and effective during the Renewal Term unless this Lease or the context thereof clearly indicates otherwise. Lessee shall pay to the Lessor or its assignee (s) lease payments totalling $636, 890 . 00 during the original term of this Lease, and $573 ,.780. 00 during the Renewal . Term, in the amounts and on the dates set forth:. below and in Exhibit B attached hereto. Lessee shall pay to the Lessor or its assignee (s) the lease payments equal to the amounts specified in Exhibit B and will commence lease payments on the first due date as set forth below and in Exhibit B and thereafter on the dates set forth below and in Exhibit B. Lessee` does hereby expressly approve and authorize and directs the appropriate officials to cause the payments of the amounts and at the times shown below and in Exhibit B attached hereto so long as this Lease is . in effect or as otherwise provided in this Lease. The lease payments will be payable without notice or demand at the . office of the Lessor (or such other place as Lessor or its "assignee may from time to time designate in writing) . Any , payments received later than ten (10) days from the due. date as set forth in Exhibit B will bear interest at the maximum lawful rate from the due date. The Lessee shall make the following payments in the amounts and on the dates indicated below in satisfaction of the first year ' annual l.eas.e payment obligation (see Exhibit B attached hereto) : • 1. ' Amount : Due Date : $ 18 , 966 . 55 t December 30, 1982 131,033 . 45 January 30., 1983 150,000 . 00 March 15, 1983 50, 000 . 00., •' March 31, 1983 $350 , 000 . 00 The Lease Term shall terminate when all payments, including those referenced by the Purchase Agreement, herein, have been paid. Notwithstanding any dispute between Lessee and Vendor or Lessor , Lessee shall make all payments when due and shall not withhold any payments or portions thereof, pending final resolu- tion of such dispute. Lessee hereby covenants it will not assert any right of setoff or counterclaim against its obligation to make the payments provided for in ,Exhibit B. 2 . COVENANTS 'OF LESSEE. Lessee represents , covenants and warrants that it is' a public body corporate and politic, and is authorized by the Constitution and laws of the State of 'Florida and ordinances and resolutions of Monroe County, Florida, to enter into the transactions contemplated by this Lease and to carry out its obligations hereunder . Lessee has been duly authorized by a Resolution, .Exhibit C, to execute and deliver this, Lease and agrees that it will do or cause to be done all things necessary to preserve and keep its existence in full force and effect. Lessee further represents , covenants and warrants that all- procedures - have been met so that this Lease is enfor- ceable including meeting all required procedures for bidding. Lessee further represents', covenants and warrants that it is the governing body of that certain special taxing district created by Ordinance 5-1982, (the "District") and that is has the authority to levy, collect, pledge and pay the ad valorem tax revenue of such District for the purpose of establishing and operating a television translator system to serve the' area, of the District, and that this Lease serves, such purpose. Lessee further cove- • nants it will take such ' -action as is necessary for Lessee to levy, budget , appropriate,; and .provide funds sufficient and available to discharge its obligation to meet all payments due during the Lease Term or the Renewal Term pursuant to provisions of .this Lease, including - available funds other than those available from the ad valorem tax levied in the District should such funds be insufficient ..to make the payments required by this Lease, provided however , this does not constitute a pledge of the general revenues of Monroe County, Florida. 3 . TITLE TO LEASED EQUIPMENT. Title shall remain with and be held by Lessor for the original Term and Renewal Term of this Lease. 4 . SECURITY AGREEMENT (S) . In order to secure all of its obligations hereunder , . Lessee hereby agrees to (i) grant to Lessor a first and prior security interest on any and all right, title and interest of Lessee in the Equipment and in all addi- tions., attachments, accessions, and substitutions thereto, and. on any proceeds therefrom; (ii) agrees that this Lease may be filedas and is a financing statement evidencing such security - interest as contemplated by Chapter . 679, Florida Statutes; and (iii) . agrees to execute and deliver all financing statements, certificates of title and other instruments necessary or appropriate to evidence such security' interest. 2 - • ' Based upon Resolution : No. ' 87-1982, adopted by the Board of • County Commissioners of Monroe 'County, Florida on March 8, 1982, and Ordinance No: . 5-1982, adopted by the- Board of County Commissioners of Monroe County, Florida on April 19, 1982, and ratified by a general referendum of the voters on April 27, 1982, • Monroe County as -Lessee, hereby grants to the Lessor a pledge of, and a first security interest in any and all ' ad valorem revenues levied, derived, or generated by the District as created, • . authorized , adopted, established, .and ratified in the above legal • actions. 5. TERMINATION. If the Lessee, does not appropriate funds • for the Equipment and it 'does not have funds for such purpose • from other sources, Lessee may terminate this Lease at. the end of twenty-four (24) months upon giving one hundred twenty (120) days prior written notice . to 'Lessor . Lessee agrees to surrender possession of the Equipment to the Lessor or its assignee on the date of. such termination, dismantled, diassembled, and packed for . shipment • in accordance with manufacturer specifications and freight prepaid and insured to ' any location within 500 miles of the Equipment ' s location as. designated by Lessor , or at the option of Lessor , the Lessee will pay an amount equal to such. cost of dismanteling, -disassembly, removal, shipping and insurance to the Lessor upon termination, and the Lessee shall surrender possession of the equipment to the Lessor or its Assignee on the date of - such termination and shall permit, and does hereby consent to and waives any objection to, Lessor or its Assignee operating and maintaining the Equipment, for a period not to . exceed the Lease Term, • or such longer period of time as ' agreed . to by the , parties hereto. Lessor shall have all the rights ' and remedies .to take 'possession of the Equipment and to : sell, lease or . otherwise. d.ispose of the Equipment as its own pro- . .pert.y without liability' to Lessee. If the provisions of the previous paragraph are utilized by . . Lessee , Lessee agrees not to purchase, lease or rent equipment performing' functions similarr to those performed by the' Equipment, and agrees not to permit functions similar ' to those performed, through the use of the Equipment to be performed by it's own employees or by any agency or ' entity affiliated with or hired by Lessee for the Term of this 'Lease or any remaining portion thereof, including the .Re newal- Term in the event Lessee elects • not to 'exercise such renewal. '• . . 6 .. CARE AND USE •OF EQUIPMENT. Lessee, at its own cost . and expense, shall maintain the Equipment in good operating con- dition, repair and appearance, and protect same from deteriora- • tion other than normal wear.. and tear; shall use the Equipment in the regular course of its business only, within its normal capa- city, without abuse, and in a manner contemplated by the manufac- turer thereof; shall 'operate and maintain the Equipment during the term of this Lease in accordance with Federal Communications • - Commission (or its a successor). .guidelines and regulations; shall not make modifications, alterations, or additions to the Equipment (other than normal operating accessories or controls) , without_ the written consent of Lessor , which shall not be unreasonably withheld; and agrees that the Equipment shall remain personal property at all times regardless of how attached or installed; shall keep the Equipment on the premises where deli- vered, and 'shall not move or remove the Equipment without the .written consent 'of Lessor .. Lessor shall have the right, during normal hours, to enter upon the premises where the Equipment is located in order to , inspect, observe or otherwise protect Lessor ' s interest, and -Lessee shall cooperate in affording Lessor the opportunity to do• same. Lessee agrees, to and shall cause the Equipment to , be maintained pursuant to the currently acceptable industry standards and will 'provide proof of proper maintenance to the Lessor at the Lessor ' s request. Lessee agrees that Lessor 3 - • shall not be responsible for any loss or damage whatsoever to the Equipment, nor. shall Lessor be responsible for latent defects, wear and tear or gradual: deterioration or loss of service or use of the Equipment or any part thereof. Lessor shall not be liable to Lessee or anyone else for any liability, claim, loss, damage or expense of any kind or nature caused directly or indirectly by the inadequacy of the Equipment, or any item supplied by the ven- dor or another party, or any personal -bodily injury to any person arising from the use or misuse of the Equipment, any interruption of use or loss of service or use of performance of any equipment, and loss of business or other consequence or damage, whether or not resulting from any of the foregoing. 7 NET LEASE. Lessee intends the lease payments to be net to the Lessor . Lessee shall comply with and pay all tariffs, charges and taxes (whether local, state or federal) which may now or hereafter be imposed upon the ownership, lease, rental, sale, purchase, possession: : or use of the Equipment, excluding however , all taxes on or measured by Lessor ' s income. If, Lessee fails to pay said tarriffs , charges, or taxes when due,; Lessor may pay such 'tarriffs, charges and taxes, provided, however if Lessor pays any tarriffs, charges, or taxes for which Lessee is. responsible or liable for the Equipment or . under this Lease, Lessee shall, promptly, reimburse Lessor therefor . 8. ASSIGNMENT: ' Without the prior consent of Lessee, Lessor may assign its rights, title, and interest in or to the Lease, and in or to. all Exhibits attached thereto, to various assignees = or their agents or trustees. The Lessor may further grant or assign either in whole or i.n part, a security interest in the Lease or in the Equipment. ` This Lease may be further reassigned without restriction or- 'limitation: - The Lessee agrees that the Lease may become part of a pool - of lease obligations at the, Lessor ' s option. ' The Lessor or its assignee (s) . may assign or reassign either the entire pool or any partial interest therein. Each such assignee shall have all of the rights of the Lessor as stated in this Lease. Lessee shall not , have the right to assign or sublet its rights , duties and obligations under. this Lease or its interest in the Equipment either in or whole without prior written consent. of Lessor or its assignee (s) . The Lessee agrees to . recognize and acknowledge each such assignment of the Lease or of the security interest in the Equipment. . Subject -to. .the. foregoing, this Lease inures to the benefit of and is binding upon the heirs, executors, administra- tors, successors and, assignees of the parties hereto. ' 9. EVENTS OF DEFAULT AND REMEDIES. Lessee shall be in default hereunder upon the occurence of one or more of the following events, each of which constitutes an "Event of Default" : (a) Lessee' fail to make.,Lease Payment (or any other such payment under this Lease) as it becomes due in accordance with the terms'. of : this Lease, and any such failure continues for ten (10.) days after . the' due date thereof; (b) Lessee fails to perform any covenant:,, condition, or agreement to be performed or observed by it hereunder, other than payments, and such failure is not cured within twenty '(20) days of receipt by Lessee of written notice thereof by Lessor'; or (c) the discovery by Lessor that any statement, representation, or warranty made by Lessee in this Lease or, in any writing ever delivered, by' Lessee, pursuant hereto or in, connection herewith, is false, misleading, or erro- neous - in any material respect Upon the occurence of any of the foregoing, the Lessor or its assignees, may exercise any or all of the following remedies: • • (a) Declare all unpaid rentals under. this Lease to be imme- diately due and payable; (b) Terminate this Lease as to any part or . all items of the Equipment; (c) Take possession of the . Equipment wherever found, and for this purpose may enter upon any premises of Lessee and remove th.e Equipment without any liability for suit, action or other proceeding by the Lessee; (d) Cause Lessee at its expense to promptly return the Equipment to Lessor; (e) Use, hold, sell, lease or otherwise dispose of any part of or all of the Equipment on the premises of Lessee or any other location without affecting the obligations of Lessee as provided- in this Lease; (f) Sell or lease the Equipment or any part thereof, at public auction or , by private sale or lease at such time or times and upon such terms as Lessor may determine, free and clear of any rights of Lessee. (g) Proceed by appropriate action to enforce performance by Lessee of the applicable covenants of this Lease or to recover damages for the breach thereof or both; (h) Exercise any and all rights accruing to a secured cre- ditor under the Uniform Commercial Code or to a Lessor • under any, applicable law. • In addition, the Lessee shall remain liable for all cove- nants ' and indemnities under .. this Lease and for all reasonable attorneys fees and , other costs and expenses, including court costs , incurred by Lessor with respect to the enforcement of any remedy listed above or any other right or remedy available by Lessor . Lessor shall be in default hereunder upon the occurence of the 'following event, which constitutes an "Event of Default" : Lessor fails to make a payment to the vendor pursuant to the Equipment Purchase Contract as hereinafter defined so as to constitute a default , by the - Lessor under such contract and the vendor has not waived or ' extended the time for remedying such default. Upon occurence of the foregoing, the Lessee- may ter- minate this Lease and the Lessor shall be solely liable to the Lessee to the extent of any amount paid to Lessor by. Lessee which was not paid by Lessor to vendor pursuant to the Equipment Purchase Contract, together with interest, costs, and reasonable attorneys fees. Lessee agrees to not initiate any action against Lessor unless and until it has pursued and exhausted any remedy available to it under the Equipment Purchase Contract, the per- formance bond of the vendor , 'or any applicable policy of insurance. • 10 . LIENS . Lessee shall not directly or indirectly create, incur., assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to the Equipment except with respect to the respective rights of Lessor and Lessee as herein. provided.. Lessee shall promptly, at its own expense, take such actions as may be necessary to duly discharge any such mortgage, pledge, lien', charge, encumbrance or claim not excepted above if the same shall arise at any time. 11. INDEMNITY. Lessee shall and does hereby indemnify and save Lessor harmless, from any and all liability arising out of the ownership, selection, ' possession, leasing, renting, opera- - 5. • • tion, control, use, maintenance, delivery and/or return of the Equipment, including but not limited to, injuries causing per- sonal injury, property damage and/or death. This indemnification shall include all costs - and expenses including attorney' s fees incurred by Lessor in connection with any suits or actions resulting from any such '°liability. 12.. DISCLAIMER OF WARRANTIES. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER. , EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN,, CONDITION, MERCHANTABILITY, FITNESS OR PARTICULAR PURPOSE OR FITNESS FOR USE OF Y ' OF THE EQUIPMENT OR AS TO ITS TITLE OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE EQUIPMENT. Lessor hereby assigns to Lessee for and during the Lease Term and the Renewal Term all manufacturers' warranties or guaranties, express or implied, issued on or applicable to the Equipment, and Lessor authorizes Lessee to obtain the customary services furnished in connection with such warranties or guaran- ties .at._Lessee ' s. expense. Lessee acknowledges that Lessor is not the manufacturer of or dealer in such Equipment and takes no part in or responsibility for the installation of the Equipment, and that Lessor has made no representation or warranty and assumes no obligation with respect to the merchantability, condition, quality or fitness of the Equipment or the enforcement of the manufacturers ' warranties or guaranties. 13 .. : INSURANCE. At its expense Lessee shall cause casualty insurance to be carried and maintained with respect to the Equipment and shall carry fire and extended coverage, public liability and property damage insurance sufficient to protect the full insurable value of the Equipment and to protect Lessor from liability in all events . Also at its expense , .the Lessee shall provide hurricane and tornado insurance for an amount equal to $500 , 000 per occurence in the event of wind casualty. If the cost to repair or replace exceeds the limits of the insurance coverage, then the Lessor may advance amounts in excess of the insurance limits to repair or replace the equipment, and the Lessee shall execute a new lease schedule to reimburse .the. :Lessor for such excess over a two (2) year period , subject to prevailing money market conditions and interest rates. Each policy shall name Lessor as an additional insured and shall provide for thirty (30) days prior written notice to Lessor of any cancellation or material alteration thereof. On accep- tance of the Equipment, Lessee shall have purchased the aforemen- tioned insurance on the Equipment, and copies of the policies and any amendments thereto., shall be promptly furnished the Lessor. 14 . DAMAGE OR DESTRUCTION OF EQUIPMENT. In the event the Equipment is partially " damaged or destroyed, Lessee will promptly repair and restore the Equipment to working order for the purpose intended . Lessee shall not be entitled to any reimbursement for any such damage or ":;destr,ucton - from Lessor, nor shall Lessee be st •y entitled .to any di r'nutX19 of: the amounts payable by it pursuant to this Lease. ;.,. In the event the Equipment is totally damaged or destroyed, Lessee shall promptly repair and restore the Equipment pursuant to provisions of the immediately preceding paragraph. In the alternative, Lessee shall have the option to terminate this Lease upon payment of the Lease Payments due in Exhibit B, herein, plus the maximum amount chargeable in setion 16, entitled Purchase Agreement by Lessee. 15. EQUIPMENT PURCHASE CONTRACT. Lessor , with Lessee con- sent , shall enter into an equipment purchase contract (the "Equipment Purchase Contract") with EMCEE Broadcast Products, White Haven, Pennsylvania, . (the "Vendor" ) for the manufacture, installation, and construction : of the contemplated facilities known as the "Translator System" referenced in the EMCEE proposal t3649 to Monroe County, and incorporated and made a part hereof. Cost of the manufacture , installation, and construction of the facilities shall not exceed $948, 327. 57. The Lessee shall review and approve the Equipment PurchaseContract between Lessor and Vendor , and shall be responsible for approving all configuration, construction schedule dates,: .technical data, and equipment speci- fications. Payments to the Vendor by Lessor shall be as follows: Date Amount 12/30/82' `. $ 18, 966. 55. 1/30/83 131, 033. 45 3/15/83 150, 000 . 00 3/31/83 50, 000. 00 5/15/83 100, 000 . 00 • upon completion and acceptance of facil- ities by Lessee' $498, 327 . 57 $948, 327 . 57 Total 16 . PURCHASE AGREEMENT BY LESSEE. At the end of the Renewal Term and by giving the Lessor one hundred twenty (120) days prior written notice, the Lessee shall purchase all, but not less than all, the Equipment; for an amount equal to its then fair market value, less the cost of di.smanteling, packing, insuring, and , transporting the equipment a distance of 500 miles from the point of installation. However , such fair market value shall not exceed: the lease payment made pursuant to this Lease for the year . . If ;the parties . are : unable . to agree as to the fair market value of the Equipment, the • fair` market value shall be determined by the 'arithmetic average of the evaluation established by three (3) independent appraisal firms or individuals acceptable to Lessor and Lessee . Cost: for such appraisal shall be jointlyand equally borne by Lessor and Lessee. 17 . NOTICES. All notices to be given under this Lease shall be made in writing and delivered or mailed to the other party at its address set forth . herein or at such address as the party may provide in writing from time to time. Any such notice shall be deemed to have been given when delivered or when sent certified or registered mail postage prepaid. • 18 . MISCELLANEOUS. 'The waiver by Lessor of Lessee' s breach of any- term, covenant or condition hereof shall not be a waiver of any subsequent breach of the same or any other term, covenant or condition. This Lease, together with Exhibits hereto, consti- tutes the entire agreement between the parties and shall not be modified, amended, altered or changed except in writing. This Lease shall be governed by the Laws of the State of Florida and any provision of this Lease found to be prohibited by law shall be ineffective only to the extent of such prohibition without invalidating the remainder ' of this. Lease . Lessor : Ede( annn Title :` Lessee : Board of County Commissioners M nroe Count Florida B y: \\ Title.: Date : :tt : Clerk (Seal) Approved as to form and lega suffic ' nc By Attorney ' s Office • - 8' - 111111 EXHIBIT A To Lease-Purchase Agreement. dated January 21, 1983, by and bet- ween Eden Hannon &' Company (Lessor) and Board of County Commissioners of„- N i(aroe 'Cou;nty, Florida (Lessee) . ACCEPTANCE CERTIFICATE The undersigned Lessee under that certain Lease identified above hereby certifies and represents to, and agrees. with, Lessor as follows : 1. The Equipment, as such term as defined in the Lease, has been delivered and installed at the Equipment Location specified in Exhibit D to the Lease and accepted on the date indicated below. 2 . Lessee has conducted such inspection and/or testing of the Equipment as it deems necessary and appropriate and hereby acknowledge that it accepts the Equipment for all purposes, including the commencement of payments. 3 . Lessee is not ' in any Event of Default as defined in the Lease and no ' event which with notice or lapse of time, or' both, would become an event of default, has occured and is continuing at the date thereof. LESSEE : Board of County Commissioners Monroe County, Florida By: o p Title : � `Atef—, l� r ( Date ----- - -- 1 EXHIBIT B To the Lease Purchase Agreement dated January 21, 1983, by and between Eden Hannon & Company (Lessor) and Board of County Commissioners of Monroe County, Florida (Lessee) . PAYMENT SCHEDULE Annual Lease Lease Payment Payment Due Payment Number Date Amount 1 March 31, 1983 $350, 000. 00 2 The first annual anniversary $286,890. 00 date from the date of equip- ment acceptance but no later than July a , 84 . 3 The second annual anniversary $286, 890. 00 date from the date of equip- ment accepptance but no later than July 21 , 1985 .. 4 . The third annual anniversary $286, 890. 00 date from the date of equip- ment acceptance but no later than July 21 , 1986 . LESSEE : Board of County Commissioners Monroe County, Florida ' Title , � c _ cf Date ----� AS<-3 EXHIBIT B To the Lease Purchase Agreement dated January 21, 1983, by and between Eden Hannon & Company (Lessor) and Board of County Commissioners of Monroe County, Florida (Lessee). Payment Number 2 3 4 LESSEE: By Title Date PAYMENT SCHEDULE Annual Lease Payment Due Date 1 March 31, 1983 The first annual anniversary date from the date of equip- ment acceptance but no later than July 21, 1984. The second annual anniversary date from the date of equip- ment acceptance but no later than July 21, 1985. The third annual anniversary date from the date of equip- ment acceptance but no later than July 21, 1986. Board of County Commissioners Monroe County, Flor ida . .. ~ ~..A- I \ JL.f/.~-~........_L_, O--tl~-------~ --____ __-=t",r'--<2~-=~ ------ ---------~~ -- Lease Payment Amount $350,000.00 $286,890.00 $286,890.00 $286,890.00