HomeMy WebLinkAboutResolution - 2015-R0417 - Contract - Banc Of America Public Capital Corp- Master Municipal Lease Agreement - 12/03/2015Resolution No. 2015-RO417
Item No. 5.6
December 3, 2015
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock, Contract No. 12506 for Master Municipal
Lease Agreement, by and between the City of Lubbock and Banc of America Public Capital
Corp of Scottsdale, Arizona, and related documents. Said Contract is attached hereto and
incorporated in this Resolution as if fully set forth herein and shall be included in the
minutes of the City Council.
Passed by the City Council this 3rd day of December 2015.
I, - " � &X�4
GLEN OBER SON, MAYOR
ATTEST:
Reb Ic
ca Garza, City Secret
APPROVED AS TO CONTENT:
�
Linda Cuellar, Acting Executive Director of Finance
APPROVED AS TO FORM:
RES.Contract-Bank of America
11-05-15
Resolution No. 2015-R0417 RFP #15 -12505 -MA, Master Municipal Lease Agreement
MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT is made, as of December 3, 2015, between Banc of America Public Capital
Corp ("Lessor") and the City of Lubbock, Texas ("City or Lessee").
The City desires to enter into arrangements for the lease purchase of various equipment. Lessor desires to provide for
the financing of such equipment by leasing such equipment to the City and the City desires to lease such equipment from
the Lessor. The City and the Lessor, for the consideration specified, agree as follows:
I — DEFINITIONS
1.1 Acquisition Period: means the period commencing upon execution of this Agreement and continuing
through September 30, 2016 unless the Acquisition Period is extended as provided in Section 3.2. All
Appendices received by the Lessor during the Acquisition Period shall be governed by the terms and conditions of
this Agreement.
1.2 Aereement: means this Agreement as the same may be amended and supplemented from time to time in
accordance with its terms.
1.3 Appendix: means each Equipment List and Payment Schedule submitted by the Lessee substantially in the
form attached hereto.
1.4 Code: means the Internal Revenue Code of 1986, as amended.
1.5 Contract Documents: consist of this Agreement, Exhibit A (Statement of Essential Use), Exhibit B
(Statement of Insurance Coverages), Exhibit C (Certificate of Counsel), Exhibit "D" (Form Appendix) and each
Appendix consisting of Part 1 (Equipment List) and Part 2 (Payment Schedule), and Request for Proposal IS -
12056 -MA. Where the terms and provisions of the Agreement vary from the terms and provisions of the other
Contract Documents, the terms and provisions of the Agreement shall prevail over the other Contract Documents.
1.6 Equipment: means the items of new or reconditioned personal property leased to Lessee for a term not
exceeding the useful life of the item pursuant to this Agreement and listed in an applicable Appendix as
acceptable by the Lessor.
1.7 Financing Request Date: means the date on which an Appendix is mailed via overnight delivery to the Lessor.
1.8 Index: The average weighted life interest rate swap index based on a three, five, seven or ten year term. Interest
will be calculated on the basis of a year with 360 days consisting of twelve 30 -day months. The rate of interest
to be charged for each equipment purchase, or groups of equipment purchases, will be determined and fixed
as of the Financing Request Date based on the schedule provided in section 4.1.
1.9 Lease Payment: means a payment made by the City to the Lessor as specified herein.
1.10 Lessor Payment Date: means each date on which a payment is made by the Lessor pursuant to Section 4.2.
1.11 Payment Schedule: means the document substantially in the form of Part 2 of the Appendix establishing the
repayment schedule for an Appendix.
1.12 Term or Term of this Apreement: means the period beginning with the execution of the Agreement by both
parties and ending on the date when the final Lease Payment has been paid.
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II — GENERAL
2.1 The purpose of this Agreement is to provide for the terms of the lease of the Equipment by the Lessor to the
City. Payment obligations of the City with respect to Equipment acquired under this Agreement begin when the
City executes an Appendix, as set forth on Exhibit "D" attached hereto.
2.2 The obligation of the Lessee to make Lease Payments under this Agreement is subject to annual appropriation
by the City Council. NEITHER THE CITY'S FULL FAITH AND CREDIT NOR ITS TAXING POWER IS
PLEDGED BY VIRTUE OF THIS AGREEMENT. THIS OBLIGATION SHALL NOT CONSTITUTE
DEBT OF THE CITY WITHIN THE MEANING OF THE CONSTITUTION AND LAWS OF THE
STATE OF TEXAS.
2.3 The Lessor agrees to lease to the City the Equipment described in the Part 1 of each properly executed
Appendix (Equipment List) for the consideration indicated in Part 2 of the Appendix (Payment Schedule) and
the City agrees to lease such Equipment from the Lessor. The City shall be entitled to retain possession of the
Equipment as long as the City is not in default under this Agreement and an event of non -appropriation has not
occurred.
2.4 No Equipment items shall be acquired on behalf of Lessee under this Agreement by the Lessor or will be paid
for by Lessor, until the Lessor has been provided an Appendix signed by the City.
2.5 Lessee agrees to comply with all applicable laws and regulations including anti -money laundering laws.
III—TERM
3.1 The -term of each Appendix entered into pursuant to this Agreement shall be for a period of three (3), five (5),
seven (7) or ten (10) years, as determined by the City and the Lessor, and as shown in each applicable Appendix,
beginning on the applicable Lessor Payment Date of the applicable Appendix and will be terminated, except as
otherwise provided in this Agreement, on the last payment date described in Part 2 of the applicable Appendix.
3.2 The term of the Acquisition Period may be extended for two additional periods of twelve (12) months each
beyond the initial term of the Acquisition Period. Such extension or extensions will be upon mutual agreement of
the City and the Lessor, and will be accomplished by a document extending the Acquisition Period, duly
executed by the City and Lessor prior to September 30, 2016, and if mutually agreed to further extend the
Acquisition Period one additional annual period, on or before September 30, 2017. The term of the final
acquisition period will expire on September 30, 2018.
IV — PAYMENT
4.1 Amount and Times of Payment by Lessee: The total purchase price for Equipment indicated in each Appendix
shall be reimbursed to the City by the Lessor and the City shall pay the Lessor the Lease Payments in the
amounts and on the dates indicated in each Appendix. The interest component of the initial Lease Payment with
respect to each Appendix shall include accrued interest from the date the Lessor reimburses the City for the
Equipment. All interest payments including payments for partial months and accrued interest shall be
calculated on the basis of a year with 360 days consisting of twelve 30 -day months. A fixed rate of interest will
be established by executing of an Appendix as set forth on the Appendix, Part 2. Using the terms of the
Appendix, the rate will be determined by multiplying 0.65% times the applicable Index published in the week of
the Financing Request Date for the term based on the following schedule:
3 Year Lease Term Rate = 2 Year Federal Reserve H-15 Swap Rate x 65% plus 59.8 bps
5 Year Lease Term Rate = 3 Year Federal Reserve H-15 Swap Rate x 65% plus 70.5 bps
7 Year Lease Term Rate = 4 Year Federal Reserve H-15 Swap Rate x 65% plus 82.9 bps
10 Year Lease Term Rate = 6 Year Federal Reserve H-15 Swap Rate x 65% plus 97.5 bps
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The net effective interest rate may not exceed the net effective interest rate of which public securities may be
issued in accordance with Chapter 1204 of the Texas Government Code. In the event the net effective interest rate
does so exceed such rate, the net effective interest rate in such instance, for all purposes hereof, shall be the net
effective interest rate at which public securities may be issued in accordance with Chapter 1204 of the Texas
Government Code. Invoices shall be submitted by the Lessor directly to the City at the City's address shown on
the Appendix not less than 15 days before the due date of each Lease Payment. All invoices shall show the
Appendix number and the federal employer identification number of the Lessor. Subject to Section 4.3, all Lease
Payments will be made upon the City's receipt of an accurate invoice meeting the requirements of this
Agreement. If paid by wire transfer, the date of the City's wire transfer shall be deemed to be the date of
payment by the City to the Lessor. Subject to Section 4.3 and Section 19, there will be no abatement or reduction
of Lease Payments by the Lessee for any reason, including but not limited to, any defense, recoupment, set off,
counterclaim. or any claim arising out of or related to any defects, damages, malfunctions, breakdowns or
unsuitability of the Equipment.
4.2 Amount and Times of Payment by Lessor: Payment by Lessor must be made to the City by the Financing Request
Date of an Appendix, as evidenced in writing and receipt of the documents described in Section 5.5(a). The amount of
payment will be stated in the Appendix covering such Equipment. The date of the Lessor's wire transfer shall be
deemed to be the Lessor Payment Date.
4.3 Appropriation of Payments: Notwithstanding any provision in this Agreement to the contrary, all funds for
payment by the Lessee under this Agreement, including all Lease Payments, are subject to the availability of an
annual appropriation for this purpose by the City Council of the Lessee. While recognizing that it is not
empowered to make any binding commitment beyond the current fiscal year of the Lessee, it is the current
intention of the Lessee to make sufficient annual appropriations during the Term of this Agreement to pay all
Lease Payments and other amounts required to be paid by the Lessee under this Agreement. Failure to make any
payments hereunder as a result of non -appropriation shall not be deemed to be an Event of Default, but such
failure shall entitle the Lessor to exercise the remedies set forth in Section 4.6.
4.4 Events of Default by Lessee: Any of the following events shall constitute an Event of Default by the Lessee
under this Agreement, provided that no such default shall constitute an Event of Default unless it is not cured
within thirty (30) days after the receipt by the Lessee of written notice, as provided herein, thereof from the Lessor
to the Lessee:
(a) The nonpayment of any Lease Payment required hereunder, or the default by the Lessee in the performance
of any of the obligations, covenants, terms and provisions contained or referred to in this Agreement;
provided, however, that failure to make any payments as a result of non -appropriation by the City
Council shall not constitute an Event of Default but shall entitle the Lessor to exercise the remedies set forth
in Section 4.6.
(b) Any warranty, representation, or statement of Lessee contained in this Agreement proves to have been false
in any material respect when made or furnished.
(c) Loss, theft, substantial damage, destruction, except as provided in Section 5.7, sale or encumbrance, subject
to Section 5.4 and Section 7.1, of or to any of the Equipment, or the making on any levy, seizure or
attachment thereof or thereon provided that the Lessee is not taking reasonable steps to replace, repair, or
remove any encumbrances from such Equipment.
(d) Proceedings under any bankruptcy, insolvency, reorganization or similar legislation shall be instituted by
or against the Lessee, or a receiver, custodian or similar officer shall be appointed for the Lessee or any of
its property.
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4.5 Events of Default by Lessor: Any of the following events shall constitute an Event of Default by Lessor
under this Agreement:
(a) Late payment by Lessor for Equipment following timely notification and documentation from the City
with respect to such Equipment as per Section 4.2.
(b) Lessor's failure to observe any of the covenants and requirements of this Agreement.
(c) Any warranty, representation, or statement of Lessor contained in this Agreement proves to have been false
in any material respect when made or furnished.
4.6 Remedies of Lessor: Upon the occurrence of an Event of Default or event of non -appropriation by the Lessee,
then Lessor may, as its option, take any one or more of the following actions with respect to the Appendix
wherein such Event of Default or non -appropriation has occurred:
(a) Declare the entire amount of unpaid Lease Payments due under the Appendix wherein such Event of
Default or non -appropriation has occurred to be immediately due and payable, without further notice;
(b) Repossess any equipment under the Appendix wherein such Event of Default or non -appropriation has
occurred or sell or lease the Equipment in a commercially reasonable manner, and in accordance with
Chapter 9 of the Texas Business and Commerce Code, through public or private transaction after giving
Lessee reasonable prior written notice with or without having the Equipment at any such sale or leasing.
Lessor may purchase all or part of the Equipment at any such sale or leasing. The proceeds of any sale
or leasing will be applied to the payment of the unpaid balance of Lessee's obligations under this
Agreement and Lessor shall have no further rights or recourse under this Agreement against Lessee
with respect to such repossessed Equipment except to recover any amounts then appropriated and
unexpended by Lessee to make Lease Payments under this Agreement. To the extent the proceeds of
any such sale or leasing exceed the amount required to pay the unpaid balance of Lessee's obligations
under this Agreement, such excess shall be paid to Lessee; or
(c) Terminate this Agreement as to and only as to the Appendix wherein the Event of Default or non -
appropriation has occurred.
(d) Terminate the Lessor's obligation to fund any future Appendix under this Agreement.
Lessor's attempt to exercise any of the remedies herein entitles Lessee to prepay all amounts due under the
Appendix wherein such Event of Default or non -appropriation has occurred, without notice to Lessor, as
provided in Section 7.1 and Section 7.2 herein, notwithstanding any provisions to the contrary contained herein.
4.7 Remedies of Lessee: Upon the occurrence of an Event of Default by Lessor, the Lessee may, at its option, take
any one or more of the following actions:
(a) Institute any or all remedies available to Lessee as allowed by law, contract, equity, or otherwise.
(b) Terminate this Agreement as to all or any part of the Equipment, provided that the Lessee prepays its
obligations in accordance with Section 7.1 with respect to any Equipment for which this Agreement will be
terminated.
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V — RESPONSIBILITIES OF LESSEE
5.1 Care and Use of Equipment: The Lessee shall use the Equipment or cause the Equipment to be used in a
proper manner, in compliance with all applicable laws and regulations, and at its sole cost and expense, service,
repair and maintain the Equipment so as to keep the Equipment in good condition, repair, appearance and
working order for the purposes intended, ordinary wear and tear excepted, and shall replace any material part of
the Equipment as may from time to time become worn out, lost, stolen, destroyed, damaged or unfit for
use. Any and all additions to or replacements of the Equipment and all parts thereof shall constitute accessions
to the Equipment and shall be subject to all the terms and conditions of this Agreement and included in the term
"Equipment" as used in this Agreement.
5.2 Inspection: Subject to security regulations, laws, policies, and ordinances and other applicable laws,
regulations, ordinances and policies, Lessee will allow Lessor, with reasonable prior notice to Lessee, to enter
premises where the Equipment is located during normal business hours for the purposes of inspecting the
Equipment and observing whether Lessee is in compliance with its responsibilities under this Agreement.
5.3 Taxes and Licenses: It is the Lessee's good faith belief that the items acquired by it pursuant to this Agreement
should be exempt from the payment of Federal excise taxes and from all State and Local taxes imposed by the
State of Texas or its political subdivisions.
5.4
5.5
5.6
Assignment or Delegation of Lessee: Lessee may not assign all or any part of its rights and obligations
under this Agreement or in the Equipment to another party.
Delivery of Related Documents:
(a) For each item of Equipment, Lessee shall execute or deliver, as appropriate, the following documents:
(i) An Appendix in substantially the form attached.
(ii) To the extent required and as prepared by Lessor, financing statements or other documents to
evidence Lessor's security interest provided that such statements shall not impose liabilities and/or
responsibilities inconsistent with this Agreement.
(iii) A copy of IRS form 8038-G; original to Internal Revenue Service.
(iv) Certificates in substantially the form of Exhibit A relating to the essentiality of the Equipment and
Exhibit B relating to insurance coverage.
(v) For any Appendix where the principal amount to be financed exceeds $5,000,000, an opinion of
nationally recognized bond counsel to the effect that the interest component of the Lease Payments is
excluded from the gross income of the Lessor under the Code.
(b) For each item of Equipment, Lessee shall provide upon written request of the Lessor, the City's
maintenance contract of the Equipment, if applicable.
(c) Upon the execution of this Agreement by Lessee, Lessee will provide a Certification of Counsel in the
form attached hereto as Exhibit C.
Liability and Property Insurance: During the term of this Agreement, the Lessee agrees to provide the
following insurance coverages under Lessee's self-insurance program or through its purchased commercial
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property insurance policies:
(a) Insurance or self-insurance in the amount of the full replacement cost of the Equipment against the risk of
any direct physical loss of or damage to the Equipment.
(b) Comprehensive general liability insurance or self-insurance against liability for death or bodily injury and
for damage to property, arising out of the ownership, maintenance or use of the Equipment, which insurance
coverage shall not be circumscribed by any endorsements limiting the breadth of coverage (limited only
as may be provided in the standard form for such coverage at the time in use in Texas). The proceeds of such
insurance coverage shall be applied to satisfaction of the liability.
Lessee shall furnish to the Lessor evidence of the above coverages prior or contemporaneous to execution
of the Contract Documents.
Lessee's failure to maintain insurance or self-insurance is an immediate event of default, and Lessor has the right
to obtain the insurance and be reimbursed for its cost by the Lessee to the Lessor.
5.7 Damage to or Destruction of Equipment: If after delivery of any Equipment to Lessee all or any material part of
the Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee shall as soon as practicable after
such event either: (a) replace the same at Lessee's sole cost and expense with Equipment of equal or greater value
to the Equipment immediately prior to the time of the loss occurrence, such replacement Equipment to be subject
to Lessor's reasonable approval, whereupon such replacement Equipment shall be substituted in this Agreement
and other related documents by appropriate endorsement or amendment; or (b) pay the applicable prepayment
price (as set forth in Section 7.2 hereof) of the Appendix to which such Equipment belongs. Lessee shall notify
Lessor of which course of action it will take within thirty (30) days after the loss occurrence. In the event
Lessor shall replace or repair the Equipment, as described above, it shall be deemed that no Event of Default
hereunder has occurred. Upon payment of the prepayment price as set forth in Section 7.1 hereof with respect to
any Appendix, this Agreement shall terminate with respect to the relative Equipment and Lessee thereupon shall
become entitled to such Equipment on an AS IS, WHERE IS basis and Lessor makes no warranties or
representations of any type as to the Equipment, except that such Equipment shall not be subject to any lien or
encumbrance created by or arising through Lessor.
5.8 Risk of Loss: Unless Section 6.9 of this Agreement is applicable, all risk of loss to the Equipment arising out
of the ownership, possession or use of the Equipment shall be borne by Lessee.
5.9 Application of Funds: All funds authorized or appropriated for payments under this Agreement shall be applied
by the City to such payment requirements to the extent required by this Agreement.
VI — EQUIPMENT
6.1 Title: Title to Equipment listed in an Appendix shall pass to the Lessee upon acceptance thereof. Title will
revert to Lessor upon the occurrence of the Event of Default, and expiration of the notice and cure period, under
Section 4.4, or upon non -appropriation of payments due regarding such Equipment listed in the applicable
Appendix under this Agreement.
6.2 Security Interest: The Lessee grants to Lessor and Lessor retains a purchase money security interest in the
Equipment. Lessee will not change or remove any insignia or lettering, which Lessor may place on the
Equipment to indicate its interest therein until all Lease Payments are made. Until all Lease Payments are
made or prepayment is complete, Lessee shall keep the Equipment free from any lien, encumbrance or legal
process, which would conflict with this security interest.
6.3 Filine: Subject to the provisions of Section 5.5.a.ii, Lessee authorizes Lessor to make Lessor's security interest a
matter of public record by filings of any standard documents necessary for that purpose. Lessee agrees to sign or
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execute such documents, if required, to evidence its consent to the filing. Lessee will provide sixty (60) days
written notice to Lessor that Equipment is being relocated to insure that Lessor may perfect additional filings as
necessary.
6.4 Personal Property: The Equipment shall remain the personal property as defined in V.T.C.A, Local Government
Code, Subchapter A of Chapter 271, as amended, of the Lessee and shall not be deemed to have become real
property regardless of the manner in which it is affixed to real property.
6.5 Alternations, Additions, Attachments: Lessor hereby agrees to allow the Lessee to add and attach to the
Equipment such additional equipment, facilities or fixtures as the Lessee may subsequently acquire (exclusive of
repair, service replacement parts, which do not constitute new equipment, but shall become part of the Equipment)
notwithstanding the form of financing that the Lessee might use, which additional equipment, facilities or
fixtures shall not be a part of or subject to this Agreement, unless by express written amendment.
6.6 Removal of Alterations, Additions, Attachments: In the event title to the Equipment reverts to Lessor, Lessee,
at its own expense, will remove all alterations, additions and attachments and repair the Equipment as
necessary so as to return the Equipment to the condition in which it was furnished, reasonable wear and tear
excepted. Lessee will not be responsible for any maintenance repairs if the Equipment has been under a
continuous maintenance agreement since it was put into service and accepted by the City.
6.7 Return of Equivment: In the event title to the Equipment reverts to Lessor, as specified herein, for the Equipment
listed in any Appendix, Lessee shall deliver possession of the Equipment to Lessor at the premises of Lessee in
the condition in which the Equipment is required to be maintained according to this Agreement.
6.8 Quiet Enjoyment: The Lessee shall be entitled to possess and use the Equipment during the term of this
Agreement without interruption by the Lessor, provided that the Lessee has duly performed its obligations under
this ARreement. Any Equipment acquired under terms of this Agreement may be operated at any time at the
convenience of the Lessee (exclusive of time required for preventive maintenance, remedial maintenance and/or
approved engineering changes). There shall be no restrictions as to consecutive hours, length of personnel shifts,
etc., unless such restrictions are specifically incorporated in an Appendix. Lessee may make Equipment available
to other users, provided that such use is supervised by the City, such Equipment is used by other governmental
units, and Lessor has consented in writing to such use by a substitute user, such consent to not be unreasonably
withheld.
6.9 Liability of Lessor: Notwithstanding Section 11.2 of this Agreement, in the event that the Lessor is required to
perform work at the Lessee's location and such work is performed by Lessor, its agents, employees, contractors
or assigns the Lessor shall (1) maintain such bodily injury and property damage liability insurance as necessary
to protect itself from claims arising out of performance of this Agreement, and (2) indemnify and hold
harmless the City, its elected and appointed officers, officials, agents, employees and designated
representatives from and against any and all claims, suits, actions, liabilities, and costs of any kind, including
attorney's fees for bodily injury and damage to real or personal property arising from or related to intentional or
grossly negligent acts or omissions of the Lessor, its agents, officers, employees, contractors or assigns.
VII — PREPAYMENT
7.1 Prepayment: Lessee shall have the right, exercisable as of any date following the first half of the term of the
Appendix, to prepay the principal amount outstanding under such Appendix in whole or in part, plus accrued but
unpaid interest to the prepayment date.
Lessee's right hereunder shall be exercised by:
(a) Lessee advising Lessor, at least thirty (30) days in advance in writing, of its intention to prepay its
obligations under any Appendix, the principal amount, the Equipment to which the prepayment is
applicable, and the effective date of that payment (Prepayment Date); and
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(b) Lessee paying Lessor the outstanding principal balance as of the Prepayment Date together with accrued
but unpaid interest from the most recent Payment Date to and including the Prepayment Date.
7.2 Lessee's Rights on Prepayment or Payment in Full: Upon (1) Lessee's exercise of its right of prepayment in
accordance with the preceding subsection; or (2) Lessee's having satisfied all of its monetary obligations
hereunder, Lessor shall deliver to Lessee, at its expense, all documents necessary to evidence the termination of
Lessor's interest of any kind in the Equipment or portion of the Equipment to which the prepayment or payment
applies and to confirm such Equipment is free and clear of any claim or lien arising through Lessor.
VIII — ASSIGNMENT BY LESSOR
8.1 Right of Assignment; This Agreement shall be binding upon and inure to benefit of the Lessor and Lessee.
This Agreement, Lessor's rights hereunder, or the obligation hereby described is not assignable by Lessor
without the prior written consent of the Lessee, and such consent shall not be unreasonably withheld or delayed.
Should assignment be granted by the Lessee, all payments shall continue to be made to the Lessor on the
originally agreed upon payment dates.
IX — WARRANTIES AND REPRESENTATIONS
9.1 Warranties and Representations of Lessee: The Lessee represents and warrants to the Lessor that Lessee is
duly organized and validly existing and has the power and authority to enter into this Agreement and to carry
out the terms hereof including authority expressly conferred by V.T.C.A., Local Government Code, Subchapter
A of Chapter 271. The Lessee's obligations to make Lease Payments hereunder, as described in Section 2.2, are
subject to annual appropriation of sufficient funds each year by the City Council.
The Lessee represents and agrees that it will not submit any Appendix that requests a payment period longer
than the useful life of the Equipment to be leased.
The Lessee shall not use, permit the use of, or omit to use the Equipment acquired under this Agreement in a
manner which if made or omitted, respectively, would cause the interest portion of a Lease Payment to become
includable in the gross income, as defined in section 61 of the Code, of the Lessor for federal income tax
purposes. Without limiting the generality of the foregoing, unless and until the Lessee receives a written
opinion of counsel nationally recognized in the field of municipal bond law to the effect that failure to comply
with such covenant will not adversely affect the exemption from federal income tax of the interest on any
Lease Payment, the Lessee shall comply with covenants, representations and warranties contained herein.
Except as permitted by section 141 of the Code and the Regulations and rulings thereunder, the Lessee shall at all
times exclusively operate and possess all Equipment the acquisition of which is to be financed directly or
indirectly under this Agreement, and not use or permit the use of such Equipment in any activity carried on
by any person or entity (including the United States or any agency, department and instrumentality thereof)
other than a state or local government.
The Lessee shall timely file the information required by section 149(e) of the Code with the Secretary of the
Treasury on Form 8038-G or such other form and in such place as the Secretary may prescribe.
9.2 Warranties and Representations of Lessor: Lessor represents and warrants to Lessee that:
(a) Lessor is a corporation or other entity in good standing under the applicable laws of the State of Texas and
has the power and authority to enter into this Agreement and to carry out the terms hereof.
(b) Contract Documents executed by Lessor have been duly authorized, approved, executed and delivered by
its authorized representatives and constitute legal, valid and binding obligations of Lessor enforceable
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against Lessor in accordance with their respective terms.
X — MISCELLANEOUS PROVISIONS
10.1 Waiver: No delay or omission by Lessor or Lessee in exercising any right in any of the Contract Documents
shall operate as a waiver of that or any other right and no single or partial exercise of any right shall preclude
Lessor or Lessee from any further exercise of any right or remedy. Lessor or Lessee may itself cure any Event of
Default of the defaulting party without waiving the Event of Default and such cure shall not constitute a waiver
of any prior or subsequent Event of Default of the defaulting party.
10.2 Headings: All section headings contained herein are for convenience of reference only and are not intended to
limit the scope of any provisions of this Agreement.
10.3 Severability: In the event any portion of this Agreement shall be finally determined by any court of
competent jurisdiction to be invalid or unenforceable, such provision shall be stricken and this Agreement, as
modified, shall continue in full force and effect.
10.4 Implementation: This Agreement shall be implemented by its execution or execution of Appendices hereto.
For purposes of construing a transaction as an integrated contract and for the purposes of the provisions of
Section 8, the following shall be considered a single transaction or legal binding agreement:
(a) This Agreement, which provides basic terms and conditions; and
(b) An executed Appendix, which provides for the description of the Equipment to be purchased, the
payments from Lessee to Lessor for the purchase of such Equipment and prepayment amounts.
10.5 Amendment: Neither this Agreement nor any of the other Contract Documents may be amended unless in
writing, signed by the parties hereto, and approved as to form by the City Attorney.
10.6 Contractual Records: All contractual books, records and other documents related to matters under this
Agreement shall be maintained and made available by Lessor to Lessee and its designated agents for a period of
five (5) years after final payment for purposes of audit and examination.
10.7 No Waiver: Nothing contained in this Agreement shall be deemed or be construed to be an express or implied
waiver of the sovereign immunity of the City of Lubbock or its officials, officers and employees, or a pledge of
the full faith and credit of the City.
10.8 Entire Agreement: This Agreement, the Contract Documents identified in Section 1.4, and the Appendices as
may be hereafter executed, constitute the entire Agreement between the parties hereto. All prior negotiations,
representations and additional or inconsistent oral or written statements are superseded, null and void.
10.9 Counterparts: This Agreement may be executed in several counterparts each of which shall be an original and
all of which together shall constitute but one and the same instrument.
XI — DISCLAIMER OF WARRANTIES
11.1 LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, RELATING TO
THE EQUIPMENT; AND LESSOR HAS EXPRESSLY MADE NO WARRANTY AS TO THE VALUE,
DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
EQUIPMENT.
11.2 Lessor shall not be liable to Lessee for any liabilities, loss or damage caused, directly or indirectly, by the
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Equipment or by any inadequacies thereof or deficiency therein, by any incident whatsoever in connection
therewith or in any way related to or arising out of the Equipment. The Lessee shall be entitled to the benefit of
any applicable manufacturer's, dealer's or any other party's warranties. Lessor agrees to execute and deliver
such instruments as may be necessary or advisable, in the reasonable opinion of the Lessee, to enable it to
enforce such warranties and obtain the warranties and service furnished for the Equipment by the manufacturer.
XII — NOTICES
All notices made or required to be given pursuant to this Agreement shall be in writing and shall be deemed duly served
if and when mailed, unless otherwise specified, certified mail, postage prepaid, return receipt requested, to the other party
at its address set forth below or at such address as such party shall hereafter designate in writing.
If to the Lessor, address to:
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, CA 94104
Attention: Contract Administration
Mail Code: CA5-705-04-01
If to the Lessee, address to: City of Lubbock
1625 13th Street
Lubbock, Texas 79401
ATTN: Finance Department
XIII — EMPLOYMENT DISCRIMINATION BY LESSOR PROHIBITED
During the performance of this Agreement, the Lessor agrees as follows:
A. The Lessor will not discriminate against any employee or applicant for employment because of race, religion,
color, sex, age, sexual orientation, or national origin. The Lessor agrees to post in conspicuous places, available
to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause.
B. The Lessor, in all solicitations or advertisements for employees placed by or on behalf of the Lessor, will state
that such Lessor is an Equal Opportunity Employer.
C. Notices, advertisements and solicitations placed in accordance with federal law, rule, or regulation shall be
deemed sufficient for the purpose of meeting the requirements of this section.
D. The Lessor will comply with the provisions of the Americans with Disabilities Act of 1990 which prohibits
discrimination against individuals with disabilities in employment and mandates their full participation in both
publicly and privately provided services and activities.
XIV — INDEMNIFICATION
The Lessor covenants to save, defend, hold harmless, and indemnify the City, and all of its elected officials,
officers, departments, agencies, agents, and employees (collectively the "City") from and against any and all claims,
losses, damages, injuries, fines, penalties, costs (including court costs and attorney's fees), charges, liabilities, or
exposure, however caused, resulting from, arising out of, related to or in any way connected with the Lessor's intentional
or grossly negligent acts or omissions in the performance or nonperformance of its duties and obligations provided or
required for by this Agreement and/o r Contract Documents. This indemnification shall survive the termination of the
Agreement.
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RFP #15 -12506 -MA, Master Municipal Lease Agreement
XV — ETHICS IN PUBLIC CONTRACTING
The Agreement incorporates by reference local, state and federal law related to ethics, conflicts of interest, or bribery,
including by way of illustration and not limitation, the Texas Local Government Code, Texas Government Code and
Texas Penal Code.
The Lessor certifies that its offer is made without collusion or fraud and that is has not offered or received any
kickbacks or inducements from any other offeror or subcontractor and that it has not conferred on any public employee
having official responsibility for this purchase or activity any payment, loan, subscription, advance, deposit of money,
services, present or promised, unless consideration of substantially equal or greater value was exchanged.
XVI — APPLICABLE LAW
This Agreement and the obligations hereunder shall be governed in all respects by the laws of the State of Texas and the
venue for any litigation with respect thereto, this Agreement and the Contract Documents, being performable at least in
part in Lubbock County, Texas, shall exclusively lie in Lubbock County, Texas. The Lessor shall comply with applicable
federal, state and local laws, regulations and ordinances.
XVII - RELATION TO CITY
The Lessor shall be considered as an independent contractor of the City and neither the Lessor nor its employees will,
under any circumstances, be considered servants or agents of the City. The City will not be legally responsible for any
negligence or other wrongdoing of any kind, or type, of the Lessor, its servants, employees, agents, or contractors.
The City will not withhold payments to the Lessor for any federal or state unemployment taxes, federal or state
income taxes, Social Security tax, or any other amounts for benefits to the Lessor. Further, the City will not provide to
the Lessor any insurance coverage or other benefits, including Worker's Compensation, normally provided by the City for
its employees.
XVIII — ARBITRATION
The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including
without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall
not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The
remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any
conflict between this provision and another provision in, or related to, this document, this provision shall control.
XIX — RIGHT TO AUDIT
At any time during the term of the contract, or thereafter, the City, or a duly authorized audit representative of the City
or the State of Texas, at its expense and at reasonable times, reserves the right to audit Contractor's records and books
relevant to all services provided to the City under this Contract. In the event such an audit by the City reveals any errors
or overpayments by the City, Contractor shall refund the City the full amount of such overpayments within thirty (30)
days of such audit findings, or the city, at its option, reserves the right to deduct such amounts owing the City from any
payments due Contractor.
XX — CONFIDENTIALITY AND RETURN OF RECORDS
The Lessor agrees that all findings, memoranda, correspondence, documents or records of any type, whether written or
oral, and all documents generated by the Lessor as a result of the City's request for services under this Agreement (the
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RFP #15 -12606 -MA, Master Municipal Lease Agreement
"Records"), may be confidential, and neither the Records nor their contents shall be released, nor their contents
disclosed, to any person other than the City or its designee, except as may be required by law, rule or regulation
applicable to the Lessor or its successors or assigns. To the extent permitted by law, rule or regulations applicable to the
Lessor or its successor or assigns, the Lessor agrees that all oral or written inquiries from any person or entity regarding
the status of any Record generated as a result of the existence of this Agreement shall be referred to the City or designee
for response. At the City's request, the Lessor shall deliver all Records to the City, including "hard copies" of computer
records.
The Lessor agrees to include the provisions of this section as part of any Contract or Agreement the Lessor enters
into with subcontractors or other third parties for work related to work pursuant to this Agreement.
No termination of this Agreement shall have the effect of rescinding, terminating or otherwise invalidating this section.
XXI - REQUIREMENTS CONTRACT (ESTIMATED QUANTITIES)
The Lessor understands and agrees that the City is under no obligation under this Agreement to request financing
from the Lessor if it deems that financing is not required or that other financing, including but not limited to other lease -
purchase agreements, is more advantageous to the City. Lessor understands and agrees that the City is under no obligation
to the Lessor to request financing for any amount as a result of having had any normal or otherwise measurable
requirement in the past.
XXII - EVENT OF TAXABILITY
In the event of a Determination of Taxability, the interest rate shall automatically increase to the interest rate
representing the equivalent yield to the Lessor under the respective Appendix assuming the interest component of the
Lease Payments is included in the gross income of the Lessor under the Code ("Taxable Rate") retroactive to the date of
the occurrence of the Determination of Taxability and the Lessee will pay such additional amount as will result in the
Lessor receiving the interest component of the Lease Payments at the Taxable Rate; provided, further, that such interest
rate as increased by the terms hereof, respectively, shall never exceed the then maximum interest rate allowed for
similar governmental obligations pursuant to Chapter 1204, Texas Government Code, as amended, or other applicable
laws in effect as of the date of such appendix or as of the date of any increase to such interest rate, respectively.
"Determination of Taxability" means one of the following determinations made in regard to section 103 of the Code to the
effect that by reason of any action or inaction by the Lessee or any violation by the Lessee of any of its covenants or
representations in this Agreement or any misrepresentation in any certificate furnished in connection with any Appendix
hereunder, the interest payable under such Appendix is includable in the gross income of the Lessor: (i) a final
determination, decision or decree by the Commissioner or any District Director of Internal Revenue, or by any court of
competent jurisdiction, which is not subject to further review, or (ii) an opinion of a nationally recognized bond counsel
furnished by the Lessor to the Lessee.
Pee IEorls
WITNESS these signatures:
LESSEE:
CITY OF LUBBO K, T X (Lessee):
By: Glen C. Robertson
ATTEST:
e cca arza, ityecretary
COMPLETE ADDRESS:
P.O. Box 2000
Lubbock, Texas 79457
Phone: (806) 775-2183
Fax: (806) 775-3273
APP�AS T�O�COpN�TE((N/T�:
ue ar,�Acting Director Finance
APPROVED AS TO FORM:
A= AtJlMne�
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RFP #15 -12506 -MA, Master Municipal Lease Agreement
LESSOR:
BOF AMERICA PUBLIC CAPITAL CORP (Lessor):
-e�\J
By:_ Terri J. Preston
Authorized Agent
ATTEST:
0&&
Authonze
COMPLETE ADDRESS:
555 California Street, 4th Floor
San Francisco, CA 94104
Phone: (415)765-1897
Fax: (415)343-0531
RFP #15 -12506 -MA, Master Municipal Lease Agreement
EXHIBIT A
APPENDIX NUMBER
ESSENTIAL USE CERTIFICATE
TO: (Lessor)
Reference is made to the City of Lubbock Master Lease Agreement, dated December 3, 2015, (the "Agreement") between
Banc of America Public Capital Corp and the City of Lubbock, Texas (the "City"). This confirms that the items described
in Appendix to the Agreement (Equipment) are essential to the functions of the City and the services provided to the
citizens of the City.
Further, the City has an immediate need for, and expects to make immediate use of, substantially all of the Equipment, which
need is not temporary or expected to diminish in the foreseeable future. The Equipment will be used by the City only for
the purpose of performing one or more of our governmental or proprietary functions consistent with the permissible scope
of the City's authority.
CITY OF LUBBOCK, TEXAS
(Title)
Date:
Pelle 14 of 18
RFP #15 -12506 -MA, Master Municipal Lease Agreement
EXHIBIT B
APPENDIX NUMBER
INSURANCE COVERAGES
TO: (Lessor)
Pursuant to Section 5.6 of the Master Lease Agreement, dated December 3, 2015 (the "Agreement') between Banc of
America Public Capital Corp and the City of Lubbock, Texas (City), the City is insured through commercial property
insurance policies or through self-insurance for all risk, physical damage and public liability with respect to the Equipment (as
defined in the Agreement) and will provide proof of such coverage if coverage is provided through policies other than self-
insurance.
CITY OF LUBBOCK, TEXAS
(Title)
Date:
P., 15 d 18
RFP #15 -12506 -MA, Master Municipal Lease Agreement
EXHIBIT C
CERTIFICATE OF COUNSEL
I am City Attorney for the City of Lubbock, Texas and, in that capacity, I have examined the Master Lease
Agreement, dated December 3, 2015, (the "Agreement") between the City of Lubbock (the "City") and Banc of
America Public Capital Corp (the "Lessor").
I . As a result of my examination of the Agreement, I have advised the City as follows:
(a) The City is a political subdivision of the State of Texas and is authorized by resolution of the City
Council to enter into the transactions contemplated by the Agreement and, to extent funds are
appropriated for the Agreement, as provided therein, to carry out the City's obligations under the
Agreement.
(b) The obligation of the City to make payments under the Agreement is enforceable only if and to the extent
that funds for such purpose are appropriated by the City Council of the City.
(c) The Agreement is a legal, valid and binding obligation of the City, enforceable against the City
according to its terms.
2. I express no opinion as to any of the following matters:
(a) The title of any party to, the accuracy or adequacy of the description of, the priority of any security
interest or lien in, or whether the property described in the Appendices constitutes, Equipment, as
defined in the Agreement.
(b) The laws of any jurisdiction that may be applicable to the Agreement other than those of the State of
Texas.
For the purposes of this Certificate, I have assumed that all signatures by parties other than those by or on
behalf of the City are genuine; all documents that have been submitted to me as originals are authentic; and
all documents submitted to me as certified, conformed or photostatic copies conform to authentic, original
documents.
City Attorney
P., 16or IB
RFP #15 -12506 -MA, Master Municipal Lease Agreement
EXHIBIT D
MASTER LEASE AGREEMENT
APPENDIX NUMBER
PART
EQUIPMENT LIST
The undersigned, under the Master Lease Agreement, dated December 3, 2015 (the "Agreement"), between Banc of America
Public Capital Corp (Lessor), and the City of Lubbock, Texas (City), negotiated for the purpose of acquiring the
Equipment in this Appendix and any other Appendices to the Agreement, hereby certifies that all the Equipment described
below has been installed and is operational to the satisfaction of the City.
TEM
DESCRIPTION QUANTITY UNIT PRICE TOTALCOST TERM
(i) GRAND TOTAL ALL ITEMS LISTED
ON APPENDIX
Installation address:
and other official City buildings within the City of Lubbock, Texas
Relocation:
The City may relocate equipment within the City of Lubbock, Texas. All expenses associated with relocation will be home
by the City. These expenses include but are not limited to installation, de -installation, casualty insurance and shipment.
LESSEE:
LESSOR:
CITY OF LUBBOCK, TEXAS BANC OF AMERICA PUBLIC CAPITAL CORP
By:
Name:
Financing Request Date:
Address for Invoices:
Date of Approval:
Paye 17 of IS
RFP #15 -12506 -MA, Master Municipal Lease Agreement
EXHIBIT D
MASTER LEASE AGREEMENT
APPENDIX NUMBER
PART
PAYMENT SCHEDULE
The principal amount to be financed for the Equipment shown on Appendix _ - Part I is $ . The amount of interest
to be paid for the Equipment shown on Appendix - Part 1 is $ The rental payments the Equipment shown on
Appendix _ - Part 1 will be due in accord with the following payment schedule:
TE
TOTAL
The interest on this Appendix wil I accrue from the Lessor Payment Date of at a rate per annum of
for the term of months. Interest will be calculated on the basis of a 360 -day year with twelve 30 -day months
and is based on the rate structure provided in Section 4.1 of the Master Lease Agreement dated December 3, 2015.
Interest will never exceed the maximum lawful rate of interest applicable.
LESSEE:
LESSOR:
CITY OF LUBBOCK, TEXAS BANC OF AMERICA PUBLIC CAPITAL CORP
Name:
hp Is of N