2083 Lease Purchase Police Vehicles City Nat'l Capital FinanceFINANCE DEPARTMENT
'T'RANSMI"TTAL MEMORANDUM
TO: City Clerk's Office
RE: Request for Services
The item(s) noted below is/are attached and forwarded to your office for the following action(s):
❑ Development Order
❑ Final Plat (original mylars)
❑ Letter of Credit
❑ Maintenance Bond
❑ Ordinance
❑ Performance Bond
❑ Resolution
El
Once completed, please:
❑ Return original
❑ Return copy
El
Special Instructions:
7
Mayor's signature
Recording
Rendering
Safe keeping (Vault)
Please advise if you have any questions regarding the above.
ThanV vniiI
June 13 2019
Date
CITY COMMISSION MEMORANDUM 19.141
JUNE 10, 201AGENDA
TO: Honorable Mayor and Members of the City Commission
PREPARED BY: Cynthia Lindsay, Finance Director
SUBMITTED BY: Norton N. Bonaparte, Jr., City Mana
SUBJECT: Lease Purchase of Police Vehicles
STRATEGIC PRIORITIES:
❑ Unify Downtown & the Waterfront
❑ Promote the City's Distinct Culture
❑ Update Regulatory Framework
❑ Redevelop and Revitalize Disadvantaged Communities
SYNOPSIS:
Resolution No. 2794, providing for the lease -purchase of police vehicles, is being requested.
FISCAL/STAFFING STATEMENT:
The lease agreement is for a 4 -year purchase agreement at an interest rate of 2.855% with total
interest (over the life of the lease) of $11,435. Payments will be quarterly at $12,260 each. The
total principal and interest costs are $196,160.
The lease was budgeted for in the FY 2018-2019 budget.
BACKGROUND:
During FY 2019 budget development and approval, it was determined that the police department
needed to purchase replacement vehicles and funds were budgeted to make these purchases using
the funding source of a capital lease. IRFQ 18/19-126 was issued for the lease purchase finance of
the vehicles in the amount of $184,725 and the City received two responses on May 7, 2019 with
City National Capital Finance being the lowest responsive bidder as follows:
Vendor Name Interest Rate
City National Capital Finance 2.855%
SunTrust 3.175%
LEGAL EviEw:
The Assistant City Attorney reviewed both the resolution and the lease agreement.
RECOMMENDATION:
It is staff's recommendation that the City Commission approve Resolution No. 2794 and authorize
the execution of the attached lease documents with City National Capital Finance.
SUGGESTED MOTION:
"I move to approve Resolution No. 2794 and authorize the execution of the lease documents with
City National Capital Finance for the lease -purchase of police vehicles."
Attachments: Resolution No. 2794
Lease Documents
Resolution No. 2794
A Resolution of the City Commission of the City of Sanford
approving and awarding the City National Capital Finance bid
relating to the lease of police vehicles; providing for legislative
findings and intent; providing for implementing administrative
actions; providing for a savings provision; providing for conflicts;
providing for severability and providing for an effective date.
Whereas, the City and City National Capital Finance have entered agreements
relating to the leasing of police vehicles after City National Capital Finance bid on the
provision of police vehicles to the City; and
Whereas, the City and City National Capital Finance have furthered their
relationship with regard to additional police vehicles and desire to continue to do so as
set forth herein; and
Whereas, the City Commission of the City of Sanford determined, and hereby
further determines, that it would be in the public interest to approve and award the bid of
City National Capital Finance relating to the lease of police vehicles and to continue and
expand the relationship between the City and City National Capital Finance.
Now, Therefore, Be it adopted and resolved by the City Commission of the
City of Sanford, Florida as follows:
Section 1. Legislative Findings and Intent.
(a). The above recitals (whereas clauses) are adopted by the City Commission
of the City of Sanford and made a substantive part of this Resolution.
(b). This Resolution, and the actions taken herein, are in the public interest
and fulfill and support an essential public purpose for the benefit of the City of Sanford
and the citizens of the City of Sanford.
1IPaae
(c). The City of Sanford has complied with all requirements and procedures of
Florida law in processing and advertising this Resolution.
Section 2. Award of Bid to City National Capital Finance; Approval of
Addendum.
The City Commission of the City of Sanford hereby continues to find City
National Capital Finance to be the lowest responsive and responsible bidder and
continues to approve City National Capital Finance's bid in the amount of $184,725 with
regard to leasing police vehicles and award of the said bid to City National Capital
Finance in accordance with the purchasing policies of the City. The current total
principal amount due is $184,725 and the City and City National Capital Finance have
processed Addenda with additional vehicles to those procured in the original transaction
between the City and City National Capital Finance.
Section 3. Implementing administrative actions.
(a). The City Manager is assigned the responsibility to take any and all
necessary administrative actions that may be desirable or necessary to implement the
provisions of this Resolution.
(b). The City Attorney is instructed to assist the City Manager in the
implementation of this Resolution.
Section 4. Savings.
The prior procurement actions of the City relative to City National Capital
Finance, and any and all associated or related matters and activities, are hereby ratified
and affirmed. Without limiting the generality of the foregoing, the City Commission of the
City of Sanford hereby ratifies and affirms the provisions of the Master Agreement and
Addenda thereto.
2 1 P a g e
Section 6. Conflicts.
All resolutions or parts of resolutions in conflict with this Resolution are hereby
repealed.
If any section, sentence, phrase, word or portion of this Resolution is determined
to be invalid, unlawful or unconstitutional, said determination shall not be held to
invalidate or impair the validity, force or effect of any other section, sentence, phrase,
word or portion of this Resolution.
This Resolution shall become effective immediately upon enactment.
Passed and adopted this 10th day of June, 2019.
Attest. City of Sanford Citi qommission
Traci Houchin, CIVIC, FCRM
City Clerk
For use and reliance of the Sanford t: Mor
City Commission only. Approved as Q I -
to form and legality.
A
V
William L. Colbert, City Attorney
31 P ,i Q e
BdCapital
CITY OF SANFORD, FLORIDA
Lease Schedule No. 2: $184,725.00
Lease Purchase Financing
Closing Date: June 10, 2019
Closing Documents
1. Master Lease Purchase Agreement — on file (dated March 30, 2018)
2. Amendment to MLPA— attached for execution
3. Lease Schedule No. 2 — attached for execution
a. Equipment Description
b. Payment Schedule — In order to avoid a potential rate adjustment, the
closing documents must be returned by the above closing date.
4. Escrow Agreement — attached for execution
5. Pay Proceeds — attached for execution
6. Tax Certificate — attached for execution
7. Incumbency Certificate of Lessee — on file
8. Resolution of Governing Body of Lessee — Lessee to provide prior to closing
9. Opinion of Counsel to Lessee — Lessee to provide prior to closing
10. IRS Form 8038-G — Lessee to provide an executed copy prior to closing
a. Evidence of filing Form 8038-G — Lessee to file the original with the
IRS, then provide evidence of mailing post -closing
11. Evidence of Self -Insurance — Lessee to provide prior to any escrow disbursement
12. Vehicle MSOs/title applications — Lessee to provide copies prior to any escrow
disbursement
Please execute one set of the above documents attached for execution and return the ori ina! to:
BciCapital, Inc.
Attn: Alex Michelini
390 N. Orange Ave., Suite 2600
Orlando, FL 32801
AMENDMENT TO MASTER LEASE PURCHASE AGREEMENT
Dated: June 10, 2019
This Amendment to the Master Lease Purchase Agreement (the "Amendment") is entered into by
and between the CITY OF SANFORD, a political subdivision of the State of Florida, and BCICAPITAL,
INC., a Florida corporation.
WHEREAS, on March 30, 2018, City National Capital Finance Inc. n/k/a BciCapital, Inc. (together
with its successors and assigns, "Lessor") entered into a Master Lease Purchase Agreement ("Agreement")
with the City of Sanford (the "Lessee"); and
WHEREAS, on or about August 1, 2018, Lessor filed Articles of Amendment with the Florida
Department of State Division of Corporations to change its name from City National Capital Finance Inc.
to BciCapital, Inc. effective August 1, 2018; and
WHEREAS, Lessor and Lessee desire to amend the Agreement in accordance with Section 12.4 of
the Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto
agree as follows:
1. All references to Lessor shall mean BciCapital, Inc., and the parties acknowledge that this
accomplishes a change of corporate name only, and all rights and obligations of the Lessor and Lessee
under the Agreement, lease schedules, and related documents are unaffected by this change.
2. Lessor and Lessee hereby agree to amend the Agreement by adding the following Sections:
12.12 Filing of Leases. Lessee shall not file or submit, or permit the filing or
submission, of all or any portion this Agreement or any Lease, any document related to this
Agreement or any Lease, any default, event of acceleration, termination event, waiver,
modification of terms or other similar events relating to this Agreement or any Lease or
any summary of the foregoing with the Municipal Securities Rulemaking Board ("MSRB")
(or any successor to the MSRB or similar entity or service) unless such document or portion
thereof has been provided to the Lessor in advance for review and redaction to the extent
required by the Lessor and otherwise permitted under applicable MSRB rules or federal
securities law, if any. Lessor is not responsible for the Lessee's or any other entity's
compliance with any continuing disclosure obligations under any applicable securities law
or related agreement or undertaking.
12.13 Electronic Signatures. The parties agree that the electronic signature of a
party to this Agreement and any Lease Schedule shall be as valid as an original signature
of such party and shall be effective to bind such party to this Agreement and such Lease
Schedule(s). The parties agree that any electronically signed document (including this
Agreement and any Lease Schedule) shall be deemed (i) to be "written" or "in writing,"
(ii) to have been signed and (iii) to constitute a record established and maintained in the
ordinary course of business and an original written record when printed from electronic
files. Such paper copies or "printouts", if introduced as evidence in any judicial, arbitral,
mediation or administrative proceeding, will be admissible as between the parties to the
same extent and under the same conditions as other original business records created and
maintained in documentary form. Neither party shall contest the admissibility of true and
accurate copies of electronically signed documents on the basis of the best evidence rule
or as not satisfying the business records exception to the hearsay rule. For purposes hereof,
"electronic signature" means a manually signed original signature that is then transmitted
by electronic means; "transmitted by electronic means" means sent in the form of a
facsimile or sent via the internet as a "pdf' (portable document format) or other replicating
image attached to an e mail message; and, "electronically signed document" means a
document transmitted by electronic means and containing, or to which there is affixed, an
electronic signature.
3. Lessor and Lessee hereby agree to amend the Agreement by adding the following
subsection to Section 11.1 of the Agreement as follows:
(f) The occurrence of an Event of Default with respect to any Lease Schedule shall, at the
reasonable discretion of Lessor, constitute an Event of Default with respect to any or all
Lease Schedules to which it is then a party. Notwithstanding anything to the contrary set
forth herein, Lessor may exercise all rights and remedies hereunder independently with
respect to each Lease Schedule.
All other terms and conditions of the Agreement remain unchanged and are in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment on this, the 10th day of June, 2019.
CITY OF SANFORD
Lessee
By:
Name: Jeff Tripl !
Title: Mayor
'�d r
2
BCICAPITAL, INC.
Les:
By:
Nan
Titlf
LEASE SCHEDULE NO.2
to Master Lease Purchase Agreement
Dated: June 10, 2019
This Lease Schedule (this "Lease Schedule") relates to the Master Lease Purchase Agreement dated
as of March 30, 2018 (the "Agreement") between the undersigned Lessor and Lessee, together with the
terms and conditions of the Agreement incorporated herein by reference, constitutes a Lease. Unless
otherwise defined herein, capitalized terms will have the same meaning ascribed to them in the Agreement.
All terins and conditions of the Master Lease are incorporated herein by reference.
1. Equipment Description. As used in the Lease, "Equipment" means all of the property described in
Exhibit 1 attached to this Lease Schedule and all attachments, additions, accessions, parts, repairs,
improvements, replacements and substitutions thereto.
2. Purchase Price. The Purchase Price for the Equipment is $184,725.00, which amount shall be
deposited in the Escrow Fund established pursuant to that certain Escrow Agreement dated as of
June 10, 2019 among Lessor, Lessee and City National Bank of Florida.
3. Rental Payments; Lease Term. The Rental Payments to be paid by Lessee to Lessor, the Lease
Date of this Lease and the Lease Term of this Lease are set forth on the Payment Schedule attached
to this Lease Schedule as Exhibit 2.
4. Essential Use; Current Intent of Lessee. Lessee represents that (a) the use of the Equipment is
essential to Lessee's proper, efficient and economic functioning or to the services that Lessee
provides to its citizens, (b) the Equipment will be used by Lessee only for the purpose of performing
its governmental or proprietary functions consistent with the permissible scope of its authority and
will not be used in a trade or business of any person or entity, and (c) the useful life of the
Equipment is not less than the stated full Lease Tenn of this Lease. Lessee has determined that a
present need exists for the Equipment which need is not temporary or expected to diminish in the
near future. Lessee currently intends for the full Lease Term: to use the Equipment; and to continue
this Lease.
Representations, Warranties and Covenants. Lessee hereby represents, warrants and covenants that
its representations, warranties and covenants set forth in the Agreement are true and correct as
though made on the date of execution of this Lease Schedule.
Bank Qualified. Lessee certifies that it has designated this Lease as a qualified tax-exempt
obligation in accordance with Section 265(b)(3) of the Code, that it has not designated more than
$10,000,000 of its obligations as qualified tax-exempt obligations in accordance with such Section
for the current calendar year and that it reasonably anticipates that the total amount of tax-exempt
obligations to be issued by Lessee during the current calendar year will not exceed $10,000,000.
IN WITNESS WHEREOF, Lessor has caused this Lease Schedule to be executed in its corporate
name by its duly authorized officer, and Lessee has caused this Lease Schedule to be executed in its name by
its duly authorized officer.
CITY OF SANFORD
Lessee
By:
Name: Jeff Triplett
Title: Mayor
Address: 300 North P,
Sanford, FL
Attn: Cyntl
CFO
Telephone: (407) 688 -
E-mail: Cvnthia.Linds
BCICAPITAL, INC.
Lessor
By:
Name:
Title:
01N Address: 390 N. Orange Ave. Ste. 2600
Orlando, FL 32817
Attn: Michael Powers
Senior Vice President
1. 17 Telephone: (410) 458-5747
an or .gov E-mail: mike.powersAbcicmg.com
Form of
ACCEPTANCE CERTIFICATE
BciCapital, Inc.
390 N. Orange Ave. Suite 2600
Orlando, FL 32801
Re: Lease Schedule No. 2 dated June 10, 2019 (the "Lease Schedule") to that certain Master
Lease Purchase Agreement dated as of March 30, 2018 (the "Agreement" and together
with the Lease Schedule, the "Lease") between BciCapital, Inc., as Lessor, and the City
of Sanford, as Lessee
Ladies and Gentlemen:
1, the undersigned, hereby certify that I am the duly qualified and acting officer of Lessee identified
below and, with respect to the above -referenced Lease Schedule, that:
1. The Equipment subject to the Lease Schedule and the Lease has been delivered and
installed, is in good working order and is frilly operational and has been fully accepted by Lessee on or
before the date hereof.
2. Attached hereto are true and correct copies of the manufacturers' and dealers' invoices for
the Equipment.
3. Lessee has appropriated and/or taken other lawful actions necessary to provide moneys
sufficient to pay all Rental Payments required to be paid under the Lease during the current fiscal year of
Lessee. Such moneys will be applied in payment of all such Rental Payments due and payable during such
current fiscal year.
4. No event or condition that constitutes, or with notice or lapse of time, or both, would
constitute, an Event of Default (as defined in the Lease) exists at the date hereof.
Date of Acceptance: Am' i ( p lci
CIT
Les:
By:
Nan
Titlf
Exhibit 1
Equipment Description
(5) New 2019 Vehicles for the Police Department
Total amount: $184,725.00
Exhibit 2
Payment Schedule
Annual Rate: 2.85%
Payment
Date
Payment
Amount
Interest
Principal
Balance
Prepayment
Amount
6/10/2019
$184,725.00
N/A
9/10/2019
$12,260.00
$1,321.74
$10,938.26
$173,786.74
$173,786.74
12/10/2019
$12,260.00
$1,243.47
$11,016.53
$162,770.21
$162,770.21
3/10/2020
$12,260.00
$1,164.65
$11,095.35
$151,674.86
$151,674.86
6/10/2020
$12,260.00
$1,085.26
$11,174.74
$140,500.12
$140,500.12
9/10/2020
$12,260.00
$1,005.30
$11,254.70
$129,245.42
$129,245.42
12/10/2020
$12,260.00
$924.77
$11,335.23
$117,910.19
$117,910.19
3/10/2021
$12,260.00
$843.67
$11,416.33
$106,493.86
$106,493.86
6/10/2021
$12,260.00
$761.98
$11,498.02
$94,995.84
$94,995.84
9/10/2021
$12,260.00
$679.71
$11,580.29
$83,415.55
$83,415.55
12/10/2021
$12,260.00
$596.85
$11,663.15
$71,752.40
$71,752.40
3/10/2022
$12,260.00
$513.40
$11,746.60
$60,005.80
$60,005.80
6/10/2022
$12,260.00
$429.35
$11,830.65
$48,175.15
$48,175.15
9/10/2022
$12,260.00
$344.70
$11,915.30
$36,259.85
$36,259.85
12/10/2022
$12,260.00
$259.45
$12,000.55
$24,259.30
$24,259.30
3/10/2023
$12,260.00
$173.58
$12,086.42
$12,172.88
$12,172.88
6/10/2023
$12,260.00
$87.12
$12,172.88
$0.00
$0.00
TOTAL:
$196,160.00
$11,435.00
$184,725.00
ESCROW AGREEMENT
This Escrow Agreement (this "Agreement"), dated as of June 10, 2019, by and among BciCapital,
Inc. (and any successors and permitted assigns "Lessor"), the City of Sanford, a body corporate and politic
and a political subdivision existing under the laws of the State of Florida ("Lessee"), and City National
Bank of Florida, in its capacity as escrow agent hereunder ("Escrow Agent").
Reference is made to that certain Lease Schedule No. 2 dated June 10, 2019 to that certain Master
Lease Purchase Agreement dated as of March 30, 2018, each between Lessor and Lessee (hereinafter
collectively referred to as the "Lease"), covering the acquisition and lease of certain Equipment described
therein (the "Equipment'). It is a requirement of the Lease that the Purchase Price ($184,725.00) be
deposited into a segregated escrow account under terms satisfactory to Lessor, for the purpose of fully
funding the Lease, and providing a mechanism for the application of such amounts to the purchase of and
payment for the Equipment.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Creation of Escrow Account.
(a) There is hereby created an escrow fund to be known as the "City of Sanford Escrow
Account 002" (the "Escrow Account") to be held by the Escrow Agent for the purposes stated herein, for
the benefit of Lessor and Lessee, to be held, disbursed and returned in accordance with the terms hereof.
(b) The Escrow Agent shall place all escrow funds in a demand deposit account or as
otherwise agreed upon between the parties.
(c) Unless the Escrow Account is earlier terminated in accordance with the provisions
of paragraph (d) below, amounts in the Escrow Account shall be disbursed by the Escrow Agent in payment
of amounts described in Section 2 hereof upon receipt of written instruction(s) from Lessor, as is more fully
described in Section 2 hereof. If the amounts in the Escrow Account are insufficient to pay such amounts,
Lessee shall deposit into the Escrow Account any funds needed to complete the acquisition of the
Equipment. Any moneys remaining in the Escrow Account on or after the earlier of (i) December 10, 2020
("Termination Date") and (ii) the date on which Lessee executes an Acceptance Certificate shall be applied
as provided in Section 4 hereof.
(d) The Escrow Account shall be terminated at the earliest of (i) the final distribution
of amounts in the Escrow Account or (ii) written notice given by Lessor of the occurrence of a default or
termination of the Lease due to non -appropriation.
(e) The Escrow Agent may act in reliance upon any writing or instrument or signature
which it, in good faith, believes to be genuine and may assume the validity and accuracy of any statement
or assertion contained in such a writing or instrument. The Escrow Agent shall not be liable in any manner
for the sufficiency or correctness as to form, manner of execution, or validity of any instrument nor as to
the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited
to the receipt of such moneys, instruments or other documents received by it as the Escrow Agent, and for
the disposition of the same in accordance herewith. In the event conflicting instructions as to the disposition
of all or any portion of the Escrow Account are at any time given by Lessor and Lessee, the Escrow Agent
shall abide by the instructions or entitlement orders given by Lessor without consent of the Lessee.
(f) Unless the Escrow Agent is guilty of gross negligence or willful misconduct with
regard to its duties hereunder, Lessee agrees to and does hereby release and indemnify the Escrow Agent
and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in
equity, or any other expense, fees or charges of any character or nature, which it may incur or with which
it may be threatened by reason of its acting as Escrow Agent under this agreement; and in connection
therewith, does to the extent permitted by law indemnify the Escrow Agent against any and all expenses;
including reasonable attorneys' fees and the cost of defending any action, suit or proceeding or resisting
any claim.
(g) If Lessee and Lessor shall be in disagreement about the interpretation of the Lease,
or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent
hereunder, the Escrow Agent may, but shall not be required to, file an appropriate civil action including an
interpleader action to resolve the disagreement. The Escrow Agent shall be reimbursed by Lessee for all
costs in connection with such civil action, and shall be fully protected in suspending all or part of its
activities under the Lease until a final judgment in such action is received.
(h) The Escrow Agent may consult with counsel of its own choice and shall have full
and complete authorization and protection with the opinion of such counsel. Lessee shall reimburse the
Escrow Agent for all such reasonable costs and expenses. The Escrow Agent shall otherwise not be liable
for any mistakes of fact or errors of judgment, or for any acts or omissions of any kind unless caused by its
willful misconduct.
(i) Lessee shall reimburse the Escrow Agent for all reasonable costs and expenses,
including those of the Escrow Agent's attorneys, agents and employees incurred for non -routine
administration of the Escrow Account and the performance of the Escrow Agent's powers and duties
hereunder in connection with any Event of Default under the Lease, or in connection with any dispute
between Lessor and Lessee concerning the Escrow Account.
0) The Escrow Agent or any successor may at any time resign by giving mailed notice
to Lessee and Lessor of its intention to resign and of the proposed date of resignation (the "Effective Date"),
which shall be a date not less than 60 days after such notice is delivered to an express carrier, charges
prepaid, unless an earlier resignation date and the appointment of a successor shall have been approved by
the Lessee and Lessor. After the Effective Date, the Escrow Agent shall be under no further obligation
except to hold the Escrow Account in accordance with the terms of this Agreement, pending receipt of
written instructions from Lessor regarding further disposition of the Escrow Account.
(k) The Escrow Agent shall have no responsibilities, obligations or duties other than
those expressly set forth in this Agreement and no implied duties responsibilities or obligations shall be
read into this Agreement.
2. Acquisition of Equipment.
(a) Acquisition Contracts. Lessee will arrange for, supervise and provide for, or cause
to be supervised and provided for, the acquisition of the Equipment, with moneys available in the Escrow
Account. Lessee represents the estimated costs of the Equipment are within the funds estimated to be
available therefor, and Lessor makes no warranty or representation with respect thereto. Lessor shall have
no liability under any of the acquisition or construction contracts. Lessee shall obtain all necessary permits
and approvals, if any, for the acquisition, equipping and installation of the Equipment, and the operation
and maintenance thereof. Escrow Agent shall have no duty to monitor or enforce Lessee's compliance with
the foregoing covenant.
4
(b) Authorized Escrow Account Disbursements. It is agreed as between Lessee and
Lessor that Disbursements from the Escrow Account shall be made for the purpose of paying (including
the reimbursement to Lessee for advances from its own funds to accomplish the purposes hereinafter
described) the cost of acquiring the Equipment.
(c) Requisition Procedure. No disbursement from the Escrow Account shall be made
unless and until Lessor has approved such requisition. Prior to disbursement from the Escrow Account
there shall be filed with the Escrow Agent a requisition for such payment in the form of Disbursement
Request attached hereto as Schedule 1, stating each amount to be paid and the name of the person, firm or
corporation to whom payment thereof is due and the manner of disbursement (check or wire).
Each such requisition shall be signed by an authorized representative of Lessee (an
"Authorized Representative") and by Lessor, and shall be subject to the following conditions, which Escrow
Agent shall conclusively presume have been satisfied at such time as a requisition executed by Lessee and
Lessor is delivered to it:
Delivery to Lessor of an executed Disbursement Request in the form attached
hereto as Schedule 1; and
2. Delivery to Lessor true and correct copies of invoices (and proofs of payment of
such invoices, if Lessee seeks reimbursement) and bills of sale (if title to such
Equipment has passed to Lessee) therefor as required by Section 1.3 of the Lease
and any additional documentation reasonably requested by Lessor.
Lessee and Lessor agree that their execution of the form attached hereto as Schedule I and delivery
of the executed form to Escrow Agent confirms that all of the requirements and conditions with respect to
disbursements set forth in this Section 2 have been satisfied.
3. Deposit to Escrow Account. Upon satisfaction of the conditions specified in Section 1.3
of the Lease, Lessor will cause the Purchase Price to be deposited in the Escrow Account. Lessee agrees
to pay any costs with respect to the Equipment in excess of amounts available therefor in the Escrow
Account.
4. Excessive Escrow Account. Lessor shall provide Escrow Agent written instructions and a
representation that one of the following conditions has been satisfied, (upon which representation Escrow
Agent shall conclusively rely,) (a) the Termination Date; or (b) the date on which Lessee executes an
Acceptance Certificate; or (c) upon a termination of the Escrow Account as otherwise provided herein.
Upon receipt of such written instructions, any funds remaining in the Escrow Agreement shall be distributed
by the Escrow Agent first, ten percent (10%) of the funds then remaining in the Escrow Account shall be
disbursed to the Escrow Agent as its escrow agent fees ("Fees'') and second, the remaining balance after
deducting the Fees shall be disbursed to the Lessor and Lessor shall apply such funds to amounts owed by
Lessee under the Lease.
5. Security Interest. The Escrow Agent and Lessee acknowledge and agree that the Escrow
Account and all proceeds thereof are being held by Escrow Agent for disbursement or return as set forth
herein. Lessee hereby grants to Lessor a first priority perfected security interest in the Escrow Account,
and all proceeds thereof.
6. Control of Escrow Account. In order to perfect Lessor's security interest by means of
control in (i) the Escrow Account established hereunder, (ii) all funds now or hereafter credited to the
Escrow Account, (iii) all of Lessee's rights in respect of the Escrow Account, and (iv) all products, proceeds
3
and revenues of and from any of the foregoing personal property (collectively, the "Collateral"), Lessor,
Lessee and Escrow Agent further agree as follows:
(a) All terms used in this Section 6 which are defined in the Commercial Code of the
State of Florida ("Commercial Code") but are not otherwise defined herein shall have the meanings
assigned to such terms in the Commercial Code, as in effect on the date of this Agreement.
(b) Escrow Agent will comply with all entitlement orders originated by Lessor with
respect to the Collateral, or any portion of the Collateral, without further consent by Lessee.
(c) Provided that account investments shall be held in the name of the Escrow Agent,
Escrow Agent hereby represents and warrants (a) that the records of Escrow Agent show that Lessee is the
sole owner of the Collateral, (b) that Escrow Agent has not been served with any notice of levy or received
any notice of any security interest in or other claim to the Collateral, or any portion of the Collateral, other
than Lessor's claim pursuant to this Agreement, and (c) that Escrow Agent is not presently obligated to
accept any entitlement order from any person with respect to the Collateral, except for entitlement orders
that Escrow Agent is obligated to accept from Lessor under this Agreement and entitlement orders that
Escrow Agent, subject to the provisions of paragraph (e) below, is obligated to accept from Lessee.
(d) Without the prior written consent of Lessor, Escrow Agent will not enter into any
agreement by which Escrow Agent agrees to comply with any entitlement order of any person other than
Lessor or, subject to the provisions of paragraph (e) below, Lessee, with respect to any portion or all of the
Collateral. Escrow Agent shall promptly notify Lessor if any person requests Escrow Agent to enter into
any such agreement or otherwise asserts or seeks to assert a lien, encumbrance or adverse claim against any
portion or all of the Collateral.
(e) Except as otherwise provided in this paragraph (e) and subject to Section 1(b)
hereof, Lessee may affect the form of deposit account for the Collateral within the Escrow Account, but
will not, without the prior written consent of Lessor, withdraw any Collateral from the Escrow Account.
Escrow Agent acknowledges that Lessor reserves the right, by delivery of written notice to Escrow Agent,
to prohibit Lessee from effecting any withdrawals (including interest income), transfers or exchanges of
any Collateral held in the Escrow Account. Further, Escrow Agent hereby agrees to comply with any and
all written instructions delivered by Lessor to Escrow Agent (once it has had a reasonable opportunity to
comply therewith) and has no obligation to, and will not, investigate the reason for any action taken by
Lessor, the amount of any obligations of Lessee to Lessor, the validity of any of Lessor's claims against or
agreements with Lessee, the existence of any defaults under such agreements, or any other matter.
(f) Lessee hereby irrevocably authorizes Escrow Agent to comply with all instructions
and entitlement orders delivered by Lessor to Escrow Agent.
(g) Escrow Agent will not attempt to assert control, and does not claim and will not
accept any security or other interest in, any part of the Collateral, and Escrow Agent will not exercise,
enforce or attempt to enforce any right of setoff against the Collateral, or otherwise charge or deduct from
the Collateral any amount whatsoever.
(h) Escrow Agent and Lessee hereby agree that any property held in the Escrow
Account shall be treated as a financial asset under such section of the Commercial Code as corresponds
with Section 8-102 of the Uniform Commercial Code, notwithstanding any contrary provision of any other
agreement to which Escrow Agent may be a party.
M
(i) Escrow Agent is hereby authorized and instructed, and hereby agrees, to send to
Lessor at its address set forth in Section 8 below, concurrently with the sending thereof to Lessee, duplicate
copies of any and all monthly Escrow Account statements or reports issued or sent to Lessee with respect
to the Escrow Account.
7. Information Required Under USA PATRIOT ACT. The parties acknowledge that in order
to help the United States government fight the funding of terrorism and money laundering activities,
pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA
PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that
identifies each person establishing a relationship or opening an account. The parties to this Agreement
agree that they will provide to the Escrow Agent such information as it may request, from time to time, in
order for the Escrow Agent to satisfy the requirements of the USA PATRIOT Act, including but not limited
to the name, address, tax identification number and other information that will allow it to identify the
individual or entity who is establishing the relationship or opening the account and may also ask for
formation documents such as articles of incorporation or other identifying documents to be provided.
8. Miscellaneous. Capitalized terms not otherwise defined herein shall have the meanings
assigned to them in the Lease. This agreement may not be amended except in writing signed by all parties
hereto. This agreement may be executed in one or more counterparts, each of which shall be deemed to be
an original instrument and each shall have the force and effect of an original and all of which together
constitute, and shall be deemed to constitute, one and the same instrument. Notices hereunder shall be
made in writing and shall be deemed to have been duly given when personally delivered or when deposited
in the mail, first class postage prepaid, or delivered to an express carrier, charges prepaid, or sent by
facsimile with electronic confirmation, addressed to each party at its address below.
Notices and other communications hereunder may be delivered or furnished by electronic mail;
provided that any formal notice be attached to an email message in PDF format; and provided further that
any notice or other communication sent to an e-mail address shall be deemed received upon and only upon
the sender's receipt of affirmative acknowledgement or receipt from the intended recipient. For purposes
hereof no acknowledgement of receipt generated on an automated basis shall be deemed sufficient for any
purpose hereunder or admissible as evidence of receipt.
If to Lessor: BciCapital, Inc.
390 N. Oranize Ave., Suite 2600
Orlando, FL 32801
Attention: Michael Powers
If to Lessee: City of Sanford
300 North Park Avenue
Sanford, FL 32771
Attention: CFO
If to Escrow Agent: City National Bank of Florida
25 West Flaaler Street
Miami, FL 33130
Attention: Client Services
9. This Agreement shall be governed by and construed in accordance with the laws of the
State of Florida.
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10. Any bank or corporation into which the Escrow Agent may be merged or with which it
may be consolidated, or any bank or corporation to whom the Escrow Agent may transfer a substantial
amount of its escrow business, shall be the successor to the Escrow Agent without the execution or filing
of any paper or any further act on the part of any of the parties, anything herein to the contrary
notwithstanding. Any bank or corporation into which the Lessor may be merged or with which it may be
consolidated, or any bank or corporation to whom the Lessor may transfer a substantial amount of its
business, shall be the successor to the Lessor without the execution or filing of any paper or any further act
on the part of any of the parties, anything herein to the contrary notwithstanding.
11. This Agreement may be amended, modified, and/or supplemented only by an instrument
in writing executed by all parties hereto.
[Signature Page Follows]
0
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of the date first
above written.
BCICAPITAL;
as Lessor
CITY NATION f BANK OF FLORIDA
as Escrow Aen
Title:
CITY OF SANFORD
as Lessee
By:_
Name
Title:
[Signature Page to Escrow Agreement]
SCHEDULE I
to the Escrow Agreement
Form of DISBURSEMENT REQUEST
Re: Lease Schedule No. 2 dated June 10, 2019 to that certain Master Lease Purchase
Agreement dated as of March 30, 2018 each between Lessor and Lessee (hereinafter
collectively referred to as the "Lease") (Capitalized terms not otherwise defined herein
shall have the meanings assigned to them in the Lease.)
In accordance with the tenns of the Escrow Agreement, dated as of June 10, 2019 (the "Escrow
Agreement") by and among BciCapital, Inc., as lessor (and its successors and permitted assigns, "Lessor"),
the CITY OF SANFORD ("Lessee") and City National Bank of Florida, as escrow agent (the "Escrow
Agent"), the undersigned hereby requests the Escrow Agent pay the following persons the following
amounts from the Escrow Account created under the Escrow Agreement for the following purposes:
Payee's Name and Address (if
disbursement via wire, must
include wire transfer
instructions)
Invoice Number
Dollar Amount
Purpose
(i) (a) Each obligation specified in the foregoing table has been incurred by Lessee in the
stated amount, (b) the same is a proper charge against the Escrow Account for costs relating to the
Equipment identified in the Lease, and (c) has not been paid (or has been paid by Lessee and Lessee requests
reimbursement thereof).
(ii) Each item of Equipment relating to an obligation specified in the foregoing table has been
delivered, installed and accepted by Lessee. Attached hereto is a true and correct copy of the invoice with
respect to such obligation.
(iii) The undersigned, as authorized representative of Lessee, has no notice of any vendor's,
mechanic's or other liens or rights to liens, chattel mortgages, conditional sales contracts or security interest
which should be satisfied or discharged before such payment is made.
(iv) This requisition contains no item representing payment on account, or any retained
percentages which Lessee is, at the date hereof, entitled to retain (except to the extent such amounts
represent a reimbursement to Lessee).
(v) The Equipment is insured in accordance with the Lease.
(vi) No Event of Default, and no event which with notice or lapse of time, or both, would
become an Event of Default, under the Lease has occurred and is continuing at the date hereof.
(vii) The representations, warranties and covenants of Lessee set forth in the Lease are true and
correct as of the date hereof.
(vii) No Material Adverse Change has occurred since the date of the execution and delivery of
the Lease. "
Dated: ',,Acne ci
CIT`
By:
Nam
Title
Disbursement of funds from the Escrow Account
in accordance with the foregoing Disbursement
Request hereby is authorized:
BCICAPITAL INC.
as Lessor under the Lease
By:
Name:
Title:
Schedule I- Page 2
PAY PROCEEDS LETTER
June 10, 2019
BciCapital, Inc.
390 N. Orange Ave., Suite 2600
Orlando, FL 32801
Ladies and Gentlemen:
The undersigned, an authorized officer of the CITY OF SANFORD ("Lessee"), hereby authorizes
BCICAPITAL, INC. ("Lessor") to pay the proceeds of the financial accommodations provided to Lessee
by Lessor evidenced by that certain Master Lease Purchase Agreement dated as of March 30, 2018 and the
related Lease Schedule No. 2, dated June 10, 2019, between Lessor and Lessee, to the following account
of Lessee:
Account: Amount of Deposit
City National Bank of New Hampshire
Account Number: $184,725.00
CITY OF SANFORD
By:
Name: Jeff
Title: Mavc
On '.„,.. 1
1
-1I
TAX CERTIFICATE
This Tax Certificate (this "Certificate") is executed and delivered as of June 10, 2019 (the "Lease
Date") by the City of Sanford ("Lessee") in connection with that certain Master Lease Purchase Agreement
dated as of March 30, 2018 (the "Agreement") by and between Lessee and BciCapital, Inc. ("Lessor") and
Lease Schedule No. 2 dated June 10, 2019 between Lessee and Lessor (the "Lease Schedule" and together
with the Agreement, a "Lease"). The terms capitalized herein but not defined herein shall have the
meanings assigned to them in the Lease.
Section 1. In General.
1.1. This Certificate is executed for the purpose of establishing the reasonable expectations of
Lessee as to future events regarding the financing of certain equipment (the "Equipment") to be acquired
by Lessor and leased to Lessee pursuant to and in accordance with the Lease. As described in the Lease,
Lessor shall apply $184,725.00 (the "Principal Amount") toward the acquisition of the Equipment and
Lessee shall make Rental Payments under the terms and conditions as set forth in the Lease.
1.2. The individual executing this Certificate on behalf of Lessee is an officer of Lessee
delegated with the responsibility of reviewing and executing the Lease, pursuant to the resolution or other
official action of Lessee adopted with respect to the Lease, a copy of which has been delivered to Lessor.
1.3. The Lease is being entered into for the purpose of providing funds for financing the cost
of acquiring, equipping and installing the Equipment which is essential to the governmental functions of
Lessee, which Equipment is described in the Lease Schedule. The Principal Amount will be paid to Lessee
on the date hereof.
1.4. Lessee will complete and timely file for each payment schedule issued under the Lease a
Form 8038-G relating to such Lease with the Internal Revenue Service in accordance with Section 149(e)
of the Internal Revenue Code of 1986, as amended (the "Code").
Section 2. Non -Arbitrage Certifications.
2.1. The Rental Payments due under the Lease will be made with monies retained in Lessee's
general operating fund (or an account or subaccount therein). No sinking, debt service, reserve or similar
fund or account will be created or maintained for the payment of the Rental Payments due under the Lease
or pledged as security therefor.
2.2. There have been and will be issued no obligations by or on behalf of Lessee that would be
deemed to be (i) issued or sold within fifteen (15) days before or after the Lease Date, (ii) issued or sold
pursuant to a common plan of financing with the Lease and (iii) paid out of substantially the same source
of funds as, or deemed to have substantially the same claim to be paid out of substantially the same source
of funds as, the Lease.
2.3. Other than the Principal Amount, Lessee does not and will not have on hand any funds that
are or will be restricted, segregated, legally required or otherwise intended to be used, directly or indirectly,
as a substitute, replacement or separate source of financing for the Equipment.
2.4. No portion of the Principal Amount is being used by Lessee to acquire investments which
produce a yield materially higher than the yield realized by Lessor from Rental Payments received under
the Lease. As used in this certificate, the term "yield" means yield computed by the actuarial method using
a 360 -day year and semi-annual compounding, resulting in a discount rate which, when used in computing
the present worth of all payments of principal and interest to be paid on an obligation, produces an amount
equal to the issue price, fair market value, present value or purchase price thereof, as applicable, and is
determined in all respects in accordance with Section 148 of the Code.
2.5. The Principal Amount does not exceed the amount necessary for the governmental purpose
for which the Lease was entered into. Such funds are expected to be needed and frilly expended for payment
of the costs of acquiring, equipping and installing the Equipment.
2.6. Lessee does not expect to convey, sublease or otherwise dispose of the Equipment, in
whole or in part, at a date which is earlier than the final Payment Date under the Lease.
Section 3. Disbursement of Funds,• Reimbursement to Lessee.
3.1. It is contemplated that the entire Principal Amount will be used to pay the acquisition cost
of Equipment to the vendors or manufacturers thereof, provided that, if applicable, a portion of the Principal
Amount may be used by Lessee as reimbursement for acquisition cost payments already made by it so long
as the conditions set forth in Section 3.2 below are satisfied.
3.2. Lessee shall not use any portion of the principal amount in order to be reimbursed for
Equipment acquisition cost payments already made by it unless each of the following conditions have been
satisfied:
(a) Lessee adopted a resolution or otherwise declared its official intent in accordance
with Treasury Regulation § 1.150-2 (the "Declaration of Official Intent"), wherein Lessee
expressed its intent to be reimbursed from the proceeds of a borrowing for all or a portion of the
cost of the Equipment, which expenditure was paid to the Vendor not earlier than sixty (60) days
before Lessee adopted the Declaration of Official Intent;
(b) The reimbursement being requested will be made by a written allocation before
the later of eighteen (18) months after the expenditure was paid or eighteen (18) months after the
items of Equipment to which such payment relates were placed in service;
(c) The entire payment with respect to which reimbursement is being sought is a
capital expenditure, being a cost of a type properly chargeable to a capital account under general
federal income tax principles; and
(d) Lessee will use any reimbursement payment for general operating expenses and
not in a manner which could be construed as an artifice or device under Treasury Regulation §
1.148-10 to avoid, in whole or in part, arbitrage yield restrictions or arbitrage rebate requirements.
Section 4. Use and Investment of Funds; Temporary Period.
4.1. Lessee has incurred or will incur, within six (6) months from the Lease Date, binding
obligations to pay an amount equal to at least five percent (5%) of the Principal Amount toward the costs
of the Equipment. An obligation is not binding if it is subject to contingencies within Lessee's control. The
ordering and acceptance of the items of Equipment will proceed with due diligence to the date of final
acceptance of the Equipment.
4.2. An amount equal to at least eighty-five percent (85%) of the Principal Amount will be
expended to pay the cost of the Equipment by the end of the three-year period commencing on the Lease
Date. No portion of the Principal Amount will be used to acquire investments that do not carry out the
Fa
governmental purpose of the Lease and that have a substantially guaranteed yield in excess of the yield on
the Lease.
4.3. (a) Lessee covenants and agrees that it will rebate an amount equal to excess earnings on
the Principal Amount to the Internal Revenue Service if required by, and in accordance with, Section 148(f)
of the Code, and make the annual determinations and maintain the records required by and otherwise
comply with the regulations applicable thereto. Lessee reasonably expects to cause the Equipment to be
acquired by no later than 18 months from the Lease Date.
(b) Lessee will provide evidence to Lessor that the rebate amount has been calculated and paid to
the Internal Revenue Service in accordance with Section 148(f) of the Code unless: (i) the entire Principal
Amount is expended on the Equipment by the date that is the six-month anniversary of the Lease Date or
(ii) the Principal Amount is expended on the Equipment in accordance with the following schedule: At least
fifteen percent (15%) of the Principal Amount and interest earnings thereon will be applied to the cost of
the Equipment within six months from the Lease Date; at least sixty percent (60%) of the Principal Amount
and interest earnings thereon will be applied to the cost of the Equipment within 12 months from the Lease
Date; and one hundred percent (100%) of the Principal Amount and interest earnings thereon will be applied
to the cost of the Equipment by no later than 18 months from the actual Lease Date.
Section 5. No Private Use; No Consumer Loan.
5.1. Lessee will not exceed the private use restrictions set forth in Section 141 of the Code.
Specifically, Lessee will not pennit more than 10% of the Principal Amount to be used for a Private
Business Use (as defined herein) if, in addition, the payment of more than ten percent (10%) of the Principal
Amount plus interest earned thereon is, directly or indirectly, secured by (i) any interest in property used or
to be used for a Private Business Use or (ii) any interest payments in respect of such property or derived
from any payment in respect of property or borrowed money used or to be used for a Private Business Use.
In addition, if both (A) more than five percent (5%) of the Principal Amount is used as described
above with respect to Private Business Use and (B) more than five percent (5%) of the Principal Amount
plus interest earned thereon is secured by Private Business Use property or payments as described above,
then the excess over such five percent (5%) (the "Excess Private Use Portion") will be used for a Private
Business Use related to the governmental use of the Equipment. Any such Excess Private Use Portion of
the Principal Amount will not exceed the portion of the Principal Amount used for the governmental use of
the particular project to which such Excess Private Use Portion is related. For purposes of this paragraph
5. 1, "Private Business Use" means use of bond proceeds or bond financed -property directly or indirectly in
a trade or business carried on by a natural person or in any activity carried on by a person other than a
natural person, excluding, however, use by a state or local governmental unit and excluding use as a member
of the general public.
5.2. No part of the Principal Amount or interest earned thereon will be used, directly or
indirectly, to make or finance any loans to non-governmental entities or to any governmental agencies other
than Lessee.
Section 6. No Federal Guarantee.
6.1. Payment of the principal or interest due under the Lease is not directly or indirectly
guaranteed, in whole or in part, by the United States or an agency or instrumentality thereof.
6.2. No portion of the Principal Amount or interest earned thereon shall be (i) used in making
loans the payment of principal or interest of which are to be guaranteed, in whole or in part, by the United
States or any agency or instrumentality thereof, or (ii) invested, directly or indirectly, in federally insured
deposits or accounts if such investment would cause the financing under the Lease to be "federally
guaranteed" within the meaning of Section 149(b) of the Code.
Section 7. Post -Issuance Compliance.
7.1 In the event an action takes place (or is anticipated to take place) that will cause the
Equipment not to be used for qualified uses under Section 141 of the Code, Lessee will consult with bond
counsel as soon as practicable about taking remedial action as described in Treasury Regulation Section
1.141-12. Lessee will take all actions necessary to ensure that the "nonqualified bonds" (as defined in
Treasury Regulation Section 1.141-12) are properly remediated in accordance with the requirements of the
Treasury Regulations. Lessee is familiar with the Internal Revenue Service's Voluntary Compliance
Agreement Program pursuant to which issuers of tax-exempt debt may voluntarily resolve violations of the
Code and applicable Treasury Regulations on behalf of the holders of such debt or themselves through
closing agreements with the Internal Revenue Service.
7.2. Lessee will actively monitor the requirements of the Code and the Treasury Regulations
(a) set forth in this certificate and confirm that such requirements are met no less than once per year; (b)
related to the allocation and accounting of proceeds to capital projects and will maintain a list that specifies
the allocation of proceeds of the Lease to the costs of the Equipment; and (c) related to arbitrage limitations,
including yield restriction, rebate requirements and the investment of gross proceeds of the Lease. The
office within Lessee that is currently responsible for such monitoring is the finance department.
Section 8. Miscellaneous.
8.1. Lessee shall keep a complete and accurate record of all owners or assignees of the Lease
in form and substance satisfactory to comply with the registration requirements of Section 149(a) of the
Code unless Lessor or its assignee agrees to act as Lessee's agent for such purpose.
8.2. Lessee shall maintain complete and accurate records establishing the expenditure of the
Principal Amount and interest earnings thereon for a period of five (5) years after payment in full under the
Lease.
8.3. To the best of the undersigned's knowledge, information and belief, the above expectations
are reasonable and there are no other facts, estimates or circumstances that would materially change the
expectations expressed herein.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Tax Certificate has been executed on behalf of Lessee as of the
Lease Date.
CITY OF SANFORD
Lessee
Name: Jeff Triplett
Title: Mayor
[Signature Page to Tax Certificate]
>-O