ORIGINAL
MASTER EQUITY LEASE AGREEMENT
This Master Equity Lease Agreement is entered into this twenty-second day of March, 2011, by and between Enterprise FM Trust, a Delaware statutory trust ("Lessor"), and the lessee whose name and address is set forth on the signature page below ("Lessee").
1. LEASE OF VEHICLES: Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the vehicles (individually, a "Vehicle" and collectively, the "Vehicles") described in the schedules from time to time delivered by Lessor to Lessee as set forth below ("Schedule(s)") for the rentals and on the terms set forth in this Agreement and in the applicable Schedule. References to this "Agreement" shall include this Master Equity Lease Agreement and the various Schedules and addenda to this Master Equity Lease Agreement. Lessor will, on or about the date of delivery of each Vehicle to Lessee, send Lessee a Schedule covering the Vehicle, which will include, among other things, a description of the Vehicle, the lease term and the monthly rental and other payments due with respect to the Vehicle. The terms contained in each such Schedule will be binding on Lessee unless Lessee objects in writing to such Schedule within ten (10) days after the date of delivery of the Vehicle covered by such Schedule. Lessor is the sole legal owner of each Vehicle. This Agreement is a lease only and Lessee will have no right, title or interest in or to the Vehicles except for the use of the Vehicles as described in this Agreement. This Agreement shall be treated as a true lease for federal and applicable state income tax purposes with Lessor having all benefits of ownership of the Vehicles. It is understood and agreed that Enterprise Fleet Management, Inc. or an affillate thereof (together with any subservicer, agent, successor or assign as servicer on behalf of Lessor, "Servicer") may administer this Agreement on behalf of Lessor and may perform the service functions herein provided to be performed by Lessor.
2. TERM: The term of this Agreement ("Ter") for each Vehicle begins on the date such Vehicle is delivered to Lessee (the "Delivery Date") and, unless terminated earlier in accordance with the terms of this Agreement, continues for the "Lease Term" as described in the applicable Schedule.
3. RENT AND OTHER CHARGES:
(a) Lessee agrees to pay Lessor monthly rental and other payments according to the Schedules and this Agreement. The monthly payments will be in the amount listed as the "Total Monthly Rental Including Additional Services" on the applicable Schedule (with any portion of such amount dentified as a charge for maintenance services under Section 4 of the applicable Schedule being payable to Lessor as agent for Enterprise Fleet Management, Inc.) and will be due and payable in advance on the first day of each month. If a Vehicle is delivered to Lessee on any day other than the first day of a month, monthly rental payments will begin on the first day of the next month. In addition to the monthly rental payments, Lessee agrees to pay Lessor a pro-rated rental charge for the number of days that the Delivery Date precedes the first monthly rental payment date. A portion of each monthly rental payment, being the amount designated as "Deprecation Reserve" on the applicable Schedule, will be considered as a reserve for deprecation and will be credited against the Delivered Price of the Vehicle for purposes of computing the Book Value of the Vehicle under Section 3(c).
Lessee agrees to pay Lessor the "Total Initial Charges" set forth in each Schedule on the due date of the first monthly rental payment under such Schedule. Lessee agrees to pay Lessor the "Service Charge Due at Lease Termination" set forth in each Schedule at the end of the applicable Term (whether by reason of expiration, early termination or otherwise). adjusted amount will be payable by Lessee to Lessor on the termination date. (c) Lessee agrees to pay Lessor within thirty (30) days after the end of the Term for each Vehicle, additional rent equal to the excess, if any, of the Book Value of such Vehicle over the greater of (i) the wholesale value of such Vehicle as determined by Lessor in good faith or (ii) except as provided below, twenty percent (20%) of the Delivered Price of such Vehicle as set forth in the applicable Schedule. If the Book Value of such Vehicle is less than the greater of (l) the wholesale value of such Vehicle as determined by Lessor in good faith or (il) except as provided below, twenty percent (20%) of the Delivered Price of such Vehicle as set forth in the applicable Schedule, Lessor agrees to pay such deficiency to Lessee as a terminal rental adjustment within thirty (30) days after the end of the applicable Term. Notwithstanding the foregoing, if (i) the Term for a Vehicle is greater than forty-eight 48) months (including any extension of the Term for such Vehicle), (ii) the mileage on a Vehicle at the end of the Term is greater than 15,000 miles per year on average (prorated on a daily basis) (i.e., if the mileage on a Vehicle with a Term of thirty-six (36) months is greater than 45,000 miles) or (iil) in the sole judgment of Lessor, a Vehicle has been subject to damage or any abnormal or excessive wear and tear, the calculations described in the two immediately preceding sentences shall be made without giving effect to clause (ii) in each such sentence. The "Book Value" of a Vehicle means the sum of (i) the "Delivered Price" of the Vehicle as set forth in the applicable Schedule minus (ii) the total Depreciation Reserve paid by Lessee to Lessor with respect to such Vehicle plus (iii) all accrued and unpaid rent and/or other amounts owed by Lessee with respect to such Vehicle. (d) Any security deposit of Lessee will be returned to Lessee at the end of the applicable Term, except that the deposit will first be applied to any losses and/or damages suffered by Lessor as a result of Lessee's breach of or default under this Agreement and/or to any other amounts then owed by Lessee to Lessor.
(e) Any rental payment or other amount owed by Lessee to Lessor which is not paid within twenty (20) days after its due date will accrue interest, payable on demand of Lessor, from the date due until paid in full at a rate per annum equal to the lesser of (i) Eighteen Percent (18%) per annum or (ii) the highest rate permitted by applicable law (the "Default Rate"). (f) If Lessee fails to pay any amount due under this Agreement or to comply with any of the covenants contained in this Agreement, Lessor, Servicer or any other agent of Lessor may, at its option, pay such amounts or perform such covenants and all sums paid or incurred by Lessor in connection therewith will be repayable by Lessee to Lessor upon demand together with interest thereon at the Default Rate (g) Lessee's obligations to make all payments of rent and other amounts under this Agreement are absolute and unconditional and such payments shall be made in immediately available funds without setoff, counterclaim or deduction of any kind. Lessee acknowledges and agrees that neither any Casualty Occurrence to any Vehicle nor any defect, unfitness or lack of govermental approval in, of, or with respect to, any Vehicle regardless of the cause or consequence nor any breach by Enterprise Fleet Management, Inc. of any maintenance agreement between Enterprise Fleet Management, Inc. and Lessee covering any Vehicle regardless of the cause or consequence will relieve Lessee from the performance of any of its obligations under this Agreement, including, without limitation, the payment of rent and other amounts under this Agreement.
4. USE AND SURRENDER OF VEHICLES: Lessee agrees to allow only duly authorized, licensed and insured drivers to use and operate the Vehicles.
Lessee agrees to comply with, and cause its drivers to comply with, all laws, statutes, rules, regulations and ordinances and the provisions of all insurance policies affecting or covering the Vehicles or their use or operation. Lessee agrees to keep the Vehicles free of all liens, charges and encumbrances. Lessee agrees that in no event will any Vehicle be used or operated for transporting hazardous substances or persons for hire, for any illegal purpose or to pull trailers that exceed the manufacturer's trailer towing recommendations. Lessee agrees that no Vehicle is intended to be or will be utilized as a "school bus" as defined in the Code of Federal Regulations or any applicable state or municipal statute or regulation. Lessee agrees not to remove any Vehicle from the continental United States without first obtaining Lessor's written consent. At the expiration or earlier termination of this Agreement with respect to each Vehicle, or upon demand by Lessor made pursuant to Section 14, Lessee at its risk and expense agrees to return such Vehicle to Lessor at such place and by such reasonable means as may be designated by Lessor. If for any reason Lessee fails to retur any Vehicle to Lessor as and when required in accordance with this Section, Lessee agrees to pay Lessor additional rent for such Vehicle at twice the normal pro-rated daily rent. Acceptance of such additional rent by Lessor will in no way limit Lessor's remedies with respect to Lessee's failure to return any Vehicle as regulred hereunder.
Initi Page 1
5. COSTS, EXPENSES, FEES AND CHARGES: Lessee agrees to pay all costs, expenses, fees, charges, fines, tickets, penalties and taxes (other than federal and state income taxes on the income of Lessor) incurred in connection with the titling, registration, delivery, purchase, sale, rental, use or operation of the Vehicles during the Term. If Lessor, Servicer or any other agent of Lessor incurs any such costs or expenses, Lessee agrees to promptly reimburse Lessor for the same.
attributable to any Lessor-owned vehicle.
7. REGISTRATION PLATES, ETC.: Lessee agrees, at its expense, to obtain in the name designated by Lessor all registration plates and other plates, permits, inspections and/or licenses required in connection with the Vehicles, except for the initial registration plates which Lessor will obtain at Lessee's expense. The parties agree to cooperate and to furnish any and all information or documentation, which may be reasonably necessary for compliance with the provisions of this Section or any federal, state or local law, rule, regulation or ordinance. Lessee agrees that it will not permit any Vehicle to be located in a state other than the state in which such Vehicle is then titled for any continuous period of time that would require such Vehicle to become subject to the titling and/or registration laws of such other state.
8. MAINTENANCE OF AND IMPROVEMENTS TO VEHICLES:
(a) Lessee agrees, at ts expense, to maintain the Vehicles in good condition, repair, maintenance and running order and in accordance with all manufacturer's instructions and warranty requirements and all legal requirements and (i) furnish all labor, materials, parts and other essentials required for the proper operation and maintenance of the Vehicles. Any alterations, additions, replacement parts or improvements to a Vehicle will become and remain the property of Lessor and will be returned with such Vehicle upon such Vehicle's return pursuant to Section 4. Notwithstanding the foregoing, so long as no Event of Default has occurred and is continuing, Lessee shall have the right to remove any additional equipment installed by Lessee on a Vehicle prior to returning such Vehicle to Lessor under Section 4. The value of such alterations, additions, replacement parts and improvements will in no instance be regarded as rent. Without the prior written consent of Lessor, Lessee will not make any alterations, additions, replacement parts or improvements to any Vehicle which detract from its economic value or functional utility. Lessor will not be required to make any repairs or replacements of any nature or description with respect to any Vehicle, to maintain or repair any Vehicle or to make any expenditure whatsoever in connection with any Vehicle or this Agreement.
b) Lessor and Lessee acknowledge and agree that if Section 4 of a Schedule includes a charge for maintenance, (i) the Vehicle(s) covered by such Schedule are subject to a separate maintenance agreement between Enterprise Fleet Management, Inc. and Lessee and (il) Lessor shall have no liability or responsibility for any failure of Enterprise Fleet Management, Inc. to perform any of its obligations thereunder or to pay or reimburse Lessee for its payment of any costs and expenses incurred in connection with the maintenance or repair of any such Vehicle(s).
9. SELECTION OF VEHICLES AND DISCLAIMER OF WARRANTIES:
(a) LESSEE ACCEPTANCE OF DELIVERY AND USE OF EACH VEHICLE WILL CONCLUSIVELY ESTABLISH THAT SUCH VEHICLE IS OF A
SIZE, DESIGN, CAPACITY, TYPE AND MANUFACTURE SELECTED BY LESSEE AND THAT SUCH VEHICLE IS IN GOOD CONDITION AND REPAIR AND IS SATISFACTORY IN ALL RESPECTS AND IS SUITABLE FOR LESSEE'S PURPOSE. LESSEE ACKNOWLEDGES THAT LESSOR IS NOT A MANUFACTURER OF ANY VEHICLE OR AN AGENT OF A MANUFACTURER OF ANY VEHICLE. (b) LESSOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY VEHICLE,
INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO CONDITION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, IT BEING AGREED THAT ALL SUCH RISKS ARE TO BE BORNE BY LESSEE. THE VEHICLES ARE LEASED "AS IS," "WITH ALL FAULTS." All warranties made by any supplier, vendor and/or manufacturer of a Vehicle are hereby assigned by Lessor to Lessee for the applicable Term and Lessee's onty remedy, if any, is against the supplier, vendor or manufacturer of the Vehicle. (c) None of Lessor, Servicer or any other agent of Lessor will be liable to Lessee for any llability, claim, loss, damage (direct, incidental or consequential) or expense of any kind or nature, caused directly or indirectly, by any Vehicle or any inadequacy of any Vehicle for any purpose or any defect (latent or patent) in any Vehicle or the use or maintenance of any Vehicle or any repair, servicing or adjustment of or to any Vehicle, or any delay in providing or failure to provide any Vehicle, or any interruption or loss of service or use of any Vehicle, or any loss of business or any damage whatsoever and however caused.
Agreement or under any order authorization form executed by Lessee if Lessor is unable to locate or purchase a Vehicle ordered by Lessee or for any delay in delivery of any Vehicle ordered by Lessee.
10. RISK OF LOSS: Lessee assumes and agrees to bear the entire risk of loss of, theft of, damage to or destruction of any Vehicle from any cause whatsoever ("Casualty Occurrence"). In the event of a Casualty Occurrence to a Vehicle, Lessee shall give Lessor prompt notice of the Casualty Occurrence and thereafter will place the applicable Vehicle in good repair, condition and working order; provided, however, that if the applicable Vehicle is determined by Lessor to be lost, stolen, destroyed or damaged beyond repair (a "Totaled Vehicle"), Lessee agrees to pay Lessor no later than the date thirty (30) days after the date of the Casualty Occurrence the amounts owed under Sections 3(b) and 3(c) with respect to such Totaled Vehicle.
Upon such payment, this Agreement will terminate with respect to such Totaled Vehicle.
State of Vehicle Registration
Coney, Ner a Penal, a hold Sa, and ver onl $1,000,000 Combined Single Limit Bodily Injury and Property Damage - No Deductible
Florida $500,000 Combined Single Limit Bodily Injury and Propert Damage or $100,000 Bodily Injury Per Person, $300,000 Pe Occurrence and $50,000 Property Damage (100/300/50) - Nc Deductible
All Other States $300,000 Combined Single Limit Bodily Injury and Property Damage or $100,000 Bodily Injury Per Person, $300,000 Pel Dedurence and $50,000 Property Damage (100/300/50) - N
(ii) Physical Damage Insurance (Collision & Comprehensive): Actual cash value of the applicable Vehicle. Maximum deductible of $500 pe occurrence - Collision and $250 per occurrence - Comprehensive).
Initials! Page 2
If the requirements of any govermental or regulatory agency exceed the minimums stated in this Agreement, Lessee must obtain and maintain the higher insurance requirements. Lessee agrees that each required policy of insurance will by appropriate endorsement or otherwise name Lessor and any other person or entity designated by Lessor as additional insureds and loss payees, as their respective interests may appear. Further, each such insurance policy must provide the following: (i) that the same may not be cancelled, changed or modified until after the insurer has given to Lessor, Servicer and any other person or entity designated by Lessor at least thirty (30) days prior written notice of such proposed cancellation, change or modification, (il) that no act or derault of Lessee or any other person or entity shall affect the right of Lessor, Servicer, any other agent of Lessor or any of thair respective successors or assigns to recover under such policy or policies of insurance in the event of any loss of or damage to any Vehicle and (ii) that the coverage is "primary coverage" for the protection of Lessee, Lessor, Servicer, any other agent of Lessor and their respective successors and assigns notwithstanding any other coverage carried by Lessee, Lessor, Servicer, any other agent of Lessor or any of their respective successors or assigns protecting against similar risks.
Original certificates evidencing such coverage and naming Lessor, Servicer, any other agent of Lessor and any other person or entity designated by Lessor as additional insureds and loss payees shall be furnished to Lessor prior to the Delivery Date, and annually thereafter and/or as reasonably requested by Lessor from time to time. in the event of default, Lessee hereby appoints Lessor, Servicer and any other agent of Lessor as Lessee's attorney-in-fact to receive payment of, to endorse all checks and other documents and to take any other actions necessary to pursue insurance claims and recover payments if Lessee fails to do so. Any expense of Lessor, Servicer or any other agent of Lessor in adjusting or collecting insurance shall be borne by Lessee.
Lessee, its drivers, servants and agents agree to cooperate fully with Lessor, Servicer, any other agent of Lessor and any insurance carriers in the such action or caim and forward to Lessor a copy of every demand, notice, summons or other process received in connection with such claim or action. (b) Notwithstanding the provisions of Section 11(a) above: (i) if Section 4 of a Schedule includes a charge for physical damage waiver, Lessor agrees that (A) Lessee will not be required to obtain or maintain the minimum physical damage insurance (collision and comprehensive) required under Section 11(a) for the Vehicle(s) covered by such Schedule and (B) Lessor will assume the risk of physical damage (collision and comprehensive) to the Vehicle(s) covered by such Schedule; provided, however, that such physical damage waiver shall not apply to, and Lessee shall be and remain liable and responsible for, damage to a covered Vehicle caused by wear and tear or mechanical breakdown or failure, damage to or loss of any parts, accessories or components added to a covered Vehicle by Lessee without the prior written consent of Lessor and/or damage to or loss of any property and/or personal effects contained in a covered Vehicle. In the event of a Casualty Occurrence to a covered Vehicle, Lessor may, at its option, replace, rather than repair, the damaged Vehicle with an equivalent vehicle, which replacement vehicle will then constitute the Vehicle" for purposes of this Agreement; and (i) if Section 4 of a Schedule includes a charge for commercial automobile liability enrollment, Lessor agrees that it will, at its expense, obtain for and on behalf of Lessee, by adding Lessee as an additional insured under a commercial automoblle liability insurance policy issued by an insurance company selected by Lessor, commercial automobile liability insurance satisfying the minimum commercial automobile liability insurance required under Section 11(a) for the Vehicles) covered by such Schedule. Lessor may at any time during the applicable Term terminate said obligation to provide physical damage waiver and/or commercial automobile liability enrollment and cancel such physical damage waiver and/or commercial automobile liability enrollment upon giving Lessee at least ten (10) days prior written notice. Upon such cancellation, insurance in the minimum amounts as set forth in 11(a) shall be obtained and maintained by Lessee at Lessee's expense. An adjustment will be made in monthly rental charges payable by Lessee to reflect any such change and Lessee agrees to furnish Lessor with satisfactory proof of insurance coverage within ten (10) days after mailing of In addition, Lessor may change the rates charged by Lessor under this Section 11(b) for physical damage waiver and/or commercial automobile liability enrollment upon giving Lessee at least thirty (30) days prior written notice.
12. INDEMNITY: Lessee agrees to defend and indemnify Lessor, Servicer, any other agent of Lessor and their respective successors and assigns from and against any and all losses, damages, labilities, suits, claims, demands, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) which Lessor, Servicer, any other agent of Lessor or any of their respective successors or assigns may incur by reason of Lessee's breach or violation of, or failure to observe or perform, any term, provision or covenant of this Agreement, or as a result of any loss, damage, theft or destruction of any Vehicle or related to or arising out of or in connection with the use, operation or condition of any Vehicle. The provisions of this Section 12 shall survive any expiration or termination of this Agreement.
13. INSPECTION OF VEHICLES; ODOMETER DISCLOSURE; FINANCIAL STATEMENTS: Lessee agrees to accomplish, at its expense, all inspections of the Vehicles required by any governmental authority during the Term. Lessor, Servicer, any other agent of Lessor and any of their respective successors or assigns will have the right to inspect any Vehicle at any reasonable times) during the Term and for this purpose to enter fnto or upon any bullding or place where any Vehicle is located. Lessee agrees to comply with all odometer disclosure laws, rules and regulations and to provide such written and signed disclosure information on such forms and in such manner as directed by Lessor. Providing faise information or failure to complete the odometer disclosure form as required by law may result in fines and/or imprisonment. Lessee hereby agrees to promptly deliver to Lessor such financial statements and other financial information regarding Lessee as Lessor may from time to time reasonably request.
14. DEFAULT; REMEDIES: The following shall constitute events of default ("Events of Default") by Lessee under this Agreement: (a) if Lessee falls to pay when due any rent or other amount due under this Agreement and any such failure shall remain unremedied for ten (10) days; (b) if Lessee falls to perform, keep or observe any term, provision or covenant contained in Section 11 of this Agreement; (c) if Lessee fails to perform, keep or observe any other term, provision or covenant contained in this Agreement and any such failure shall remain unremedied for thirty (30) days after written notice thereof is given by Lessor, Servicer or any other agent of Lessor to Lessee; (d) any seizure or confiscation of any Vehicle or any other act (other than a Casualty Occurrence) otherwise rendering any Vehicle unsuitable for use (as determined by Lessor); (e) if any present or future guaranty in favor of Lessor of all or any portion of the obligations of Lessee under this Agreement shall at any time for any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent jurisdiction, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or she has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or conditions contained in any such guaranty; (f) the occurrence of a material adverse change in the financial condition or business of Lessee or any guarantor; or (g) if Lessee or any guarantor is in default under or fails to comply with any other present or future agreement with or in favor of Lessor, The Crawford Group, Inc. or any direct or indirect subsidiary of The Crawford Group, Inc.. For purposes of this Section 14, the term "guarantor" shall mean any present or future guarantor of all or any portion of the obligations of Lessee under this Agreement.
Upon the occurrence of any Event of Default, Lessor, without notice to Lessee, will have the right to exercise concurrently or separately (and without any election of remedies being deemed made), the following remedies: (a) Lessor may demand and receive immediate possession of any or all of the Vehicles from Lessee, without releasing Lessee from its obligations under this Agreement; it Lessee fails to surrender possession of the Vehicles to Lessor on default (or termination or expiration of the Term), Lessor, Servicer, any other agent of Lessor and any of Lessors independent contractors shall have the right to enter upon any premises where the Vehicles may be located and to remove and repossess the Vehicles; (b) Lessor may enforce performance by Lessee of its obligations under this Agreement; (c) Lessor may recover damages and expenses sustained by Lessor, Servicer, any other agent of Lessor or any of their respective successors or assigns by reason of Lessee's default including, to the extent permitted by applicable law, all costs and expenses, including court costs and reasonable attomeys' fees and expenses, incurred by Lessor, Servicer, any other agent of Lessor or any of their respective successors or assigns in attempting or effecting enforcement of Lessor's rights under this Agreement (whether or not litigation is commenced) and/or in connection with bankruptcy or Insolvency proceedings; (d) upon written notice to Lessee, Lessor may terminate Lessee's rights under this Agreement; (e) with respect to each Vehicle, Lessor may recover from Lessee all amounts owed by Lessee under Sections 3(b) and 3(c) of this Agreement (and, if Lessor does not recover possession of a Vehicle, (i) the estimated wholesale value of such Vehicle for purposes of Section 3(c) Initials Page 3
shall be deemed to be $0.00 and (i) the calculations desorbed in the first two sentences of Section 3(c) shall be made without giving effect to clause (ji) in each such sentence); and/or (i) Lessor may exercise any other right or remedy which may be available to Lessor under the Uniform Commercial Code, any other applicable law or in equity. A termination of this Agreement shall occur only upon written notice by Lessor to Lessee. Any termination shall not affect Lessee's obligation to pay all amounts due for periods prior to the effective date of such termination or Lessee's obligation to pay any indemnities under this Agreement. All remedies of Lessor under this Agreement or at law or in equity are cumulative.
15. ASSIGNMENTS: Lessor may from time to time assign, pledge or transfer this Agreement and/or any or all of Its rights and obligations under this Agreement to any person or entity. Lessee agrees, upon notice of any such assignment, pledge or transfer of any amounts due or to become due to Lessor under this Agreement to pay all such amounts to such assignee, piedgee or transferee. Any such assignee, pledges or transferee of any rights or obligations of Lessor under this Agreement will have all of the rights and obligations that have been assigned to it. Lessee's rights and interest in and to the Vehicles are and will continue at all times to be subject and subordinate in all respects to any assignment, pledge or transfer now or hereafter executed by Lessor with or in favor of any such assignee, pledgee or transferee, provided that Lessee shall have the right of quiet enjoyment of the Vehicles so long as no Event of Default under this Agreement has occurred and is continuing. Lessee acknowledges and agrees that the rights of any assignee, pledgee or transferee in and to any amounts payable by the Lessee under any provisions of this Agreement shall be absolute and unconditional and shall not be subject to any abatement whatsoever, or to any defense, setoff, counterclaim or recoupment whatsoever, whether by reason of any damage to or loss or destruction of any Vehicle or by reason of any defect in or failure of title of the Lessor or interruption from whatsoever cause in the use, operation or possession of any Vehicle, or by reason of any indebtedness or liability howsoever and whenever arising of the Lessor or any of its affiliates to the Lessee orto any other person or entity, or for any other reason.
Without the prior written consent of Lessor, Lessee may not assign, sublease, transfer or pledge this Agreement, any Vehicle, or any Interest in this Agreement or in and to any Vehicle, or permit its rights under this Agreement or any Vehicle to be subject to any lien, charge or encumbrance. Lessee's interest in this Agreement is not assignable and cannot be assigned or transferred by operation of law. Lessee will not transfer or relinquish possession of any Vehicle (except for the sole purpose of repair or service of such Vehicle) without the prior written consent of Lessor.
16. MISCELLANEOUS: This Agreement contains the entire understanding of the parties. This Agreement may only be amended or modified by an instrument in writing executed by both parties. Lessor shall not by any act, delay, omission or otherwise be deemed to have waived any of its rights or remedies under this Agreement and no waiver whatsoever shall be valid unless in writing and signed by Lessor and then only to the extent therein set forth. A waiver by Lessor of any right or remedy under this Agreement on any one occasion shall not be construed as a bar to any right or remedy, which Lessor would otherwise have on any future occasion. If any term or provision of this Agreement or any application of any such term or provision is invalid or unenforceable, the remainder of this Agreement and any other application of such term or provision will not be affected thereby. Giving of all notices under this Agreement will be sufficient if mailed by certified mail to a party at its address set forth below or at such other address as such party may provide in writing from time to time. Any such notice mailed to such address will be effective one (1) day after deposit in the United States mail, duly addressed, with certifled mail, postage prepaid. Lessee will promptly notify Lessor of any change in Lessee's address. This Agreement may be executed in multiple counterparts (including facsimile and pdf counterparts), but the counterpart marked "ORIGINAL" by Lessor will be the original lease for purposes of applicable law. All of the representations, warranties, covenants, agreements and obligations of each Lessee under this Agreement (if more than one) are joint and several.
17. SUCCESSORS AND ASSIGNS; GOVERNING LAW: Subject to the provisions of Section 15, this Agreement will be binding upon Lessee and its heirs, executors, personal representatives, successors and assigns, and will inure to the benefit of Lessor, Servicer, any other agent of Lessor and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the substantive laws of the State of Missour (determined without reference to conflict of law principles).
18. NON-PETITION: Each party hereto hereby covenants and agrees that, prior to the date which is one year and one day after payment in full of all Indebtedness of Lessor, it shall not institute against, or join any other person in instituting against, Lessor any bankruptcy, reorganization, arrangement, insolvency or liquidation proceadings or other similar proceeding under the laws of the United States or any state of the United States. The provisions of IN WITNESS WHEREOF, Lessor and Lessee have duly executed this Master Equity Lease Agreement as of the day and year first above written.
LESSEE: City of Barstow LESSOR; Enterprise FM Trust
By: Enterprise Fleet Management, Ind., its attorney in fact Charlec @pletckel
By: Charles C. Mitchell By: Dave Conti
Title: City Manager Title: Director of Sales
Address: 220 East Mountain View St. Address: 1600 S. Grove Ave.
Barstow, CA 92311 Ontario, CA 91761
April 4.2011 4/20/11
Date Signed: Date Signed
Approved as to form:
*
341(0471
Teresa L.
Interim City Attorney
Initials Page 4
enterprise CITY OF BARSTOW
(fleet management/ OPEN-ENDED (EQUITY) LEASE RATES: OPTION 1 -- STANDARD VEHICLES
VEHICLE BASE TOTAL REDUCED ESTIMATED ESTIMATED
YEAR, MAKE, & MODEL ANNUAL MONTHLY MONTHLY ANNUAL PRE-
NUMBER MILEAGE USE TAX? PAYMENT BOOK VALUE MARKET VALUE EQUITY AT PAYMENT' PAYMENT 3 AT TERM* AT TERM TERM ®
9011 2011 Ford Taurus SE V6 11,000 $311.36 $27.24 $338.60 $4,007.33 $8,132.40 $10,045.00 $1,912.60 9022 2011 Ford Expedition 13,000 $426.33 $37.30 $463.63 $5,487.06 $8,118.60 $10,050.00 $1,931.40 Replacement 8583 2011 Ford F350 XL Crew Cab 7,500 $392.24 $34.32 $426.56 $5,048.34 $5,905.40 $13,840.00 $7,934.60 Year 1 8834 2011 Ford F150 XL Reg Cab V6 9,000 $245.13 $21.45 $266.58 $3,154.97 $5,578.40 $7,500.00 $1,921.60
8816 2011 Ford F250 XL Reg Cab Utility Bed 4,500 $342.76 $29.99 $372.75 $4,411.50 $8,584.40 $10,500.00 $1,915.60 8832 2011 Ford F250 XL Crew Cab Stakebed 7,000 $473.55 $41.44 $514.99 $6,094.91 $7,135.40 $14,000.00 $6,864.60 $2,383.11 $28,204.11
8142 2011 Nissan Sentra 2.0 8,000 $210.04 $18.38 $228.42 $2,703.35 $5,407.40 $7,320.00 $1,912.60 9019 2011 Ford Fusion V6 2,500 $277.88 $24.31 $302.19 $3,576.42 $7,677.60 $9,630.00 $1.952.40 Replacement 8582
Year 2 2011 Ford F150 XL Reg Cab V8 7,000 $254.62 $22.28 $276.90 $3,277.11 $6,081.40 $8,000.00 $1,918.60 8580 2011 Ford F250 XL Reg Cab 5,500 $318.47 $27.87 $346.34 $4,098.93 $4,789.00 $9,935.00 $5,146.00 9025 2011 Ford Taurus SE V6 10,000 $311.36 $27.24 $338.60 $4,007.33 $8,132.00 $10,045.00 $1,913.00 $1,492.45 $17,663.14
9012 2011 Ford Taurus SE V6 8,000 $311.36 $27.24 $338.60 $4,007.33 $8,132.40 $10,045.00 $1,912.60 Replacement 8417 2011 Ford Fusion S $236.24
Year 3 7,000 $20.67 $256.91 $3,040.53 $6,518.80 $9,200.00 $2,681.20 5948 2011 Ford F250 XL Reg Cab Stakebed 4,500 $369.05 $32.29 $401.34 $4,749.86 $9,082.80 $11,000.00 $1,917.20 $996.85 $11,797.72
NOTES:
Open-ended Leases are based on 60 month term. Service Charge of $400 per unit is due at lease termination (or netted out of the proceeds on the sale of vehicle).
1. Base Monthly Payment includes Depreciation and Lease Charge (Interest).
2. Use Tax is based on 8.75%
3. Total Monthly Payment includes Base Lease Payment and Tax.
4. Reduced Book Value is the amount that is left on the books at 60 months. At lease term, the City has three options: 1) replace existing vehicle with new vehicle, 2) pay RBV plus tax and own the vehicle, and 3) extend the payments for another year or two.
5. Estimated Market Value is a projection of value at 60 months based on the mileage patters. This value is based on estimates from Enterprise's Remarketing Dept and third party Automotive Leasing Guide.
6. Estimated Equity is Estimated Market Value minus Reduced Book Value. For the Ford Taurus example, at the end of the 60 month term, the vehicle is estimated to be worth about $10,045.
The City is responsible for 13IEnterprise sells the veile for the City, there will bean estimated 910in guity The City case to roll that gitate down mament on the new vehicle, or Enterprise can cut a check back to the City for that amount. enterprise CITY OF BARSTOW
(noot management OPEN-ENDED (EQUITY) LEASE RATES: OPTION 2 - HYBRID VEHICLES
VEHICLE BASE TOTAL REDUCED ESTIMATED ESTIMATED
YEAR, MAKE, & MODEL ANNUAL MONTHLY USE TAX? MONTHLY ANNUAL PRE- BOOK VALUE
NUMBER MILEAGE PAYMENT MARKET VALUE EQUITY AT
PAYMENT' PAYMENT' AT TERM$ AT TERM' TERM ®
9011 2011 Ford Taurus SE V6 11,000 $311.36 $27.24 $338.60 $4,007.33 $8,132.40 $10,045.00 $1,912.60 9022 2011 Ford Expedition 13,000 $426.33 $37.30 $463.63 $5,487.06 $8,118.60 $10,050.00 $1,931.40 Replacement 2011 Ford F350 XL Crew Cab 7,500 $392.24 $34.32 $426.56 $5,048.34 85,905.40 $13,840.00 $7,934.60 Year 1 2011 Ford F150 XL Reg Cab V6 9,000 $245.13 521.45 $266.58 $3,154.97 $5,578.40 $7,500.00 $1,921.60
2011 Ford F250 XL Reg Cab Utility Bed 4,500 $342.76 $29.99 $372.75 $4,411.50 $8,584.40 $10,500.00 $1,915.60 8832 2011 Ford F250 XL Crew Cab Stakebed 7,000 $473.55 $41.44 $514.99 $6,094.91 $7,135.40 $14,000.00 $6,864.60 $2,383.11 $28,204.11
8142 2011 Ford Escape Hybrid 8,000 $482.23 $42.20 $524.43 $6,206.63 $7,055.60 $9,000.00 $1,944.40 9019 2011 Ford Fusion V6 9,500 $277.88 $24.31 $302.19 $3,576.42 $7,677.60 $9,630.00 $1,952.40 Replacement 8582 2011 Ford F150 XL Reg Cab V8 $8,000.00 Year 2 7,000 $254.62 $22.28 $276.90 $3,277.11 $6,081.40 $1.918.60 8580 2011 Ford F250 XL Reg Cab 5,500 $318.47 $27.87 $346.34 $4,098.93 $4,789.00 $9,935.00 $5,146.00 9025 2011 Ford Taurus SE V6 10,000 $311.36 $27.24 $338.60 $4,007.33 $8,132.00 $10,045.00 $1,913.00 $1,788.46 $21,166.42
9012 2011 Ford Taurus SE V6 8,000 $311.36 $27.24 $338.60 $4,007.33 $8,132.40 $10,045.00 $1,912.60 Replacement 8417 2011 Ford Fusion Hybrid
Year 3 7,000 $420.33 $36.78 $457.11 $5,409.90 $8,697.60 $10,625.00 $1,927.40 5948 2011 Ford F250 XL Reg Cab Stakebed 4,500 $369.05 $32.29 $401.34 $4,749.86 $9,082.80 $11,000.00 $1,917.20 $1,197.05 $14,167.09
NOTES:
Open-ended Leases are based on 60 month term. Service Charge of $400 per unit is due at lease termination (or netted out of the proceeds on the sale of vehicle).
1. Base Monthly Payment includes Depreciation and Lease Charge (Interest).
2. Use Tax is based on 8.75%
3. Total Monthly Payment includes Base Lease Payment and Tax.
4. Reduced Book Value is the amount that is left on the books at 60 months. At lease term, the City has three options: 1) replace existing vehicle with new vehicle, 2) pay RBV plus tax and own the vehicle, and 3) extend the payments for another year or two.
5. Estimated Market Value is a projection of value at 60 months based on the mileage patterns. This value is based on estimates from Enterprise's Remarketing Dept and third party Automotive Leasing Guide.
6. Estimated Equity is Estimated Market Value minus Reduced Book Value. For the Ford Taurus example, at the end of the 60 month term, the vehicle is estimated to be worth about $10,045. The City is responsible for $8,132.40. If Enterprise sells the vehicle for the City, there will be an estimated $1,912.60 in equity. The City can choose to roll that edit as the down payment on the new vehicle, or Enterprise can cut a check back to the City for that amount.
Maintenance Cost Mileage
Vehicle or Equipment Number and Description 6/30/2009-7/1/2010 8816 - 1982 Chevrolet C20 Service Body Truck $1,673.71 130,174 8834 - 1991 Ford Ranger Pickup Truck - Building Dept. $3,133.57 175,211 9022 - 1998 Chevrolet Lumina - RSVP Car $1,358.41 161,657 9011 - 1997 Ford Crown Victoria - Detective $3,082.00 114,462 8832 - 1990 Ford F250 Pickup Truck - Street Dept. $1,775.27 146,770 8583 - 1993 Ford F350 Crewcab Pickup Truck - Street Dept. $1,917.53 127,934 RESOLUTION NO. 4609-2011
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BARSTOW,
CALIFORNIA DESIGNATING CERTAIN OFFICERS TO EXECUTE A MASTER
EQUITY LEASE AGREEMENT IN CONNECTION WITH THE CITY'S LEASE OF
MOTOR VEHICLES FROM ENTERPRISE FLEET SERVICES (ENTERPRISE FM TRUST)
WHEREAS, the City of Barstow has entered into a master equity lease agreement of certain motor vehicles with Enterprise FM Trust; and WHEREAS, the Barstow City Council designates certain city officers to execute the Master Equity Lease Agreement and related documents with Enterprise Fleet Services;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BARSTOW HEREBY FINDS, DETERMINES, ORDERS AND RESOLVES AS FOLLOWS:
Section 1. The City Council hereby designates the following officers to execute the Motor Vehicle Lease and related documents with Enterprise Fleet Services on such terms as may be agreed upon:
Charles C. Mitchell, City Manager
Section 2. Enterprise Fleet is authorized to rely upon this resolution until or repealed by the City Council with written notice of its repeal provided to Enterprise Fleet Services.
Section. 3. The City Clerk shall certify to the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED this 4th day of April 2011. 100z
Joe Di Gomez
Mayor
ATTEST
City Clerk
96134.1
1, JoAnne V. Cousino, City Clerk of the City of Barstow and ex-officio Clerk of the City Council DO HEREBY CERTIFY UNDER PENALTY OF PERJURY that the foregoing is a true and correct copy of Resolution No. 4609-2011 which was adopted by said City Council at a regular meeting held on April 4, 2011 by the following vote:
Ayes: Council Members Saenz and Silva, Mayor Pro Tem Hackbarth-McIntyre and Mayor Gomez
Noes: None
Absent: Council Member Hailey
Abstain: None
96134.1
THE CITY OF
O BARSTOW
CROSSROADS OF OPPORTUNITY
AGENDA MATTER:
Adoption of Resolution 1609-2011 of the City Council of the City of Barstow authorizing the City to enter into a Master Equity Lease Agreement with Enterprise Fleet Management for the replacement of six (6) City vehicles.
EXECUTIVE SUMMARY:
The attached Resolution requests City Council authorization to enter into a five-year Lease Agreement with Enterprise Fleet Management for the replacement of six (6) vehicles.
DISCUSSION:
The City currently owns and operates approximately 40 light and medium duty vehicles, which are maintained at the Public Works Maintenance Yard, by the City's Fleet Maintenance Division. Light vehicles include sedans, small trucks, vans, utility vehicles, detective vehicles, code enforcement vehicles, etc; and medium duty vehicles include stake beds, dump body trucks, and full size trucks and chassis. The fleet supports City services such as street maintenance, building maintenance, parks maintenance, building and planning, public safety as well as the City's "pool" of cars for employee and Council use. This does not include police patrol cars.
The City's fleet, which is used by various City staff in the performance of their jobs. At present, the entire fleet is City-owned with maintenance handled by the Fleet Division of the Public Works Department. City Fleet Maintenance staff has developed a plan for vehicle replacement based on input from department managers. At this time, it has been determined that there is a critical need to replace six (6) vehicles, which are noted on Attachment _ as Replacement Group One. Staff has recommended replacement vehicles that are appropriate for each department's job function.
The vehicles slated for replacement range in age from 13 to 29 years old, with an average mileage of over 142,000 and a combined maintenance costs for the last fiscal year of approximately $13,000. (continued on Page 2)
eA: silva/Hackbarth-McIntyre 4-0-1-0 Approved (Itailey absent) *Direction given to checkinto including hybrids.
RECOMMENDED ACTION:
Council to adopt Resolution 460^ -2011 to authorize the City of Barstow to enter into a Master Lease Agreement with Enterprise Fleet Management for replacement of six (6) of the City's light and medium vehicles. Additionally, Council direction is sought on the inclusion of hybrid vehicles in the program.
PROPOSED BY FUNDS BUDGETED FUNDS AVAILABLE MEETING DATE Terri Willoughby,
Yes Yes-$35,000 04/04/11
Finance Director
C.M. APPROVAL AMOUNT REQUIRED CATEGORY ITEM NUMBER
Charles C. Mitchelfert $7,200 Finance 12
DISCUSSION: (continuation)
The City needs available, safe, dependable, cost and energy-efficient vehicles. The most cost effective method to meet this goal is for the City to enter into a master lease agreement with Enterprise Fleet Management to provide vehicle replacement. A summary of the contract costs is contained below. A complete list of vehicles being replaced with the replacement vehicle type is attached for your reference. The first proposal contains all gasoline or flex-fuel vehicles; the second includes four hybrid vehicles. At this time, Council is being asked to approve only the vehicles included in the first year of the program, which are only gasoline vehicles. If additional vehicles are added to the program, lease agreements under the Master Lease program would be brought forward for Council approval at that time. As this lease is an equity lease, the City would be able to purchase the vehicles at the end of the lease term. If at some point the City were to wish to return a vehicle, Enterprise would sell the vehicle and amend the lease without early termination penalties.
Description: Costs
Monthly Total $2,383
Annual Total (if paid Monthly) $28,597
Annual (One Prepayment) $28,204
The vehicles acquired by Enterprise for this program will be processed and shipped through local dealerships, and all warranty work will be completed using these same dealerships.
FISCAL IMPACT:
Funding for this item was included in the FY 10/11 Budget in the Capital Outlay Fund (Acct #405.975.725.08.880) in the amount of $35,000, and will be included in the budget of future fiscal years. Also, by replacing the current outdated fleet of vehicles, maintenance and fuel costs will Program affords the City with an opportunity to put a vehicle replacement program in place in an option due to current economy. Savings from the implementation of this program will be used to establish a vehicle replacement reserve for the City to enable the purchase of vehicles in the future.
This contract is allowable under the City's Purchasing Policy as Enterprise has been the successful bidder under a competitive bid process for other agencies (Section B.7 exempts purchases made under a cooperative purchase).
THE CITY OF
FO BARSTOW
CROSSROADS OF OPPORTUNITY
April 6, 2011
Enterprise FM Trust
Enterprise Fleet Management, Inc., its attorney in fact Dave Conti, Director of Sales
1600 S. Grove Ave.
Ontario, CA 91761
RE: MASTER EQUITY LEASE AGREEMENT
Dear Mr. Conti:
Enclosed please find two (2) originals of the above referenced agreement. Please sign both agreements, retain one for your records and return one to our office.
Should you have any questions regarding this agreement, please don't hesitate to call my office at (760) 255-5122
Thank you for your assistance in this matter.
Sincerely,
TOW
alan. Concino, Ance *
JAnne V. Cousino
City Clerk
City of Barstow
Enc: Two (2) Original Master Equity Lease Agreements
220 East Mountain View Street, Suite A • Barstow, California 92311-2888 Ph: 760.256-3531 • Fax: 760.256-1750 • www.barstowca.org