Loading...
HomeMy WebLinkAboutRES 16-190RESOLUTION NO. 16-190 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute an Equity Lease Agreement and Amendment to Master Equity Lease Agreement between the City of Beaumont and Enterprise FM Trust for the lease of thirty-one (31) vehicles for use by various departments. The Equity Lease Agreement is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes and the Amendment to Master Equity Lease Agreement is substantially in the form attached hereto as Exhibit "B" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 27th day of September, 2016.;����11 ayor Becky Ames - VASTER EQUITY LEASE AGREE LENT This Master Equity Lease Agreement is entered into this twenty-first day of September, 2016, 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 affiliate 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 ("Term") 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 identified 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 "Depreciation Reserve" on the applicable Schedule, will be considered as a reserve for depreciation 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). (b) In the event the Term for any Vehicle ends prior to the last day of the scheduled Term, whether as a result of a default by Lessee, a Casualty Occurrence or any other reason, the rentals and management fees paid by Lessee will be recalculated in accordance with the rule of 78's and the 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 (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, 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 (iii) 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 governmental 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 return 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 required hereunder. EXHIBIT "A" Initials: EFM Cust 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. 6. LICENSE AND CHARGES: Each Vehicle will be titled and licensed in the name designated by Lessor at Lessee's expense. Certain other charges relating to the acquisition of each Vehicle and paid or satisfied by Lessor have been capitalized in determining the monthly rental, treated as an initial charge or otherwise charged to Lessee. Such charges have been determined without reduction for trade-in, exchange allowance or other credit 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 its expense, to (i) 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 (ii) 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 (ii) 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 only 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 liability, 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. In addition, none of Lessor, Servicer or any other agent of Lessor will have any liability to Lessee under this 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. 11. INSURANCE: (a) Lessee agrees to purchase and maintain in force during the Term, insurance policies in at least the amounts listed below covering each Vehicle, to be written by an insurance company or companies satisfactory to Lessor, insuring Lessee, Lessor and any other person or entity designated by Lessor against any damage, claim, suit, action or liability: (i) Commercial Automobile Liability Insurance (including Uninsured/Underinsured Motorist Coverage and No -Fault Protection where required by law) for the limits listed below (Note - $5,000,000 Combined Single Limit Bodily Injury and Property Damage with No Deductible is required for each Vehicle capable of transporting more than 8 passengers): State of Vehicle Registration Coverage Connecticut, Massachusetts, Maine, New Hampshire, New $1,000,000 Combined Single Limit Bodily Injury and Property Jersey, New York, Pennsylvania, Rhode Island, and Vermont Damage - No Deductible Florida All Other States (ii) Physical Damage Insurance (Collision & Comprehensive): occurrence - Collision and $250 per occurrence - Comprehensive). $500,000 Combined Single Limit Bodily Injury and Property Damage or $100,000 Bodily Injury Per Person, $300,000 Per Occurrence and $50,000 Property Damage (100/300/50) - No Deductible $300,000 Combined Single Limit Bodily Injury and Property Damage or $100,000 Bodily Injury Per Person, $300,000 Per Occurrence and $50,000 Property Damage (100/300/50) - No Deductible Actual cash value of the applicable Vehicle. Maximum deductible of $500 per Initials: EFM Cust Page 2 If the requirements of any governmental 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, (ii) that no act or default of Lessee or any other person or entity shall affect the right of Lessor, Servicer, any other agent of Lessor or any of their 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 (iii) 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 investigation, defense and prosecution of all claims or suits arising from the use or operation of any Vehicle. If any claim is made or action commenced for death, personal injury or property damage resulting from the ownership, maintenance, use or operation of any Vehicle, Lessee will promptly notify Lessor of such action or claim 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 (ii) 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 automobile 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 Vehicle(s) 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 the notice. 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: To the extent permitted by state law, 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, liabilities, 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. Nothing herein shall be deemed to affect the rights, privileges, and immunities of Lessee and the foregoing indemnity provision is not intended to be a waiver of any sovereign immunity afforded to Lessee pursuant to the law. 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 time(s) during the Term and for this purpose to enter into or upon any building 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 false 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 fails 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 fails 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; if 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 Lessor's 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 attorneys' 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 Initials: EFM Cust Page 3 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) shall be deemed to be $0.00 and (ii) the calculations described in the first two sentences of Section 3(c) shall be made without giving effect to clause (ii) in each such sentence); and/or (f) 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, pledgee or transferee. Any such assignee, pledgee 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 or to 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 certified 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 Missouri (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 proceedings or other similar proceeding under the laws of the United States or any state of the United States. The provisions of this Section 18 shall survive termination of this Master Equity Lease Agreement. 19. NON -APPROPRIATION: Lessee's funding of this Agreement shall be on a Fiscal Year basis and is subject to annual appropriations. Lessor acknowledges that Lessee is a municipal corporation, is precluded by the County or State Constitution and other laws from entering into obligations that financially bind future governing bodies, and that, therefore, nothing in this Agreement shall constitute an obligation of future legislative bodies of the County or State to appropriate funds for purposes of this Agreement. Accordingly, the parties agree that the lease terms within this Agreement or any Schedules relating hereto are contingent upon appropriation of funds. The parties further agree that should the County or State fail to appropriate such funds, the Lessor shall be paid all rentals due and owing hereunder up until the actual day of termination. In addition, Lessor reserves the right to be paid for any reasonable damages. These reasonable damages will be limited to the losses incurred by the Lessor for having to sell the vehicles on the open used car market prior to the end of the scheduled term (as determined in Section 3 and Section 14 of this Agreement). 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 Beaumont By: Laura Clark Title: Chief Financial Officer Address: 801 Main Street, Suite 320 Beaumont, TX 77704 Date Signed: LESSOR: Enterprise FM Trust By: Enterprise Fleet Management, Inc., its attorney in fact By: Todd Rogers Title: Regional Sales Manager Address: 10401 Centrepark Drive #200 Houston, TX 77043 Date Signed Initials: EFM Cust Pagc 4 AMENDMENT TO MASTER EQUITY LEASE AGREEMENT THIS AMENDMENT ("Amendment") dated this day of September, 2016 is attached to, and made a part of, the MASTER EQUITY LEASE AGREEMENT entered into on the day of September, 2016 ("Agreement") by and between Enterprise FM Trust. a Delaware statutory trust ("Lessor") and City of Beaumont ("Lessee"). This Amendment is made for good and valuable consideration, the receipt of which is hereby acknowledged by the parties. Section 3(a) of the Master Equity Lease Agreement is amended to read as follows: 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 identified 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 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 "Depreciation Reserve" on the applicable Schedule, will be considered as a reserve for depreciation 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). Section 3(d) of the Master Equity Lease Agreement is deleted in its entirety and replaced with the following in lieu thereof: A security deposit will not be required Section 3(e) of the Master Equity Lease Agreement is deleted in its entirety and replaced with the following in lieu thereof: Any rental payment or other amount owed by Lessee to Lessor which is not paid within thirty (30) days after its due date will accrue interest in accordance with Section 2251.025 of the Texas Government Code. Section 3(g) of the Master Equity Lease Agreement is amended to add the following additional paragraph: In the event Lessee notifies Lessor of any claim or dispute under this Agreement, and/or any claim involving the Vehicle, Lessor will, in good faith, attempt to resolve the Lessee's claims in a manner satisfactory to all parties and Lessor will provide commercially reasonable assistance to Lessee in any communications and/or negotiations with the Vehicle's manufacturer with respect to claims relating to such Vehicle. Nothing contained within this Agreement will waive the rights of the Lessee to file a claim. Section 4 of the Master Equity Lease Agreement is amended to read as follows: 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 as mutually agreed upon by Lessor and Lessee and by such reasonable means as may be designated by Lessor. If for any reason Lessee fails to return any Vehicle to Lessor as and when required in accordance with this Section, Lessee agrees to pay Lessor rent for such Vehicle at the normal pro -rated daily rent. Acceptance of such rent by Lessor will in no way limit Lessor's remedies with respect to Lessee's failure to return any Vehicle as required hereunder. EXHIBIT "B" Section 5 of the Master Equity Lease Agreement is amended to read as follows: Lessee agrees to pay all costs, expenses, fees, charges, fines, tickets, penalties and non-exempt 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. Section 12 of the Master Equity Lease Agreement is deleted in its entirety and replaced with the following in lieu thereof: INDEMNITY: As Lessee is a unit of local government of the State of Texas and is subject to, and comply with, the applicable provisions of the Texas Tort Claims Act, as set out in Civil Practices and Remedies Code, Section 101.001 et. seq. and the remedies authorized therein regarding claims or causes of action that may be asserted by breach of this Agreement, 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, liabilities, 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. Nothing herein shall be deemed to affect the rights, privileges, and immunities of Lessee and the foregoing indemnity provision is not intended to be a waiver of any sovereign immunity afforded to Lessee pursuant to Texas law. Section 13 of the Master Equity Lease Agreement is amended to read as follows: 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 time(s) upon prior written notice, during regular business hours, and with a City's representative during the Term and for this purpose to enter into or upon any building 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 false 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. Section 14(a) first paragraph of the Master Equity Lease Agreement is amended to read as follows if Lessee fails to pay when due any rent or other amount due under this Agreement and any such failure shall remain unremedied for twenty (20) days, Section 14 second paragraph of the Master Equity Lease Agreement is amended to read as follows: 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, if 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 Lessor's independent contractors shall have the right to enter upon any premises where the Vehicles may be located and to remove and repossess the Vehicles when accompanied by the designated City representative; (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 required under Section 2251 of the Texas Government Code or other applicable law, all costs and expenses, including court costs and reasonable attorneys' 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) shall be deemed to be $0.00 and (ii) the calculations described in the first two sentences of Section 3(c) shall be made without giving effect to clause (ii) in each such sentence); and/or (f) Lessor may exercise any other right or remedy which may be available to Lessor under the Uniform Commercial Code, any other applicable Texas 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 responsibilities under this Agreement. All remedies of Lessor under this Agreement or at law or in equity are cumulative. Section 15 of the Master Equity Lease Agreement is amended to read as follows: 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, pledgee or transferee. Any such assignee, pledgee 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 or to any other person or entity, or for any other reason , provided, however, that no such assignment, pledge or transfer shall relieve Lessor or Servicer from any of their obligations under this Agreement. In the event Lessee notifies Lessor of any claim or dispute under this Agreement, and/or any claim involving the Vehicle, Lessor will, in good faith, attempt to resolve the Lessee's claims in a manner satisfactory to all parties and Lessor will provide commercially reasonable assistance to Lessee in any communications and/or negotiations with the Vehicle's manufacturer with respect to claims relating to such Vehicle. Nothing contained within this Agreement will waive the rights of the Lessee to file any claim. Section 17 of the Master Equity Lease Agreement is amended to read as follows: 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 Texas (determined without reference to conflict of law principles). The venue and jurisdiction of all disputes shall lie exclusively in Jefferson County, Texas. Section 19 of the Master Equity Lease Agreement is amended to read as follows: NON -APPROPRIATION: Lessee's funding of this Agreement shall be on a Fiscal Year basis and is subject to annual appropriations. Lessor acknowledges that Lessee is a municipal Corporation, and being a unit of government, is precluded by the Texas State Constitution and other laws from entering into obligations that financially bind future governing bodies, and that, therefore, nothing in this Agreement shall constitute an obligation of future legislative bodies of the City to appropriate funds for purposes of this Agreement. Accordingly, the parties agree that the lease terms within this Agreement or any Schedules relating hereto are contingent upon appropriation of funds by the City. The parties further agree that should the City fail to appropriate such funds, the Lessor shall be paid all rentals due and owing hereunder up until the actual day of termination. In addition, the parties agree that Lessor may recover the losses incurred by the Lessor for having to sell the vehicles on the open used car market prior to the end of the scheduled term (as determined in Section 3 and Section 14 of this Agreement). All references in the Agreement and in the various Schedules and addenda to the Agreement and any other references of similar import shall henceforth mean the Agreement as amended by this Amendment. Except to the extent specifically amended by this Amendment, all of the terms, provisions, conditions, covenants, representations and warranties contained in the Agreement shall be and remain in full force and effect and the same are hereby ratified and confirmed. IN WITNESS WHEREOF, Lessor and Lessee have executed this Amendment to Master Equity Lease Agreement as of the day of September, 2016. City of Beaumont (Lessee) By. Enterprise FM Trust (Lessor) By: Enterprise Fleet Management, Inc., its attorney in fact By Title: Titl BEAUMONT September 30, 2016 ATTN: Mark Block Enterprise FM Trust Enterprise Fleet Management, Inc. 10401 Centrepark Drive, #200 Houston, TX 77043 RE: EQUITY LEASE AGREEMENT — ENTERPRISE FM TRUST Dear Mr. Block: Via Email: James.M. BlockJr(d)efleets.com Please be advised your company has been awarded the above referenced contract for the City of Beaumont utilizing TIPS USA contract 42072816, Documents for this Agreement are listed on the following page. DATE AWARDED: September 27, 2016 (Resolution No.16-187) Payment by City to Vendor shall be made in accordance with the requirement of Texas Government Code §2251.021. if you need any further information, please contact the Purchasing Division at (409) 880-3720. Sincerely, r Aura Clark, CPA Chief Financial Officer LC:bd GAArA EMEWS-MtSCWquhY lease A11mnt_En1@rOrb*FM7?atjVtr„\Wlyd—Rqulty ka. afrtndr9-3o•I4dc cc: Jeff Harville, Fleet Maintenance Patrick Bardwell, Purchasing City Clerk PURCHASING T 409.880.3720 F 409.880.3747 PO Box 3827 1 Beaumont, TX 77704 801 Main St. I Suite 3151 Beaumont, TX 77701 boaumonttexas.gov Enterprise Fleet Management, Inc. Award Letter Equity Lease Agreement — Enterprise FM Trust September 30, 2016 Page 2 The following documents are attached: 1) Master Equity Lease Agreement 2) Amendment to Master Equity Lease Agreement 3) Resolution No. 16-190 -- Enterprise FM Trust 4) Resolution No. 16-165 —TIPS 5) Self -Insurance Addendum 6) Indemnity Agreement 7) Authorized Signature Certificate Please execute the Agreement at the designated places and return to: Laura Clark, CPA Chief Financial Officer Finance Department City of Beaumont P. O. Box 3827 Beaumont, TX 77704-3827 Iclark(c beaumonttexas.gov MASTER EQUITY LEASE ACREEMEW This Master Equity Lease Agreement is entered into this twonty-first day of September, 2016, 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 Ilia vehicles (individually, a 'Vehicle' and collectively, the 'Vehicles') described In the schedules from time to tirria 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 dale 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 duo with respect to the Vehicle. The terms contained in each such Schedule will be binding on Lessee vniess Lessee objects in writing to such Schedule within ton (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, 1111e 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 affiliate thereof (together with any subservlcer, agent, successor or assign as servicer on behalf of Lessor 'Servicef) may administer this Agreement an behalf of Lessor and may perform the service functions heroin provided to he performed by Lessor. 2. TERM: The term of [his Agreement ('Term') for each Vehicle begins on Ilia dale such Wilde is delivered to Lessee (the 'Delivery Data') and, unless terminated earlier In accordance with the terms of this Agreement, continues for the'Leaso 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 wilt be In the amount listed as the 'Total Monthly Rental Including Additional Services" on the applicable Schedule (with any portion of such amount Identified 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 wit be due and payable In advance on the first day of each month, if a Vehicle Is deGvored 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 data. A portion of each monthly rental payment, being the amount designated as 'Deprecialion Reserve' on the applicable Schedule, will be considered as a reserve for depreciation 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 Tetminatlon' set forth in arch Schedule at the end of the applicable Term (whether by reason of expiration, early termination or otherwise). (b) In the event the Term for any Vehicle ends prior to the last day of the scheduled Term, whether as a rosuit of a default by Lessee, a Casualty Occurrence or any other reason, the rentals and management fees paid by Lessee will be recalculated in accordance with the rule of 78's and the adjusted amount will be payable by Lessee to Lessor on the termination dale. (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 (1) 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. It the Book Value of such Vehicle Is less than the greater of (1) the wholesale value of such Vehicle as determined by Lessor in good faith or (it) except as provided below, twenty percent (20%) of the Delivered Price of such Vehicle as set forth in the applicable Schedue. 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 (1) the Term for a Vehicle Is greater than forty-eight (48) months (Inciucifng any extension of the Term for such Vehicle), (ii) the mileage on a Vehicle at the and of the Term Is greater than 15,000 miles per year on average (prorated on a daily basis) (Le , If the mileage on a Vehicle with o Term of thirty-six (36) months Is greater than 45,000 mites) or (Ifi) In the sole judgment of Lessor, a Vehicle has boon subject to damage or any abnormal or excessive weor and tear, the calculations described In the two immediately procading sentences shall be made m1houl giving affect to clause (11) In each such sentence. The 'Book Value" of a Vehicle means the sum of (i) the 'Delivered Price' of the Vehicle as set forUh in the applicable Schedule us (:I) the total Depreciation Reserve paid by Lesson to Lessor with respect to such Vehicle plus (ili) 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 ful at a rate per annum equal to the lesser of (I) Eighteen Percent (18%) per annum or (ii) the highest rate pemhliled by applicable law (the 'Default Rate'). (I]i If Lessee falls to pay any amount due under this Agreement or to comply with any of the covenants contained In this Agreement, Lessor, Servfcer 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 avallable 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 o! lack of governmental approval In, of, or with respect to, any Vehicle regardless or the cause or consequence nor any breach by Enterprise Fleet Management, Inc. of any maintenance agreement between Enterprise Fleet Management, !no. and Lesson covering any Vehicle regardless of the causes 01 consoquonc, w;'! rooa-.a Lessee from the performance of any of Its obligation. wider 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 Ilens, charges and encumbrances. Lessee agrees that In no event will any Vehlcie be used or operated for transporting hazardous substances or persons for hire, for any illegal purpose or to pull trailers that exceed Ilia manufacturer's traler 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 stale or municipal statute or regulation. Losses agroos 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 arid 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 falls to return any Vehicle to Lessor as and when required in accordance with this Section, Lessee agrees to pay Lessor additional rent for such Vehicle ut twice the normal pro -rated dolly rent. Acceptance of such additional rent by Lessor will 'n no way limit Lessor's remedies with respect to Lessee's failure to return any Vehicle as required hereunder. ok initials: EFM `Z Cust- f� Pagc 1 S. COSTS, EXPENSES, FEES AND CHARGES: Lessee agrees to pay all costs, expenses, tees, charges, fines, tickets, penalties and taxes (other than federal and state income taxes on the Income of Lessor) Incurred In connection with the tilling, 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. 8. LICENSE AND CHARGES: Each Vehicle will be titled and licensed In the name designated by Lessor at Lessee's expense. Certain other charges relating to the acquisition of each Vehicle and paid or satisfied by Lessor have been capitalized in determining the monthly rental, treated as an Wiles charge or otherwise charged to Lessee. Such charges have been determined without reduction for trade-in, exchange allowance or other credit 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 low, rule, regulation or ordinance, Lessee agrees that it will not permit any Vehicle to be located in a state other than the stale In which such Vehicle is than Riled for any continuous period of time that would require such Vehicle to become subject to the tilling andlor registration laws of such other state. 8. MAINTENANCE OF AND IMPROVEMENTS TO VEHICLES. (a) Lessee agrees, at Its expense, to (I) maintain the Vehicles In good condition, repair, maintenance end running order and In accordance with all manufacturer's Instructions and warranty requirements and all legal requirements and 01) 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, Ilia 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, (1) the Vehlcle(s) covered by such Schedule are subject to a separate maintenance agreement between Enterprise Fleet Management, Inc. and Lessee and (ti) Lessor shall have no Ilabltity or responsibility for any failure of Enterprise Fleet Management, Ina 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(a). 8. 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 only 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 liability, 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 Vehide 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, In addition, none of Lessor, Servicer or any other agent of Lessor will have any liability to Lessee under this 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, stolan, destroyed or damaged beyond repair (a 'Totaled Vehicle'), Lessee agrees to pay Lessor no later than the data 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. 11, INSURANCE: (a) Lessee agrees to purchase and maintain in force during the Term, insurance policies In at least the amounts listed below covering each Vehicle, to be written by an insurance company or companies satisfactory to Lessor, Insuring Lessee, Lessor and any other person or entity designated by Lessor against any damage, claim, suit, action or liability: (i) Commercial Automobile Liability insurance (including Uninsured/Underinsured Motorist Coverage and No -Fault Protection where required by law) for the limits listed below (Note - $5,000,000 Combined Single Limit Bodily Injury and Property Damage with No Deductible is required for each Vehicle capable of transporting more than 8 passengers): State of Vehicle Registration Coverage Connochcut, Massachusetts, Maine, New Hampshire, New $1.000.000 Combined Single Limit ?odlty Injury and Prop-r.y Jersey, New York, Pennsylvania, Rhode Island, and Vermont Damage - No Deductible Florida All Other States (b) Physical Damage Insurance (Collision & Comprehensive): occurrence - Collision and $250 per occurrence - Comprehensive). initials: EFM_UZ Cust Kif $500,000 Combined Single Limit Bodily Injury and Property Damage or $100,000 Bodily Injury Per Person, $300,000 Per Occurrence and $50,000 Property Damage (1001300/50) - No Deductible $300,000 Combined Single Writ Bodily Injury and Property Damage or $100,000 Bodily Injury Per Person, $300,000 Per Occurrence and $50,000 Property Damage (100/300150) - No Deductible Actual cash value of the applicable Vehicle. Maximum deductible of $500 per Page 2 If the requirements of any governmental 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 poilcy must provide the following (1) 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, (li) that no act or default of Lessee or any other person or entity shalt affect the right of Lessor, Servicer, any other agent of Lessor or any of their 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 (iii) 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 endorsa all checks and other documents and to take any other actions necessary to pursue Insurance claims and recover payments If Lessee falls to do so. Any expense of Lessor, Servicer or any other agent of Lessor In adjusting or coliacting Insurance shall be borne by Lessee. Lessee, its drivers, servants and agents agree to cooperate fully with Lessor, Servlcer, any other agent of Lessor and any Insurance carrlers In the investigation, defense and prosecution of all claims or suits arising from the use or operation of any Vehicle. If any claim is made or action commenced for death, personal Injury or property damage resulting from Ilia ownership, maintenance, use or operation of any Vehicle, Lessee will promptly notify Lessor of such action orclalm and forward to Lessor a copy of every demand, notice, summons or other process received In connection with such cfalm or action. (b) Notwithstanding the provisions of Section 11(a) above: (1) if Section 4 of a Schedule Includes a charge for physical damage waiver, Lessor agrees that (A) Losses will not be required to obtain or maintain the minimum physical damage Insurance (collision and comprehensive) required under Section 11(a) for the Vehlcle(s) covered by such Schedule and (6) Lessor will assume the risk of physical damage (collision and comprehensive) to the Vehlcle(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 lass of any palls, 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 automobile 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 i l(a) for the Vehicle(s) covered by such Schedule. Lessor may at any time during the applicable Term terminate said obligation to provide physical damage waiver andfor 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 I (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 arty such change and Lessee agrees to fumish Lessor with satisfactory proof of Insurance coverage within ten (10) days after mailing of Ilia notice. 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: To the extent permitted by state law, Lessee agrees to defend and Indemnity Lessor, Servicer, any other agen'. of Lessor and their respective successors and assigns from and against any and all losses, damages, liabilities, 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. Nothing herein shall be deemed to affect the rights, privileges, and Immunities of Lessee and the foregoing Indemnity provision Is not Intended to be a waiver of any sovereign Immunity afforded to Lessee pursuant to the law. 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 tlme(s) during the Term and for this purpose to enter Into or upon any building 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 forts and In such manner as directed by Lessor. Providing false 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 constituto events of default ('Events of Default] by Lessee under this Agreement: (a) If Lessee fails to pay when due any rent or other amount due under this Agreement and any such failure shall remain unromedlod for ten (10) days; (b) If Lessee fails 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 unremedled for thirty (30) days after written notice thereof Is given by Lessor, Servicer or any other agent of Lessor to Lessee; (d) any selzure or confiscation of any Vehicle or any other act (other than a Casualty Occurrence) otherwlse renduring any Vehicle unsuitable for use (as determined by Lessor); (a) 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 shell deny that it, he or she has any further liability or obligation undar any such guaranty or if any guarantor shalt fall to comply with or observe any of the terms, provisions or conditions contained in any such guaranty; (1) 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 W6 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, Lesser, 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; If Lessee falls to surrender possession of the Vehicles 10 Lessor on default (or termination or expiration of the Term), Lessor, Servlcer, any other agent of Lessor and any of Lessor's Independent contractors shall have the right to enter upon any premises where the Vehicles may be located and to remove and repossess Ilse 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 permuted by applicable law. all costs and expenses, Including court costs and reasonable attorneys' foes 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 10 Lessee, Lessor may terminate Lessee's rights Initials: EFMW_ Cusi kk Page 3 under this Agreement; (a) 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, (1) the estimated wholesale value of such Vehicle for purposes of Section 3(c) shall be deemed to be $0.00 and (if) the calculations described in the first two sentences or Section 3(c) shall be made without giving effect to clause (ID In each such sentence); and/or (Q 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 terrtinatfon 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. 16. 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, pledgee or transferee. Any such assignee, pledgee 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 or to 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 or Lessor. 18. 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 doomed 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 than 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 masted to such address will be effective one (1) day after deposit in the United States mail, duly addressed, with certified 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'ORIGINAL7 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 Missouri (determined without reference to conflict or 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 shag not Institute against, or join any other person in instituting against, Lessor any bankruptcy, reorganization, arrangement, Insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any stale of the United States. The provisions of this Section 18 shall survive termination of this Master Equity Lease Agreement, 19. NON -APPROPRIATION: Lessee's funding of this Agreement shall be on a Fiscal Year basis and Is subject to annual appropriations. Lessor acknowledges that Lessee is a municipal corporation, Is precluded by the County or State Constitution and other laws from entering Into obligations that financially bind future governing bodies, and that, therefore, nothing in this Agreement shall constitute an obligation of future legislative bodies of the County or State to appropriate funds for purposes of this Agreement. Accordingly, the parties agree that the lease terns within this Agreement or any Schedules relating hereto are contingent upon appropriation of funds. The parties further agree that should the County or State fail to appropriate such funds, the Lessor shall be paid all rentals due and owing hereunder up until the actual day of termination. In addition, Lessor reserves the right to be paid for any reasonable damages. These reasonable damages will be limited to the losses Incurred by the Lessor for having to sell the vehicles on the open used car market prior to the end of the scheduled term (as determined In Section 3 and Section 14 of this Agreement). 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 Beaumont t__ I By: Laurw6lerir f`J `}Q•/1�it� t t e Title: &�aeaefe�Affiaef(t`� !►'U.t tit lei^ Address: 801 Main Street, Suite 320 _} Beaumont, TX 77704 Date Signed: Z ,j f G Xi+ initials: EFiti Cust—- LESSOR: Enterprise FM Trust 8y: Enterprise Fleet Management, Inc., Its attorney in fact 71 Sy: Todd Rogers Title: Regional Sales Manager Address: 10401 Centrepark Drive #200 Houston, TX 77043 Date Signed `- ?f- & Page 4 Authorized Signnture Certificate The undersigned hereby certifies (i) that he is the duly appointed Chief Financial Officer for the City of Beaumont hereafter known as "The Entity", (ii) that he is authorized by The Entity to execute and deliver on behalf of The Entity to Enterprise Fleet Management, hereafter known as "Enterprise" a Texas statutory trust ("Lessor") and the Master Equity Lease Agreement between Enterprise and the Entity the ("Lessee"), and (iii) that the following individuals are authorized and empowered on behalf of and in the name of The Entity to execute and deliver to Enterprise Schedules to the Lease for individual motor vehicles, together with any other necessary documents in connection with those Schedules: Name �a rxL o�loC �Simo� (/'r,I,-tU Federal ID #: ,/ �—&0voa-721� Date: September 27, 2016 AMENDMENT TO MASTER EQUITY LEASE AGREEMENT THIS AMENDMENT ("Amendment") dated this r day of September, FL G attached to, and made a part of, the MASTER EQUITY LEASE AGREEMENT entered nto on the ay of September, 2016 ('Agreement') by and between Enterprise FM Trust, a Delaware statutory trussssor) and CIt of Beaumon ("Lessee"). This Amendment is made for good and va'uable consideration, the receipt of which is hereby acknowledged by the parties. Section 3(a) of the Master Equity Lease Agreement is amended to read as follows 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 identified 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 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 pm -rated rental charge for the number of days that the Delivery Dale precedes the first monthly rental payment date. A portion of each monthly rental payment, being the amount designated as 'Depreciation Reserve" on the applicable Schedule, will be considerod as a reserve for depreciation 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 Use "Total Initial Charges" set forth in each Schodulu 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' sat forth in each Schedule at the and of the applicable Term (whether by reason of expiration, early termination or otherwise). Section 3(d) of the Master Equity Lease Agreement is deleted In Its entirety end replaced with the following In lieu thereof. A security deposit will not be required. Section 3(o) of the Master Equity Lease Agreement is deleted In its entirely and replaced with the following In lien thereof: Any rental payment or other amount owed by Lessee to Lessor which is not paid within thirty (30) days after its due date will accrue Interest in accordance with Section 2251.025 of the Texas Government Code. Section 3(g) of the Master Equity Lease Agreement is amended to add the following additional paragraph: In the event Lessee notifies Lessor of any claim or dispute under this Agreement, andlor any claim involving the Vehicle, lessor will, In good faith, attempt to resolve the Lessee's claims In a manner satisfactory to all parties and Lessor wiil provide commercially reasonable assistance to Lessee In any communications and/or negotiations with the Vehicle's manufacturer with respect to claims relating to such Vehicle. Nothing conto!nod within this Agreement will waive the rights of the Lessee to file a claim. Section 4 of the Master Equity Lease Agreement is amended to read as follows: 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 lions, charges and encumbrances. Lessee agraas 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. Lessoo 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 egress not to remove any Vehicle from the continental United States without first obtaining Lessor's written consent. At the expiration or earlier termination of Qtis Agreement with respect to each Vohicie, or upon demand by Lessor made pursuant to Secfion 14, Lessee at its risk and expense agrees to return such Vehicle to Lessor at such place as mutually agreed upon by Lessor and Lessee and by such reasonable means as may be designated by Lessor. If for any reason Lessee falls to return any Vehicle to Lessor as and wtron required in accordance with this Section, Lessee agrees to pay Lessor rent for such Vehicle at the normal pro -rated daily rent Acceptance of such rant by Lessor will In no way limit Lessors remedies with respect to Lessee's failure to return any Vahlcie as required hereunder. Section 5 of the Master Equity Lease Agreement is amended to read as follows Lessee agrees to pay all costs, expenses, fees, charges, fines, tickets, penalties and non-exempt taxes (other than federal and stale Income taxes on the Income of Lessor) Incurred in connection with the titiing, registration, delivery, purchase, sale, rental, use or operation of the Vehicles during the Term. If Lessor, S©rvIcDr or any other agent of Lessor incurs any such costs or expenses, Lessee agrees to promptly reimburse Lessor for the same. Section 12 of the Master Equity Lease Agreement is deleted in Its entirety and replaced wllh the following in lieu thereof: INDEMNITY: As Lessee Is a unit of local government of the State of Taxes and Is subject to, and comply with, the applicable provisions of the Texas Tort Claims Act, as set out in Civil Practices and Remedies Code, Sectlon 101.001 at. seq. and the remedies authorized therein regarding claims or causes of action that may be asserted by breach of this Agreement, Lessee agrees to defend and indemnify Lessor, Sorvicer, any other agent of Lessor and their respective successors and assigns from and against any and all losses, damages, liablllties, suits, claims, demands, costs and expenses (including, without limitation, reasonable attornoys' 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, thoft 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 provislons of this Section 12 shall survive any expiration or termination of this Agreement. Nothing herein shall be deemed to affect the rights, privileges, and Immunities of Lessee and the foregoing indemnity provision Is not intended to be a waiver of any soverelgn immunity afforded to Lessee pursuant to Texas law. Section 13 of the Master Equity Lease Agreement Is amended to read as follows: 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 lime(s) upon prior written notice, during regular business hours, and with a City's representative during the Term and for this purpose to enter into or upon any building or place where any Vehicle Is located. Lessee agrees to comply with a!I 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 false Information or failure to complete the odometer disclosure form as required by law may result in (nos 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. Section 14(a) first paragraph of the Master Equity Lease Agreement is amended to read as follows: If Lessee fails to pay when due any rent or other amount due under this Agreement and any such failure shall remain unremedied for twenty (20) days; Section 14 second paragraph of the Master Equity Lease Agreement is amended to read as follows: Upon the occurrence of any Event of Default, Lessor, without notice to Lessee, will have the right 10 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; If Lessee falls to surrender possession of the Vehicles to Lessor on default (or termination or expiration of the Term), Lessor, Sorvicor, any other agent of Lessor and any of Lessor's Independent contractors shall have the right to enter upon any premises where the Vehicles may be located and to remove and repossess the Vehicles when accompanied by the designated City representative; (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 required under Section 2251 of lire Texas Government Code or other applicable law, all costs and expenses, Including court costs and reasonable attorneys' foes and expenses, incurred by Lessor, Servicer, any other agent of Lessor or any of their respective successors or assigns in attempting oreffeding 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; (a) 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, (1) the estimated wholesale value of such Vehicle for purposes of Section 3(c) shall be doomed to be $0.00 and (li) the calculations described in the first two sentences of Section 3(c) shall be made without giving effect to clause (ii) In each such sentence); and/or (0 Lessor may exercise any other right or remedy which may be available to Lessor under the Uniform Commercial Code, any other applicable Texas 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 responsibilities under this Agreement. All remodlas of Lessor under this Agreement or at law or in equity are cumulative. Section 15 of the Master Equity Lease Agreement is amerxled to read as follows 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, pledgee or transferee. Any such assignee, pledgee or transferee of any rights or obligations of Lessor Linder 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 shell be absolute and unconditional and shall not be subject to any abatement whatsoever, or to any defense, setoff, counterclaim or recoupmont 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 howsoovur and whenever arising of the Lessor or any of Its affiliates to the Lessee or to any other person or entity, or for any other reason , provided, however, that no such assignment, pledge or transfer shall relieve Lessor or Servlcer from any of their obligations under this Agreement. In the event Lessee notifies Lessor of any claim or dispute under this Agreement, and/or any claim Involving the Vehicle, Lessor will, In good faith, attempt to resolve the Lessee's claims in a manner sadsfactory to all parties and Lessor will provide commercially reasonable assistance to Lessee In any communications and/or negotiations with the Vehicle's manufacturer with respect to claims relating to such Vehicle. Nothing contained within this Agreement will waive the rights of the Lessee to file any claim. Section 17 of the Master Equity Lease Agreement is amended to read as follows: Subject to the provisions of Section 15, this Agreement will be binding upon Lessee and Its heirs, executors, personal ropresantalives, 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 Texas (determined without reference to conflict of law principles). The venue and jurisdlction of at( disputes shall lie exclusively In Jefferson County, Texas Section 19 of the Master Equity Lebse Agreement is amended to read as follows: NON -APPROPRIATION: Lessee's funding of this Agreement shall be on a Fiscal Year basis and is subject to annual appropriations. Lessor acknowledges that Lossoo Is a municipal Corporation, and being a unit of government, Is precluded by the Texas State Constitution and other laws from entering Into obligations that financially bind future governing bodies, and that, therefore, nothing in this Agreement shall constitute an obligation of future legislative bodies of the City to appropriate funds for purposes of this Agreement Accordingly, the parties agree that the lease terms within this Agreement or any Schedules relating hereto are contingent upon appropriation of funds by the City. The parties further agree that should the City tall to appropriate such funds, the Lessor shall be paid all rentals due and owing hereunder up until the actual day of termination. In addition, the parties agree that Lessor may recover the losses Incurred by the Lessor for having to sell the vehicles on the open used car market prior to the end of the scheduled term (as determined in Section 3 and Section 14 of this Agreement). All references In the Agreement and In the various Schedules and addenda to the Agreement and any other references of similar import shall henceforth mean the Agreement as amended by this Amendment. Except to the extent specifically amended by this Amendment, all of the terms, provisions, conditions, covenants, representations and warranties contained in the Agreement shall be and remain in full force and effect and the same are hereby ratified and confirmed. IN WITNESS Z OF, Lessor and Lessee have executed this Amendment to Master Equity Lease Agreement as of the r day of September, 2016. City of Beaumont (Lessee) f 1CY lc By t �J'`7�3 TiAe: LO 'e Enterprise FM Trust (Les' or) By; Enterprise Fleet Management. Inc., Its ailorney In fact By /*.70 174A IdU/�/j� RESOLUTION NO, 16-190 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute an Equity Lease Agreement and Amendment to Master Equity Lease Agreement between the City of Beaumont and Enterprise FM Trust for the lease of thirty-one (31) vehicles for use by various departments. The Equity Lease Agreement is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes and the Amendment to Master Equity Lease Agreement is substantially in the form attached hereto as Exhibit "B" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 27th day of September, 2016 ttdK �Lur ayor Becky Ames - RESOLUTION NO. 16-165 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute an Interlocal Agreement between the City of Beaumont and Reglon VIII Education Service Center t o provide cooperative purchasing services to the City of Beaumont through The Interlocal Purchasing System (TIPS) Program. The Interlocal Agreement is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 13th day of September, 2016. _ (N&\ �Mvr-' V cj - Mayor 866ky Ames - SELF -INSURANCE ADDENDUM TO MASTER EQUITY LEASE AGREEMENT (Physical Damage and Liability) This Addendum is made to the Master Equity Lease Agreement doled the o day of September, 2016, as amended (the'Agreemcnl`), by and between Enterprise FM Trust, a Delaware statutory trust ('Lessor'), and the lessee whose name is set forth on the signature line below ("Lessee"). This Addendum is attached to and made a pan or the Agreement (including each Schedule to the Agreement), All capitalized terms used and not otherwise derined herein shall have the respective meanings ascribed to them in the Agreement Notwithstanding the provisions of Section t I of the Agreement, Lessee shall be permitted to assume and self insure the risks set forth in Section I I of the Agreement and shall not be required to purchase or maintain any insurance policy of any kind with respect to any Vehicle, provided. howeverthat if any Federal, stale, local or other law, statute, rule, regulation or ordinance requires Lessee to maintain any amount of insurance with respect to any Vehicle, Lessee shall purchase and maintain such amount of Insurance in the form of an insurance policy which complies in all respects, other than the amount of insumnec required, with Section I I of the Agreement. Except as amended hereby, ail the terms and provisions of the Agreement stall remain in full force and effect. In the event of any conflict between this Addendum and the Agreement or any of the Schedules, the terms and provisions of this Addendum will govern and control. LESSEE. City orBeaumont By: J Date Signed: -' LESSOR, Enterprise FM Trust By: Enterprise Fleet Management, Inc., its attorney in fact ky IL �iJ /"oLlei�i r5 ny Title: Date Signed __ 9 lf' it _ INDEMNITY AGREEMENT This Agreement is entered into as of the_ day of September, 2016, by and between Enterprise Fleet Management Inc.. (EFM), a Missouri corporation, and City of Beaumont. WITNESSETH: INDEMNITY: Enterprise Fleet Management, Inc. ('EFM") agrees to defend and indemnify City of Beaumont from and against any and all losses, damages, liabilities, suits, claims, demands, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) which City of Beaumont may Incur by reason of EFM's negligence, willful misconduct, breach or violation of, or failure to observe or perform, any of its obligations as Servicer (EFM In such capacity, "Servicer") for Enterprise FM Trust in connection with the Master Equity Lease Agreement between City of Beaumont and Enterprise FM Trust dated as of the date hereof, 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, in each case, while the Vehicle was in possession of the Servicer. Capitalized terms used herein and not defined herein shall have the meanings given in the Lease. IN WITNESS WHEREOF, EFM and City of Beaumont have executed this Indemnity Agreement as of the day and year first above written. Company: City of Beaumont EFM: ENTERPRISE FLEET MANAGEMENT INC. By: � er / By: �+pp Title: Title: fe..rw-n 17'14of. Address: Address: