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HomeMy WebLinkAboutRes1994-167 . . . Sponsored by: Tones CITY OF SEWARD, ALASKA RESOLUTION NO. 94-167 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE EXECUTION OF AN EQUIPMENT LEASE!PURCHASE AGREEMENT BY AND BETWEEN THE CITY AND NATIONAL BANK OF ALASKA LEASING CORPORATION AND PROVIDING FOR RELATED MATIERS WHEREAS, the City of Seward, Alaska (the "City"), is a home rule city and under Section 11 of Article X of the Alaska Constitution may exercise all legislative power not prohibited by law or by the Charter of the City, and it has been determined that the matters set forth in this Resolution are not prohibited by law or the Charterj and WHEREAS, the City desires to lease certain equipment, described in Attachment A hereto (the "Equipment") from National Bank of Alaska Leasing Corporation (the "Lessor"), and the Lessor desires to lease the Equipment to the City; and WHEREAS, the City considers that the acquisition and leasing of the Equipment from the Lessor is in the best interest and will promote the public purpose of the City; and WHEREAS, there has been presented to the City the form of an Equipment Lease/Purchase Agreement (the "Agreement") which the City proposes to enter into in connection with the leasing of the Equipment; and WHEREAS, it appears that the Agreement, which now is before the City, is in appropriate form and is an appropriate instrument for the purposes intendedj NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The leasing by the City of the Equipment from the Lessor under the Agreement is hereby approved. The aggregate principal component of rent payable under the Agreement shall not exceed $151,054 and said amount shall bear interest at a rate per annum not exceeding 6.49%. Section 2. The form and content of the Agreement be and the same hereby are in all respects authorized, approved and confirmed, and the City Manager and Deputy City Manager be and each hereby is authorized, empowered and directed to execute and deliver said document to the counterparty for and on behalf of the City in substantially the form and content now before this meeting but with such changes, modifications, additions and deletions therein which shall to him seem necessary, desirable and . . . CITY OF SEWARD, ALASKA RESOLUTION NO. 94-167 appropriate, the execution thereof to constitute conclusive evidence of the approval of any and all changes, modifications, additions or deletions therein from the form and content of the said document now before this meeting, and that, from and after the execution and deliver of the said document, the City Manager, Deputy City Manager and the City Clerk are hereby authorized, empowered and directed to do all such acts and things and to execute all documents as may be necessary to carry out and comply with the provisions of the document as executed. Section 3. The City Manager, Deputy City Manager, City Clerk or any other person authorized by the City be and each hereby is authorized to execute and deliver for an on behalf of the City any and all additional certificates, documents, opinions or other papers and perform all other acts as they may deem necessary or appropriate in order to implement and carry out the intent and purposes of this Resolution. Section 4. The City covenants that it will not use any of the proceeds of the Agreement in such manner, or take or omit to take any other action in such manner, as to impair the exemption of the interest component of rent payable under the Agreement from federal income taxation. The Agreement is hereby designated as a "qualified tax exempt obligation" for purposes of Section 265(b)(3) of the Internal Revenue Code of 1986 (the "Code"). The City hereby covenants that it shall not issue during the calendar year 1995 more than $10,000,000.00 in aggregate principal amount of tax-exempt obligations other than tax-exempt obligations described in Section 265(b)(3)(C)(ii) of the Code. The City further covenants that no part of the proceeds of the Agreement or any other funds of the City shall at any time be used directly or indirectly to acquire securities or obligations, the acquisition of which would cause the Agreement to be or become an "arbitrage bond" as defined in Section 148 of the Code. The City shall not permit any of the proceeds of the Agreement, or any products purchased with such proceeds, to be used in any manner that would cause the Agreement to constitute a "private activity bond" within the meaning of Section 141 of the Code. Section 5. The provisions of this Resolution are hereby declared to be separable and, if any section, phrase or provision shall for any reason be declared to be invalid, such declaration shall not affect the validity of the remainder of the sections, phrases or provisions. Section 6. Upon adoption of this Resolution, the Clerk of the City shall cause a true copy of same to be posted on the City Hall bulletin board and notice of the same to be published as provided in Seward City Code Section 2.15.035(D). Section 7. This Resolution shall become effective upon passage and approval in accordance with Seward City Code Section 2.15.050(C). . . . EQUIPMENT LEASE/PURCHASE AGREEMENT This Equipment Lease/Purchase Agreement dated as of the day of 1994 is entered into between National Bank of Alaska Leasing Corporation ("Lessor") and the City of Seward, Alaska ("Lessee"), a home rule municpal corporation organized and existing under the laws of the State of Alaska. WIT N E SSE T H: WHEREAS, Lessor desires to lease the Equipment, as hereinafter defined, to Lessee, and Lessee desires to lease the Equipment from Lessor subject to the terms and conditions of and for the purposes set forth in this Lease; and WHEREAS, Lessee is authorized under the Constitution and laws of the State of Alaska and the home rule charter and code of ordinances of Lessee to enter into this Lease for the purposes set forth herein; WHEREAS, on September 12,1994, the City Council of Lessee authorized Lessee to lease the Equipment from National Bank of Alaska Leasing Corporation; NOW THEREFORE, for and in consideration of the premises hereinafter contained, the parties hereby agree as follows: ARTICLE I Covenants of Lessee Lessee represents, covenants and warrants for the benefit of Lessor and its assigns as follows: A. Lessee is a home rule city duly organized and existing under the Constitution and laws of the State of Alaska. B. Lessee is authorized under the Constitution and laws of the State of Alaska and under the home rule charter and code of ordinances of Lessee to enter into this Lease and the transactions contemplated hereby, and it intends to perform all of its obligations hereunder. C. Lessee has been duly authorized to execute and deliver this Lease and all requirements have been met and proceedings have occurred in order to ensure the validity of this Lease. D. Lessee has obtained all permits and government approvals necessary to acquire and operate the Equipment. . . . E. The making and performance of this Lease and the transactions contemplated herein on Lessee's part have been duly authorized by all necessary action and will not violate or conflict with any agreement, indenture or other instrument by which Lessee or its properties are bound. No further consents or approvals are required for the execution by Lessee of this Lease and the carrying out by Lessee of the transactions contemplated herein. F. Lessee will make no use of the proceeds of this Lease which will cause this Lease to be an "arbitrage bond" subject to federal income taxation by reason of Section 148 of the Internal Revenue Code of 1986 (the "Code"). To that end, so long as this Lease is outstanding, Lessee, with respect to the gross proceeds of this Lease, shall comply with all requirements of said Section 148 and all regulations of the United States Department of the Treasury applicable thereto. Lessee will not permit any of the proceeds of this Lease, or any property acquired with such proceeds, to be used in any manner that would cause this Lease to become a "private activity bond" within the meaning of Section 141 of the Code. G. This Lease has been designated by Lessee as a "qualified tax exempt obligation" for purposes of Section 265(b)(3) of the Code. Lessee hereby covenants that it shall not issue during the calendar year 1995 more than $10,000,000 in aggregate principal amount of tax-exempt obligations other than obligations described in Section 265(b)(3)(C)(ii) of the Code. ARTICLE II Definitions The following terms will have the meanings indicated below unless the context clearly requires otherwise: A. "Equipment" means the property which is the subject of this Lease, identified in schedules attached to this Lease. B. "Event of Default" shall mean any of the events described in Section 12.01 hereof. C. "Fiscal Year" shall mean the fiscal year of Lessee used for purposes of budgeting and appropriations. D. "Force Majeure" means, without limitation, the following: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the government of the United States or of the State of Alaska or any of their CITY OF SEWARD Equipment l.eas9jPun:hase A{Jf8IHTI&fIt AFF04300 Page 2 . . . departments, agencies, subdivisions or officials, or any civil or military authority (including any orders or restraints exercised pursuant to any agreement to which Lessee is a party); insurrection; riots; landslides; icebergs; typhoons; tornadoes; adverse weather conditions; tidal waves; earthquakes; fires; storms; droughts; floods; explosions; breakage, malfunction or accident to facilities, machinery, transmission pipes or canals; or any other cause or event not reasonably within the control of Lessee. E. "Lease" means this Equipment Lease/Purchase Agreement, including the exhibits attached hereto. F. "Lessee" means the City of Seward, Alaska. G. "Lessor" means (1) National Bank of Alaska Leasing Corporation, acting as Lessor hereunder, and (2) any surviving, resulting or transferee corporation or an assignee of all or any portion of Lessor's interest under this Lease. H. "Net Proceeds" means, with respect to any insurance claim, the amount remaining from the gross proceeds of such insurance claim after deducting all expenses, including attorneys' fees, incurred in the collection thereof. I. "Option Purchase Price" means, with respect to an item of Equipment, the total unpaid principal balance with respect to the item of Equipment under this Lease, plus accrued interest on that principal balance to the date of purchase, calculated under Article VII. J. "Principal Amount" means the portion of the Project Cost to be paid under this Lease. K. "Proiect Cost" means the contract price for the Equipment to be paid to the Vendor. L. "Rental Payments" means the amounts payable by Lessee under this Lease during the Lease term in consideration of the right of Lessee to use the Equipment during the then current portion of the Lease term. M. "Vendor" means, with respect to an item of Equipment, the manufacturer of that item of Equipment and any agent or dealer of the manufacturer, or any other person or entity from whom Lessee purchased or is purchasing that item of Equipment. ARTICLE III Equipment Acquisition CITY OF SEWARD Equipment LBasejPutchase ~ AFF04300 Page 3 . . . Section 3.01 - Credit Advances. Subject to the terms and conditions hereof, Lessor agrees to make available, from time to time, for Lessee's use to pay Project Costs under this Lease and upon the written request of Lessee in accordance with Section 3.02, advances in the maximum aggregate amount of One Hundred Fifty-One Thousand Fifty- Four Dollars ($151,054); provided that no such advances shall be made after the earlier of (i) June 30, 1995; and (ii) the occurrence of an Event of Default or the occurrence of an event which but for the passage of time or the giving of notice, or both, would constitute an Event of Default. Section 3.02 - Acquisition of the Equipment. Upon receipt of a request for an advance from Lessee (i) identifying in a manner satisfactory to Lessor one or more items of Equipment; and (ii) stating the Project Cost and the Principal Amount that Lessee expects to be paid with respect to the item or items of Equipment; Lessor, subject to the limitations stated in Section 3.01, shall purchase the Equipment from Vendors selected by Lessee. Lessee shall notify Lessor in writing that the Equipment has been delivered and installed to its satisfaction. Lessor shall pay the Principal Amount for the Equipment upon written certification by Lessee in a form satisfactory to Lessor. Lessor shall pay the Principal Amount for the account of the payee specified in the certification by Lessee and shall provide Lessee with evidence satisfactory to it of the amount paid. Lessee shall pay any difference between the Project Cost and the Principal Amount. Section 3.03 - Administration of Contracts. Lessor hereby appoints Lessee as its agent to carry out all phases of any acquisition and installation of the Equipment. Lessee will have full responsibility for preparing, administering, amending and enforcing all contracts for the acquisition and installation of the Equipment and litigating or settling claims thereunder so long as there is no Event of Default, and will be entitled to all warranties, guaranties and indemnities provided under the contracts and by law. The failure of any Vendor to perform according to the terms of any contract or purchase order shall not affect Lessee's obligation to make any Rental Payment in accordance with Section 7.03. Section 3.04 - Lessor's Responsibilities Limited. Lessor shall be responsible for the payment of monies in accordance with this Article, and shall not be responsible for the authenticity or accuracy of the certifications, or the application of amounts paid pursuant to such certifications by the persons or entities to which they are paid. ARTICLE IV Agreement to Lease Lessor hereby leases to Lessee, and Lessee leases from Lessor, the Equipment in accordance with this Lease. CITY OF SEWARD Equipment LeassjPufChase /l(Jf8em9nt AFF04300 Page 4 . . . ARTICLE V Lease Term Section 5.01 - Commencement and Expiration of Lease Term. The term of this Lease shall commence on the date of execution of this Lease, and shall terminate upon the earliest of the following events: A. damage to or the destruction of all of the Equipment as provided in Section 10.02; B. a default by Lessee and Lessor's election to terminate this Lease under Article XII; C. the payment by Lessee, with respect to all items of Equipment under this Lease, of (i) all Rental Payments authorized or required to be paid by Lessee hereunder, or (ii) the Option Purchase Price; D. at the option of Lessee upon a breach of Section 6.01; and E. the non-appropriation of funds as provided in Section 7.06. If this Lease is terminated as to part of the Equipment, this Lease shall remain in full force and effect as to the remaining Equipment. ARTICLE VI Enioyment of Equipment Section 6.01 - Use Covenant. Lessor hereby covenants to provide Lessee during the term of this Lease with the quiet use and enjoyment of the Equipment. Section 6.02 - Lessor's Inspection. At all reasonable times during business hours, Lessor or its nominees may enter into and upon the property of Lessee to inspect the Equipment. ARTICLE VII Payments and Prepayment Option Section 7.01 - Rental Payments to Constitute a Current Expense of Lessee. Lessor and Lessee understand and intend that the obligation of Lessee to pay Rental Payments hereunder shall constitute a current expense of Lessee and shall not in any way be CITY OF SEWARD Equ/prnl1nt'--~'fJ_ AFF04300 Page 5 . . . construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the general tax revenues, funds or monies of Lessee. Section 7.02 - Payment of Rental Payments. A. Lessee shall pay Rental Payments monthly in arrears commencing April 1, 1995, and on the first day of each month thereafter, until all principal and interest due under the terms of this Lease shall have been paid; provided that all amounts due under this Lease shall be paid on or before March 1, 2002. Rental Payments shall be paid solely from legally available funds of Lessee in lawful money of the United States of America to Lessor or its assignee at such location as may be designated in writing to Lessee from time to time by Lessor. B. Each Rental Payment shall consist of principal and interest components. The principal component of each Rental Payment shall be the annual amount necessary to amortize the Principal Amount of this Lease over the term of this Lease in approximate- ly equal annual payments of principal and interest. The interest component of each Rental Payment shall be equal to the interest on unpaid principal, which shall accrue at a rate of 6.49 percent per annum. Section 7.03 - Rental Payments to be Unconditional. The obligation of Lessee to make the Rental Payments required under this Article VII and other sections hereof and to perform and observe the other covenants and agreements contained herein shall be absolute and unconditional in all events, except as expressly provided under this Lease. Notwithstanding any dispute between Lessee and Lessor, any Vendor, or any other person, Lessee shall, so long as Lessee's use and possession of the Equipment is not disturbed by Lessor, make all Rental Payments when due and shall not withhold any Rental Payments pending final resolution of such dispute, nor shall Lessee assert any right of set-off or counter-claim against its obligation to make Rental Payments under this Lease. Lessee's obligation to make Rental Payments during the Lease term shall not be abated through accident or unforseen circumstances. Lessee agrees not to withhold or abate any portion of the Rental Payments required pursuant to this Lease by reason of any defects, malfunctions, breakdowns or infirmities of the Equipment. Section 7.04 - Continuation of Lease by Lessee. Lessee intends to continue this Lease and to pay the Rental Payments hereunder. Section 7.05 - Indemnification. Lessee shall indemnify, save and keep harmless Lessor and its assigns from and against any and all liability, obligations, penalties, losses, claims and damages whatsoever, regardless of the cause thereof, and expenses in CITY OF SEWARD Equipment I..eagejPUlchase Agfflef11fH1t AFF04300 Page 6 . . . connection herewith, including but not limited to counsel fees, costs and interest, arising out of or resulting from the execution or performance of this Lease, or the acquisition, use, operation, condition, or purchase by Lessee of any item of the Equipment, resulting in damage to property or injury or death to any person. The indemnification arising under this Section shall continue in full force and effect notwithstanding the full payment of all obligations under this Lease or the termination of this Lease. Section 7.06 - Non-Appropriation. If sufficient funds are not appropriated to make Rental Payments required under this Lease, and if Lessee has no funds available for Rental Payments from other sources, this Lease shall terminate and Lessee shall not be obligated to make Rental Payments under this Lease beyond the then current Fiscal Year for which funds have been appropriated. Lessor shall, upon the occurrence of such non- appropriation, have all rights and remedies to take possession of the Equipment. Lessee shall notify Lessor and its assignee in writing within seven (7) days after the failure of the appropriating authority of Lessee to appropriate funds sufficient for the payment of Rental Payments during the next Fiscal Year. Section 7.07 - Option to Purchase. Lessee shall have the option to purchase the Equipment in whole or in part at any time on or after July 1, 1997, upon thirty (30) days written notice to Lessor by paying Lessor the Option Purchase Price with respect to the Equipment to be purchased. ARTICLE VIII Title to Equipment; Personal Property; Security Interest; Transfer or Retirement of Equipment Section 8.01 - Title to the Equipment. During the term of this Lease with respect to an item of Equipment, ownership of that item of Equipment and any and all additions, repairs, replacements or modifications will be Lessor's, except that solely for the mutual convenience of the parties, Equipment subject to registration of title will be registered in the name of Lessee. Upon payment of all the Rental Payments for an item of Equipment over the term of this Lease or upon payment of the Option Purchase Price for that item of Equipment, the title for said Equipment shall be transferred to Lessee and Lessor shall execute such documents as are necessary to convey title to Lessee free and clear of all liens and encumbrances created by or arising through Lessor. Section 8.02 - Personal Property. The Equipment is, and shall at all times be and remain, personal property notwithstanding that the Equipment or any part thereof may be, or may hereafter become, in any manner affixed or attached to or imbedded in, or permanently resting upon, real property or any buildings thereon or any fixtures, or CITY OF SEWARD Equipment u-jPwchase ~nt AFF043DO Page 7 . . . attached in any manner to what is permanent, by means of cement, plaster, nails, bolts, screws or otherwise. Section 8.03 - Security Interest. A. To secure the performance of all of Lessee's obligations under this Lease, Lessee grants to Lessor and its assignees a security interest constituting a first lien on the Equipment and in all additions, attachments, alterations and accessions to the Equipment and on any proceeds of the Equipment. The security interest shall cover all property which Lessee acquires during the Lease term with respect to an item of Equipment to replace or substitute for that item of Equipment. B. Lessee shall execute any additional documents, including affidavits, notices and similar instruments, in a form satisfactory to Lessor, which Lessor deems necessary or appropriate to establish and maintain a security interest in the Equipment for Lessor or any assignee of Lessor. Section 8.04 - Transfer or Retirement of Equipment. Lessee shall not transfer any interest in any item of Equipment during the term of this Lease with respect to that Equip- ment without the written consent of Lessor. Lessee may retire an item of Equipment from service during the Lease term only if the current market value of: (1) the Equipment thereafter remaining in service, and (2) any other property of Lessee in which Lessor has accepted a security interest under this Lease, exceeds the Principal Amount then outstanding. ARTICLE IX Maintenance: Taxes: Insurance and Other CharQes Section 9.01 - Maintenance. Taxes. Other Expenses. Lessee shall keep and maintain the Equipment in good condition and working order, shall use, operate and maintain the Equipment in conformity with all laws and regulations concerning the Equipment's ownership, possession, use and maintenance, shall keep the Equipment free and clear of all liens and claims, shall pay all taxes and other charges related to the Equipment, shall pay all utility charges incurred in the use and maintenance of the Equipment, and shall pay all costs and expenses of every kind occasioned by or arising out of the use and maintenance of the Equipment. If any taxes are assessed on the Equipment, Lessee promptly shall notify Lessor in writing of the assessment and provide proof of payment or protest under proper procedures not involving any danger of sale, forfeiture or loss of the Equipment. CITY OF SEWARD Equipment LsasejPurchase 1(Jl88ment AFF04300 Page 8 . . . Section 9.02 - Insurance. At its own expense, Lessee shall maintain policies of casualty, public liability and property damage insurance covering the Equipment, or if Lessee self insures similar property, demonstrate to the satisfaction of Lessor that the Equipment is covered by equivalent self insurance. The insurance shall be sufficient to protect the full insurance value of the Equipment, and to protect Lessor from liability in all events. Lessee shall provide Lessor with certificates evidencing the insurance coverage required by this Section, and provide Lessor with certificates evidencing a renewal of the insurance for each annual period of the Lease term with respect to any item of Equipment. Any insurance policy provided under this Section shall be written or endorsed to make losses payable to Lessee and Lessor as their respective interests may appear. The Net Proceeds of the insurance required in this Section shall be applied as provided in Sections 10.01 and 10.02. Each insurance policy provided under this Section shall provide that the insurance company shall not cancel the policy or modify it materially except after giving 30 days written notice to Lessor. ARTICLE X Damage. Destruction and Use of Net Proceeds Section 10.01 - Damage or Destruction. If an item of Equipment or any portion thereof is destroyed or damaged by fire or other casualty during the Lease term, Lessee and Lessor will apply the Net Proceeds of any insurance claim to the prompt repair or restoration of that item of Equipment. So long as there is no Event of Default, any balance of the Net Proceeds remaining after payment for such work shall be paid to Lessee. Section 10.02 - Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay the full cost of repair or restoration under Section 10.01, Lessee shall either (a) complete the work and pay any cost in excess of the amount of the Net Proceeds, or (b) pay to Lessor the amount of the Option Purchase Price for the affected Equipment. No payment by Lessee under Section 10.02(a) shall relieve Lessee of its obligation to make Rental Payments in accordance with Article VII. The amount of Net Proceeds in excess of the Option Purchase Price paid under Section 10.02(b) may be retained by Lessee. Lessee's obligations under this Section are subject to the availability of funds lawfully appropriated therefor. ARTICLE XI Vendor's Warranties CITY OF SEWARD Equipment LBase/pun:hase Agme/TlfH1t AFF04300 Page 9 . . . Lessor hereby appoints Lessee its agent and attorney-in-fact during the Lease term, so long as Lessee shall not be in default hereunder, to assert from time to time whatever claims and rights, including warranties of the Equipment, which Lessor may have against any Vendor of the Equipment. Lessee's sole remedy for the breach of such warranty shall be against the Vendor of the Equipment and not against Lessor. Lessee acknowledges and agrees that the Equipment is of size, design, and capacity selected by Lessee, that Lessor is neither a manufacturer nor a vendor of such Equipment, and that Lessor has not made, and does not hereby make, any representation, warranty or covenant, express or implied, with respect to the merchantability, condition, quality, durability, design, operation, fitness for use or suitability of the Equipment in any respect whatsoever or in connection with or for the purposes and uses of Lessee, or any other representation, warranty or covenant of any kind or character, express or implied, with respect thereto, and Lessor shall not be obligated or liable for actual, incidental, consequential or other damages of or to Lessee or any other person or entity arising out of or in connection with the use or performance of the Equipment and the maintenance thereof. ARTICLE XII Events of Default and Remedies Section 12.01 - Events of Default Defined. The following shall be events of default under this Lease and the terms "Events of Default" and "Default" shall mean, whenever they are used in this Lease, anyone or more of the following events: A. Failure by Lessee to make any Rental Payment or other payment as required by this Lease. B. Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred to in Section 12.01 (A), for a period of thirty (30) days after written notice specifying such failure and requesting that it be remedied is given to Lessee by Lessor, unless Lessor shall agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold its consent to any extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected. The foregoing provisions of this Section are subject to the following limitations: if by reason of Force Majeure, Lessee is unable in whole or in part to carry out any of its agreements on its part herein contained, other than any obligation of Lessee to pay CITY OF SEWARD Equipment LBasejPufChasa Agreement AFF043lXl Page 10 . . . money, it shall not be deemed an Event of Default during the continuance of such inability. Lessee agrees, however, to use all reasonable efforts to remedy with all reasonable dispatch the cause or causes of its failure to carry out its obligations under this Lease; provided, that the settlement of strikes, lockouts and other industrial disturbances shall be entirely within the discretion of Lessee and Lessee shall not be required to make settlement of strikes, lockouts or other industrial disturbances by acceding to demands of opposing parties when such course is in the judgment of Lessee unfavorable to Lessee. Section 12.02 - Remedies on Default. Whenever any event of default referred to in Section 12.01 hereof shall have happened and be continuing, Lessor shall have the right at its option, without any further demand or notice, to take either or both of the following remedial steps: A. With or without terminating this Lease, retake possession of the Equipment and in a commercially reasonable manner sell, lease or sublease the Equipment for the account of Lessee, holding Lessee liable for the difference between (i) the Rental Payments and other amounts payable by Lessee hereunder and (ii) the purchase price, rent or other amounts paid by a purchaser, lessee or sublessee of the Equipment pursuant to such sale, lease or sublease. B. Take whatever action at law or in equity may appear necessary or desirable to enforce its rights as holder of a security interest in the Equipment. The remedies recited herein requiring the payment of money by Lessee are subject to the appropriation of funds therefor. Section 12.03 - No Remedv Exclusive. Each remedy of Lessor under this Lease shall be cumulative and in addition to every other remedy of Lessor under this Lease. A delay or omission to exercise any right or power accruing upon any default shall not impair any such right or power, or be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor to exercise any remedy reserved to it in this Article XII, it shall not be necessary to give any notice, other than such notice as may be required in this Article XII. Section 12.04 - Non-Appropriation Not A Default. Failure by Lessee to appropriate any Rental Payment or other payment required under this Lease shall not constitute a default. CITY OF SEWARD Equipment z..-jPun:/Iase ~mement AFF04300 Page 11 . . . ARTICLE XIII Miscellaneous Section 13.01 - Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by certified mail, postage prepaid, return receipt requested, to the parties at their respective places of business. Section 13.02 - Binding Effect. This Lease shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns. Section 13.03 - Severability. In the event any provision of this Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provisions hereof. Section 13.04 Amendments. Changes and Modifications. This Lease may be amended by Lessor and Lessee in writing signed by both parties. Section 13.05 - Execution in Counterparts. This Lease may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 13.06 - Applicable Law: Jurisdiction. This Lease shall be governed by and construed in accordance with the laws of the State of Alaska. Any civil action brought by any party under this Lease shall be commenced and maintained in the Superior Court, Third Judicial District, State of Alaska, at Anchorage. Section 13.07 - Captions. The captions or headings in this Lease are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Lease. Section 13.08 - Assignment. The interest of Lessor in this Lease shall be recorded on the books of Lessee. Lessor may assign its interest under this Lease, but the assign- ment shall not be effective until Lessee is notified of the name and address of the assignee and the assignment is recorded on the books of Lessee. CITY OF SEWARD Equipment lBasejPwchase lV1f86ment AFF043DO Page 12 . . . IN WITNESS WHEREOF, the parties have executed this lease as of the date first written above. CITY OF SEWARD NATIONAL BANK OF ALASKA LEASING CORPORATION Tyler Jones City Manager Authorized Officer ATTEST: APPROVED AS TO FORM: WOHLFORTH, ARGETSINGER, JOHNSON & BRECHT, attorneys for the City of Seward, Alaska Linda S. Murphy City Clerk THOMAS F. KLINKNER City Attorney CITY OF SEWARD Equipmsnt 1..easejPuff:hase ~ AFF043DO Page 13 . . CITY OF SEWARD, ALASKA RESOLUTION NO. 94-167 PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 12th day of September, 1994. AYES: NOES: ABSENT: ABSTAIN: A TIEST: THE CITY OF SEWARD, ALASKA Nro-€. J5-. 0~ Dave W. Crane, Mayor Anderson, Bencardino, Crane, Darling, Krasnansky, O'Brien, Sieminski None None None APPROVED AS TO FORM: Wohlforth, Argetsinger, Johnson & Brecht, Attorneys for the city of Seward, Alaska ~r~ City Attorney . (Cit-j Seal)