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Golf Cart Lease Harris D~~~E ~c/N.-~ MEMORANDUM February 28, 2006 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Lease Agreement for Golf Cars Leisure Services Manager GiI Spence is recommending approval of the previously agreed to lease conditions for the Harris Golf Cars for Bunker Hill Golf Course. I concur with the recommendation and respectfully request Mayor and City Council approval. (l k ~ (:l1/1/ ~(L- Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager GiI D. Spence, Leisure Services Manager ) ... . D~~~E ~<k~ MEMORANDUM February 27,2006 TO: Michael C. Van Milligen, City Manager FROM: Gil D. Spence, Leisure Services Manag SUBJECT: Lease Agreement for Golf Cars INTRODUCTION The purpose of this memorandum is to request City Council approval of the five-year lease agreement with Dubuque Bank and Trust Company for fifty (50) golf cars for the Bunker Hill Golf Course. DISCUSSION At the February 20, 2006 City Council meeting, approval was given to enter into a lease agreement through Harris Motor Sports, Inc. dba Harris Golf Cars, for fifty cars for the Bunker Hill Golf Course. Dubuque Bank and Trust Company is the leasing agent for Harris Golf Cars, thus the lease agreement is with them. The amount of the lease is the bid amount approved at the February 20th meeting, $575 per car for a total of $28,750 per year and $143,750 for the entire five-year period. To clarify a point you may notice, on the Master Lease Schedule, Certificate of Acceptance, and Insurance Requirements Schedule, you will see the total cost shown as $176,320. This is the fair market value of the cars today, not our rental amount. The $65,000 estimated residual value is the value of the cars at the end of the lease. This information is provided for full disclosure purposes since this is a municipal lease. The Master Lease Schedule shows our total rent of $143,749.95 and the payment amount of $9,583.33 for the three payments per year. ACTION STEP The action requested is that the City Council approve the attached five-year lease agreement with Dubuque Bank and Trust Company for fifty (50) golf cars for the Bunker Hill Golf Course. GDS:et attachment ~ '0280' CORPORATE RESOLUTION TO BORROW I GRANT COLLATERAL References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing" * * *" has been omitted due to text length limitations. Lender: DUBUQUE BANK & TRUST MAIN BANK 1398 CENTRAL AVE PO 80X 778 DUBUQUE, IA 52004-0778 (5631 589-2000 Corporation: CITY OF DU8UQUE (TIN: 42-60045961 50 WEST 13TH ST DUBUQUE, IA 52001-5485 I, THE UNDERSIGNED, DO HEREBY CERTIFY THAT: THE CORPORATION'S EXISTENCE. The complete and correct name of the Corporation is CITY OF DUBUQUE ("Corporation"). The Corporation is a corporation for profit which is, and at all times shall be, duly organized, validly existing, and in good standing under and by virtue of the laws of the State of Iowa. The Corporation is duly authorized to transact business in all other states in which the Corporation is doing business, having obtained all necessary filings, governmental licenses and approvals for each state in which the Corporation is doing business. Specifically, the Corporation is, and at all times shall be, duly qualified as a foreign corporation in all states in which the failure to so qualify would have a material adverse effect on its business or financial condition. The Corporation has the full power and authority to own its properties and to transact the business in which it is presently engaged or presently proposes to engage. The Corporation maintains an office at 50 WEST 13TH ST, DUBUQUE, IA 52001-5485. Unless the Corporation has designated otherwise in writing, the principal office is the office at which the Corporation keeps its books and records. The Corporation will notify Lender prior to any change in the location of The Corporation's state of organization or any change in The Corporation's name. The Corporation shall do all things necessary to preserve and to keep in full force and effect its existence, rights and privileges, and shall comply with all regulations, rules, ordinances, statutes, orders and decrees of any governmental or quasi-governmental authority or court applicable to the Corporation and The Corporation's business activities. RESOLUTIONS ADOPTED. At a meeting of the Directors of the Corporation, or if the Corporation is a close corporation having no Board of Directors then at a meeting of the Corporation's shareholders, duly called and held on February 20, 2006, at which a quorum was present and voting, or by other duly authorized action in lieu of a meeting, the resolutions set forth in this Resolution were adopted. OFFICER. The following named person is an officer of CITY OF DUBUQUE: NAMES ROY D. BUOL I!.Iill MAYOR AUTHORIZED RES Y ACTIONS AUTHORIZED. The authorized person listed above may enter into any agree me s of any nature with Lender, and those agreements will bind the Corporation. Specifically, but without limitation, the authorized person is authorized, empowered, and directed to do the following for and on behalf of the Corporation: Borrow Money. To borrow, as a cosigner or otherwise, from time to time from Lender, on such terms as may be agreed upon between the Corporation and Lender, such sum or sums of money as in his or her judgment should be borrowed, without limitation. Execute Notes. To execute and deliver to Lender the promissory note or notes, or other evidence of the Corporation's credit accommodations, on Lender's forms, at such rates of interest and on such terms as may be agreed upon, evidencing the sums of money so borrowed or any of the Corporation's indebtedness to Lender, and also to execute and deliver to Lender one or more renewals, extensions, modifications, refinancings, consolidations, or substitutions for one or more of the notes, any portion of the notes, or any other evidence of credit accommodations. Grant Security. To mortgage, pledge, transfer, endorse, hypothecate, or otherwise encumber and deliver to Lender any property now or hereafter belonging to the Corporation or in which the Corporation now or hereafter may have an interest, including without limitation all of the Corporation's real property and all of the Corporation's personal property (tangible or intangible). as security for the payment of any loans or credit accommodations so obtained, any promissory notes so executed (including any amendments to or modifications, renewals, and extensions of such promissory notes). or any other or further indebtedness of the Corporation to Lender at any time owing, however the same may be evidenced. Such property may be mortgaged, pledged, transferred, endorsed, hypothecated or encumbered at the time such loans are obtained or such indebtedness is incurred, or at any other time or times, and may be either in addition to or in lieu of any property theretofore mortgaged, pledged, transferred, endorsed, hypothecated or encumbered. Execute Security Documents. To execute and deliver to Lender the forms of mortgage, deed of trust, pledge agreement, hypothecation agreement, and other security agreements and financing statements which Lender may require and which shall evidence the terms and conditions under and pursuant to which such liens and encumbrances, or any of them, are given; and also to execute and deliver to Lender any other written instruments, any chattel paper, or any other collateral. of any kind or nature, which Lender may deem necessary or proper in connection with or pertaining to the giving of the liens and encumbrances. Other Actions. ENTER INTO LEASES. Negotiate Items. To draw, endorse, and discount with Lender all drafts, trade acceptances, promissory notes, or other evidences of indebtedness payable to or belonging to the Corporation or in which the Corporation may have an interest, and either to receive cash for the same or to cause such proceeds to be credited to the Corporation's account with Lender, or to cause such other disposition of the proceeds derived therefrom as he or she may deem advisable. Further Acts. In the case of lines of credit, to designate additional or alternate individuals as being authorized to request advances under such lines, and in all cases, to do and perform such other acts and things, to pay any and all fees and costs, and to execute and deliver such other documents and agreements, including agreements waiving the right to a trial by jury, as the officer may in his or her discretion deem reasonably necessary or proper in order to carry into effect the provisions of this Resolution. MASTER LEASE AGREEMENT MASTER LEASE NUMBER 4260045% Master uase Agreement made this 15th day March of 2006 . between Dubuaue Bank and Trust Comoanv ("Lessor"), having its principal place of business located at 1398 Central Avenue. DubuQue. Iowa 52004-0778 and Citv of Dubuaue. ("Lessee") with a place of business located at 50 West 13th Street. Dubuaue. 1A. 52001.5485. TERMS AND CONDlTlONS . PLEASE READ CAREFULLY BEFORE SIGNING 1. MASTER LEASE AGREEMENT. Lessee hereby leases from Lessor, and Lessor hereby leases to lessee, all of the machinery, equipment and other personal property ("Equipment") described in any Master Lease Schedules which are executed by the Lessee and Lessor now or hereafter ("Schedules"), upon the tenns and conditions set forth in this Lease and all such Schedules. Except as specifically modified or additionally provided by the terms and conditions set forth in such Schedules, the terms and conditions of this Master Lease Agreement shall govern the rights and obligations of the Lessor and Lessee. This Lease shall be deemed to include all Schedules hereto, and the terms and conditions of all such Schedules are incorporated into this Lease by reference. Whenever reference is made herein to "this Lease", it shall be deemed to include each of the Schedules now or hereafter executed, all of which constitute one undivided lease of the Equipment. 2. DEFINITIONS OF THE PARTIES. Throughout this Lease, the words "you" and "your" shall refer to each and every individual, party or entity that enters into this Lease by executing this Lease, or any Schedule to this lease, as Lessee. The words "we" or "us" or "our" shall refer to the above named Lessor, or any of its assignees. 3. TERM OF LEASE. THIS LEASE IS IRREVOCABLE UNTIL TERMINATED AS PROVIDED HEREIN. With respect to any item of Equipment leased hereunder, the term of this Lease shall commence upon the earlier of the date that the appropriate Schedule is accepted by us, the date when any purchase order, confirming purchase order or contract of any nature transfers any interest in such item of Equipment to us or causes us to incur any obligation prior to the actual delivery of such Equipment, or the date such Equipment is delivered to you. Unless sooner terminated as hereinafter provided, the term of this Lease with respect to the Equipment described in each Schedule, shall continue until the expiration of the Lease term set forth in the applicable Schedule. 4. RENTAL PAYMENTS. As set forth in each Schedule, you agree to pay the aggregate Total Rent shown by paying when due the Total Number of Rental Payments in the Rental Payment Amounts schedule, plus any sales or use taxes required to be paid on such rent. The first Rental Payment and the amount of any additional Advance Payments required under each Schedule, shall be due upon the date you sign the Schedule, unless a later date is agreed to by us and specified in the Schedule. Subsequent Rental Payments shall be made on the first day of each rental period as shown in each Schedule. An rents and sums payable by you under this Lease and all Schedules shall be paid to us at the above address, unless we direct you otherwise. We have the right to specify that the rental payments and any other obligations be paid to us in currency or by cashiers or certified check. Rent payments shall be due whether or not you receive any notice from us that such payments are due. 5. ALTERATION OF PAYMENT TERMS. You acknowledge that the "Total Cost" of the Equipment, as shown in each Schedule, accurately states the estimated total cost that win be paid by us for the Equipment described in that Schedule, plus any transportation costs, applicable taxes and other costs associated with the purchase and installation of such Equipment. You hereby authorize and instruct us to increase or decrease the lease Rental Payment Amounts and the Total Rent called for in each Schedule in the same proportion as the increased or decreased actual costs paid by us for the Equipment bear to the estimated Total Cost originally set forth in the Schedule. 6. SELECTION, DELIVERY, INSTALLATION AND INSPECTION. You will select the type, quantity and supplier of each item of Equipment designated in the Schedules that become a part of this Lease. In reliance thereon, we may then order such Equipment from the designated Supplier, or we may accept an assignment of any existing purchase order that may have been issued to the Supplier. We will have no liability to you, to the Supplier or to any other person for failure by the Supplier to fill the purchase order or to meet any of the conditions thereof. You agree to pay, at your own expense, all transportation, packing, taxes, duties, installation, testing and other charges in connection with the delivery, installation and use of the Equipment. Upon delivery, you will make all necessary inspections and tests of the Equipment in order to determine whether the Equipment conforms to specifications and is in good condition and repair. You shall promptly notify us in writing of any defect or other proper objection to the type or condition of the Equipment. lfyou fail to notify us in writing of any such defect or objection within ten (10) days after delivery of the Equipment to you, then it shall be conclusively presumed that you have fully inspected the Equipment and that you are satisfied with and have accepted the Equipment in its condition and repair for all purposes of this Lease. If the Equipment is in good condition and repair on or before expiration of said ten (10) day period, and in all events prior to placing the Equipment in service, you will sign and deliver to us a Certificate of Acceptance, in form and substance satisfactory to us. No defect in, delay in delivery of, or unfitness or noncompliance of the Equipment with the conditions of any purchase order or confirming purchase order, shall relieve you ofthe obligation to pay rent or any other obligations under this Lease. 7. WARRANTIES. NOT BEING THE MANUFACTURER OF THE EQUIPMENT NOR THE MANUFACTURER'S AGENT, WE MAKE NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE EQUlPMENT,INCLUDING, WITHOUT LIMITATION, THE DESIGN OR CONDITION OF THE EQUIPMENT,ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, ITS QUALITY, CAPACITY OR WORKMANSHIP, PATENT INFRINGEMENTS OR LATENT DEFECTS, OR COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENTS OF ANY LAW, REGULATION, SPECIFICATION OR CONTRACT RELATING THERETO. YOU UNDERSTAND AND AGREE THAT NEITHER THE SUPPLIER NOR ANY SALESPERSON OR OTHER AGENT OF THE SUPPLIER IS AN AGENT OF US. NO AGENT OF THE SUPPLIER OR SALESPERSON IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS LEASE, AND NO REPRESENTATION AS TO THE EQUIPMENT OR ANY OTHER MATTER BY THE SUPPLIER, SHALL RELIEVE YOU OF THE OBLIGATION TO PAY RENT OR ANY OTHER OBLIGATION UNDER THIS LEASE. You further agree that all Equipment leased to you hereunder is leased AS IS, WITH ALL FAULTS and that you will look solely to the manufacturer for any damages resulting from breach of warranty or should any item of Equipment for any reason be defective. No such occurrence shall relieve you of any obligations under this Lease. So long as no Event of Default has occurred and is continuing with respect to any item of Equipment leased during the term of this Lease, we agree, to the extent that they are assignable, to assign to you, the benefits of any warranties or guaranties received by us from the sellers, and we hereby appoint you as our 2/271200611:25 AM Credit Admin/Heartland/Documents and Forms/Lease/MASTER LEASE AGREEMENT 12J()3 agent to enforce such guaranties or warranties. You understand and agree that we shall not be responsible or liable for any loss of production time or any consequential damages resulting from any breakdown of the Equipment or its failure of any kind for any reason whatsoever, and there shall be no abatement of rent during any period of breakdown or non-use of the Equipment. 8. SECURITY DEPOSIT. Upon execution of each Schedule, you agree to deposit with us the amount specified, if any, in each Schedule as a Security Deposit. We may, but shall not be obligated to apply any such Security Deposit toward any default by you of any indebtedness to us under this Lease or for any damage which we may sustain by reason of your actions. Any such application shall not constitute a waiver of payment of any obligations due to us by you under this Lease. In the event of any such application, you agree to promptly restore the Security Deposit to the full amount originally deposited. The balance of any such Security Deposit not so applied will be returned to you without interest at the expiration of each lease Schedule, provided that all of your obligations with respect to the applicable Lease Schedule are satisfied in full. 9. LOCATION. The Equipment shall be delivered to, and thereafter kept, maintained and located at the location specified in the applicable Schedule, and shall not be removed therefrom without our ~tten consent. 10. OWNERSHIP OF EQUIPMENT. Title to each item of Equipment leased hereunder shall remain with us and you shall have no right, title or interest in the Equipment except as expressly set forth in this Lease. If requested by us, you agree to affix or place on the Equipment plates or other markings furnished by us indicating that we (or any assignee) are the owner of the Equipment, and you agree not to alter, cover, or remove the same. You will, at your expense, protect and defend our title to the Equipment and will keep the Equipment free and clear from any and all claims, liens, encumbrances and legal processes of your creditors and other persons. All items of Equipment shall at all times remain and be deemed personal property even though the Equipment may now or hereafter be attached to realty. You agree to execute all such agreements and other documents reasonably requested by us to identify the Equipment as personal property, and to obtain the execution thereof, in recordable form, by all parties having an interest in any real property to which the Equipment is affixed. All replacement equipment, repairs, or accessories made to or placed in or upon the Equipment shall become a component part thereof and title thereto shall be immediately vested in us and included under the terms of this Lease. 11. INDEMNITY. You shall assume liability for, and hereby agree to indemnify, protect and keep harmless us, our agents, employees, officers, directors, successors and assigns from and against any and all claims, actions, suits, proceedings, costs, damages, injuries, demands, penalties, liabilities, obligations and expenses, including reasonable attorney's fees, of whatsoever kind and nature, (including, but not limited to, any claim for patent, trademark or copyright infringement), arising out of or connected with the manufacture, use, operation, fitness, condition, (including, but not limited to, latent and other defects and whether or not discoverable by you or us), selection, delivery, possession, leasing or return of any item of Equipment, regardless of where, how and by whom operated, or any failure on your part to comply with or perform any of the conditions of this Lease. You shall give us prompt ~tten notice of any matter hereby indemnified against and agree that you shall assume full responsibility for the defense thereof. The indemnities contained in this paragraph shall continue in full force and effect notwithstanding the expiration or other termination of this Lease. You are an independent contractor and nothing contained in this Lease shall authorize you or any other person to operate any item of Equipment so as to incur or impose any liability or obligation for or on behalf of us. 12. ASSIGNMENT. Without our prior ~tten consent. you shall not sublease any item of Equipment, or otherwise a.ssign, transfer, pledge, or hypothecate this Lease, any item of Equipment or any interest you have in this Lease or in the Equipment. and you shall not permit your rights under this Lease to be subject to any lien, encumbrance or charge of any nature. All of our rights under this Lease may be assigned. pledged. mortgaged, transferred or otherwise disposed of, either in whole or in part. without notice to you, but always, however, subject to your rights under this Lease. All of our rights hereunder shall be succeeded to by any assignee of ours and the assignee's title to this Lease, to all rent payments and other obligations due from you under this Lease and to and in the Equipment shall be free from all defenses, setoffs or counterclaims of any kind or character that you may be entitled to assert against us, it being understood and agreed that any such claims or defenses shall be asserted solely against us. No such assignee shall be obligated to perform any duty, obligation or condition that we may be required to perform under the terms and conditions of this Lease. Subject always to the foregoing, this Lease and the rights and obligations of the parties hereunder inure to the benefit of, and are binding upon the heirs, legatees, personal representatives, successors and assigns of the parties hereto. Any mergerlbuyoutlconsolidation of the Lessee hereunder with or into any other entity shall cause the Lease to become due and payable immediately. Lessee shall promptly inform Lessor of any such mergerlbuyoutlconsolidation. Lessor may, at its option, in ~ting, agree to other conditions upon the occurrence of any such mergerlbuyoutlconsolidation. 13. LOSS AND DAMAGE. You shall bear the entire risk of loss. theft. destruction of or damage to the Equipment or any part thereof from any cause whatsoever ("Casualty Occurrence"). No such Casualty Occurrence to the Equipment shall relieve you of your obligation to pay rent or any other amount due hereunder or to perform any other obligations under this Lease. In the event of such a Casualty Occurrence to any item of Equipment, you shall promptly give us notice thereof and shall place such item in good repair and working condition; provided. however, that if such item is determined by us to be lost, stolen, damaged beyond repair, permanently unfit for use, or lost due to a condemnation or seizure, you shall, at our option, (a) replace such item with like Equipment in good repair and working condition and cause transfer of clear title to us for such replacement item. or (b) pay us the "Stipulated Loss Value" of such item which, unless otherwise set forth in the applicable Schedule or any attachments thereto, shall be equal to the total of (i) all rent and other amounts payable with respect to such item of Equipment which are due but unpaid at the time of such payment, plus (ii) the present value of all Rental Payments with respect to such item of Equipment which are payable, but not yet due at the time of such payment, discounted from the dates the installment payments would be due at the rate per annum set forth on the applicable Lease Schedule or attachments thereof("SLV Discount Rate"). plus (iii) the present value of the Estimated Residual Value with respect to such item of Equipment as set forth on the applicable Schedule, discounted from the maturity date of the applicable Schedule at the SLV Discount Rate, plus (iv) twice the amount ofany investment tax credit recaptured by us on account of the early disposition of such item of Equipment. Any insurance or condemnation proceeds received by us shall be applied to your obligations hereunder and we shall be entitled to any surplus. 14. MAINTENANCE, REPAIRS, USE AND INSPECTION OF EQUIPMENT. You agree to use, operate and maintain the Equipment in accordance with all laws, regulations and ordinances and in accordance with the provisions of any insurance policies covering the Equipment. You shall bear the entire cost of operation of the Equipment and shall service and maintain each item of Equipment and all additions, attachments and accessories thereto in good repair, condition and working order in accordance with the manufacturer's recommendations, and you shall furnish all parts and services required therefore, all at your expense. All additions, attachments, accessories and repairs at any time made or placed upon the Equipment shall become part of the Equipment and owned by us for all purposes under this Lease. You shall make no repair, alteration or attachment with respect to any item of Equipment which interferes with the normal and satisfactory operation or maintenance thereof. or creates a safety hazard, or which might result in the creation of a mechanic's or materialman's lien with respect thereto. You agree to keep the Equipment in a suitable shelter and to permit us to inspect the Equipment at any time and to otherwise protect our interests therein. You shall use the Equipment in a 21271'2006 11 :25 AM Credit AdminlHeanland/Documents and FonnslLease/MASTER LEASE AGREEMENT 12103 A termination hereunder because of default shall occur only upon written notice by us to YOll and only with respect to such items of Equipment as we specifically elect to terminate in such notice. Except as to such items of Equipment with respect to which there is a termination, this Lease shall remain in full force and effect and you shall remain liable for the full performance of all of your obligations hereunder. Our rights and remedies under this Lease are cumulative and may be exercised concurrently or separately. No such right or remedy is exclusive of any other right or remedy provided or permitted by this Lease or by law or in equity. 22. RETURN OF EQUIPMENT. Upon payment in full of all Rental Payments for any item of Equipment as set forth in the applicable Schedules, and upon expiration of the term for which the final payment was made, you will at your expense deliver such items of Equipment to our premises, as designated by us in writing, for such disposition as we may detennine. In the event of default by you under this Lease, you will return all Equipment to us in the same manner. All Equipment so returned by you to us will be in the same condition as when originally delivered to you, with the only exception being reasonable or ordinary wear and tear resulting from authorized use. You shall pay us, upon demand, any amounts expended by us to bring the Equipment into good condition and repair, ordinary wear and tear from proper use excepted. 23. WAIVERS. No delay or omission to exercise any right, power or remedy accruing to us under this Lease shall be construed as a waiver of such right, power, or remedy, and a waiver by us of any provision of this Lease in one instance shall not be deemed as a waiver in any other instance. All waivers under this Lease must be in writing and be signed by the party against whom the waiver is asserted, and then shall be effective only to the extent specifically set forth therein. 24. JURISDICTION. This Lease, regardless of place affinal signature, shall be deemed to be executed in, and shall in all respects be governed by, and construed in accordance with, the substantive laws of the State in which the Lessor is located, as set forth at the beginning of this Lease and in all Schedules hereto. You hereby consent and submit to the jurisdiction of the respective courts of said State for purposes of enforcement of this Lease. 25. NOTICES. Any notices required to be given under this Lease shall be given in writing to the parties hereto and by certified mail at the address set forth herein, or to such other addresses as each party may substitute by notice to the other. Such notices shall be effective when deposited in the U.S. Mail, duly addressed, postage prepaid. You agree to give us prompt notification of any change in your address. 26. STATEMENT OF PURPOSE. Vou represent and warrant that the Equipment leased under this Lease will be used for business purposes, and not for personal, family or household purposes. You acknowledge that we shall rely upon this representation in entering into this Lease and all Schedules hereto. 27. AUTHORIZATION. Vou represent and warrant that each and every individual or entity executing this Lease and all Schedules hereto as Lessee shall have complete and unrestricted power to enter into this Lease, and that the persons executing this Lease and all Schedules hereto shall be duly authorized to execute the same on your behalf. 28. NO OFFSET. This Lease is a net lease and all of your obligations under this Lease shall be paid and performed by you irrespective ofany setoff, counterclaim, recoupment, defense or other right which you may have against us, any supplier of the Equipment or any other person or entity. 29. PURCHASE OPTION. Vou shall have no option to purchase or otherwise acquire title or o\Vl1ership of any item of Equipment unless a written purchase option executed by us is referred to in and annexed to the Schedule relating to such item of Equipment. If such a purchase option is given, it shall only be effective if you are not in default under this Lease. 30. TAX AND FINANCIAL STATEMENT CONSEQUENCES. We assume no liability and make no representation as to the treatment of this Lease, the Equipment or the Rental Payments by you, or by any federal, state or local taxation authority, for tax or financial statement purposes. You are advised to seek independent legal, tax and accounting counsel. 31. MISCELLANEOUS. Time is of the essence of the Lease and each and all of its provisions. This Lease may not be modified, amended, altered, or changed except by a written agreement signed by the party sought to be charged. In the event any provision hereof shall be invalid or unenforceable, the remaining provisions hereof shall remain in full force and effect. The descriptive headings hereof do not constitute a part of this Lease and no inferences shall be dra\Vl1 from them. Whenever the context of the Lease requires, the singular number shall include the plural. If there shall be more than one Lessee named in this Lease, the liability of each shall be joint and several. 32. ADDITIONAL PROVISIONS: Undersigned agrees to all terms and conditions set forth herein and acknowledges receipt of a copy of this Lease. Lessee undo-stands and agrees that this is a NON- CANCELABLE LEASE for the term indicated herein. Accepted by Lessor this 15th day of March, 2006. Proposed by Lessee this] 5th day of March, 2006. DUBU t9- OF LESSEE LEASE NOT BINDING UPON LESSOR UNTIL ACCEPTED BELOW By: JA., By: Steven M. Baumhover, Vice President 2/27/2006 11:25 AM Credit Admin/Heartland/Documents and Forms/Lease/MASTER LEASE AGREEMENT 12103 lawful, careful and proper manner and only for the purpose contemplated by the manufacturer, and you agree not to sublease or permit anyone else to use the Equipment other than your employees. 15. TAXES. You will keep the Equipment free and clear of all levies, liens and encumbrances and, during the term of this Lease, shall pay all assessments, license fees, taxes (including sales, use, excise, personal property and other taxes) and all governmental charges, fees, fines, or penalties whatsoever, whether payable by you or by us, on or relating to this Lease and any Schedule executed in connection with this Lease, and you shall file all returns required therefore and shall provide us with copies of such returns upon our request; provided, however, that you shall not be responsible for any state or federal income or franchise taxes payable by us. You shall give us prompt notice in writing of any delinquent taxes or assessments, against you or us, which you have received notice of and which would subject the Equipment to a lien or seizure. 16. INSURANCE. You shall procure and continuously maintain and pay for insurance for such risks in such amounts, in such forms and with such insurers as are reasonably acceptable to us, including but not limited to fire and extended coverage insurance, explosion and collision coverage, and personal liability and property damage liability insurance. We may, but shall not be obligated to, insure the Equipment at your expense. All insurance policies relating to loss of or damage to the Equipment will name us as loss payee and the proceeds may be applied toward the replacement or repair of the Equipment or the payment of your obligations under this Lease, at our option. All such policies shall contain a provision that they may not be canceled or the coverage reduced without thirty (30) days prior written notice to us. Allliability insurance policies will name us as an additional insured or as a co-insured with you, and the proceeds shall be applied first to us to the extent of our liability, if any, and the balance to you. You shall furnish certificates, policies or endorsements to us as proof of such insurance. We may act as your attorney.in-fact in making, adjusting or settling any claims under any insurance policies insuring the Equipment. You hereby assign to us all of your rights, title and interests to any insurance policies insuring the Equipment, and you shall direct any insured to pay all such proceeds directly to us, and you hereby authorize us to endorse your name on any check or draft for such proceeds. We make no representation to you that the insurance coverages required by us are sufficient in any manner to insure your interests hereunder. 17. FURTHER ASSURANCES. You shall execute or obtain and deliver to us, upon our request, such instruments, financing statements and assurances as we deem necessary for the confirmation, protection or perfection of this Lease and our rights hereunder, and you will pay all costs incident thereto. We may file or record a financing statement with respect to this Lease or the Equipment so as to give notice to any interested parties. Any such execution, delivery, filing, or recording shall not be deemed factors in determining whether or not this Lease is intended as security under the Uniform Commercial Code. You will furnish to us during the term of this Lease a copy of your annual financial statements and such other financial information as we may from time to time request, including, without limitation, reports filed with federal or state agencies. In the event of a default under this Lease, we shall be given access to any information we deem necessary to determine your then current financial status. 18. COLLECTION EXPENSES. INTEREST, AND ADVANCES. Should you fail to promptly pay any of the Rental Payments due or any other sum payable by you to us under this Lease, you shall pay us, at our option, (a) interest on such delinquent payment at the rate of one and one-half percent (1.5%) per month, or the maximum lawful contract rate applicable under the laws of the state in which this Lease is governed, whichever is greater; or (b) a late charge equal to the greater of $5.00 or five percent (5%) of the amount of the rent delinquency, but in no case more than the maximum lawful late payment charge. In the event that we employ the services of any attorney or collection agency to enforce any of the terms of this Lease, you agree to pay reasonable attorney's fees, collection expenses and court costs so incurred by us. If you shall fail to promptly perform any of your obligations under this Lease, we may perform any act for you or make any payment necessary to maintain and preserve the Equipment or our title thereto, including payments for satisfaction of liens, repairs, taxes, levies and insurance. All sums so advanced by us shall be added to the unpaid balance of rentals due hereunder and shall be repayable by you to us together with interest as set forth above from the date of such advance. No such advance by us shall be deemed as a waiver of your obligations under this Lease. 19. ENTIRE AGREEMENT. This Lease, together with the Schedules hereto, are the entire agreement between you and us. This Lease and any applicable Schedule may be accepted only by an officer of us or by a person authorized by our Board of Directors, and no other agent or employee of ours, or any supplier, or any other person is authorized to bind us thereon. 20. DEFAULT. Each of the following events or conditions shall constitute an "Event of Default": (a) You shall fail to pay when due any rent or other payment required under this Lease; (b) you shall fail to observe or perform any other agreement, condition, or requirement to be observed or performed by you under this Lease or any other instrument or document executed in connection with this Lease, within ten (10) days following our written notice thereof to you; (c) you shall become insolvent or voluntarily or involuntarily make an assignment of a substantial part of your assets for the benefit of creditors; (d) you shall voluntarily file or have filed against you involuntarily, a petition for liquidation, reorganization, adjustment of debt or similar relief under the federal Bankruptcy Code or any other present or future federal or state bankruptcy or insolvency law, or if a receiver, liquidator or trustee shall be appointed for you or for any part of your assets; (e) you shall die or become declared judicially incompetent, if Lessee is an individual; (f) you shall discontinue business, dissolve, sell or otherwise dispose of a substantial part of your assets; (g) any of your property is subject to any levy, seizure, assignment, application, or sale for or by any creditor or governmental agency; (h) an event described in Paragraph (c), (d), (e), (f) or (g) above shall occur with respect to any guarantor, partner, if Lessee is a partnership, or any other person liable for payment or performance under this Lease; (i) you shall commit or fail to commit any act which shall jeopardize our rights under this Lease or causes us to deem our rights hereunder insecure; (j) an event of default shal1 occur under any other obligation or indebtedness that you (or any of your assignees) shall owe to us (or any of our assignees) arising independently of this Lease. 21. REMEDIES. Upon the occurrence of any Event of Default, we may, at our option, exercise one or more of the following remedies: (a) declare immediately due and payable the Stipulated Loss Value with respect to any or all items of Equipment without notice or demand to you; (b) sue for and recover all rent and other sums payable by you under this Lease that are then accruing or shall accrue thereafter; (c) without any court order or other process oflaw, enter onto the premises where the Equipment may be found and take possession of or remove the same, without any liability to you for any damages occasioned by such taking of possession; (d) require you to assemble any or all items of Equipment at the place of original installation or to a location in reasonable proximity thereto, or cause you to promptly return the Equipment to us, at your expense; (e) sell, lease, assign or otherwise dispose of any or all items of Equipment at public or private sale, with or without notice to you, and apply the net proceeds of such disposition to your obligations hereunder, after deducting all costs of repossession and disposition, including, but not limited to, costs of transportation, repossession, storage, refurbishing, advertising and broker's fees, with you remaining liable for any deficiency and with any excess being retained by us; (f) retain any repossessed items of Equipment and credit the reasonable value thereof to your obligations hereunder, having no obligation to reimburse you for any excess of such reasonable value over such obligations; (g) terminate this Lease as to any or all items of Equipment; or (h) pursue any other remedy available to us at law or in equity. YOU HEREBY WAIVE ANY RIGHT YOU MAY HAVE UNDER LAWTOA HEARING IN A COURT OF LAW PRIOR TQANY REPOSSESSION OF THE EQUIPMENT BY us. 2127/2006 ILlS AM Credil AdminlHeartland/Documents and FormslLease/MASTER LEASE AGREEMENT 12/03 ,I , LESSOR: MASTER LEASE SCHEDULE Dubuque Bank and Trust Company MASTER LEASE NUMBER SCHEDULE NUMBER 1398 Central A venue Dubuque, Iowa 52004-0778 426004596 I Dated: March 15,2006 March 15,2006 FULL NAME AND ADDRESS OF LESSEE: SUPPLIER OF EQUIPMENT (COMPLETE ADDRESS): City of Dubuque Harris Motor Sports, Inc. 50 West 13th Street 9875 Kapp Court Dubuque, IA 52001-5485 Peosta, IA 52068-9451 I I NAME & TITLE OF PERSON TO CONTACT AT LESSEE'S ADDRESS ABOVE: Rov D, Buol, Mavor EQUIPMENT LOCATION, IF OTHER THAN LESSEE'S ADDRESS ABOVE: Bunker Hill Golf Course in Dubuoue, IA QUANTITY DESCRIPTION: MODEL# SERIAL# AND OTHER IDENTIFICATION PRICE R L 502006 Yamaha Golf Cars See attached Schedule A. f., ~ ~ b TOTAL COST: $ 176,320.00 LEASE TERM TOTAL NUMBER OF NUMBER OF TOTAL SECURITY ESTIMATED INVESTMENT IN MONTHS RENTAL PAYMENTS ADVANCE PAYMENTS "NT DEPOSIT RESIDUAL VALUE TAX CREDIT Dl.lEON.."""'OTHl.l.EA3E I'OII.CASUAl.TYLOsllI'l<OVI..OI<' 60 15 0 $143,749,95 $0,00 $65,000,00 $0.00 PAYMENT ADVANCE PAYMENTS REGULAR PAYMENTS RENTAL PAYMENT DUE DATES AMOUNTS OUl<oo;..<r;tNG......~" RENTAL PAYMENT $0,00 $0,00 Payments of$9,583.33 each shall be scheduled for June 1, July 1, and August I, SALES OR USE TAX $0.00 $0,00 in 2006, 2007, 2008, 2009, and 2010, The lease shall expire on April 1,2011. h-OTAL AMOUNT DUE $0.00 $0.00 Lessee hereby leases from Lessor, and Lessor hereby leases to Lessee, all ofthe machinery, equipment and other personal property ("Equipment") (on attached Exhibits, if necessary) under the tenns and conditions set forth in this Master Lease Schedule ("Schedule") and the Master Lease Agreement between Lessor and Lessee as above numbered ("Master Lease"). Lessee agrees that this instrument is a Schedule to the Master Lease and is incorporated therein by reference. The undersigned Lessee agrees to all tenns and conditions set forth above and on the REVERSE SIDE hereof and acknowledges receipt of a copy of this Schedule. LESSEE UNDERSTANDS AND AGREES THAT THIS IS A NON-CANCELABLE LEASE FOR THE TERM INDICATED HEREIN. Date Accepted by Lessor March 15,2006 Date Proposed by Lessee March 15,2006 DUBUQUE BANK AND TRUST COMPANY UE THIS LEASE IS NOT BINDING UNTIL ACCEPTED BY LESSOR By: ~;~01~ Steven M. Baumhover, Vice President TITLE TITLE By: TITLE 2/27/200611:16 AM MLSchedule Master lease etc. DEFINITIONS OF THE PARTIES. Throughout this Schedule, the words "you" or "your" shall refer to the above named Lessee. The words "we" or "us" shall refer the above-named Lessor, or any of its assignees. Capitalized terms used in this Schedule and not otherwise defined herein shall have the meanings set forth in the Master Lease. TERM OF LEASE. THIS LEASE IS IRREVOCABLE UNTIL TERMINATED AS PROVIDED IN THE MASTER LEASE AGREEMENT. The term of the Lease, with respect to this Schedule, shall commence upon the earlier ofthe date that this Schedule is accepted by us, the date when any purchase order, confirming purchase order or contract of any nature transfers any interest in such item of Equipment to us or causes us to incur any obligation prior to the actual delivery of such Equipment, or the date such Equipment described in this Schedule, shall continue until the expiration of the Lease term set forth on the reverse side hereof. RENTAL PAYMENTS. As set forth in this Schedule, you agree to pay the aggregate Total Rent shown by paying when due the Total Number of Rental Payments in the Rental Payment Amounts scheduled, plus any sales or use taxes required to be paid on such rent. The first Rental Payment and the amount of any additional Advance Payments required under this Schedule shall be due upon the date you sign this Schedule, shown herein until the Total Number of Renta! Payments have been made. AL TERA TION OF PAYMENT TERMS. You hereby authorize and instruct us to increase or decrease the lease Rental Payment Amounts and the Total Rent called for in this Schedule in the same proportion as the increased or decreased actual costs paid by us for the Equipment bear to the estimated Total Cost originally set forth in this Schedule. You further authorize and instruct us to insert model numbers, serial numbers or other identification information about the above-described Equipment when such information becomes known, if not known at the time of signing this Schedule. WARRANTIES. NOT BEING THE MANUFACTURER OF THE EQUIPMENT NOR THE MANUFACTURER'S AGENT, WE MAKE NO EXPRESS OR IMPLIED WARRANTY OF ANY KlND WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, THE DESIGN OR CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, ITS QUALITY, CAPACITY OR WORKMANSHIP, PATENT INFRINGEMENTS OR LA TENT DEFECTS, OR COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENTS OF ANY LAW, REGULATION, SPECIFICATION OR CONTRACT RELATING THERETO. YOU UNDERSTAND AND AGREE THAT NEITHER THE SUPPLIER NOR ANY SALESPERSON OR OTHER AGENT OF THE SUPPLIER IS AN AGENT OF US. NO AGENT OF THE SUPPLIER OR SALESPERSON IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS LEASE, AND NO REPRESENTATIVE AS TO THE EQUIPMENT OR ANY OTHER MA ITER BY THE SUPPLIER, SHALL RELIEVE YOU OF THE OBLIGATION TO PAY RENT OR ANY OTHER OBLIGATION UNDER THIS LEASE. TERMS OF SCHEDULE. You agree that this Schedule shall constitute a separate and independent lease of Equipment from any other Schedule, subject to the terms and conditions of this Schedule and of the Master Lease Agreement, the terms and conditions of which hereby incorporated by reference in the Schedule and made a part hereof to the same extent as if such terms and conditions were set forth in the full herein. If any provision of this Schedule conflicts with any provision of the Master Lease Agreement, the provisions of this Schedule shall provail. You agree that all Equipment leased to you hereunder is of a size, design and capacity that you have selected and that the same is suitable for your purpose. You further agree that such Equipment is leased to you AS IS, WITH ALL FAULTS and that you will look soley to the manufacturer for any damages resulting from breach of warranty or should any item of Equipment for any reason be defective. No such occurrence shall relieve you of any item of Equipment described in this Schedule during the term of this Schedule.We agree. to the extent that they are assignable, to assign to you, the benefits of any warranties or guaranties received by us from the sellers. We shall not be responsible or liable for any loss of production time or any consequential damages resulting from any breakdown of the Equipment or its failure of any kind for any reason whatsoever, and there shall be no abatement of rent during any period of breakdown or non-use of the Equipment. ADDITIONAL PROVISIONS: l. At the end of the lease, the Lessee shall return the equipment to the Lessor. 2. Lessee certifies that more than 50% of the use of the equipment shall be for commercial purposes. 3. Payments shall be billed to the Leisure Services Dept. at 2200 Bunker Hill Road in Dubuque, IA. 2/27/2006 11:16 AM ML Pg2 Master lease etc. LESSOR: CERTIFICATE OF ACCEPTANCE Dubuque Bank and Trust Company MASTER LEASE NUMBER SCHEDULE NUMBER 1398 Central A venue Dubuque, Iowa 52004-0778 426004596 I Dated: March IS, 2006 Dated: March IS, 2006 FULL LEGAL NAME AND ADDRESS OF LESSEK SUPPLIER OF EQUIPMENT (COMPLETE ADDRESS), City of Dubuque Harris Motor Sports, Inc. 50 West 13th Street 9875 Kapp Court Dubuque, IA 52001-5485 Peosta, IA 52068-9451 NAME & TITLE OF PERSON TO CONTACT AT LESSEE'S ADDRESS ABOVE, Roy D. Buo!, Mayor EQUIPMENT LOCATION, IF OTHER THAN LESSEE'S ADDRESS ABOVE, QUANTITY / DESCRIPTION, MODEL# SERIAL# AND OTHER IDENTIFICATION PRICE 50 2006 Yamaha Golf Cars See attached Schedule A. TOTAL COST: $ 176,320.00 CERTIFICATE OF ACCEPTANCE TO THE ABOVE NAMED LESSOR, WE HEREBY CERTIFY AND ACKNOWLEDGE THAT ON THE DATE INDICA TED BELOW ("ACCEPTANCE DATE") WE RECEIVED DELIVERY OF ALL THE EQUIPMENT DESCRIBED IN THE ABOVE NUMBERED SCHEDULE TO THE MASTER LEASE NUMBERED ABOVE. THE EQUIPMENT HAS BEEN RECEIVED BY US AT THE PROPER LOCATION, HAS BEEN FULLY INSPECTED, HAS BEEN FOUND TO BE IN GOOD AND PROPER CONDlTlON, IS SATISFACTORY IN ALL RESPECTS, AND IS HEREBY ACCEPTED AS OF THE ACCEPTANCE DATE FOR LEASE BY LESSEE UPON THE TERMS OF THE MASTER LEASE AND SUCH SCHEDULE. FOR THE PURPOSE OF THIS LEASE. DATE OF ACCEPTANCE March 15, 2006 Q RoyD. BY, 2/27/200611:16 AM Cert. Accept. Master lease etc. . LESSOR: . INSURANCE REQUIREMENTS SCHEDULE I . . Dubuque Bank and Trust Company MASTER LEASE NUMBER SCHEDULE NUMBER , 1398 Central A venue Dubuque, Iowa 52004-0778 426004596 I IDated. March 15, 2006 I Dated: March IS, 20061 FULL LEGAL NAME AND ADDRESS OF LESSEE: LESSEE'S INSURANCE AGENT: City of Dubuque 50 West 13th Street Dubuque, IA 52001-5485 NAME & TITLE OF PERSON rOCONTACT AT LESSEE'S ADDRESS ABOVE: Roy D. Buol. Mayor EQUIPMENT tOCA liON, IF OTHER THAN LESSEE'S ADDRESS ABOVE: QUANTITY I DESCRIPTION: MODEL# SERIAL# AND OTHER IDENTlFICA liON PRICE 10 ~, 50 2006 Yamaha Golf Cars I See attached Schedule A 1M 10 TOTAL COST: $ I 76,320.00 TO INSURANCE AGENT NAMED ABOVE: The above-named Lessee has entered into a Lease Agreement with the above-named Lessor for Equipment described above. Lessee is responsible for securing insurance with the following minimum requirements: ~ EQUIPMENT: Comprehensive General Liability: $1,000,000 Combined Single Limit Physical Damage: All Risk, $1,000 deductible. D VEHICLES: Auto Liability: $1,000,000 Combined Single Limit Physical Damage: Collision and comprehensive, $1,000 deductible. Please assure that the above-named Lessor is named as LOSS PAYEE as respects property coverage and as ADDITIONAL INSURED as respects liability coverage. The policy should also contain the following clause: "It is agreed that [Lessor's Name} will be notified in writing at least 30 days prior to cancellation or other material change in the condition of this policy." Please forward to the Lessor at its above address a certified copy of the policy or certificate of insurance, together with the required endorsements naming the Lessor as ADDITIONAL INSURED and LOSS PAYEE. The limits shown above are minimum requirements for lease transactions accepted by the above Lessor. By no means is Lessor suggesting that the limits shown above are adequate to meet the needs of the Lessee. Lessor suggests that the Lessee discuss with an insurance agent the amount of coverage advisable for the Lessee's business operation, particular situation, or the type of Equipment leased under this Lease Agreement. red above for the described leased item(s). Please issue a binder of al in licy or en sement within 30 days. Date: March 15, 2006 IlWe hereby authorize the above-named agent to immediately place the insurance coverage re insurance to Lessor as ADDITIONAL INSURED and LOSS PAYEE. ith the 0 Lessee: Ci of Dubu ue Ro D. uol, Ma or AGENT'S ACKNOWLEDGMENT AND BINDER OF INSURANCE COVERAGE This will bind insurance coverage for the named insured in the limits detailed above for the above described equipment. Insuring Company: Policy Number: Expiration Date: Agent's Signature: 2/27/200611:16 AM Insurance Master lease etc.