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HomeMy Public PortalAbout2022.12.15 Colorado Golf & Turf Golf Car Lease Agreement COLORADO GOLF&TURF—.__-- I1757 S.WADSWORTH BLYD. UTTLETON.CO 60125 110 COLOGOLIANOTUNI COI 303 761 3332 GOLF CAR LEASE AGREEMENT LEASE NO.2023-02 This lease made this 14th day of October 2022 by and between COLORADO GOLF&TURF, INC., a Colorado corporation,hereinafter referred to as the"OWNER and LESSOR"and City of McCall, Idaho. "LESSEE", whose address is 216 E. Park Street,McCall, ID 83638. WITNESSETH I. For and in consideration of the mutual promises and agreements,the OWNER hereby leases to LESSEE and the LESSEE hereby leases from OWNER the GOLF CARS set forth in paragraph 3 hereof,hereinafter referred to as the EQUIPMENT,upon the terms and conditions herein set forth. 2. The TERM of this lease shall commence on March 1, 2023 and shall continue until May 1, 2028. 3. The EQUIPMENT is described as follows: QUANTITY DESCRIPTION 50 2020 Club Car Tempo electric golf cars 40 2017 Club Car Precedent electric golf cars 10 2017 Club Car Precedent gasoline golf cars LOCATION OF EQUIPMENT: McCall Golf Club 925 Fairway Drive McCall, ID 83638 4. Payments—60 consecutive monthly payments of$6,948.64 beginning May 1,2023. 5. LESSEE has selected the EQUIPMENT and represents to LESSOR that each item thereof is of a design, size, fitness and capacity satisfactory for LESSEE'S purposes, and LESSEE agrees that such EQUIPMENT is suitable and fit for the purpose intended. LESSOR'S SOLE WARRANTY TO LESSEE IS THAT THE EQUIPMENT WILL BE IN NORMAL OPERATING ORDER WHEN RECEIVED BY LESSEE. IN THE EVENT OF LESSOR'S BREACH OF ANY WARRANTY, LESSEE'S SOLE AND EXCLUSIVE REMEDY WILL BE THAT LESSOR WILL MAKE ANY EQUIPMENT ADJUSTMENTS, REPAIRS OR PART REPLACEMENTS TO ANY EQUIPMENT WHEN IT DETERMINES THAT THE EQUIPMENT DOES NOT CONFORM TO THE ABOVE MENTIONED WARRANTY. IN NO EVENT WILL LESSOR HAVE ANY OBLIGATION OR LIABILITY FOR DAMAGES, INCLUDING COLORADO GOLF&TURF 11757 5.NADSJ01T1 BLVD LITTLETON,CO 30125 .COL000LFANDTUDFCOI 303-761-3332 BUT NOT LIMITED TO,CONSEQUIENTIAL DAMAGES, ARISING FROM OR IN CONNECTION WITH THE USE AND PERFORMANCE OF THE EQUIPMENT.NO OTHER WARRANTIES,EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABLILITY AND FITNESS FOR A PARTICULAR PURPOSE,WILL APPLY IN ANY MANNER WHATSOEVER. LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY ANY EQUIPMENT LEASED HEREUNDER OR THE USE,OPERATION OR MAINTENEANCE THEREOF,OR THE FAILURE OF OPERATION THEREOF, OR THE ADJUSTMENTS, REPAIRS, OR PART REPLACEMENTS, OR BY ANY DELAY OR FAILURE TO PROVIDE ANY THEREOF OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE THEROF, OR FOR ANY LOSS OF BUSINESS OR DAMAGE WHATSOEVER OR HOWEVER CAUSED.NO ALLEGED DEFECT OR UNFITNESS OF THE EQUIPMENT SHALL RELIEVE LESSEE OF THE OBLIGATION TO PAY LEASE OR OF ANY OTHER OBLIGATION OF LESSEE LESSOR UNDER THIS LEASE. 6. Title to the EQUIPMENT shall at all times be and remain the sole and exclusive property of the LESSOR. 7. The EQUIPMENT shall not be removed from the address of installation as provided in paragraph 3 hereof without LESSOR'S prior written consent. 8. LESSEE agrees to safely store the EQUIPMENT under roof when not in use and to properly secure the same at night and such other times when the facility on which the EQUIPMENT is used is closed to play, and LESSEE agrees to be solely responsible for such storage and safekeeping. If the EQUIPMENT is electrical, LESSEE agrees that such storage shall include sufficient and adequate electrical charging outlets and watering in facilities for the batteries, which are part of the EQUIPMENT. LESSEE further agrees to be solely responsible for the cost of all electricity, fuel and routine maintenance for or to the EQUIPMENT. The EQUIPMENT shall be used and operated only as a golf car on the premises at the address specified in paragraph 3 hereof in a careful manner and in compliance with all applicable laws. The EQUIPMENT shall not be used or operated in a manner subjecting it to depreciation above the normal depreciation associated with the use specified above. LESSEE shall be responsible for damage to the EQUIPMENT from any accident, vandalism or user abuse. LESSEE shall also agree that all persons operating said property would be over the age of 16 with a current driver's license. 9. LESSEE shall indemnify and save LESSOR harmless from any and all actions, proceedings,damages, liabilities,judgments, orders, decrees, awards, costs, expenses, COLORADO GOLF&TURF 11757 S.WADSMORTB BLVD LITTLETON.CO 30125 WWW COLOGOLFANDTURF CON 303 761-3332 attorney's fees, and claims on account of damage to property or injuries to person (including death),which may be sustained by LESSEE, its agents, servants, employees, licensees, invites, operators,users, and lessors arising out of or in connection with the use of the EQUIPMENT, except the LESSEE shall have no liability to LESSOR for damages or costs incident thereto caused by the sole negligence of LESSOR. 10. LESSEE shall not have the right to assign this lease without the written consent of LESSOR. LESSOR shall have the right to assign this lease. 11. LESSEE agrees to pay any and all personal property taxes, sales,use and other taxes payable in any state, county,or city where LESSOR'S EQUIPMENT is located,used and operated by LESSEE. 12. LESSEE agrees, at its sole cost and expense,to employ a mechanic to provide for routine maintenance of the EQUIPMENT including,but not limited to, keeping the EQUIPMENT clean and orderly, changing flat tires, charging and watering the batteries, fuel, and other routine maintenance procedures recommended by LESSOR. 13. LESSOR retains the right to withdraw the EQUIPMENT covered by this lease agreement for non-payment of the rent provided for in paragraph 4 hereof. LESSEE acknowledges that LESSOR may from time to time withdraw certain items of the EQUIPMENT for maintenance under this agreement. 14. At the termination of this lease, LESSEE shall return the EQUIPMENT to LESSOR at the same place where it received delivery in the same condition as when received by LESSEE with ordinary and reasonable wear and tear excepted. 15. This lease and the interpretation thereof shall be construed in accordance with the laws of the State of Colorado. 16. INSURANCE. LESSEE shall at its own expense keep the EQUIPMENT insured against loss,theft,damage, fire, destruction or vandalism in the amounts up to $5,000.00 per unit,per incident with responsible companies in a form satisfactory to LESSOR. All such policies shall name LESSOR and any assignee of LESSOR as an additional insured and provide that any loss shall be payable to LESSOR or its assignee. The proceeds of such insurance shall be applied, at the option or LESSOR, (1)toward the replacement, restoration or repair of any the EQUIPMENT which may be lost, stolen, destroyed or damaged, or(2)toward the obligations of LESSEE for rent hereunder. In the event the LESSOR elects to apply insurance proceeds to the repair or to the replacement of damaged EQUIPMENT, this lease shall continue in full force and effect. In the event the LESSOR elects to apply insurance proceeds to the payment of LESSEE'S obligations for rent hereunder, the LESSEE'S obligation for the rent hereunder shall be reduced by the amount of such insurance proceeds,but the LESSEE shall be liable for any additional rents due. Such reduction of rents shall be allocated solely to the item or items lost, stole,damaged or destroyed. COLORADO GOLF&TURF 1I;.i7 S.WADSWORTR BLID MILLION.CO 30125 'WV COLOGOLFANDTURF C01 303-761-3332 17. WARRANTIES. LESSOR will cause the manufacturer of the EQUIPMENT,to authorize LESEE to enforce in its own name all warranties, agreements or representations, if any, which may be made by the manufacturer to LESSEE or LESSOR. LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION THE CONDITION OF EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. NO DEFECT OR UNFITNESS OF THE EQUIPMENT SHALL RELIEVE LESSEE OF THE OBLIGATION TO PAY RENT OR OF ANY OTHER OBLIGATION UNDER THIS LEASE. IN WITNESS WHEREOF, the parties have duly executed this lease as of the day and year first above written. LESSOR: COLORADO GOLF&TURF, INC. Thomas F. Bauerle President LESSEE: City of McCall, Idaho-McCall Golf Club Name: /2/2"e? ,-(,-:_..xle Title: Robert S. Giles , Mayor Date: December 15, 2022 ATTEST: Name: Title: BessieJo Wagner, City Clerk Non-Appropriation Addendum to Golf Cart Lease Lessee/Renter/Customer: City of Title of lease, rental or other agreement: McCall, Idaho Dated: December 15, 2022 Lessor: Colorado Golf & Turf, Inc. Lease, rental or contract #: 2023-02 This Non-Appropriation Addendum (this "Addendum") is made by and between the above-referenced lessee, renter or other customer ("City") and the above- referenced lessor ("Lessor"). Introduction: City and Lessor are simultaneously herewith entering into the above-referenced lease, rental, or other agreement (the "Lease"); and City and Lessor wish to modify and/or supplement the terms of the Lease, as more particularly set forth herein below. This Addendum shall be effective as of the same date as the Lease (the "Effective Date"). 1. Incorporation and Effect. This Addendum is hereby made a part of, and incorporated into, the Lease as though fully set forth therein. As modified or supplemented by the terms set forth herein, the provisions of the Lease shall remain in full force and effect, provided that, in the event of a conflict between any provision of this Addendum and any provision of the Lease, the provision of this Addendum shall control. In entering into this Addendum, it is the intent of City and Lessor to conform the terms and conditions of the Lease to the requirements of all applicable federal, state and local laws, rules and regulations relating to governmental entities and public finance. If any term or condition of this Addendum is unenforceable or unlawful, then Non-Appropriation Addendum to Golf Cart Lease — Page 1 such provision shall be deemed null and void without invalidating the remaining provisions of the Lease. 2. Definitions. Capitalized terms herein that are not otherwise specifically defined herein shall have the same.meanings as set forth in the Lease. As used in this Addendum, the following terms shall have the following-described meanings: "Goods" shall have the same meaning as the term "Equipment," "Leased Equipment," "Goods" or "Property" (or a similar term) as defined and used in the Lease. 3. Non-Appropriation of Funds. City hereby represents, warrants and covenants to Lessor that: (a) City intends, subject only to the provisions of this Section 3, to remit to Lessor all sums due and to become due under the Lease for the full multi- year term thereof; (b) City's governing body has appropriated sufficient funds to pay all amounts due to Lessor during City's current fiscal period; (c) City reasonably believes that legally available funds in an amount sufficient to make all such payments for the full multi-year term can be obtained; and (d) City intends to do all things lawfully within its power to obtain and maintain funds from which all such payments to become due during the full multi-year term of the Lease, including making provision for such payments to the extent necessary in each budget or appropriation request submitted and adopted in accordance with applicable law. Notwithstanding the foregoing: the decision whether or not to budget and appropriate funds is within the discretion of City's governing body. In the event City's governing body fails to appropriate sufficient funds to make all payments and pay other amounts due and to become due during City's future fiscal periods, City may terminate the Lease as of the last day of the fiscal period for which appropriations were received (an "Event of Non-appropriation"). City agrees Non-Appropriation Addendum to Golf Cart Lease — Page 2 to deliver notice of an Event of Non-appropriation to Lessor at least 30 days prior to the end of City's then-current fiscal period, or if an Event of Non-appropriation has not occurred by that date, promptly upon the occurrence of any such Event of Non- appropriation and to return the Goods pursuant to the return requirements stated in the Lease on or before the effective date of termination. City and Lessor understand and intend that City's obligation to make payments and pay other amounts due under the Lease shall constitute a current expense and shall not in any way be construed to be a debt, obligation, or liability in contravention of any applicable constitutional or statutory limitations or requirements concerning City's creation of indebtedness, nor shall anything contained herein constitute a pledge of City's general tax revenues, funds or monies 4. Additional Representations, Warranties and Covenants of City. In addition to the other representations, warranties and covenants made by City as set forth in the Lease, City hereby represents, warrants and covenants to Lessor that: (a) City has the power and authority under applicable law to enter into the Lease and this Addendum and the transactions contemplated herein and therein and to perform all of its obligations hereunder and thereunder, (b) City has duly authorized the execution and delivery of the Lease and this Addendum by appropriate official action of its governing body and has obtained such other authorizations, consents and/or approvals as are necessary to consummate the Lease and this Addendum, (c) all legal and other requirements have been met; and procedures have occurred, to render the Lease and this Addendum enforceable against City in accordance with their terms, and City has complied with such public bidding requirements as may be applicable to the Lease and Non-Appropriation Addendum to Golf Cart Lease — Page 3 this Addendum and the transactions contemplated herein and therein, (d) upon Lessor's request, City will provide Lessor with a copy of City's current financial statements within 150 days after the end of each fiscal period, and (e) during the term of the Lease, unless and until the Lease is terminated in accordance with Section 3 above, City shall provide to Lessor, no later than 10 days prior to the end of each fiscal period, with current budgets or other proof of appropriation for the ensuing fiscal period, and such other financial information relating to City's ability to continue the Lease, as Lessor may request. 5. Indemnification. To the extent City is or may be obligated to indemnify, defend or hold Lessor harmless under the terms of the Lease, any such indemnification obligation shall arise only to the extent permitted by applicable law and shall be limited solely to sums lawfully appropriated for such purpose in accordance with Section 3 above. 6. Remedies. To the extent Lessor's remedies for a City default under the Lease include any right to accelerate amounts to become due under the Lease, such acceleration shall be limited to amounts to become due during City's then current fiscal period. In the event that City is obligated to return the Goods to Lessor, the same shall be done at City expense so long as the destination is not more than 100 miles distant from the City of McCall, Idaho; otherwise, Lessor shall pay the expense of transportation to the destination designated by Lessor. After an Event of Non- appropriation, so long as the lease payment for the then current fiscal year has been paid, upon delivery of the Goods in the manner prescribed and so long as the Goods shall be in the same condition as when received by City (ordinary wear and tear Non-Appropriation Addendum to Golf Cart Lease — Page 4 excepted) and is in good operating order and maintenance as required in the Lease, City's obligation to Lessor shall be deemed satisfied. 7. Tax warranties. Notwithstanding anything in the Lease to the contrary, City makes no warranties regarding whether any portion of the lease payments are interest or that the interest is exempt from taxation because of City's governmental status. City will and does warrant that it is a municipal corporation organized under the laws of the state of Idaho, and will complete any IRS or other tax agency forms that Lessor directs so long as the information sought and factual representations to be made on the forms can be made accurately within the format of the forms. City reserves the right to include any explanation of data that City deems necessary to avoid misrepresenting any facts on said forms. A determination by any taxing authority that the lease payments, or any part of the lease payments, are includable in Lessor's gross income shall not constitute a default under the Lease and will not result in any increase in amounts payable under the lease. 8. Accessions and attachments. Notwithstanding anything in the Lease to the contrary, any accessions or attachments made to the Goods by the City are not part of the Goods, and are not part of the Lease unless the accessions or attachments are provided by Lessor or Lessor's affiliate and are part of the description of the Goods contained in the lease, or, are bona fide replacements of original equipment integral to the Goods at the time of delivery to the City. At termination of the Lease, before the Goods are returned to Lessor, City will remove any accessions or attachments it has affixed to the Goods and will repair any damage to the Goods occasioned by the removal of the same. Non-Appropriation Addendum to Golf Cart Lease — Page 5 9. Preservation of right of offset. Notwithstanding anything in the Lease to the contrary, City retains the right to offset against amounts due under the Lease any defense, claim, setoff, or counterclaim or other right, existing or future, which City may have against the Lessor, or the entity that supplied the Goods. 10. Insurance. Notwithstanding anything in the Lease to the contrary, Lessor shall not be City's attorney in fact in any way or for any reason including but not limited to insurance. City shall not be obligated to assign any insurance policies, titles, rights or benefits to Lessor. The City shall name the Lessor as a loss payee on the insurance coverage for the leased personal property. City shall have no obligation to add the Lessor as an additional named insured because the City's insurer prohibits such addition. 11. Opinion letter by Counsel for City. The opinion letter, if any, required by Lessor from counsel for the City shall only require that counsel opine on: 1) whether the City is duly organized and legally existing as a political subdivision under the Constitution and laws of the state of Idaho; 2) whether the Lease has been duly authorized, executed and delivered by the City and, subject to any applicable bankruptcy, insolvency, moratorium, or other limitations found in Idaho law, is enforceable against City in accordance with its terms; 3) whether there is any litigation pending or, within counsel's best knowledge, threatened which seeks to restrain, enjoin, or in any other way challenges the authority of City to enter into the Lease or make an appropriation for payment of an annual lease payment; and 4) whether the Lease has been authorized, approved, and executed in accordance with all applicable open meeting, public records, and public bidding laws. No further opinions shall be Non-Appropriation Addendum to Golf Cart Lease — Page 6 required unless Lessor is willing to fully and adequately compensate counsel for the additional requested opinions and the liability thereby assumed. 12. Governing Law. Notwithstanding anything in the Lease to the contrary, the Lease and this Addendum shall be governed by, construed and enforced in accordance with the laws of the state of Idaho. 13. Miscellaneous. This Addendum, together with the provisions of the Lease not expressly inconsistent herewith, constitutes the entire agreement between the parties with respect to the matters addressed herein, and shall supersede all prior oral or written negotiations, understandings and commitments. This Addendum may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall be deemed to constitute one and the same agreement. A facsimile or other copy of this Addendum with facsimile or copied signatures shall have the full force and effect of the original for all purposes, including the rules of evidence applicable to court proceedings. [Signatures follow on next page] Non-Appropriation Addendum to Golf Cart Lease — Page 7 Lessor: Colorado Golf& Turf, Inc. 2 ?LLL ,/2Q . Thomas F. Bauerle, President Lessee: City of McCall, Idaho—McCall Golf Club - 21‘.Ylr�� Robert S. Giles, Mayor Attest: essieJo Wa er, Clerk Non-Appropriation Addendum to Golf Cart Lease — Page 8