HomeMy WebLinkAboutRFP - 9861 LEASE PURCHASE FINANCING 2023RFP 9861 Lease Purchase Financing 2023 Page 1 of 43
REQUEST FOR PROPOSAL
9861 LEASE PURCHASE FINANCING 2023
RFP DUE: 3:00 PM MT (Mountain Time), September 26, 2023
The City of Fort Collins is requesting proposals from qualified Professionals to lease purchase
financing of equipment and vehicles to be used by City departments in the performance of their
duties.
As part of the City’s commitment to sustainability, proposals must be submitted online through
the Rocky Mountain E-Purchasing System (RMEPS) at http://www.bidnetdirect.com/colorado/city-
of-fort-collins. Note: please ensure adequate time to submit proposals through RMEPS. Proposals
not submitted by the designated Opening Date and Time will not be accepted by RMEPS.
A pre-proposal meeting will be held at 3:00 PM MT on September 12, 2023. The pre-proposal
meeting will be hosted on-line via Zoom. Select or copy/paste the below link into your browser
for access to the meeting. Please be prepared to announce your name and mute your
microphone:
Topic: 9861 Lease Purchase Financing Preproposal Meeting
Time: Sep 12, 2023 03:00 PM Mountain Time (US and Canada)
Join Zoom Meeting
https://us02web.zoom.us/j/88224091668?pwd=UGlMdmZkNE1rWXlQZEY4d0RZSC9zdz09
Meeting ID: 882 2409 1668
Passcode: 288739
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Financial Services
Purchasing Division
215 N. Mason St. 2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6775
970.221.6707
fcgov.com/purchasing
RFP 9861 Lease Purchase Financing 2023 Page 2 of 43
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Find your local number: https://us02web.zoom.us/u/kcpcoQEcmP
All questions should be submitted, in writing via email, to Jake Rector, Senior Buyer at
jrector@fcgov.com, , no later than 3:00 PM MT on September 15, 2023. Please format your
e-mail to include: RFP 9861 Lease Purchase Financing 2023 in the subject line. Questions
received after this deadline may not be answered. Responses to all questions submitted before
the deadline will be addressed in an addendum and posted on the Rocky Mountain E-Purchasing
System webpage.
Rocky Mountain E-Purchasing System hosted by BidNet
A copy of the RFP may be obtained at http://www.bidnetdirect.com/colorado/city-of-fort-collins.
This RFP has been posted utilizing the following Commodity Code(s):
94654 Installment Purchase/Lease Purchase Financing and Lease With Option to
Purchase Financing
Prohibition of Unlawful Discrimination: The City of Fort Collins, in accordance with the
provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 US.C. §§ 2000d to 2000d-
4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that any contract
entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded
full and fair opportunity to submit bids in response to this invitation and will not be discriminated
against on the grounds of race, color, or national origin in consideration for an award.
The City strictly prohibits unlawful discrimination based on an individual’s gender (regardless of
gender identity or gender expression), race, color, religion, creed, national origin, ancestry, age
40 years or older, marital status, disability, sexual orientation, genetic information, or other
characteristics protected by law. For the purpose of this policy “sexual orientation” means a
person’s actual or perceived orientation toward heterosexuality, homosexuality, and bisexuality.
The City also strictly prohibits unlawful harassment in the workplace, including sexual
harassment. Further, the City strictly prohibits unlawful retaliation against a person who engages
in protected activity. Protected activity includes an employee complaining that he or she has been
discriminated against in violation of the above policy or part icipating in an employment
discrimination proceeding.
The City requires its Professionals to comply with the City’s policy for equal employment
opportunity and to prohibit unlawful discrimination, harassment and retaliation. This requirement
applies to all third-party Professionals and their subcontractors/subconsultants at every tier.
Public Viewing Copy: The City is a governmental entity subject to the Colorado Open Records
Act, C.R.S. §§ 24-72-200.1 et seq. (“CORA”). Any proposals submitted hereunder are subject to
RFP 9861 Lease Purchase Financing 2023 Page 3 of 43
public disclosure by the City pursuant to CORA and City ordinances. Professionals may submit
one (1) additional complete proposal clearly marked “FOR PUBLIC VIEWING.” In this version of
the proposal, Professionals may redact text and/or data that it deems confidential or proprietary
pursuant to CORA. All pricing will be considered public records subject to disclosure under CORA
and as such pricing cannot be redacted from the “FOR PUBLIC VIEWING” version of the
proposal. Failure to provide a public viewing copy will be considered a waiver of any claim of
confidentiality under CORA without regard to how the applicant’s proposal or certain pages of the
proposal are marked confidential, proprietary, or similar. Such statement does not necessarily
exempt such documentation from public disclosure if required by CORA, by order of a court of
appropriate jurisdiction, or other applicable law. Generally, under CORA, trade secrets,
confidential commercial information and financial data information may not be disclosed by the
City. Proposals may not be marked “Confidential” or ‘Proprietary’ in their entirety. By responding
to this RFP, Professionals hereby waives any and all claims for damages against the City for the
City’s good faith compliance with CORA. All provisions and pricing of any contract resulting
from this request for proposal will be public information.
Professionals Registration: The City requires new Professionals receiving awards from the City
to submit IRS form W-9 and requires all Professionals to accept Direct Deposit (Electronic)
payment. If needed, the W-9 form and the Vendor Direct Deposit Authorization Form can be
found on the City’s Purchasing website at www.fcgov.com/purchasing under Vendor Reference
Documents. Please do not submit these documents with your proposal, however, if you take
exception to participating in Direct Deposit (Electronic) payments please clearly note such in your
proposal as an exception. The City may waive the requirement to participate in Direct Deposit
(Electronic) payments at its sole discretion.
Sales Prohibited/Conflict of Interest: No officer, employee, or member of City Council, shall
have a financial interest in the sale to the City of any real or personal property, equipment,
material, supplies or services where such officer or employee exercises directly or indirectly any
decision-making authority concerning such sale or any supervisory authority over the services to
be rendered. This rule also applies to subcontracts with the City. Soliciting or accepting any gift,
gratuity favor, entertainment, kickback or any items of monetary value from any person who has
or is seeking to do business with the City of Fort Collins is prohibited.
Collusive or Sham Proposals: Any proposal deemed to be collusive or a sham proposal will be
rejected and reported to authorities as such. Your authorized signature of this proposal assures
that such proposal is genuine and is not a collusive or sham proposal.
The City of Fort Collins reserves the right to reject any and all proposals and to waive any
irregularities or informalities.
Utilization of Award by Other Agencies: The City of Fort Collins reserves the right to allow
other state and local governmental agencies, political subdivisions, and/or school districts to
utilize the resulting award under all terms and conditions specified and upon agreement by all
parties. Usage by any other entity shall not have a negative impact on the City of Fort Collins in
the current term or in any future terms.
The selected Professional shall be required to sign the City’s Agreement prior to commencing
services (see sample attached to this document).
Sincerely,
RFP 9861 Lease Purchase Financing 2023 Page 4 of 43
Gerry Paul
Purchasing Director
RFP 9861 Lease Purchase Financing 2023 Page 5 of 43
I. BACKGROUND & OBJECTIVE / OVERVIEW
A. Objective
The City of Fort Collins is requesting proposals from qualified Professionals for lease
purchase financing of equipment and vehicles to be used by City departments in the
performance of their duties. Each lease purchase will have a term of five (5) years with
ownership of the equipment and vehicles transferring to the City at the end of the
applicable lease term. All equipment and vehicles leased will have a useful life of at least
five (5) years.
B. Background
The City generally initiates lease financing once or twice a year. Leases vary from
$300,000 to $7,000,000.00; no guarantee of minimum amounts is implied by these
approximations. The City's intent is to enter into a Master Lease-Purchase Agreement
and process individual leases using a separate Lease Schedule for each.
For 2023, the City has an immediate need to lease purchase finance an estimated
$2,700,000.00. In 2024, the City’s finance need is an estimated $6,700,000.00.
II. SCOPE OF PROPOSAL
A. Lessor Requirements
Awarded Lessor must enter into a Master Lease-Purchase Agreement, using the City of
Fort Collins Master Lease-Purchase Agreement, attached in Section VII.
An Escrow Agreement attached as Exhibit D to the Master Lease-Purchase Agreement
will be entered into between the City, Lessor, and Escrow Agent, the First National Bank
of Fort Collins.
An Escrow Agreement for Motor Vehicle Certificates of Title attached as Exhibit E to the
Master Lease-Purchase Agreement will also be entered into between the City, Lessor,
and Escrow Agent, the First National Bank of Fort Collins.
The Lessor must agree to a five (5) year lease term with quarterly lease payments in
arrears.
Lessor must produce an amortization table for each lease.
B. General Lease Schedule Procedures
Once a Master Lease-Purchase Agreement is in place, individual leases will be set up
using Lease Schedules. City staff will provide Lessor with an estimate for the amount of
equipment to be purchased and request an interest rate quote using the methodology
stated in the Master Lease-Purchase Agreement. The quote must be good for at least 45
days or as otherwise mutually agreed by the parties.
Funding of the escrow will generally occur within a week of fully executed Escrow
Agreement documents.
All equipment purchased will be listed on the Lease Schedule in general terms.
Payments from escrow are handled in two ways:
RFP 9861 Lease Purchase Financing 2023 Page 6 of 43
Repayments to the City for equipment already purchased and paid for.
Payments to vendors for equipment to be paid for directly to vendors from escrowed funds.
Samples of Certificate of Acceptance and Request for Payment (Concurrence) letters
are attached as part of the Master Lease-Purchase Agreement. Currently these
documents are emailed to the leasing company for their concurrence, and then emailed
from the leasing company to the Escrow bank for payment. Email transmittal is
acceptable if all entities involved can agree on procedures.
C. Anticipated Schedule
The following represents the City’s target schedule for the RFP. The City reserves the
right to amend the target schedule at any time.
• RFP issuance: September 5, 2023
• Pre-Proposal Meeting: 3:00 PM MT on September 12, 2023
• Question deadline: 3:00 PM MT on September 15, 2023
• Proposal due date: 3:00 PM MT on September 26, 2023
• Interviews (tentative): Week of October 2, 2023
• Award of Contract (tentative): October 2023
D. Interviews
In addition to submitting a written proposal, the top-rated Professionals may be
interviewed by the RFP assessment team and asked to participate in an oral presentation
to provide an overview of the company, approach to the project and to address questions.
The evaluation criteria for the oral interviews will be the same as the criteria for the written
evaluations and is included in Section IV.
Because of recent events involving COVID-19, the City may use non-traditional methods
for the optional interview phase of the assessment process. The City will receive and score
written proposals. However, instead of traditional in-person interviews for the optional
interview session, the City may opt to use alternate methods including, but not limited to
remote interviews through a platform such as Microsoft Teams or Zoom.
E. Financial Qualifications (CONFIDENTIAL)
Professionals selected as finalists may be required to submit a banking reference and the
most recent financial statement (audited preferred) including balance sheet and income
statement, as well as a statement of cash flows (the “Financial Information”).
F. Laws and Regulations
The Professional agrees to comply fully with all applicable local, State of Colorado and
Federal laws and regulations and municipal ordinances to include American Disabilities
Act (ADA).
G. Agreement
The awarded Professional will be required to sign the City’s Master Lease Purchase
Agreement and Escrow Agreements, a sample of which is attached as Section VII for
reference purposes.
RFP 9861 Lease Purchase Financing 2023 Page 7 of 43
III. PROPOSAL SUBMITTAL
Please limit the total length of your proposal to a maximum of fifty (50) 8 ½ x 11” pages
(excluding cover pages, table of contents, dividers and Acknowlegement form). Font shall be
a minimum of 10 Arial and margins are limited to no less than .5” for sides and top/bottom.
Extended page sizes, such as 11” x 17”, count as a single page and may be used for detailed
pricing. Links to other files or websites shall not be permitted. Proposals that do not conform
to these requirements may be rejected.
Professionals are required to provide detailed written responses to the following items in the
order outlined below. The responses shall be considered technical offers of what
Professionals propose to provide and shall be incorporated in the contract award as deemed
appropriate by the City. A proposal that does not include all the information required may be
deemed non-responsive and subject to rejection.
Responses must include all the items in the order listed below. It is suggested that the
Professionals include each of the City’s questions with their response.
The City of Fort Collins shall not reimburse any firm for costs incurred in the preparation and
presentation of their proposal.
A. Cover Letter / Executive Summary
The Executive Summary should highlight the content of the proposal and features of the
program offered, including a general description of the program and any unique aspects
or benefits provided by your firm.
Indicate your availability to participate in the interviews/demonstrations on the pr oposed
dates as stated in the Schedule section.
B. Professional Information
1. Describe the Professional’s business and background.
2. Number of years in the business.
3. Details about ownership.
4. An overview of services offered and qualifications.
5. Size of the firm.
6. Location(s) of offices. If multiple, please identify which will be the primary for our
account.
7. Primary contact information for the company including contact name(s) and title(s),
mailing address(s), phone number(s), and email address(s).
C. Scope of Proposal
1. Provide a detailed narrative of the services proposed if awarded the contract per the
scope above. The narrative should include any options that may be beneficial for the
City to consider.
2. Describe how the project would be managed and who would h ave primary
responsibility for its timely and professional completion.
RFP 9861 Lease Purchase Financing 2023 Page 8 of 43
3. Briefly describe the approach to execute the scope of work to include the methods and
assumptions used, and any exceptions and/or risks.
4. Describe the methods and timeline of communication your firm will use with the City’s
Project Manager and other parties.
5. No work is to be subcontracted or outsourced to subconsultants.
6. Provide an outline of the schedule and sequence of events for each lease.
D. Firm Capability and Assigned Personnel
Provide relevant information regarding previous experience related to this or similar
projects, to include the following:
1. Provide an Organization Chart/Proposed Project Team: An organization chart
containing the names of all key personnel and subconsultants with titles and their
specific task assignment for this Agreement shall be provided in this section.
2. A list of qualifications for your firm and qualifications and experience of the specific
staff members proposed to perform the services described above.
3. Provide a summary of your sources of funds available to support the City’s Lease-
Purchase programs with competitive rates.
4. References. Provide a minimum of three similar projects with public agencies in the
last 5 years that have involved the staff proposed to work on this project. Include the
owner’s name, title of project, contact name, email and phone number and a brief
description of the work and any change orders. The Professional authorizes the City
to verify any and all information contained herein and hereby releases all those
concerned providing information as a reference from any liability in connection with
any information provided.
5. Please address any issues and/or opportunities related to COVID-19 and remote
working. Specifically, how will you maintain the project on schedule and outreach to
stakeholders?
E. Cost and Work Hours
In your response to this proposal, please provide the following:
1. Methodology proposed for establishment of the interest rate for each lease. Proposed
methodology to be used for each lease.
2. Provide example of the interest rate calculation based on the proposed methodology
to include an amortization table.
3. Complete and submit Section V – Vendor Response for Evaluation
Once awarded, the City may continue to use the Professional for up to four additional one
year renewal periods, subject to mutual agreement of the methodology for establishment
of the interest rate for each lease.
F. Sample Agreement
Included with this request for proposals is a sample Master Lease-Purchase Agreement
that the City intends to use for obtaining the services of the Professional. The Professional
is required to review this Agreement and indicate any objections to the terms of the
Commented [JR1]: Does this conflict with Section e.1 just
above?
RFP 9861 Lease Purchase Financing 2023 Page 9 of 43
contract. If revisions to the contractual terms are requested, provide suggested revisions.
The sample agreement is attached as Section VII.
G. Acknowledgement
The Acknowledgement form is attached as Section VI. Complete the attached form
indicating the Professional hereby acknowledges receipt of the City of Fort Collins
Request for Proposal and acknowledges that the Professional has read and agrees to be
fully bound by all of the terms, conditions and other provisions set forth in the RFP.
RFP 9861 Lease Purchase Financing 2023 Page 10 of 43
IV. REVIEW AND ASSESSMENT CRITERIA
A. Proposal and Interview Criteria
Professionals will be evaluated on the following criteria. This set of criteria will be the
basis for review and assessment of the written proposals and optional interview session.
At the discretion of the City, interviews of the top-rated Professionals may be conducted.
The rating scale shall be from 1 to 10, a rating of 1 doesn’t meet minimum requirements,
a rating of 5 means the category fulfills the minimum requirements, and 10 exceeds
minimum requirements in that category.
WEIGHTING
FACTOR CATEGORY STANDARD QUESTIONS
3.0 Scope of Proposal
Does the proposal address all elements of the
RFP? Does the proposal show an
understanding of the project objectives,
methodology to be used and results/outcomes
required by the project? Are there any
exceptions to the specifications, Scope of Work,
or agreement? Can the work be completed in
the necessary time? Can the target start and
completion dates be met? Are other qualified
personnel available to assist in meeting the
project schedule if required? Is the project team
available to attend meetings as required by the
Scope of Work?
3.0 Firm Capability &
Assigned Personnel
Does the firm have the resources, financial
strength, capacity and support capabilities
required to successfully complete the project on-
time and in-budget? Has the firm successfully
provided this type service? Do the persons who
will be working on the project have the
necessary skills and qualifications? Are
sufficient people of the requisite skills and
qualifications assigned to the City?
4.0 Cost & Work Hours
Does the proposal include detailed break-down
for the methodology proposed to set the interest
rate for each lease? Does the methodology align
with industry best practices and does the
proposed interest rate compare favorably with
prevailing rates for tax exempt lease-purchases?
RFP 9861 Lease Purchase Financing 2023 Page 11 of 43
V. VENDOR RESPONSE FOR EVALUATION
The City of Fort Collins does not anticipate the issuance of long-term, tax-exempt obligations
exceeding $10,000,000 in 2023. Therefore, this agreement will be considered bank qualified.
THE CITY OF FORT COLLINS LEASE-PURCHASE AGREEMENT.
Acceptable? Yes No
(If your response is "No", please explain on a separate sheet.)
The City will consider suggestions for changes in the agreement if those changes are minor in
nature, legally required, or which reflect current industry practice.
COMPANY INFORMATION.
Provide requested information on a separate sheet.
SERVICE REPRESENTATIVES
Include name, title, phone number and email address. List representatives on a separate sheet
REFERENCES
Include entity name, contact person, email address and phone number. List references on
separate sheet.
INTEREST RATE PROPOSAL
2023 Lease:
Lease agreement date: December 14, 2023
Lease funding date: No later than January 1, 2024
Principal Amount: $2,700,000.00 (estimated)
Sample Types of Equipment Financed: New Police vehicles, New Utility maintenance
equipment, New Streets maintenance equipment, New Parks and Golf Course maintenance
equipment. All vehicles and equipment have a service life exceeding five years.
Term: Five (5) years, quarterly payments, in arrears
Proposed interest rate: % (simple)
** Please provide an explanation on how proposed interest rate was determined and
methodology to be used for establishment of the interest rates for future leases through
2029.
Quarterly payments: $
First payment due ~ January 1, 2024.
Please attach amortization table for the above sample lease.
RFP 9861 Lease Purchase Financing 2023 Page 12 of 43
VI. ACKNOWLEDGEMENT
Professional hereby acknowledges receipt of the City of Fort Collins Request for Proposal and
acknowledges that it has read and agrees to be fully bound by all of the terms, conditions and
other provisions set forth in the RFP 9861 Lease Purchase Financing 2023 and sample
Agreement except as otherwise noted. Additionally, Professional hereby makes the following
representations to City:
a. All of the statements and representations made in this proposal are true to the best of the
Professional’s knowledge and belief.
b. Professional commits that it is able to meet the terms provided in this proposal.
c. This proposal is a firm and binding offer, for a period of 90 days from the date hereof.
d. Professional further agrees that the method of award is acceptable.
e. Professional also agrees to complete the proposed Agreement with the City of Fort Collins
within 10 days of notice of award. If contract is not completed and signed within 10 days,
City reserves the right to cancel and award to the next highest rated firm.
f. Professional acknowledges receipt of addenda.
g. Professional acknowledges no conflict of interest.
h. Professional acknowledges that the City is a governmental entity subject to the Colorado
Open Records Act, C.R.S. §§ 24-72-200.1 et seq. (“CORA”). Any proposals submitted
hereunder are subject to public disclosure by the City pursuant to CORA and City
ordinances. Professionals may submit one (1) additional complete proposal clearly
marked “FOR PUBLIC VIEWING.” In this version of the proposal, Professionals may
redact text and/or data that it deems confidential or proprietary pursuant to CORA. All
pricing will be considered public records subject to disclosure under CORA and as such
pricing cannot be redacted from the “FOR PUBLIC VIEWING” version of the proposal.
Failure to provide a public viewing copy will be considered a waiver of any claim of
confidentiality under CORA without regard to how the applicant’s proposal or certain
pages of the proposal are marked confidential, proprietary, or similar. Such statement
does not necessarily exempt such documentation from public disclosure if required by
CORA, by order of a court of appropriate jurisdiction, or other applicable law. Generally,
under CORA, trade secrets, confidential commercial information and financial data
information may not be disclosed by the City. Proposals may not be marked “Confidential”
or ‘Proprietary’ in their entirety. By responding to this RFP, Professionals hereby waives
any and all claims for damages against the City for the City’s good faith compliance with
CORA. All provisions and pricing of any contract resulting from this request for
proposal will be public information.
Legal Firm Name:
Physical Address:
Remit to Address:
Phone:
Name of Authorized Agent of Firm:
Signature of Authorized Agent:
RFP 9861 Lease Purchase Financing 2023 Page 13 of 43
Primary Contact for Project:
Title: Email Address:
Phone: Cell Phone:
NOTE: ACKNOWLEDGMENT IS TO BE SIGNED & RETURNED WITH YOUR PROPOSAL.
RFP 9861 Lease Purchase Financing 2023 Page 14 of 43
VII. SAMPLE AGREEMENT (FOR REFERENCE ONLY – DO NOT SIGN )
MASTER LEASE-PURCHASE AGREEMENT
THIS MASTER LEASE-PURCHASE AGREEMENT ("Agreement") between ("Lessor")
and THE CITY OF FORT COLLINS, COLORADO, municipal corporation ("Lessee") dated ,
20 , is as follows:
ARTICLE I -- LEASE OF EQUIPMENT
1.1 Agreement to Lease
Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the equipment (the
"Equipment") as more fully described in each Schedule of Equipment (Exhibit A), which together
with a Payment Schedule (Exhibit B) shall constitute a “Schedule,” subject to the terms and
conditions of and for the purposes set forth in each Lease. Each Schedule and the terms and
provisions of this Agreement (which includes all exhibits hereto, together with any amendments
and modifications pursuant thereto) which are incorporated by reference into such Schedule shall
constitute a separate and independent lease-purchase of the Equipment therein described and
are referred to herein as a “Lease”. Lessor, after having received all required documentation,
shall, no later than two (2) business days thereafter, unless otherwise directed by Lessee, deposit
into escrow the amount listed as the Total Lease Financing on the applicable Exhibit A, to be used
by Lessee for the acquisition of the Equipment according to the terms of the “Escrow Agreement
and Instructions” attached as Exhibit D (“Escrow Agreement”).
Nothing herein shall be construed to obligate the Lessor to enter into any Lease not currently in
existence, and Lessor shall approve each proposed Lease in its sole discretion. Such approval
shall not be unreasonably withheld.
Further, nothing herein shall be construed to obligate Lessee to enter into any lease not currently
in existence. Lessor acknowledges and agrees that Lessee may enter into a lease -purchase
arrangement at any time with any other party, and such agreement shall have no bearing on this
Agreement.
1.2 Title
During the term of each Lease, title to the Equipment will be in Lessor subject to the transfer to
Lessee upon Lessee’s purchase of the Equipment as provided herein. Upon the termination of
the Lease for any reason other than Lessee’s purchase of the Equi pment, title to any Equipment
not purchased by Lessee at the time of termination shall remain in Lessor. Lessor at all times with
reasonable written notice will have access to the Equipment for the purpose of inspection.
Notwithstanding that Lessor holds naked legal title under each Lease until title has fully vested in
Lessee, as provided in Article V. of this Agreement, Lessee and Lessor agree Lessee shall be the
owner of the Equipment for federal tax purposes and that during the Lease Term, Lessee shall
have all the beneficial and equitable rights of ownership and the associated obligations and
RFP 9861 Lease Purchase Financing 2023 Page 15 of 43
liabilities including but not limited to insurance, taxes, and maintenance associated with the
Equipment. Lessee and Lessor further agree that Lessee shall be listed as “Owner” on the vehicle
titles and shall be treated as the owner for all the purposes stated herein. It will not be necessary
for Lessor to be listed as lienholder on vehicle titles. Upon the payment of all rent payable
pursuant to Section 4.1 for the original term and all renewal terms, or exercise of the option to
purchase as specified herein, Lessor shall immediately transfer title to any Equipment so
purchased to Lessee, and Lessor’s interest in such Equipment shall terminate. Following a non-
appropriation of funds by Lessee or an event of default by the Lessee under any Lease, the
Lessee will, at the Lessee’s expense, execute and deliver such additional instruments, certificates
or documents, and will take all such actions as the Lessor may reasonably request for the
purposes of implementing or effectuating the provisions of such Lease with respect to title in
the Equipment vesting in Lessor or for the purpose of more fully completing, perfecting, continuing,
preserving or renewing the rights of the Lessor with respect to the Equipment.
1.3 Lease Not a Pledge of City's Revenues
Nothing contained in a Lease shall constitute a pledge of the general tax revenues, funds or
monies of Lessee except amounts appropriated for the purpose of making Lease payments during
the Lessee’s current fiscal year.
1.4 Title to Leased Motor Vehicles.
Notwithstanding the provision in Section 1.2 of this Agreement that the titles of the motor vehicles
leased by the Lessee under this Agreement will list the Lessee as the owner, the Lessee and
Lessor acknowledge that naked legal title of each such motor vehicle shall remain in the Lessor
unless and until the Lessee exercises its option to purchase the motor vehicles in accordance
with Article V of this Agreement. To further clarify that this is the intent of the Parties, the Lessee
agrees to promptly deposit with First National Wealth Management, a division of First National
Bank of Omaha, the “Escrow Agent” identified in the Escrow Agreement (“Escrow Agent”), the
original of all of the State of Colorado motor vehicle certificates of title the Lessee receives in the
future for motor vehicles it hereafter leases under this Agreement. Lessor and Lessee shall also
enter into the “Escrow Agreement for Motor Vehicle Certificates of Title” attached as Exhibit “E”
with the Escrow Agent which instructs the Escrow Agent to safely keep and maintain all of the
motor vehicle certificates of title delivered into its possession (“Title Escrow Agreement”). The
Title Escrow Agreement also provides the following: (1) in the event the Lessee notifies the Lessor
under Section 3.2 of this Agreement of a non-appropriation by the Governing Body of the funds
needed for any or all of the motor vehicles leased under the Agreement, that the Escrow Agent
shall have the Lessee’s power-of-attorney to execute on behalf of the Lessee the assignments of
title for each of the certificates of title of the motor vehicles leased hereunder for which funds have
not been so appropriated; or (2) in the event that the Lessee has exercised its option to purchase
any or all of the motor vehicles leased under this Agreement, the Escrow Agent shall return the
original certificates of title for those motor vehicles to the Lessee and the Lessee’s original power
of attorney for each such motor vehicle. Lessee agrees to be responsible for all costs incurred
with the Escrow Agent with respect to the Title Escrow Agreement.
RFP 9861 Lease Purchase Financing 2023 Page 16 of 43
ARTICLE II -- DEFINITIONS
When used in this Agreement, the following words and terms sha ll have the meanings indicated
below unless the context clearly requires otherwise:
2.1 “Agreement Term” or “Term of this Agreement” means the period from the date of execution
and delivery of this Agreement until terminated as provided herein.
2.2 “Commencement Date” for each Lease means the date interest commences to accrue under
such Lease which shall be the earlier of (i) the date on which the Equipment listed in such Lease
is accepted by Lessee in the manner described in Section 9.4; or (ii) the date on which sufficient
monies to purchase the Equipment listed in such Lease are deposited for that purpose with the
Escrow Agent.
2.3 "Equipment" means all or any of the property described in Exhibit A which Lessor is leasing
to Lessee.
2.4 "Funds" means funds of Lessee legally available and which have been properly
appropriated.
2.5 "Governing Body" means the Fort Collins, Colorado City Council or any successor governing
body of Lessee.
2.6 "Lease Term" or “Term of a Lease” means the period commencing on the Commencement
Date of each Lease and continuing as provided in the applicable Exhibit B, unless sooner
terminated as provided for in Section 3.2 or 3.3 hereof.
2.7 "Lessee" means the City of Fort Collins, Colorado, a home rule municipality and body
corporate and politic existing under the Laws of the State of Colorado which is leasing the
Equipment from Lessor.
2.8 "Lessor" means , which is leasing the Equipment to Lessee, a nd includes Lessor’s
assigns.
2.9 "Vendor" means the manufacturers of the Equipment (or the manufacturers' agent or dealer)
from whom Lessee purchased or is purchasing the Equipment.
ARTICLE III -- LEASE TERM
3.1 Commencement
The term of this Agreement commences upon the execution hereof and continues unless
terminated as provided elsewhere herein.
3.2 Non-appropriation of Funds
Lessee reasonably believes that it will have a need for the Equipment for the duration of the Lease
RFP 9861 Lease Purchase Financing 2023 Page 17 of 43
Term provided under a Lease and that funds will be available and appropriated to make all
payments for the Lease Term provided under the Lease; provided, however, the availability of
funds in future fiscal years is dependent upon appropriation of funds by the Governing Body,
which appropriation is entirely discretionary.
Lessee will seek funding each year as part of its Governing Body’s budget process. If funds
intended for the continued leasing of the Equipment for any ensuing fiscal period are not
appropriated for such purpose, Lessee may terminate the Lease for which funds were not
appropriated at the end of the fiscal period then in effect for such Lease without penalty.
Lessee will notify Lessor at least thirty (30) days prior to the expiration of the fiscal period if funds
are not available for the payments required under a Lease by reason of non-appropriation of funds
as set forth above. Upon termination of such Lease for non-appropriation, if Lessee has not
exercised the option to purchase under Article V of this Agreement, Lessor shall be entitled to
take possession of the Equipment. Lessee shall prepare the equipment for pickup by Lessor
within a reasonable period of time following termination.
Lessor and Lessee understand and intend that the obligation of Lessee to pay rent under the
Lease shall constitute only a current expense of Lessee and shall not constitute or give rise to a
general obligation, multiple-fiscal year debt or other indebtedness or financial obligation of Lessee
within the meaning of any constitutional, statutory or Fort Collins Home Rule Charter provision
or limitation, including, without limitation, Article X, Section 20 of the Colorado Constitution, nor a
mandatory charge or requirement against Lessee in any ensuing fiscal y ear beyond the then
current fiscal year.
3.3 Lease Termination
Any Lease will terminate upon the earliest of any of the following events:
(a) A non-appropriation of funds as provided in Section 3.2;
(b) The exercise by Lessee of any option to purchase gr anted in the Lease by which
Lessee purchases all of the Equipment subject to such Lease;
(c) A default by Lessee and an election by Lessor to terminate such Lease under
Article VIII of this Agreement; or
(d) Upon payment of all payments required to be made by Lessee under the Lease.
ARTICLE IV -- RENT
4.1 Amount
Lessee will pay Lessor rental payments for the lease of the Equipment on the dates and in the
amounts set forth in the applicable Exhibit B. Lessee shall have no obligation to make such rent
payments from any source other than the Funds.
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4.2 Portion of Rent Attributable to Interest
The portion of each rent payment which is paid as and is representative of interest is set forth in
the applicable Exhibit B. The interest rate for each Lease shall be shown on each Exhibit B.
4.3 Tax Representations
Lessee understands that Lessor intends to exclude the interest component of the rental payments
from Federal gross income pursuant to the Internal Revenue Code of 1986, as amended (the
"Code"). Lessee covenants and agrees on the date hereof and as of the Commencement Date
of each Lease that it will, for each Lease:
(i) use a book entry system to register the owner of each Lease so as to meet the applicable
requirements of Section 149(a)(3) of the Internal Revenue Code of 1986, as amended;
(ii) timely file a Form 8038-G (or, if the invoice price of the Equipment is less than $100,000,
a Form 8038-GC) with the Internal Revenue Service in accordance with Section 149(e) of
the Code;
(iii) not permit the Equipment to be directly or indirectly used for a private business use within
the meaning of Section 141 of the Code;
(iv) rebate an amount equal to excess earnings on the Escrow fund to the Federal
Government if required by and in accordance with Section 148 (f) of the Code, and make
the annual determinations and maintain the records required by the regulations applicable
thereto;
(v) ensure that the monies deposited by Lessor in Escrow are not invested in such manner
so as to result in the Lease being treated as an "Arbitrage bond or Federally guaranteed
bond" within the meaning of Section 148(a) or Section 149(b) of the Code respectively;
and
(vi) comply with all applicable provisions of Section 103 of the Code.
Lessee acknowledges and agrees that in the event Lessor is to reimburse Lessee under any
Lease for Equipment which was acquired prior to the commencement of such Lease, Lessee shall
comply with all Internal Revenue Code and Treasury Regulations regarding reimbursements.
4.4. No Right to Withhold
Notwithstanding any dispute between Lessor and Lessee, or Vendor and Lessee, Lessee will
make all payments of rent when due, without withholding any portion of such rent, pending final
resolution of such dispute by mutual agreement between Lessor and Lessee or by a court of
competent jurisdiction.
ARTICLE V -- OPTION TO PURCHASE EQUIPMENT
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5.1 Option to Purchase Price
Lessee may purchase the Equipment from Lessor, after payment of the rental payment then due,
at a price determined by the Principal Balance remaining on Exhibit B, Payment Schedule.
Individual pieces of Equipment may be purchased from Lessor, after payment of the rental
payment then due, at a price determined by the principal balance remaining on the individual
item's amortization schedule, as produced by Lessee personnel. Price will be agreeable to both
parties. In addition, when purchasing individual items, the Lessee agrees to pay a re-amortization
fee of $250.
5.2 Manner of Exercise of Option
To exercise the option granted in Section 5.1, Lessee must deliver to Lessor written notice of such
election, specifying the date of which Equipment is to be purchased, at least thirty (30) days prior
to the purchase date specified in such notice.
5.3 Conditions of Exercise to Option
Lessee may purchase the Equipment pursuant to the option granted by Section 5.1 only if Lessee
has made all rent payments when due (or has remedied any defaults in the payment of rent, in
accordance with the provisions of the Lease) and if all other representations, covenants,
warranties, and obligations of Lessee under the Lease have been satisfied (or all breaches of the
same have been waived by Lessor in writing).
ARTICLE VI -- REPRESENTATIONS, COVENANTS, AND WARRANTIES OF LESSEE
Lessee represents, covenants, and warrants on the date hereof and as of the Commencement
Date of each Lease as follows:
6.1 Status of Lessee
Lessee is a Colorado home rule municipality duly organized and existing under the Constitution
and the laws of the State of Colorado.
6.2 Authorization to Execute Lease
Lessee is authorized by the Colorado Constitution, laws of the State of Colorado, City Charter
and City Code to enter into the transactions contemplated by this Agreement and each Lease,
including all exhibits hereto and thereto, and to effect all of the Lessee's obligations under each
Lease and all exhibits. This Agreement and each Lease and all exhibits hereto and thereto
constitutes the valid and binding obligation of the Lessee enforceable in accordance with their
terms.
6.3 Satisfaction of Procedures and Funding Requirements
All procedures, including any legal bidding requirements, have been met by Lessee prior to the
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execution of this Agreement and each Lease, and all rent and other payment obligations will be
paid only out of the Funds.
6.4 Preservation of Warranties and Guarantees
Lessee will use and service the Equipment in accordance with the Vendor's instructions and in
such a manner as to preserve all warranties and guarantees with respect to the Equipment.
6.5 Representations, Covenants, Warranties, and Obligations to be Cumulative
The representations, covenants, warranties and obligations set forth in this Article are in addition
to and are not intended to limit any other representations, covenants, warranties and obligations
set forth in this Agreement or in any Lease.
6.6 Opinion of Lessee's Counsel
The Lessee will provide an opinion of its counsel with respect to the status of the Lessee, the
notice of any pending legal proceedings threatening the enforceability of a Lease, the complia nce
with bidding requirements, the enforceability of this Agreement or any Lease and reasonably
related matters.
ARTICLE VII -- REPRESENTATIONS, COVENANTS AND WARRANTIES OF LESSOR
7.1 Enjoyment
During the term of each Lease, Lessor will provide Lessee with quiet use and enjoyment of the
Equipment, without suit, or hindrance from Lessor, except upon default by Lessee as to such
Lease, as set forth in Section 8.1 herein.
7.2 Disclaimer of Warranties and Status of Lessor, Etc
Lessee has selected the Equipment and desires to lease the Equipment for use in the
performance of its governmental functions. Lessor will not be liable for specific performance or
for damages if the Vendor of the Equipment for any reason fails to fill, or delays in filling, the order
for the Equipment (or similar Equipment) and does not inspect the Equipment prior to delivery to
Lessee. For the purposes of each Lease and of any purchase of the Equipment affected under
any Lease, Lessor expressly disclaims any warranty with respect to the condition, quality,
durability, suitability, or merchantability of the Equipment in any respect, and any other
representation, warranty, or covenant, express or implied. Lessor will not be liable to Lessee for
any liability, loss, or damage caused or alleged to be caused directly or indirectly, by any
inadequacy, deficiency, or defect in the Equipment, or by use of the Equipment, whatsoever.
Lessor assigns to Lessee, without recourse, for the term of each Lease, all manufacturer
warranties and guarantees, express or implied, pertinent to the Equipment, and Lessor authorizes
Lessee to obtain the customary services furnished in connection with such guarantees and
warranties at Lessee's expense, subject to Lessee's obligation to reassign to Lessor all such
warranties and guarantees upon Lessor’s repossession of the Equipment.
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7.3 Authorization to Execute Lease.
This Agreement and each Lease and all exhibits hereto and thereto co nstitutes the valid and
binding obligation of the Lessee enforceable in accordance with their terms.
ARTICLE VIII -- DEFAULT
8.1 Events of Lessee Default
Lessee will be in default under a Lease upon the happening of any one or more of the following
events:
(a) Lessee fails to make any rent payment or other payment (including, without limitation,
insurance premiums, taxes, utilities, fines, and fees) when due; or
(b) Lessee fails to satisfy promptly any representation, covenant, warranty, or other obligation
under the Lease; or
(c) Lessee comes within the jurisdiction of any court as debtor under any bankruptcy,
reorganization, or similar law, whether or not such law is in existence on the date such
Lease commences.
8.2 Remedies on Default
To the maximum extent permitted by law, upon any event of default, Lessor may in its sole
discretion pursue any one or more of the following remedies (which will be exercisable
cumulatively and concurrently or separately), provided notice of default is given by Lessor t o
Lessee by certified mail and Lessee shall have at least thirty (30) days after receipt of such notice
within which to cure any such default specified in Section 8.1:
(a) Terminate such Lease, repossess the Equipment subject to the Lease under default, and
lease (free and clear of any interest of Lessee in the Equipment) all or any portion of the
Equipment to such other persons as Lessor may elect, applying the proceeds of any such
lease (after deducting Lessor's cost of repossessing, repairing, storing, moving, and
leasing the Equipment, including attorney's fees) against any rent unpaid for the remainder
of the original and any renewal terms and any other amounts owed to Lessor under such
Lease at the time of Lessor's election under this paragraph;
(b) Terminate such Lease, repossess the Equipment subject to the Lease under default, and
sell (free and clear of any interest of Lessee in the Equipment) all or any portion of the
Equipment at any public or private sale without demand or notice of intention to sell,
applying the proceeds of such sale (after deducting the costs of repossessing, repairing,
storing, moving, and selling the Equipment, including attorneys' fees) against any rent
unpaid for the remainder of the original and any renewal Terms and any other amounts
owed to Lessor under such Lease at the time of Lessor's election under this paragraph;
and
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(c) Avail itself of any other remedy at law or equity.
A default as to any one Lease shall in no way affect or impair Lessee’s rights or obligations as to
any other Lease then in effect.
8.3 Default by Lessor
In the event Lessor should fail to perform in any material respect its obligations under this
Agreement, Lessor may be declared in default of this Agreement. To the maximum extent
permitted by law upon any event of default, the Lessee may, in its sole discretion, pursue one or
both of the following remedies provided notice of default is given by Lessee to Lessor by certified
mail and provided further that Lessor shall have at least thirty (30) days time after receipt of such
notice within which to cure any such default:
(a) Terminate this Agreement and seek actual damages; and
(b) Avail itself of any other remedy at law or equity.
A default by Lessor shall in no way affect or impair Lessee’s rights or obligations as to any
lease then in effect.
8.4 Interest on Unpaid Rent
In addition to all of the remedies in Section 8.2, Lessee will be liable to the maximum extent
permitted by law for interest on any unpaid rent or other payment under a Lease at the rate of
eight per cent (8%) per annum.
8.5 Attorneys' Fees
In the event either party to this Lease should incur attorneys' fees for litigation in order to enforce
this Agreement or any Lease or to protect its rights hereunder, then, in that event, each party in
any such litigation shall be responsible for their attorneys' fees and expenses.
ARTICLE IX -- NET LEASE
9.1 Interpretation
Each Lease for all purposes will be treated as a net lease.
9.2 Taxes and Fees
Lessee agrees to pay all license, sales, use, personal property, and other taxes and fees, together
with any penalties, fines, and interest on such taxes and fees imposed or levied with respect to
the Equipment and the ownership, delivery, lease, possession, use, operation, sale, and other
disposition of the Equipment, and upon the rental or earnings arising from any such disposition,
except any Federal or State income taxes payable by Lessor on such rental or earnings. Lessee
may in good faith and by appropriate proceedings contest any such taxes and fees so long as
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such proceedings do not involve any danger of sale, forfeiture, or loss of the Equipment or of any
interest in the Equipment.
9.3 Permits
Lessee will provide all permits and licenses necessary for the installation, operatio n, and use of
the Equipment. Lessee will comply with all laws, rules, regulations, and ordinances applicable to
the installation, use, possession, and operation of the Equipment. If compliance with any law,
rule, regulation, ordinance, permit, or license requires changes or additions to be made to the
Equipment, such changes or additions will be made by Lessee at its own expense.
9.4 Certificate of Acceptance/Inspection by Lessee
Lessee agrees to furnish a Certificate of Acceptance in a form similar to attached Exhibit C when
requesting disbursement of funds from the Escrow Account. After execution and delivery by
Lessee of the Certificate of Acceptance, it shall be conclusively p resumed that Lessee is satisfied
with and has accepted the Equipment as being in good condition and repair.
ARTICLE X -- USE, REPAIRS, ALTERATIONS, AND LIENS
10.1 Use
Lessee will not install, use, operate, or maintain the Equipment improperly, carelessly, in violation
of any applicable law, or in a manner contrary to that contemplated by the Lease. Lessee agrees
that the Equipment is and at all times will remain personal property notwithstanding that the
Equipment or any part of the Equipment may now or hereafter become affixed in any manner to
real property or to any building on real property.
10.2 Repairs
Lessee, at its own cost will service, repair, and maintain the Equipment so as to keep the
Equipment in good condition, repair, appearance, and working order , ordinary wear and tear
excepted. At its own cost, Lessee will replace any and all parts and devices which may from time
to time become worn out, lost, stolen, destroyed, damaged beyond repair, or rendered unfit for
use or any reason whatsoever. All such replacement parts, mechanisms, and devices will be free
and clear of all liens, encumbrances, and rights of others, and immediately will become a part of
the Equipment and will be covered by the Lease.
10.3 Alterations
Lessee may install such miscellaneous equipment as may be necessary for use of the Equipment
for its intended purposes so long as either:
(a) the installation of such equipment does not alter the function or manner of operation of the
Equipment, or
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(b) Lessee, upon termination of the Lease, restores the Equipment to its function and manner
of operation prior to the installation of such miscellaneous equipment.
Subject to the obligations described above, Lessee may remove such miscellaneous equipment
upon termination of the Lease, if the removal of such miscellaneous equipment will not damage
the Equipment. Without the prior written consent of Lessor, Lessee will not make any other
alterations, changes, modifications, additions, or improvements to the Equipment as described in
Section 10.2. Modifications, additions, and improvements made to the Equipment, other than
miscellaneous equipment installed as set forth above, immediately will become a part of the
Equipment and will be covered by the Lease to the same extent as the Equipment originally
covered by the Lease. No such alterations, changes, modifications, additions and improvements
may impair or reduce the value of the Equipment.
10.4 Liens
Lessee and Lessor will not directly or indirectly create, incur, assume, or suffer to exist any
mortgage, pledge, lien, charge, encumbrance, or claim on or with respect to the Equipment or
any interest in the Equipment. Lessee and Lessor, promptly and at its own expense, will take
such action as may be necessary to duly discharge any mortgage, pledge, lien, charge,
encumbrance, or claim caused by Lessee or Lessor, respectively, if the same rises at any.
ARTICLE XI -- INDEMNIFICATION, INSURANCE, AND DAMAGE
TO OR DESTRUCTION OF THE EQUIPMENT
11.1 Indemnification
Lessor assumes no liability for any damages of any nature which in any way relate to or rise out
of delivery, lease, possession, use, operation, condition, sale or other disposition of the
Equipment. To the extent permitted by law, Lessee hereby assumes and agrees to indemnify ,
protect, save and keep harmless Lessor, its agents and employees from the against any and all
losses, damages, injuries, claims, demands and expenses, including legal expenses, of
whatsoever kind and nature, arising on account of the negligent act or omission of the Lessee, its
officers, employees or agents in:
(1) the ordering, acquisition, delivery, installation or rejection of the Equipment;
(2) the possession, maintenance, use, condition (including, without limitation, latent and other
defects whether or not discoverable by Lessor or Lessee, any claim in tort, including
actions for strict liability, and any claim for patent, trademark or copyright infringement) or
operation of any item of the Equipment (by whomsoever used or operated); or
(3) the loss, damage, destruction, removal, return, surrender, sale or other disposition of the
Equipment, or any item thereof.
It is understood and agreed, however, that Lessor shall give Lessee prompt notice of any claim
or liability hereby indemnified against and that Lessee shall be entitled to control the defense
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thereof, so long as Lessee is not in default hereunder.
11.2 Liability and Property Insurance
Lessee will self-insure any Schedule for Equipment valued at $100,000 or less. Lessee, at its
own expense, will provide commercial property insurance and liability insurance for any Schedule
for Equipment valued at more than $100,000. Equipment will be i nsured in an amount sufficient
to cover the actual cash value at the commencement of the Lease (as determined by the purchase
price paid by Lessee for the equipment) Lessee will provide Lessor with proof of insurance upon
request.
11.3 Damage to or Destruction of the Equipment
If all or any part of the Equipment is lost, stolen, destroyed, or damaged, Lessee will give Lessor
prompt notice of such event and will repair or replace the same with equipment of equal or greater
value at Lessee's cost within sixty (60) days after such event, and any replaced Equipment will
be substituted in the Lease by appropriate endorsement. If Lessee fails or refuses to make the
required repair or replacement, Lessee will buy out the individual piece of Equipment not repaired
or replaced, at the next payment date (as set forth in Exhibit B.) No loss, theft, destruction, or
damage to the Equipment will impose any obligation on Lessor under the Lease, and the Lease
will continue in full force and effect regardless of such loss, theft, destruction, or damage. Lessor
does not assume any risk and/or liability for loss, theft, destruction, or damage to the Equipment
and for injuries or deaths of persons and damage to property however arising, whether such injury
or death be with respect to agents or employees of Lessee or of third parties, and whether such
damage to property is to Lessee's property or to the property of others.
ARTICLE XII -- MISCELLANEOUS
12.1 Assignment and Sublease by Lessee
Lessee may not assign, transfer, pledge, or encumber this Agreement or any Lease or any portion
of the Equipment (or any interest in a Lease or the Equipment) or sublet the Equipment, without
the prior written consent of Lessor which consent shall not be unreasonably withheld.
12.2 Assignment and Sublease by Lessor
Lessor may not assign, transfer, pledge, or encumber this Agreement or any Lease or any interest
in a Lease without the prior written consent of Lessee. Any such assignment without the City’s
written approval shall be considered null and void with no effect. Immediately after receiving
notice of such assignment or transfer, Lessee will then make all payments directly to the assignee
or transferee (as its interests may appear) and, within thirty (30) days of such assignment or
transfer, Lessee will acknowledge the same to the assignee or transferee. Any payments made
in accordance with such assignment or transfer will relieve Lessee of all liability to Lessor for such
payments. No such assignment shall be effective against Lessee unl ess and until Lessee shall
receive written notice thereof from Lessor.
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12.3 Lessor's Right to Perform for Lessee
If Lessee fails to make any payment or fails to satisfy any representation, covenant, warranty, or
obligation, Lessor may (but need not) make such payment or satisfy such representation,
covenant, warranty, or obligation, and the amount of such payment and any expenses incurred
by Lessor, if the case may be, will be deemed to be additional rent payable by Lessee on Lessor's
demand.
12.4 Addresses
All notices and payments under this Lease will be mailed or delivered,
(a) if to Lessee, City of Fort Collins, at 215 N Mason, 2nd Floor, P.O. Box 580, Fort Collins,
Colorado 80522 attention Purchasing Director with copy to the City Attorney; and
(b) if to Lessor, ,
until either Lessee or Lessor gives written notice to the other specifying a different address.
12.5 Manner of Payment
All payments by Lessee will be made by check or by other manner acceptable to Lessor.
12.6 Nonwaiver
No breach by Lessee in the satisfaction of any representation, covenant, warrant y, or obligation
may be waived except by the written consent of Lessor, and any such waiver will not operate as
a waiver of any subsequent breach.
12.7 Severance Clause
Any provision in this Agreement or in a Lease which is prohibited by law will be treat ed as if it
never were a part of this Agreement or such Lease, and the validity of the remaining terms of this
Agreement and the Lease will be unaffected.
12.8 Entire Agreement; Addendum
This Agreement, each Lease and the Exhibits thereto constitute the entire agreement between
Lessor and Lessee and supersede any prior agreement between Lessor and Lessee with respect
to the Equipment, except as is set forth in any Addendum which is made a part of such Lease
and which is signed by Lessor and Lessee.
12.9 Amendments
This Agreement and any Lease may be amended only by a written document signed by Lessor
and Lessee.
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12.10 Inurement
Subject to the restrictions in Section 12.1 and 12.2, of this Agreement and each Lease are binding
upon and inure to the benefit of Lessor and Lessee and their respective successors and assigns.
12.11 Governing Law and Venue
This Agreement and each Lease shall be governed by the laws of the State of Colorado. The
venue for any judicial action arising under this Agreement shall only be in Larimer County,
Colorado in the District Court for the Eighth Judicial District.
12.12 Headings
Headings used in this Agreement are for convenience of reference only and the interpretation of
this Agreement will be governed by the text only.
12.13 Transmittal Fees
Transmittal of all documentation required for payment will be sent in an electronic format
acceptable to all parties from the Lessee to the Lessor and from the Lessor to the Escrow Agent.
Expedited overnight mail service may be substituted at the Lessor's expense.
EXECUTED this day, of , 20 .
PRINCIPALS:
By:
By:
Printed: Printed: Gerry Paul
Title: Title: Purchasing Direct
Organization: Organization: City of Fort Collins, Colorado
Address: Address: PO Box 580
City, State, Zip: City, State, Zip: Fort Collins, CO 80522
ATTEST (LESSEE):
APPROVED AS TO FORM:
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Schedule of Equipment No.
Exhibit A - Sample
RE: MASTER LEASE-PURCHASE AGREEMENT entered into as of , 20 ,
("Agreement"), between ("Lessor") and the City of Fort Collins, Colorado ("Lessee"). All
terms used and not otherwise defined herein have the meanings ascribed to them in the
Agreement.
The following items of Equipment are hereby included under this Schedule to the Agreement:
Line
No.
Department Qty. Description Total Cost Term
(yrs)
1 5
2 5
3 5
4 5
5 5
6 5
Total 5-year Financing $
Total Lease Financing $
Lessee hereby represents, warrants and covenants that its representations, warranties and
covenants set forth in the Agreement are true and correct as though made on the Commencement
Date of Payments under this Schedule. The terms and provisions of the Agreement (other
than to the extent that they relate solely to other Schedules or Equipment listed on other
Schedules) are hereby incorporated into this Schedule by reference and made a part
hereof.
LESSOR: LESSEE:
By:
By:
Printed: Printed: Gerry Paul
Title: Title: Purchasing Direct
Organization: Organization: City of Fort Collins, Colorado
Address: Address: PO Box 580
City, State, Zip: City, State, Zip: Fort Collins, CO 80522
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EXHIBIT B: Payment Schedule (Sample)
Interest rate %
Term years.
Quarterly payments, in arrears
Pmt
No.
Due Date Payment
Amount
Interest
Portion
Principal
Portion
Principal
Balance
1
2
3
4
5
Amortization schedule supplied by Lessor must include the above information at a minimum, plus
a signature block for Lessee.
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EXHIBIT C: Certificate of Acceptance and Concurrence (Samples)
FAX DOCUMENT
Certificate of Acceptance and Request for Payment
<DATE>
<COMPANY NAME>
Attn: <CONTACT NAME>
<ADDRESS>
<CITY, STATE, ZIP>
Dear <CONTACT NAME>:
The undersigned hereby certifies that he is duly qualified to act on behalf of the City of Fort Collins,
State of Colorado, with respect to Schedule of Equipment No. , dated , 20 , to
the Master Lease-Purchase Agreement dated , 20 , by and between the City of Fort
Collins, Lessee, and Pinnacle Finance, Lessor, and certifies that the following equipment has
been delivered to and accepted by Lessee:
Qty
Description
Invoice #
Amount
$
Enclosed is a copy of the purchase order # and invoice for the above items.
Please review the documents, sign the concurrence and fax them to our escrow agent, First
National Bank of Fort Collins for payment. Email the form to: cotrust-cdt@1stnationalbank.com
Thank you for your assistance. Should you have further questions, please contact Doug Clapp
at 970-221-6776.
Sincerely;
Gerry Paul
Purchasing Director
Enclosures
cc: Accounting
file
Financial Services
Purchasing Division
215 N. Mason St. 2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6775
970.221.6707- fax
fcgov.com/purchasing
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Certificate of Acceptance and
Request for Payment
<DATE>
Ms. Andrea Kappert
First National Wealth Management
PO Box 2010
Fort Collins, CO 80522
Re: Lease Purchase
Dear Ms. Kappert:
In accordance with the terms of the escrow agreement between Pinnacle Public Finance and the
City of Fort Collins dated , 20 , (escrow account # ), you are hereby authorized
to disburse funds for:
Qty
Description
Invoice #
Amount
$
A copy of the acceptance certificate is attached. Please make remittance in the amount of
$ payable to:
Thank you for your assistance.
Sincerely;
Concurrence:
_________________________________
Gerry Paul
Purchasing Director
By: _______________________________
Title: ______________________________
Date: ____________________
cc: Accounting
file
Financial Services
Purchasing Division
215 N. Mason St. 2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6775
970.221.6707- fax
fcgov.com/purchasing
RFP 9861 Lease Purchase Financing 2023 Page 32 of 43
EXHIBIT D (sample)
ESCROW AGREEMENT AND INSTRUCTIONS
Schedule of Equipment No.
THIS AGREEMENT is made this day of 20 , by and between , as Lessor,
and the City of Fort Collins, Colorado, as Lessee, hereinafter jointly called the "Principals", and
the First National Wealth Management, a division of First National Bank of Omaha, P.O. Box
2010, Fort Collins, Colorado 80522, hereinafter called "Escrow Agent".
The subject matter shown in Schedule A hereof has been delivered to Escrow Agent by
Principals, or with the consent of Principals, and is to be held by Escrow Agent subject to the
Special Instructions shown in Schedule B hereof, and the General Provisions hereof.
SCHEDULE A - SUBJECT MATTER*
A. An executed copy of Schedule of Equipment No. dated , 20 , and the
Master Lease-Purchase Agreement dated , 20 , between the Principals (jointly,
the "Lease") All exhibits to the Lease, except Exhibit C (Certificate of Acceptance), are
attached and executed. Executed copies of Exhibit C will be furnished to Escrow Agent prior
to disbursement of funds.
B. Funds in the amount of $ to be deposited with the Escrow Agent as directed by the
Lessee (“Escrow Account”), but not before and no later than .
*(Documents will be described as "originals" unless they are copies. If not so described, they will
be presumed to be copies. If subject matter is listed which is not delivered, all copies of the
Escrow Agreement and documents will be held a reasonable time [not exceeding thirty (30)
calendar days] pending delivery and a receipt will be given only for documents received. If all
documents are not received within a reasonable time, the documents will be returned to parties.
Only subject matter received at the time of execution will be listed above.)
SCHEDULE B - SPECIAL INSTRUCTIONS*
A. Escrow Agent will invest funds held in the Escrow Account at the direction of Lessee in a
Money Market Fund or such other fund as agreed to by Lessee.
B. Escrow Agent will promptly deposit all earnings from such investments in the Escrow Fund
created hereunder.
C. Funds deposited with the Escrow Agent shall be used to pay for the cost of acquisition of
items of equipment listed on Exhibit A to the Lease. Escrow Agent shall make payment for
each piece of leased equipment only upon receipt of both an executed copy of the appropriate
Exhibit C of the Lease and a letter of disbursement authorization signed by both Principals
(Lessor and Lessee).
RFP 9861 Lease Purchase Financing 2023 Page 33 of 43
D. Provide to Lessor and Lessee on a monthly basis, for the term of this Escrow Agreement,
reports indicating the following:
- Amount of disbursements for the purchase of investments.
- Amount of disbursements for the payment of invoices.
- Amount of principal and interest received from investments.
- An inventory of outstanding investments.
*(Any notice which Escrow Agent is required to give must be specifically set out in these Special
Instructions.)
GENERAL PROVISIONS
1. The Escrow Agent shall have no duty to determine the performance or nonperforman ce of
any provision of any agreement between the other parties hereto, and the original, or a copy,
of any such agreement deposited with the Escrow Agent shall not bind said agent in any
manner. The Escrow Agent assumes no responsibility for the validity or sufficiency of any
documents or papers or payments deposited or called for hereunder except as may be
expressly and specifically set forth in these instructions in clear and unambiguous language.
2. This Agreement may be supplemented, altered, amended, modified or revoked by writing
only, signed by all of the parties hereto, and approved by the Escrow Agent, upon payment of
all fees, costs and expenses incident thereto.
3. No assignment, transfer, conveyance or hypothecation of any right, title or interest in and to
the subject matter of this Escrow shall be binding upon the Escrow Agent unless written notice
thereof shall be served upon the Escrow Agent and all fees, costs and expenses incident
thereto shall have been paid and then only upon the Escrow Agent's assent thereto in writing.
4. Any notice required or desired to be given by the Escrow Agent to any party to this Escrow
may be given by mailing the same addressed to such party at the address noted herein, or
the most recent address of such party shown on the records of the Escrow Agent, or believed
by Escrow Agent to be proper, and notice so mailed shall be as effectual as though served
upon such party in person at the time of depositing such notice in the mail.
5. The Escrow Agent may receive any payment or performance called for hereunder after the
due date thereof unless subsequent to the due date of such payment or performance and
prior to the receipt thereof the Escrow Agent shall have been instructed in writing by the proper
parties to refuse any such payment.
6. The Escrow Agent shall not be personally liable for any act it may do or omit to do hereunder
as such agent, while acting in good faith and in the exercise of its own best judgment, and
any act done or omitted by it pursuant to the advice of its own attorneys shall be conclusive
RFP 9861 Lease Purchase Financing 2023 Page 34 of 43
evidence of such good faith. The Escrow Agent shall have the right at any time to consult
with counsel upon any question arising hereunder and shall incur no liability for any delay
reasonably required to obtain the advice of counsel.
7. The Escrow Agent is hereby expressly authorized to disregard any and all notices or warnings
given by any of the parties hereto, or by any other person, firm or corporation, excepting only
orders or process of court, and is hereby expressly authorized to comply with and obey any
and all process, orders, judgments or decrees of any court, and in case the Escrow Agent
obeys or complies with any such process, order, judgment or decree of any court it shall not
be liable to any of the parties hereto or to any other person, firm or corporation by reason of
such compliance, notwithstanding any such process, order, judgment or decree by
subsequently reversed, modified, annulled, set aside or vacated, or found to have been issued
or entered without jurisdiction.
8. In consideration of the acceptance of this escrow by the Escrow Agent, the Lessee agrees,
to pay the Escrow Agent its charges and fees hereunder, if any, and to indemnify and hold it
harmless as to any liability by it incurred to any other person, firm or corporation by reason of
its having accepted the same, or in connection herewith, and under such circumstance, or in
the event of a dispute, whether or not resulting in litigation, between the parties hereto, or
between the parties hereto and the Escrow Agent, to reimburse the Escrow Agent for all its
expenses, including, among other things, court costs and reasonable attorneys' fees incurred
in connection therewith. Escrow fees or charges, as distinguished from other expenses
hereunder, shall be as set forth in paragraph 16, and are intended as compensation for the
Escrow Agent's ordinary services as contemplated by these Instructions. In the event the
conditions of this escrow are not promptly fulfilled or any dispute arises hereunder, or if for
any other reason, the Escrow Agent renders services not provided for in these Instructions,
Lessee agrees to pay reasonable compensation for such extraordinary servic es. In the event
of any action to recover the Escrow Agent's fees, expenses or charges, the Escrow Agent
shall be entitled to reasonable attorneys' fees and costs incurred with respect to any such
action. No provision in any attached special instructions shall alter Lessee’s liability to the
Escrow Agent for such fees, charges and expenses. The Principals shall not be liable for
gross negligence or intentional acts of the Escrow Agent.
9. The Escrow Agent shall be under no duty or obligation to ascertain the identity, authority or
rights of the parties (or their agents) executing or delivering or purporting to execute or deliver
these instructions or any documents or papers or payments deposited or called for hereunder.
10. The Escrow Agent shall not be liable f or the outlawing of any rights under any statute of
limitations or by reason of laches in respect to the Instructions or any documents or papers
deposited.
11. In the event of any dispute between the parties hereto as to the facts of default or execution,
the validity or meaning of these instructions or any other fact or matter relating to the
transaction between the parties, the Escrow Agent is instructed as follows:
RFP 9861 Lease Purchase Financing 2023 Page 35 of 43
(a) That it shall be under no obligation to act, except under process or order of court, or until
it has been adequately indemnified to its full satisfaction, and shall sustain no liability for
its failure to act pending such process or court or indemnification:
(b) That it may in its sole and absolute discretion deposit the property described herein or so
much hereof as remains in its hands with the then Clerk, or acting Clerk, of the District
Court of the County of Larimer, State of Colorado, and interplead the parties hereto, and
upon depositing such property and filing its complaint in interpleader it shall be relieved of
all liability under the terms hereof as to the property so deposited and shall be entitled to
recover in such interpleader action, from the other parties hereto, its reasonable attorney
fees and related costs and expenses incurred in commencing such action and
furthermore, the parties hereto for themselves, their heirs, legal representatives,
successors and assigns do hereby submit themselves to the jurisdiction of said court and
do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent for the
Service of all process in connection with such proceedings. The institution of any such
interpleader action shall not impair the rights of Escrow Agent under paragraph numbered
8, above.
12. This Escrow will expire on or before . If the deposits hereunder are not withdrawn or
this Escrow terminated before that date Escrow Agent may mail the Subject Matter as follows,
for use only for payment of principal or interest under the Lease or for the purchase of
equipment for Lessee’s own use, and upon such mailing, the Escrow Agent shall be relieved
from further responsibility or liability.
CITY OF FORT COLLINS
Purchasing Director
P.O. Box 580
Fort Collins, Colorado 80522
13. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
14. The Escrow Agent may resign by giving notice in writing to all parties of its intent to resign.
The resignation shall become effective no sooner than sixty (60) days from the date of mailing
of the notice. The notice will be sent certified mail with return receipt requested to the
addresses set forth in paragraph 18 below unless these addresses have been changed. The
Principals shall advise the Escrow Agent in writing of the name of the new Escrow Agent. If
the Principals cannot agree as to the new Escrow Agent, or fail to advise the Escrow Agent
within the time set forth, the Escrow Agent may treat this as a dispute and proceed under
paragraph 11 above. If the new Escrow Agent is designated, then upon delivery of all
documents to the new Escrow Agent, the Escrow Agent is relieved of all further responsibility
or liability.
15. Other provisions:
RFP 9861 Lease Purchase Financing 2023 Page 36 of 43
(a) This agreement shall be construed and governed in accordance with the laws of the State
of Colorado.
(b) Any provisions of this Agreement found to be prohibited by law shall be ineffective only
to the extent of such prohibition, and shall not invalidate the remainder of this
Agreement.
(c) This Agreement (and, with respect to Lessor and Lessee, together with the Lease)
constitutes the entire agreement of the parties relating to the subject matter hereof.
16. The fees to be paid Escrow Agent shall be paid by the Principals as follows:
No fees will be charged by Escrow Agent for maintenance of this Escrow Agreement.
17. Lessee and Lessor agree that Lessor shall have a security interest in the Escrow Account,
and such security interest is hereby granted by the Lessee to secure payment of all sums due
to the Lessor under the Lease. For such purpose, the Escrow Agent hereby agrees to act as
agent for the Lessor in connection with the perfection of such security interest and agrees to
note, or cause to be noted, on all books and records relating to the Escrow Account, the
Lessor’s interest therein.
18. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
PRINCIPALS:
By:
By:
Printed: Printed: Gerry Paul
Title: Title: Purchasing Direct
Organization: Organization: City of Fort Collins, Colorado
Address: Address: PO Box 580
City, State, Zip: City, State, Zip: Fort Collins, CO 80522
ESCROW AGENT:
By:
Printed:
Title:
Organization: First National Wealth Management
A division of First National Bank of Omaha
Address: PO Box 2010
City, State, Zip: Fort Collins, Co 80522
RFP 9861 Lease Purchase Financing 2023 Page 37 of 43
Attachment 2
ESCROW AGREEMENT FOR MOTOR VEHICLE CERTIFICATES OF TITLE
This Escrow Agreement for Motor Vehicle Certificates of Title (this “Escrow Agreement”) is
made and entered into this day of , 20 , (“Effective Date”) by and between
(the “Lessor”); the City of Fort Collins, Colorado, a home rule municipality (the “Lessee”);
and First National Wealth Management, a division of First National Bank of Omaha (the “Escrow
Agent”). The Lessor and Lessee shall hereinafter be referred to jointly as “the Principals.” The
Principals and the Escrow Agent shall hereinafter be referred to collectively as “the Parties.”
RECITALS
WHEREAS, the Lessor and Lessee have previously entered into that certain “Master
Lease-Purchase Agreement” dated , 20 (the “Agreement”); and
WHEREAS, under the Agreement, the Lessor leases to the Lessee certain “Equipment”
as identified in Section 1.1 of the Agreement and as further described in “Schedules of Equipment”
as agreed to by the Lessor and Lessee from time-to-time; and
WHEREAS, the Equipment described in the Schedules of Equipment include motor
vehicles being leased by the Lessor to the Lessee (the “Motor Vehicles”); and
WHEREAS, Article V. of the Agreement grants to the Lessee the option to purchase
from the Lessor any or all of the Equipment, including the Motor Vehicles, in accordance
with the provisions of Article V. of the Agreement; and
WHEREAS, Sections 1.3, 2.4, and 3.2 of the Agreement expressly provide that all of the
Lessee’s obligations under the Agreement are subject to annual appropriation by the
Lessee’s City Council (the “Council”) for the funds needed to meet those obligations, which
appropriation is entirely within the Council’s sole discretion; and
WHEREAS, Section 3.2 of the Agreement provides that if the Council has not appropriated
the needed funds and the Lessee has not otherwise exercised its option to purchase the
Equipment, the Lessor is entitled to take possession of such Equipment; and
WHEREAS, consistent with the lease-purchase nature of each Lease, Section 1.2 of the
Agreement provides that during its term, naked legal title to the Equipment will be in the Lessor
subject to any transfer of that title upon the Lessee’s exercise of its option to purchase any or all
of the Equipment as provided in Article V. of the Agreement; and
WHEREAS, notwithstanding this statement in Section 1.2 of the Agreement that the
Lessor holds naked legal title to the Equipment, Section 1.2 also states: “Lessor and Lessee
further agree that the Lessee shall be listed as “Owner” on vehicle titles and shall be treated as
the owner for all purposes stated therein”; and
RFP 9861 Lease Purchase Financing 2023 Page 38 of 43
WHEREAS, notwithstanding the foregoing, the Lessee and Lessor have acknowledged
and agreed in Section 1.2 of the Agreement that the intent of this motor-vehicle-title language in
Section 1.2 is for the purposes of establishing ownership of the Equipment for federal tax
purposes and to reduce the likelihood of the Lessor’s liability for any civil claims that might arise
from the Lessee’s use of the leased Motor Vehicles, and it is also more convenient
administratively for the Lessee in perfecting clear title to such Motor Vehicles when the Lessee
does exercise its option under the Agreement to purchase any or all the Motor Vehicles and, in
so doing, not to diminish in anyway the lease-purchase nature of the Agreement or the Principals’
intent that the Lessor continue to hold naked legal title to all of the leased Motor Vehicles until the
Lessee has exercised its option to purchase them; and
WHEREAS, in further support of these clarifications, the Lessor and Lessee agreed in
Section 1.4 of the Agreement to enter into this Escrow Agreement to establish a process by which
the State of Colorado Certificate of Title for each of the Motor Vehicles that are now being and
will be leased under the Agreement, an example of such a Certificate of Title is attached hereto
as Exhibit “A”, (“Certificates of Title”) will be delivered to the possession of the Escrow Agent and
hereafter administered by the Escrow Agent in accordance with the terms and conditions of this
Escrow Agreement; and
WHEREAS, the Escrow Agent has agreed to take possession of the Certificates of Title
and to administer them in accordance with the terms and conditions of this Escrow Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises of the Parties
contained in this Escrow Agreement and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties agree to the following terms and
conditions of this Escrow Agreement.
AGREEMENT
1. Certificates of Title. The Principals agree to promptly deliver to the Escrow Agent the
originals of all the Certificates of Title coming into their possession after the Effective Date
relating to all leases of Motor Vehicles under the Agreement. The Escrow Agent agrees t o
accept possession of these Certificates of Title and to safely keep and maintain them until
required to deliver them to the Lessor as provided in Section 3 below or to deliver them to the
Lessee as provided in Section 4 below.
2. Powers of Attorney. The Lessee shall promptly deliver to the Escrow Agent the Lessee’s
original and executed “State of Colorado Power of Attorney for Motor Vehicle Only,” the form
for which is attached as Exhibit “B”, for each of the current Certificates of Title delivered to the
Escrow Agent as required in Section 1 above (“Powers of Attorney”). Each Power of Attorney
shall be completed and executed by the Lessee to appoint the Escrow Agent as the Lessee’s
agent to complete and execute the assignment section of the corresponding Certificate of Title
when the Escrow Agent is required to assign and deliver the Certificate of Title to the Lessor
as provided in Section 3 below.
RFP 9861 Lease Purchase Financing 2023 Page 39 of 43
3. Assignment and Delivery of Certificate of Title to Lessor. In the event the Lessee notifies the
Lessor in writing under Section 3.2 of the Agreement of a non-appropriation by the Lessee’s
Council for the lease payments for any of the Motor Vehicles, the Lessee shall provide that
same written notice to the Escrow Agent and in that notice shall specify by vehic le
identification number the Motor Vehicles for which a non-appropriation has occurred. Upon
receiving such notice, the Escrow Agent is authorized and directed to complete and execute
the assignment section of the Certificate of Title for each such Motor Vehicle in order to assign
that Certificate of Title to the Lessor. The Escrow Agent shall deliver the original of the
assigned Certificate of Title, together with its corresponding original Power of Attorney, to the
Lessor within fourteen (14) days after receiving the Lessee’s said written notice.
The Lessee shall also provide the Escrow Agent with written notice at the end of the Lease
Term for each Motor Vehicle when the Lessee has elected not to exercise its option to
purchase under Article V. of the Agreement, which notice shall include the vehicle
identification number for each such Motor Vehicle not purchase by the Lessee at the end of
its Lease Term. Upon receiving such notice, the Escrow Agent is authorized and directed to
complete and execute the assignment section of the Certificate of Title for each such Motor
Vehicle in order to assign that Certificate of Title to the Lessor. The Escrow Agent shall
deliver the original of the assigned Certificate of Title, together with its corresponding original
Power of Attorney, to the Lessor within fourteen (14) days after receiving the Lessee’s said
notice.
4. Deliver of Certificate of Title to Lessee. In the event the Lessee exercises its option under
Article V. of the Agreement to purchase any of the Motor Vehicles, the Lessee must provide
the Escrow Agent with a copy of its notice of election the Lessee has provided to the Lessor
as required in Section 5.2 of the Agreement. That notice shall include the vehicle
identification numbers for each Motor Vehicle to be purchased. Within ten (10) days after the
Lessee has made all rental payments to the Lessor for the purchase of those identified Motor
Vehicles, as required in Section 5.3 of the Agreement, the Lessor shall, within ten (10) days
of such payment, provide the Escrow Agent and the Lessee with written confirmation that the
Lessee has satisfied all its payment requirements under Section 5.3 for the purchase of the
identified Motor Vehicles. Within five (5) days of receiving such notice from the Lessor, the
Escrow Agent is authorized and directed to deliver to the Lessee the original Certificate of
Title for each Motor Vehicle together with the original, corresponding Power of Attorney.
5. Payment for Escrow Services. The Lessee shall be responsible for the payment of all fees
charged by the Escrow Agent for its services under this Escrow Agreement and agrees to
indemnify the Lessor for all such fees. The Lessee shall pay the Escrow Agent $4,000 each
year for its services under this Escrow Agreement within thirty (30) days of being billed. The
Escrow Agent reserves the right to change its services and fees hereunder after first giving
the Lessor and Lessee thirty (30) days prior written notice. If either the Lessor o r Lessee
object to any such change in services or fees, they shall each have thirty (30) days after
receiving the Escrow Agent’snotice in which to terminate this Agreement by sending written
notice of such termination to the other Parties.
RFP 9861 Lease Purchase Financing 2023 Page 40 of 43
6. Principals’ Agreements. The Escrow Agent shall have no duty to determine the performance
or nonperformance of any provision of any agreement between the Principals, including,
without limitation, the Agreement and the original, or a copy, of any such agreement deposited
with the Escrow Agent shall not bind the Escrow Agent in any manner. The Escrow Agent
assumes no responsibility for the validity or sufficiency of any documents or papers or
payments deposited or called for hereunder except as may be expressly and specifica lly set
forth in this Escrow Agreement in clear and unambiguous language.
7. Amendments. This Escrow Agreement may be supplemented, altered, amended, modified or
revoked by writing only, signed by the Principals, and approved by the Escrow Agent, upon
payment of all fees, costs and expenses incident thereto.
8. Assignments. No assignment, transfer, conveyance or hypothecation of any right, title or
interest in and to this Escrow Agreement or the subject matter of this Escrow Agreement shall
be binding upon the Escrow Agent unless written notice thereof shall be served upon the
Escrow Agent and all fees, costs and expenses incident thereto shall have been paid and
then only upon the Escrow Agent's assent thereto in writing.
9. Notice. Notices required or permitted to be given under this Escrow Agreement shall be in
writing and shall be deemed given upon personal delivery or upon deposit in the United States
Mail, certified mail, return receipt requested, postage fully prepaid, address as follows or to
such other address as any of the Parties may designate from time to time by notice to the
other Parties given in accordance with this Section:
To Lessee: Gerry Paul
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: Fort Collins City Attorney’s Office
P.O. Box 580
Fort Collins, CO 80522
To Escrow Agent: First National Bank
Attn: Todd C. Silliman, Wealth Management Advisor
P.O. Box 2010
Fort Collins, CO 80522
10. Disclaimer of Liability. The Escrow Agent shall not be personally liable for any act it may do
or omit to do hereunder as such agent, while acting in good faith and in the exercise of its own
best judgment, and any act done or omitted by it pursuant to the advice of its own attorneys
shall be conclusive evidence of such good faith. The Escrow Agent shall have the right at any
time to consult with counsel upon any question arising hereunder and shall incur no liability
for any delay reasonably required to obtain the advice of counsel.
RFP 9861 Lease Purchase Financing 2023 Page 41 of 43
11. Warnings or Court Orders. The Escrow Agent is hereby expressly authorized to disregard any
and all notices or warnings given by either of the Principals, or by any other person, firm or
corporation, excepting only orders or process of court, and is hereby expressly authorized to
comply with and obey any and all process, orders, judgments or decrees of any court, and in
case the Escrow Agent obeys or complies with any such process, order, judgment or decree
of any court, it shall not be liable to either of the Principals or to any other person, firm or
corporation by reason of such compliance, notwithstanding any such process, order, judgment
or decree by subsequently reversed, modified, annulled, set aside or vacated, or found to
have been issued or entered without jurisdiction.
12. Indemnification. In consideration of the acceptance of this escrow by the Escrow Agent, the
Lessee agrees to pay the Escrow Agent its charges and fees hereunder, and to
indemnify and hold it harmless as to any liability by it incurred to any other person, firm or
corporation by reason of its having accepted the same, or in connection herewith, and under
such circumstance, or in the event of a dispute, whether or not resulting in litigation, between
the Principals, or between the Principals and the Escrow Agent, to r eimburse the Escrow
Agent for all its expenses, including, among other things, court costs and reasonable
attorneys' fees incurred in connection therewith. Escrow fees or charges, as distinguished
from other expenses hereunder, shall be as set forth in paragraph 5 above, and are intended
as compensation for the Escrow Agent's ordinary services as contemplated by this Escrow
Agreement. In the event the conditions of this Escrow Agreement are not promptly fulfilled or
any dispute arises hereunder, or if for any other reason, the Escrow Agent renders services
not provided for in this Escrow Agreement, Lessee agrees to pay reasonable compensation
for such extraordinary services. In the event of any action to recover the Escrow Agent's fees,
expenses or charges, the Escrow Agent shall be entitled to reasonable attorneys' fees and
costs incurred with respect to any such action. No provision in any attached special
instructions shall alter Lessee’s liability to the Escrow Agent for such fees, charges and
expenses. The Principals shall not be liable for gross negligence or intentional acts of the
Escrow Agent.
13. No Duty to Ascertain Identity or Authority. The Escrow Agent shall be under no duty or
obligation to ascertain the identity, authority or rights of the Principals (or their agents)
executing or delivering or purporting to execute or deliver this Escrow Agreement or any
documents or papers or payments deposited or called for hereunder, including, without
limitation, the Certificate of Title and the Powers of Attorney.
14. Statute of Limitations and Laches. The Escrow Agent shall not be liable for the outlawing of
any rights under any statute of limitations or by reason of laches in respect to this Escrow
Agreement or any documents or papers deposited hereunder.
15. Interpleader Action. In the event of any dispute between the Parties as to the facts of default
or execution, the validity or meaning of this Escrow Agreement or any other fact or matter
relating to the transaction between the Parties, the Escrow Agent is instructed as follows:
(a) That it shall be under no obligation to act, except under process or order of court, or until
RFP 9861 Lease Purchase Financing 2023 Page 42 of 43
it has been adequately indemnified to its full satisfaction, and shall sustain no liability for
its failure to act pending such process or court or indemnification; and
(b) That it may in its sole and absolute discretion deposit the Certificates of Title and
corresponding Powers of Attorney described herein, or so much thereof as remains in its
hands, with the then Clerk, or acting Clerk, of the District Court of the County of Larimer,
State of Colorado, and interplead the Principals, and upon depositing such property and
filing its complaint in interpleader it shall be relieved of all liability under the terms hereof
as to the property so deposited and shall be entitled to recover in such interpleader action,
from the Principals, its reasonable attorney fees and related costs and expenses incurred
in commencing such action and furthermore, the Principals for themselves, their heirs,
legal representatives, successors and assigns do hereby submit themselves to the
jurisdiction of said court and do hereby appoint the then Clerk, or acting Clerk, of said
court as their Agent for the Service of all process in connection with such proceedings .
The institution of any such interpleader action shall not impair the rights of Escrow Agent
under paragraph numbered 6, 10, 11, 13, and 14, above.
16. Termination. This Escrow Agreement will expire on or before . If the deposits
hereunder are not withdrawn or this Escrow Agreement otherwise terminates before that date,
the Escrow Agent shall mail the Certificates of Title and Powers of Attorney remaining in its
possession as follows, and upon such mailing, the Escrow Agent shall be relieved from further
responsibility or liability.
CITY OF FORT COLLINS
Purchasing Director
P.O. Box 580
Fort Collins, Colorado 80522
17. Binding Effect. This Escrow Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and assigns.
18. Resignation of Escrow Agent. The Escrow Agent may resign by giving notice in writing to the
Principals of its intent to resign. The resignation shall become ef fective no sooner than sixty
(60) days from the date of mailing of the notice. The notice will be sent certified mail with
return receipt requested to the addresses set forth in paragraph 9 above unless these
addresses have been changed. The Principals shall advise the Escrow Agent in writing of the
name of the new Escrow Agent. If the Principals cannot agree as to the new Escrow Agent,
or fail to advise the Escrow Agent within the time set forth, the Escrow Agent may treat this
as a dispute and proceed under paragraph 15 above. If the new Escrow Agent is designated,
then upon delivery ofall documents to the new Escrow Agent, the Escrow Agent is relieved of
all further responsibility or liability hereunder.
19. Governing Law. This Escrow Agreement shall be construed and governed in accordance with
the laws of the State of Colorado.
RFP 9861 Lease Purchase Financing 2023 Page 43 of 43
20. Severability. Any provisions of this Escrow Agreement found to be prohibited by law shall be
ineffective only to the extent of such prohibition, and shall not invalidate the remainder
of this Escrow Agreement.
21. Entire Agreement. This Escrow Agreement (and, with respect to Lessor and Lessee, the
Agreement and First Amendment) constitutes the entire agreement of the Parties relating to
the subject matter hereof.
PRINCIPALS:
By:
By:
Printed: Printed: Gerry Paul
Title: Title: Purchasing Direct
Organization: Organization: City of Fort Collins, Colorado
Address: Address: PO Box 580
City, State, Zip: City, State, Zip: Fort Collins, CO 80522
ATTEST (LESSEE):
APPROVED AS TO FORM:
ESCROW AGENT:
By:
Printed:
Title:
Organization: First National Wealth Management
A division of First National Bank of Omaha
Address: PO Box 2010
City, State, Zip: Fort Collins, Co 80522