HomeMy WebLinkAboutENTERPRISE FLEET SERVICES - CONTRACT - CONTRACT - ENTERPRISE FLEET SERVICESMASTER WALKAWAY LEASE AGREEMENT
This Master Walkaway Lease Agreement is entered into this first day of January, 2005, by and between Enterprise Leasing Company of
Denver, a Colorado corporation doing business as "Enterprise Fleet Services" ("Lessor"), and the lessee whose name and address is set forth on the
signature page below ("Lessee").
1. L EASE O F VEHICLES: Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the vehicles ("Vehicle(s)") described in the
schedules from time to time delivered by Lessor to Lessee as set forth below ("Schedule(s)") for the rentals and on the terms set forth in this Agreement
and in the applicable Schedule. References to this "Agreement" shall include this Master Walkaway Lease Agreement, the various Schedules and
addenda to this Master Walkaway Lease Agreement and all other related agreements, documents and instruments. Lessor will, on or about the date of
delivery of each Vehicle to Lessee, send Lessee a Schedule covering the Vehicle, which will include, among other things, a description of the Vehicle,
the lease term and the monthly rental and other payments due with respect to the Vehicle. The terms contained in each such Schedule will be binding on
Lessee unless Lessee objects in writing to such Schedule within ten (10) days after the date of delivery of the Vehicle covered by such Schedule. This
Agreement is a lease only and Lessor will at all times remain the owner of the Vehicles and Lessee will have no right, title or interest in or to the Vehicles
except for the use of the Vehicles as described in this Agreement. This Agreement shall be treated as a true lease for federal and applicable state
income tax purposes with Lessor having all benefits of ownership.
2. TERM: The term of this Agreement ("Term") for each Vehicle begins on the date such Vehicle is delivered to Lessee (the "Delivery Date") and,
unless terminated earlier in accordancewith the terms of this Agreement, continues for the "Lease Term" as described in the applicable Schedule.
3. RENT AND OTHER CHARGES:
(a) Lessee agrees to pay Lessor monthly rental according to the Schedules and this Agreement. The monthly rental payments will be 1n the
amount listed as the "Total Monthly Rental Including Additional Services" on the applicable Schedule and will be due and payable in advance on the first
day of each month. If a Vehicle is delivered to Lessee on any day other than the first day of a month, monthly rental payments will begin on the first day
of the next month. In addition to the monthly rental payments, Lessee agrees to pay Lessor a pro -rated rental charge for the number of days that the
Delivery Date precedes the first monthly rental payment date. Lessee agrees to pay Lessor the 'Total Initial Charges" set forth in each Schedule on the
due date of the first monthly rental payment under such Schedule. Lessee agrees to pay Lessor the "Service Charge Due at Lease Termination" set forth
In each Schedule at the end of the applicable Tenn (whether by reason of expiration, early termination or otherwise).
(b) The monthly rental rate allows the number of miles per month as set forth in the applicable Schedule. Lessee agrees to pay Lessor at the end
of the applicable Term (whether by reason of expiration, early termination or otherwise) an excess m ileage c harge for any m iles i n excess of t his
average amount per month at the rate set forth in the applicable Schedule.
(c) Any security deposit of Lessee will be returned to Lessee at the end of the applicable Term, except that the deposit will first be applied to any
losses and/or damages suffered by Lessor as a result of Lessee's breach of or default under this Agreement and/or to any other amounts then owed by
Lessee to Lessor.
(d) Any rental payment or other amount owed by Lessee to Lessor which is not paid within twenty (20) days after Its due date will accrue interest,
payable on demand of Lessor, from the date due until paid in full at a rate per annum equal to the lesser of (i) Eighteen Percent (18%) per annum or (ii)
the highest rate permitted by applicable law (the "Default Rate").
(e) If Lessee fails to pay any amount due under this Agreement (including maintenance management or VIP Rental billings) or to comply with any
of the covenants contained In this Agreement, Lessor may, at its option, pay such amounts or perform such covenants and all sums -paid or incurred by
Lessor in connection therewith will be repayable by Lessee to Lessor upon demand together with interest thereon at the Default Rate.
4. USE AND SURRENDER OF VEHICLES: Lessee agrees to allow only duly authorized, licensed and insured drivers to use and operate the Vehicles.
Lessee agrees to comply with, and cause its drivers to comply with, all laws, statutes, rules, regulations and ordinances and the provisions of all
Insurance policies affecting or covering the Vehicles or their use or operation. Lessee agrees to keep the Vehicles free of all liens, charges and
encumbrances. Lessee agrees that in no event will any Vehicle be used or operated for transporting hazardous substances or persons for hire, for any
Illegal purpose or to pull trailers that exceed the manufacturer's trailer towing recommendations. Lessee agrees that no vehicle is Intended to be or will
be utilized as a "school bus" as defined in the Code of Federal Regulations or any applicable state or municipal statute or regulation. Lessee agrees not
to remove any Vehicle from the continental United States without first obtaining Lessor's written consent. At the expiration or earlier termination of this
Agreement with respect to each Vehicle, or upon demand by Lessor made pursuant to Section 14, Lessee at its risk and expense agrees to return such
Vehicle to Lessor at such place and by such reasonable means as may be designated by Lessor, in the same repair, condition and working order as at
the commencement of the applicable Term, reasonable wear and tear resulting from proper use excepted. If a Vehicle is not returned in the required
condition, Lessee agrees to pay Lessor, at Lessor's option, the estimated cost to restore such Vehicle to such condition, or the actual cost of restoration,
If the Vehicle is restored. If for any reason Lessee fails to return any Vehicle to Lessor as and when required in accordance with this Section, Lessee
agrees to pay Lessor additional rent for such Vehicle at twice the normal pro -rated daily rent. Acceptances of such additional rent by Lessor will in no
way limit Lessor's remedies with respect to Lessee's failure to return any Vehicle as required hereunder.
5. COSTS, EXPENSES, FEES AND CHARGES: Lessee agrees to pay all costs, expenses, fees, charges, fines, tickets, penalties and taxes (other
than federal and state income taxes on the income of Lessor) incurred In connection with the titling, registration, delivery, purchase, sale, rental, use or
operation of the Vehicles during the Tern. If Lessor incurs any of such costs or expenses, Lessee agrees to promptly reimburse Lessor for the same.
6. LICENSE AND CHARGES: Each Vehicle will be licensed in Lessor's name at Lessee's expense. Certain other charges relating to the acquisition of
each Vehicle and paid or satisfied by Lessor have been capitalized in determining the monthly rental, treated as an Initial charge or otherwise charged to
Lessee. Such charges have been determined without reduction for trade-in, exchange allowance or other credit attributable to any Lessor -owned
vehicle.
7. REGISTRATION PLATES, ETC.: Lessee agrees, at its expense, to obtain in the name of Lessor all registration plates and other plates, permits,
Inspections and/or licenses required in connection with the Vehicles, except for the initial registration plates which Lessor will obtain at Lessee's
expense. The parties agree to cooperate and to furnish any and all information or documentation, which may be reasonably necessary for compliance
with the provisions of this Section or any federal, state or local law, rule, regulation or ordinance. Lessee agrees that it will not permit any Vehicle to be
located in a state other than the state in which such Vehicle is then titled for any continuous period of time that would require such Vehicle to become
subject to the titling and/or registration laws of such other state.
S. IMPROVEMENTS AND MAINTENANCE OF VEHICLES:
(a) Lessee agrees, at its expense, to (1) maintain the Vehicles in good condition, repair, maintenance and running order and in accordance with all
manufacturer's instructions and warranty requirements and all legal requirements and (11) furnish all labor, materials, parts and other essentials required
for the proper operation and maintenance of the Vehicles. Any alterations, additions, replacement parts or improvements to the Vehicles will become
and remain the
,►/property of Leesrr and will be returned with the Vehicles pursuant to Section 4. Notwithstanding the foregoing, so long as no Event of
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Default has occurred and Is continuing, Lessee shall have the right to remove any additional equipment installed by Lessee on a Vehicle prior to
returning such Vehicle to Lessor under Section 4 so long as Lessee repairs any damage to such Vehicle caused by such removal. The value of such
alterations, additions, replacement parts and improvements will in no instance be regarded as rent. Without the prior written consent of Lessor, Lessee
will not make any alterations, additions, replacement parts or improvements to any Vehicle which detract from its economic value or functional utility.
Lessor will not be required to make any repairs or replacements of any nature or description with respect to any Vehicle, to maintain or repair any
Vehicle or, except as set forth In Section 8(b) below, to make any expenditure whatsoever in connection with any Vehicle or this Agreement.
(b) Notwithstanding the provisions of Section 8(a) above, If Section 4 of a Schedule includes a charge for maintenance, Lessor agrees that, subject
to the terms and conditions of this Section 8(b), it will pay for, or reimburse Lessee for its payment of, all costs and expenses incurred in connection with
the maintenance or repair of the Vehicle(s) covered by such Schedule (each, a "Covered Vehicle"). This Section 8(b) does not cover, and Lessee will
remain responsible for and pay for, (i) fuel, (ii) oil and other fluids between changes, (111) fire repair and replacement, (iv) washing, (v) repair of damage
due to lack of maintenance by Lessee between scheduled services (including, without limitation, failure to maintain fluid levels), (vi) maintenance or
repair of any alterations to a Covered Vehicle or of any after -market components (this Section 8(b) covers maintenance and repair only of the Covered
Vehicles themselves and any factory -installed components and does not cover maintenance or repair of chassis alterations, add -on bodies (including,
without limitation, step vans) or other equipment (including, without limitation, lift gates and PTO controls) which is installed or modified by a dealer, body
shop, upfitter or anyone else other than the manufacturer of the Covered Vehicle, (vii) any service and/or damage resulting from, related to or arising out
of an accident, a collision, theft, fire, freezing, vandalism, riot, explosion, other Acts of God, an object striking the Covered Vehicle, improper use of the
Covered Vehicle (including, without limitation, driving over curbs, overloading, racing or other competition) or Lessee's failure to maintain the Covered
Vehicle as required by this Agreement, (vili) roadside assistance or towing for vehicle maintenance purposes, (ix) mobile services, (x) the cast of loaner
or rental vehicles or (A) if the Covered Vehicle is a truck, (A) manual transmission clutch adjustment or replacement, (B) brake adjustment or
replacement or (C) front axle alignment.. Whenever it is necessary to have a Covered Vehicle serviced, Lessee agrees to have the necessary work
performed by an authorized dealer of such Covered Vehicle or by a service facility acceptable to Lessor. In every case, if the cost of such service will
exceed $50.00, Lessee must notify Lessor and obtain Lessor's authorization for such service and Lessor's instructions as to where such service shall be
made and the extent of service to be obtained. Lessee agrees to furnish an invoice for all service to a Covered Vehicle, accompanied by a copy of the
shop or service order (odometer mileage must be shown on each shop or service order). Lessor will not be obligated to pay for any unauthorized
charges or those exceeding $50.00 for one service on any Covered Vehicle unless Lessee has complied with the above terms and conditions. Lessor
will not have any responsibility to pay for any services in excess of the services recommended by the manufacturer, unless otherwise agreed to by
Lessor. Notwithstanding any other provision of this Section 8(b), (1) all service performed within one hundred twenty (120) days prior to the last day of
the scheduled Tern must be authorized by and have the prior consent and approval of Lessor and any service not so authorized will be the
responsibility of and be paid for by Lessee and (11) Lessor is not required to provide or pay for any service to any covered Vehicle after 100,000 miles.
Lessor may, at its option, provide Lessee with an authorization card (the "Enterprise Card") for use in authorizing the payment of charges incurred in
connection with the maintenance of the Covered Vehicles. Lessee agrees to be liable to Lessor for, and upon receipt of a' monthly or other statement
from Lessor; Lessee agrees to pay to Lessor, all charges made by or for the account of Lessee with the Enterprise Card (other than any charges which
are the responsibility of Lessor under the terms of this Section 8(b)). Lessor reserves the right to change the terms and conditions for the use of the
Enterprise Card at any time. The Enterprise Card remains the property of Lessor and Lessor may revoke Lessee's right to possess or use the
Enterprise Card at any time. Upon termination or expiration of the Agreement or upon the demand of Lessor, Lessee must return the Enterprise Card to
Lessor. The Enterprise Card is non -transferable. The monthly maintenance charge set forth on each applicable Schedule allows the number of miles
per month a s set f orth in s uch Schedule. Lesseeagrees topayLessor attheandofthe applicableTarm (whether byreason ofaxpiration,aariy
termination or otherwise) an overnileage maintenance charge for any miles in excess of this average amount per month at the rate set forth in the
applicable Schedule.
9. SELECTION OF VEHICLES AND DISCLAIMER OF WARRANTIES:
(a) LESSEE ACCEPTANCE OF DELIVERY AND USE OF EACH VEHICLE WILL CONCLUSIVELY ESTABLISH THAT SUCH VEHICLE IS OF A
SIZE, DESIGN, CAPACITY, TYPE AND MANUFACTURE SELECTED BY LESSEE AND THAT SUCH VEHICLE IS IN GOOD CONDITION AND
REPAIR AND IS SATISFACTORY IN ALL RESPECTS AND IS SUITABLE FOR LESSEE'S PURPOSE. LESSEE ACKNOWLEDGES THAT LESSOR
IS NOT A MANUFACTURER OF OR A DEALER IN ANY VEHICLE OR AN AGENT OF A MANUFACTURER OF OR A DEALER IN ANY VEHICLE.
(b) LESSOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY VEHICLE,
INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO CONDITION, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, IT BEING AGREED THAT ALL SUCH RISKS ARE TO BE BORNE BY LESSEE. THE VEHICLES ARE LEASED "AS IS,"
"WITH ALL FAULTS." All warranties made by any supplier, vendor and/or manufacturer of a Vehicle are hereby assigned by Lessor to Lessee for the
applicable Term and Lessee's only remedy, if any, Is against the supplier, vendor or manufacturer of the Vehicle. No defect, unfitness or lack of
governmental approval in, of or with respect to a Vehicle regardless of the cause or consequence will relieve Lessee from the performance of its
obligations under this Agreement, including the payment of rent.
(c) Lessor will not be liable to Lessee for any liability, claim, loss, damage (direct, incidental or consequential) or expense of any kind or nature,
caused directly or Indirectly, by any Vehicle or any Inadequacy of any Vehicle for any purpose or any defect (latent or patent) in any Vehicle or the use or
maintenance of any Vehicle or any repair, servicing or adjustment of or to any Vehicle, or any delay In providing or failure to provide any Vehicle, or any
Interruption or loss of service or use of any Vehicle, or any loss of business or any damage whatsoever and however caused. In addition, Lessor will
have no liability to Lessee under this Agreement or under any order authorization form executed by Lessee if Lessor is unable to locate or purchase a
Vehicle ordered by Lessee or for any delay in delivery of any Vehicle ordered by Lessee.
10. RISK OF LOSS: Lessee assumes and agrees to bear the entire risk of loss of, theft of, damage to or destruction of any Vehicle from any cause
whatsoever ("Casualty Occurrence"). No Casualty Occurrence to any Vehicle will relieve Lessee from its obligation to pay rent or to perform any of its
other obligations under this Agreement. in the event of a Casualty Occurrence, Lessee shall give Lessor prompt notice of the Casualty Occurrence and
thereafter will place the applicable Vehicle in good repair, condition and working order; provided, however, that if the applicable Vehide is determined by
Lessor to be lost, stolen, destroyed or damaged beyond repair (a "Totaled Vehicle"), Lessee agrees to pay Lessor no later than the due date of the next
following monthly rent payment with respect to such Totaled Vehicle the total of (i) all rent and other amounts, if any, due at the time of such payment
and allocable to the Totaled Vehicle pigs (0) the replacement value, as determined by Lessor in good faith, of the Totaled Vehicle Immediately prior to
the Casualty Occurrence. Upon such payment, this Agreement will terminate with respect to such Totaled Vehicle.
11. INSURANCE:
(a) Lessee agrees to purchase and maintain in force during the Term, insurance policies In at least the amounts listed below covering each Vehicle,
to be written by an Insurance company or companies satisfactory to Lessor, Insuring Lessee and Lessor against any damage, claim, suit, action or
liability:
(1) Commercial Automobile Liability(including Uninsured/Underinsured Motorist Coverage and No -Fault Protection where required by law), for
the limits listed below. ($5,000,000 limits are required for Vehicles capable of transporting more than 8 passengers):
State of Vehicle Reoistratlon Coverage
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Connecticut, Massachusetts, Maine, New Hampshire, $1,000,000 Combined Single Limit Bodily Injury and Property
New Jersey, New York, Pennsylvania, Rhode Island, and Damage - No Deductible
Vermont
Florida $500,000 Combined Single Limit Bodily Injury and Property
Damage or $100,000 Bodily Injury Per Person, $300,000 Per
Occurrence and $50,000 Property Damage (100/300/50) - No
Deductible
All Other States $300,000 Combined Single Limit Bodily Injury and Property
Damage or $100,000 Bodily Injury Per Person, $300,000 Per
Occurrence and $50,000 Property Damage (100/300/50) - No
Deductible
(ii) Physical Damage Insurance (Collision & Comprehensive: Actual cash value of the applicable Vehicle. Maximum deductible of $500 per
occurrence - Collision and $250 per occurrence - Comprehensive).
If the requirements of any governmental or regulatory agency exceed the minimums stated in this Agreement, Lessee must obtain and maintain the
higher limits. Lessee agrees that each required policy of insurance will by appropriate endorsement or otherwise name Lessor as an additional insured
and as a loss payee, as its interests may appear. Further, each such insurance policy must provide the following: (i) that the same may not be
cancelled, changed or modified until after the insurer has given to Lessor or its assigns at least a thirty (30) day prior written notice of such proposed
cancellation, change or modification, (ii) that no act or default of Lessee or any other person shall affect the right of Lessor to recover under such policy
or policies of insurance in the event of any loss of or damage to any Vehicle and (ill) that the coverage is "primary coverage" for the protection of Lessee
and Lessor notwithstanding any other coverage carded by Lessee or Lessor protecting against similar risks. Original certificates evidencing such
coverage and naming Lessor as an additional insured and loss payee, shall be furnished to Lessor prior to the Delivery Date, and annually thereafter
and/or as reasonably requested by Lessor from time to time. In the event of default, Lessee hereby appoints Lessor as Lessee's attorney -in -fact to
receive payment of, to endorse all checks and other documents and to take any other actions necessary to pursue insurance claims and recover
payments if Lessee fails to do so. Any expense of Lessor in adjusting or collecting insurance shall be bome by Lessee.
Lessee, its drivers, servants and agents agree to cooperate fully with Lessor and any insurance carriers in the investigation, defense and prosecution of
all claims or suits arising from the use or operation of any Vehicle. If any claim is made or action commenced for death, personal injury or property
damage resulting from the ownership, maintenance, use or operation of any Vehicle, Lessee will promptly notify Lessor of such action or claim and
forward to Lessor a copy of every demand, notice, summons or other process received in connection with such claim or action.
(b) Notwithstanding the provisions of Section 11(a) above: (1) if Section 4 of a Schedule includes a charge for physical damage management, Lessor
agrees that (A) Lessee will not be required to obtain or maintain the minimum physical damage Insurance (collision and comprehensive) required under
Section 11(a) for the Vehicle(s) covered by such Schedule and (B) Lessor will assume the risk of physical damage (collision and comprehensive) to the
Vehicles) covered by such Schedule; provided, however, that such physical damage management shall not apply to, and Lessee shall be and remain
liable and responsible for, damage to a covered Vehicle caused by wear and tear or mechanical breakdown or failure, damage to or loss of any parts,
accessories or components added to a covered Vehicle by Lessee without the prior written consent of Lessor and/or damage to or loss of any property
and/or personal effects contained in a covered Vehicle. In the event of a Casualty Occurrence to a covered Vehicle, Lessor may, at Its option, replace,
rather than repair, the damaged Vehicle with an equivalent vehicle, which replacement vehicle will then constitute the "Vehicle" for purposes of this
Agreement; and (ii) if Section 4 of a Schedule includes a charge for commercial automobile liability enrollment, Lessor agrees that it will, at its expense,
obtain for and on behalf of Lessee (either by adding Lessee as an additional Insured under a commercial automobile liability insurance policy insuring
Lessor, obtaining insurance on behalf of Lessee or otherwise) the minimum commercial automobile liability insurance required under Section 11(a) for
the Vehicle(s) covered by such Schedule. Lessor may at any time during the applicable Term terminate said obligation to provide physical damage
management and/or commercial automobile liability enrollment and cancel such physical damage management and/or commercial automobile liability
enrollment upon giving Lessee ten (10) days written notice. Upon such cancellation, insurance in the minimum amounts as set forth in 11(a) shall be
obtained and maintained by Lessee at Lessee's expense. An adjustment will be made in monthly rental charges payable by Lessee to reflect such
insurance change and Lessee agrees to furnish Lessor with satisfactory proof of insurance coverage within ten (10) days after mailing of the notice. In
addition, Lessor may change the rates charged by Lessor under this Section 11(b) for physical damage management and/or commercial automobile
liability enrollment upon giving Lessee thirty (30) days prior written notice.
12. INDEMNITY: To the extent permitted by law sad the Charter of the City of Fort Collins Lessee agrees to indemnify,
to the extent permitted by state law, Lessor from and against any and all losses, damages, liabilities, suits, claims, demands, expenses and costs
(including, without limitation, reasonable attorneys' fees and expenses) which Lessor may incur by reason of Lessee's breach or violation of, or failure to
observe or perform, any tens, provision or covenant of this Agreement, or as a result of any Ices, damage, theft or destruction of any Vehicle or related
to or arising out of or in connection with the use, operation or condition of any of the Vehicle. Nothing herein shall be construed as a
waiver of the provisions of the Colorado Governmental Immunity Act
13. INSPECTION OF VEHICLES; ODOMETER DISCLOSURE; FINANCIAL STATEMENTS: Lessee agrees to accomplish, at its expense, all
inspections of the Vehicles required by any governmental authority during the Tenn. Lessor will have the right to Inspect any Vehicle at any reasonable
time(s) during the Term and for this purpose to enter Into or upon any building or place where any Vehicle is located. Lessee agrees to comply with all
odometer disclosure laws, rules and regulations and to provide such written and signed disclosure information on such forms and in such manner as
directed by Lessor. Providing false information or failure to complete the odometer disclosure form as required by law may result in fines and/or
Imprisonment. Lessee hereby agrees to promptly deliver to Lessor such financial statements and other financial information regarding Lessee as Lessor
may from time to time reasonably request.
14. DEFAULT; REMEDIES: The following shall constitute events of default ("Events of Default") by Lessee under this Agreement: (a) if Lessee fails to
pay when due any rent or other amount due under this Agreement; (b) if Lessee fails to perform, keep or observe any other term, provision or covenant
contained in this Agreement; (c) any seizure or confiscation of any Vehicle or any other act (other than a Casualty Occurrence) otherwise rendering any
Vehicle unsuitable for use (as determined by Lessor); (d) if any present or future guaranty in favor of Lessor of all or any portion of the obligations of Lessee
under this Agreement shall at any time for any reason cease to be in full force and effect or shall be declared to be null and void by a court of competent
jurisdiction, or if the validity or enforceability of any such guaranty shall be contested or denied by any guarantor, or if any guarantor shall deny that it, he or
site has any further liability or obligation under any such guaranty or if any guarantor shall fail to comply with or observe any of the terms, provisions or
conditions contained In any such guaranty; (a) the occurrence of a material adverse change in the financial condition or business of Lessee or any
guarantor; or (f) if Lessee or any guarantor is in default under or fails to comply with any other present or future agreement with or in favor of Lessor,
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Enterprise Rent-A-Car Company or any direct or indirect subsidiary of Enterprise Rent-A-Car Company. For purposes of this Section 14, the term
"guarantor" shall mean any present or future guarantor of all or any portion of the obligations of Lessee under this Agreement.
Upon the occurrence of any Event of Default, Lessor, without notice to Lessee, will have the right to exercise concurrently or separately (and without any
election of remedies being deemed made), the following remedies: (a) Lessor may demand and receive i mmediate possession of any or a II of the
Vehicles from Lessee, without releasing Lessee from its obligations under this Agreement; if Lessee fails to surrender possession of the Vehicles to
Lessor on default (or termination or expiration of the Term), Lessor and its agents and independent contractors shall have the right to enter upon any
premises where the Vehicles may be located and to remove and repossess the Vehicles; (b) Lessor may enforce performance by Lessee of Its
obligations under this Agreement; (c) Lessor may recover damages and expenses sustained by Lessor by reason of Lessee's default including, to the
extent permitted by applicable law, all costs and expenses, including court costs and reasonable attorneys' fees and expenses, incurred by Lessor in
attempting or effecting enforcement of its rights under this Agreement (whether or not litigation is commenced) and/or in connection with bankruptcy or
insolvency proceedings; (d) upon written notice to Lessee, Lessor may terminate Lessee's rights under this Agreement; (a) with respect to each Vehicle,
Lessor may recover from Lessee (i) either the Vehicle (in the condition required by Section 4) or the estimated undamaged wholesale value of the
Vehicle (as determined by Lessor in good faith) plus (ii) all accrued and unpaid rent for such Vehicle for the period ending on, and all other amounts
owed by Lessee with respect to such Vehicle as of, the date all of the amounts owed by Lessee to Lessor under this clause (a) (including the amounts
owed under this subclause (1)) are paid in full (the "Payment Date") Plus (III) an amount equal to three (3) months rent Dlus (iv) Thirty Percent (30%) of
the total future rent due under the applicable Schedule for the period commencing on the Payment Date and ending on the last day of the scheduled
Term; and/or (f) Lessor may exercise any other right or remedy which may be available to Lessor under the Uniform Commercial Code, any other
applicable law or in equity. A termination of this Agreement shall occur only upon written notice by Lessor to Lessee. Any termination shall not affect
Lessee's obligation to pay all amounts due for periods prior to the effective date of such termination or Lessee's obligation to pay any indemnities under
this Agreement. All remedies of Lessor under this Agreement or at law or in equity are cumulative.
15. ASSIGNMENTS: Lessor may from time to time (a) assign, pledge or transfer this Agreement and/or any or all of Its rights or interests under this
Agreement and/or (b) grant a security interest in or lien on any or all of the Vehicles to secure indebtedness of Lessor. Lessee agrees, upon notice of
any such assignment, security interest or lien, to acknowledge receipt thereof in writing and, as instructed in such notice, to pay all amounts due or to
become due under this Agreement to such assignee or secured party. Each such assignee or secured party will have all of the rights of Lessor under
this Agreement but none of Lessor's obligations or duties under this Agreement. Lessee agrees that it will not assert against any such assignee or
secured party any defense, offset, claim or counterclaim which Lessee may be entitled to assert against Lessor under this Agreement or otherwise, but
any such claim may be separately asserted against Lessor. Lessee's rights and Interest In and to the Vehicles are and will continue at all times to be
subject and subordinate in all respects to any assignment or security agreement now or hereafter executed by Lessor with or in favor of any such
assignee o r secured p arty, p rovided t hat L asses s hall h ave t he r fight o f q ulet a njoyment o f the V ehicies s o t ong a s n o E vent o f D efault u nder t his
Agreement has occurred and is continuing.
Without the prior written consent of Lessor, Lessee may not assign, sublease, transfer or pledge this Agreement, any Vehicle, or any interest In this
Agreement or in and to any Vehicle, or permit its rights under this Agreement or any Vehicle to be subject to any lien, charge or encumbrance. Lessee's
interest in this Agreement is not assignable and cannot be assigned or transferred by operation of law. Lessee will not transfer or relinquish possession
of any Vehicle (except for the sole purpose of repair or service of such Vehicle) without the prior written consent of Lessor.
16. MISCELLANEOUS: This Agreement contains the entire understanding of the parties. Any modification or amendment of this Agreement may be
made only by an instrument in writing executed by both parties. Lessor shall not by any act, delay, omission or otherwise be deemed to have waived any
of its rights or remedies under this Agreement and no waiver whatsoever shall be valid unless in writing and signed by Lessor and then only to the extent
therein set forth. A waiver by Lessor of any right or remedy under this Agreement on any one occasion shall not be construed as a bar to any right or
remedy, which Lessor would otherwise have on any future occasion. If any term or provision of this Agreement or any application of any such term or
provision is Invalid or unenforceable, the remainder of this Agreement and any other application of such term or provision will not be affected thereby.
Giving of all notices under this Agreement will be sufficient if mailed by certified mail to a party at its address set forth below or at such other address as
such party may provide in writing from time to time. Any such notice mailed to such address will be effective one (1) day after deposit in the United
States mail, duly addressed, with certified mail, postage prepaid. Lessee will promptly notify Lessor of any change in Lessee's address. This
Agreement may be executed in multiple counterparts (including telecopy counterparts), but the counterpart marked "ORIGINAL" by Lessor will be the
original lease for purposes of applicable law. All of the representations, warranties, covenants, agreements and obligations of each Lessee under this
Agreement (if more than one) are joint and several.
17. SUCCESSORS AND ASSIGNS; GOVERNING LAW: Subject to the provisions of Section 15, this Agreement will be binding upon Lessee and Its
heirs, executors, personal representatives, successors and assigns, and will inure to the benefit of Lessor and Its successors and assigns. This
Agreement will be governed by and construed in accordance with the substantive laws of the state where Lessor's office is located (as set forth below),
which law will apply in the event of any conflict of law.
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18. NON -APPROPRIATION OF FUNDS: Lessee reasonably believes that it will have a need for the Vehicles for the duration of the Lease and that the
funds will be available and appropriated to make all payments under this lease, however, the availability of funds in the future fiscal years is dependent
upon appropriation of funds by Lessee's City Council, which appropriation is entirely discretionary.
Lessee will seek funding each year as part of its Budget process. If funds to continue the leasing of the Vehicles for the portion of the Lease term falling
In the next year are not legally available for such purpose, Lessee may terminate this Lease at the end of the current year without penalty.
Lessee will notify Lessor, in writing, at least thirty (30) days prior to the end of the year if funds are not available for the payments required under this
lease by reason of non -appropriation or non -availability of funds as set forth above.
IN WITNESS WHEREOF, Lessor and Lessee have duly executed this Master Walkaway Lease Agreement as of the day and year first above written.
LESSEE: Ci of Fort Collins, Colorado
By: Jame B O'Neill II, CPPO
Title: D' for of Purchasing & Risk Management
Address: City of Fort Collins Purchasing
PO Box 580
Fort Collins, CO 80522
Date Signed: S 05,
Initials: EFSk Cust
LESSOR: Enterprise t; et ServiceL-Atm,-4
6 , l
By: Andrew R Schmidt
Title: Regional Sales Manager
Address: 1600 Specht Point Dr. Ste D
Fort Collins, CO. 80525
Date Signed: Q�
Page 5
SELF -INSURANCE ADDENDUM TO MASTER EQUITY LEASE AGREEMENT
(Physical Damage and Liability)
This Addendum is made to the Master Equity Lease Agreement dated the first day of January, 2005, as amended (the "Agreement"), by and
between Enterprise Leasing Company of Denver, doing business as "Enterprise Fleet Services" ("Lessor"), and the lessee whose name is set forth on the signature line
below ("Lessee").
This Addendum is attached to and made a part of the Agreement (including each Schedule to the Agreement). All capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed to them in the Agreement.
Notwithstanding the provisions of Section 11 of the Agreement, Lessee shall be permitted to assume and self -insure the risks set forth in Section
I 1 of the Agreement and shall not be required to purchase or maintain any insurance policy of any kind with respect to any Vehicle; provided. however, that if any
Federal, state, local or other law, statute, rule, regulation or ordinance requires Lessee to maintain any amount of insurance with respect to any Vehicle, Lessee shall
purchase and maintain such amount of Insurance in the form of an insurance policy which complies in all respects, other than the amount of insurance required, with
Section 1 I of the Agreement.
Notwithstanding the foregoing, if (1) Lessor, at any time in its good faith judgment, is not satisfied with the condition, prospects or
performances, financial or otherwise, of Lessee or (2) any default or event of default occurs under the Agreement, than Lessor may, at its option, revoke this Addendum
and terminate Lessee's right to self -insure by providing Lessee with at least thirty (30) days prior written notice thereof. Upon the termination of Lessee's right to self -
insure, Lessee shall comply in all respects with Section I of the Agreement.
Except as amended hereby, all the terms and provisions of the Agreement shall remain in full force and effect. In the event of any conflict
between this Addendum and the Agreement or any of the Schedules, the terms and provisions of this Addendum will govem and control.
LESSEE: City of Fort Collins, Coloardo
By: James B. O'Neill II, CPPO
Title: Director of Purchasing & Risk Management
Date Signed:
LESSOR: Enterprise Fleet Services
By: Andrew R. Schmidt
Title: Regional Sales Manager
Date Signed: bo ��
Initials: EFS Cust Page 1
INCUMBENCY CERTIFICATE
I do hereby certify that I am the duly elected or appointed and acting Secretary/Clerk of THE
CITY OF FORT COLLINS, COLORADO, a body corporate and politic duly organized and existing
under the laws of the State of Colorado, that I have custody of the records and such entity, and that,
as of the date hereof, the individuals named below are the duly elected or appointed officers of such
entity holding the offices set forth opposite their respective names. I further certify that (i) the
signatures set opposite their respective names and titles are their true and authentic signatures and
(ii) such officers have the authority on behalf of such entity to enter into that certain Lease/Purchase
Agreement, dated first day of January, 2005 between such entity and Enterprise Fleet Services.
Name/Signature Title
Qa,jn:�n �� t)G��j
a es B. O'Neill II Director of Purchasing
and Risk Management
Senior Buyer — Authorized to sign acceptance
certificates for vehicle delivery.
.- -
r• , NESS WH REOF, I e duly executed this certificate and affixed the seal of such
sgntity h , this day of 2005 .
DIAL
Krajicek, CitWlerk
Seal