HomeMy WebLinkAboutRFP - 7197 LEASE PURCHASE FINANCING 2011City of
Port Collins
Purchasing
REQUEST FOR PROPOSAL
7197 Lease Purchase Financing 2011
Financial Services
Purchasing Division
215 N. Mason St. 2ntl Floor
PO Box 580
Fort Collins, CO 80522
970.221.6775
970.221.6707
fcgov. com/purchasing
The City of Fort Collins is requesting proposals for lease purchase financing of equipment and
vehicles to be used by City departments in the performance of their duties.
Written proposals, one (1) copy, will be received at the City of Fort Collins' Purchasing
Division, 215 North Mason St., 2nd floor, Fort Collins, Colorado 80524. Proposals will be
received before 2:30 p.m. (our clock), January 27, 2011. Proposal No.7197. If delivered, they
are to be sent to 215 North Mason Street, 2nd Floor, Fort Collins, Colorado 80524. If mailed,
the address is P.O. Box 580, Fort Collins, 80522-0580.
Questions regarding submittal of proposals, RFP process, or lease financing procedures
should be directed to James R. Hume, CPPO, Senior Buyer, (970)221-6776.
A copy of the Proposal may be obtained as follows:
1. Download the RFP from the BuySpeed Webpage, www.fcgov.com/eprocurement
2. Come by Purchasing at 215 North Mason St., 2nd floor, Fort Collins, and request a copy
of the RFP.
The City of Fort Collins is subject to public information laws, which permit access to most
records and documents. Proprietary information in your response must be clearly identified and
will be protected to the extent legally permissible. Proposals may not be marked 'Proprietary' in
their entirety. Information considered proprietary is limited to material treated as confidential in
the normal conduct of business, trade secrets, discount information, and individual product or
service pricing. Summary price information may not be designated as proprietary as such
information may be carried forward into other public documents. All provisions of any contract
resulting from this request for proposal will be public information.
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.
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
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 City personnel. Price will be agreeable to both parties. In addition, when
purchasing individual items, the City agrees to pay a re -amortization fee of $ < amount >.
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 Municipal Corporation duly organized and existing under the constitution and the laws
of the State of Colorado.
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6.2 Authorization to Execute Lease
Lessee is authorized by the Constitution and laws of the State of Colorado 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. The City
Council of Lessee has duly authorized the execution and delivery of this Agreement and each
Lease and all exhibits hereto and thereto. This Agreement and each Lease and all exhibits hereto
and thereto constitutes the valid and binding obligation of the Lessee enforceable in accordance
with its terms.
6.3 Satisfaction of Procedures and Funding Requirements
All procedures, including any legal bidding requirements, have been met by Lessee prior to the
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 compliance with
bidding requirements, the enforceability of this Agreement or any Lease and 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 supplier or manufacturer 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,
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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.
7.3 Authorization to Execute Lease. This Agreement and each Lease and all exhibits hereto
and thereto constitutes the valid and binding obligation of the Lessee enforceable in accordance
with its terms.
ARTICLE Vill -- 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 to 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
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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 Origin lal and any Renewal Terms and any other
amounts owed to Lessor under such Lease at the time of Lessor's election
under this paragraph:
(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 any 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 acid seek actual damages; or
(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 per annum.
8.5 Attorneys' Fees
In the event either party to this Lease should incur at fees for litigation in order to enforce
this Agreement or any Lease or to protect its rights hereunder, then, in that event, the prevailing
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party in any such litigation shall be entitled to reasonable 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 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, operation, 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 presumed 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 as good condition, repair, appearance, and working order as when delivered to and
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accepted by Lessee under the Lease, 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
(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,
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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 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 $50,000 or less. Lessee, at its own
expense, will provide commercial property insurance and liability insurance for any Schedule for
Equipment valued at more than $50,000. Equipment will be insured 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 forthe equipment) Lessee will provide Lessorwith 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 C.) 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
1TV
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. Lessee agrees
that Lessor may impose on the Equipment such plates or other means of identification as are
necessary to indicate that the Equipment is subject to a Lease and the restrictions set forth in this
Section.
12.2 Assignment and Sublease by Lessor
Lessor may freely assign, transfer, pledge, or encumber any Lease or any interest in a Lease.
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
unless and until Lessee shall receive written notice thereof from Lessor.
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, 2"d Floor, P.O. Box 580, Fort
Collins, Colorado 80522; and
b) if to Lessor, < enter address > 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, warranty, 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 Agreement or in a Lease which is prohibited by law will be treated as if it never
were a part of this Agreement or such Lease, and the validity of the remaining terms of this
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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.
12.10 Inurement
Subject to the restrictions in Section 12.1, this Agreement and each Lease are binding upon and
inure to the benefit of Lessor and Lessee, their respective successors and assigns.
12.11 Governing Law
This Agreement and each Lease shall be governed by the laws of the State of Colorado.
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.
M-
EXECUTED this
ATTEST:
day, of , 2009
< enter company name >
By
Title
(Corporate Seal)
ATTEST: THE CITY OF FORT COLLINS, COLORADO
Lessee
By:
Wanda Krajicek, City Clerk James B. O'Neill II, CPPO
Director of Purchasing and Risk Management
Approved As To Form:
Steve Mason
Assistant City Attorney
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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.
Sincerely,
James B. O'Neill II, CPPO, FNIGP
Director of Purchasing & Risk Management
where renewal is a way of life
Schedule of Equipment No.
Exhibit A - Sample
RE: STANDARD MASTER LEASE AGREEMENT entered into as of _
("Agreement'), between < enter firm name > ("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)
2
5
3
5
4
5
5
5
6
5
7
5
rotal 5-year Financing 1 $
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.
Lessee: the City of Fort Collins, Colorado Lessor: < enter firm name >
M
Name
Date:
20
By_
Name
Title
Date:
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:
Dear
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 , to the
Standard Master Lease Agreement dated < enter date >, by and between the City of Fort Collins,
Lessee, and < firm name >, Lessor, and certifies that the following equipment has been delivered to
and accepted by Lessee:
Line # Qty Description Serial # Invoice #
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. Thank you for your assistance. Should you have further
questions, please contact Jim Hume at 970-221-6776.
Sincerely;
James B. O'Neill II, CPPO, FNIGP
Director of Purchasing and Risk Management
Enclosures
cc: Becky Sullivan, Accounting
file
rxa
Fax Document
Concurrence Form
Date
Ms. Cathy Schott
First National Bank Trust Department
P.O. Box 2010
Fort Collins. CO. 80522
Re: Lease Purchase
Dear Ms. Schott:
In accordance with the terms of the escrow agreement between < firm name > and the City of
Fort Collins dated < enter date >, (escrow account # ), you are hereby authorized to disburse
funds for:
I
A copy of the acceptance certificate is attached. Please make remittance in the amount of $
payable to:
Thank you for your assistance.
Sincerely;
Concurrence:
By:
Title:
James B. O'Neill II, CPPO, FNIGP
Director of Purchasing & Risk Management
Date:
cc: Becky Sullivan, Accounting
file
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EXHIBIT D (sample)
ESCROW AGREEMENT AND INSTRUCTIONS
Schedule of Equipment No. _
THIS AGREEMENT is made this by and between < firm name >, as Lessor,
and the City of Fort Collins, Colorado, as Lessee, hereinafter called the "Principals", and the First
National Bank of Fort Collins, 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'
An executed copy of Schedule of Equipment No. _dated —to the
Standard Master Lease Agreement (collectively the "Lease") between the
Principals executed as the same date as these Escrow Instructions. All exhibits to
the Lease, except Exhibit C (Certificate of Acceptance) are attached. Executed
copies of Exhibit C will be furnished to Escrow Agent prior to disbursement of
funds.
Funds in the amount of $ , to be deposited with the Escrow Agent as
directed by the Lessee, but not later than
'Documents will be described as 'originals" unless they are copies. If not 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'
Escrow Agent will invest Funds at the direction of Lessee or its Agent.
Escrow Agent will promptly deposit all earnings from investment of Funds to escrow
fund created hereunder.
Funds deposited with the Escrow Agent shall be used to pay for the cost of acquisition
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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 Lease and a letter of disbursement authorization signed
by both Principals (Lessor and Lessee).
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 or determine the performance or nonperformance 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
25
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
evidence of such good faith. The Escrow Agent shall have the right at anytime 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 Principals agree,
jointly and severally, for themselves, their heirs, legal representatives, successors and
assigns, 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, the parties hereto jointly and severally agree to pay reasonable
compensation for such extraordinary services. In the event of any action to recover the
Escrow Agent's fees, expenses or charges from any party hereto, 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 by which one or more of the other parties hereto
shall undertake to pay such fees, charges and expenses, or any portion thereof, shall, except
as between such other parties only, alter their joint and several liability to the Escrow Agent
K
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 for 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:
(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 principle 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.
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CITY OF FORT COLLINS
Revenue Division
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 17 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:
(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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.
End of Sample Escrow Agreement
(Actual Escrow Agreement will be signed by the City, < firm name >, and First National Bank)
W.
REQUEST FOR PROPOSAL
RFP # 7197
CITY OF FORT COLLINS
LEASE PURCHASE FINANCING
1.0 PROPOSAL
The City of Fort Collins is soliciting proposals for the lease -purchase financing of vehicles,
equipment and related software. The City generally obtains such lease financing once or twice a
year. Leases vary from $300,000 to $1.5 million; no guarantee of minimum amounts is implied by
these approximations. The City's intent is to enter into a Master Lease agreement and process
individual leases using a separate Lease Schedule for each.
1.1 PROPOSAL PROCESS
Leasing companies who are willing to use the City's Master lease -purchase agreement may enter
an interest rate proposal. The City may negotiate with any or all respondents. Proposals will be
evaluated based on:
• Company experience in supplying lease -purchase financing to municipalities
• Information gained from references
• Offered interest rate
Total interest charge over the life of the agreement.
Once awarded, the City may continue to use the same vendor for up to five years, assuming
interest rate changes are mutually acceptable.
1.2 RESPONSE SUBMITTAL
Firms shall submit Section 2.0, Vendor's Response (one copy) with the following information
Completed Section 2.0 (page 5 of this RFP).
2. Company information, including lease -purchase financing history and financial
reports bearing on company stability.
3. Names and locations of service representatives who shall be responsible for
assisting the City of Fort Collins. Include contact phone numbers and fax numbers.
4. References from five public entities, located in Colorado, if possible, which currently
have lease -purchase arrangements with your company.
The proposal must be signed by a duly authorized representative of the submitting firm. The
signature shall include the individual's title. A faxed, signed response is acceptable.
1.3 LESSOR REQUIREMENTS
Awarded Lessor must enter into a Master Lease agreement, using the City of Fort Collins Master
Lease, attached as Attachment 1.
3
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.
The lessor must agree to quarterly payments in arrears.
Lessor must produce an amortization table for the overall lease. Additional amortization tables
needed for City departments will be produced by City staff.
1.4 General Lease Schedule Procedures
Once a Master Lease 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 ask for an
interest rate quote. The quote must be good for at least 45 days.
Upon receipt of the quote, City staff will prepare an ordinance and supporting documents for action
by City Council. Creation of an ordinance requires approval at two Council meetings, which are
generally scheduled for the 15` and 3 d Tuesday of each month. An approved ordinance cannot go
into effect until ten days after final action by Council.
During the ten day waiting period, City staff will complete all lease documentation and forward them
to Lessor. Funding of the escrow will generally occur on the tenth day, or shortly thereafter.
All equipment purchased will be listed on the Lease Schedule in general terms.
Payments from escrow are handled in two ways:
• 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 Concurrence letters are attached as part of the Master
Lease agreement. Currently these documents are faxed to the leasing company for their
concurrence, then faxed from the leasing company to the bank for payment. Email transmittal is
acceptable if all entities involved can agree on procedures.
2
SECTION 2.0 VENDOR'S RESPONSE - RFP # 7197, Lease Purchase Financing 2011
The City of Fort Collins does not anticipate the issuance of long-term, tax-exempt obligations
exceeding $10,000,000 in 2011. Therefore, this agreement will be considered bank qualified.
1. 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.
2. COMPANY INFORMATION.
Provide requested information on a separate sheet.
3. SERVICE REPRESENTATIVES: Include name, title, phone number and email address.
List representatives on a separate sheet
4. REFERENCES: Include entity name, contact person, email address and phone number.
List references on separate sheet
5. INTEREST RATE PROPOSAL
2011x Lease: sample only for proposal purposes
Lease agreement date, March 29, 2011.
Lease funding date, not later than March 29, 2011.
Principal Amount: $500,000 (estimated)
Type of Equipment financed: New Police vehicles, New Streets maintenance equipment, new and
used 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
Quarterly payments: $
Signature
Company Name
Address
% (simple)
First payment due — June 29, 2011.
Typed or printed name and title
Phone and Fax Numbers
Email:
5
Attachment 1
STANDARD MASTER LEASE AGREEMENT
THIS STANDARD MASTER LEASE AGREEMENT ("Agreement") between <financial institution >
("Lessor") and THE CITY OF FORT COLLINS, COLORADO, municipal corporation ("Lessee")
dated < date >, 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 and installment 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 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 attached as Exhibit D.
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 Equipment, title to any Equipment not
purchased by Lessee at the time of termination shall remain in Lessor. Lessor at all times will have
access to the Equipment for the purpose of inspection, alteration and repair. Lessor and Lessee
agree that Lessee shall be listed as owner on vehicle titles and shall be treated as the owner for all
purposes and it will not be necessary for Lessor to be listed as lienholder on vehicle titles. If
Lessee does not maintain a credit rating of "A" or better, all leases for vehicles initiated during the
time Lessee credit rating is not an "A" or better will list Lessor as lienholder. 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
C.
so purchased to Lessee, and Lessor's interest in such Equipment shall terminate.
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
current fiscal year.
ARTICLE II -- DEFINITIONS
The following terms will 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 an
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 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 C, unless sooner
terminated as provided for in Section 3.3 or 3.4 hereof.
2.7 "Lessee" means the City of Fort Collins, Colorado, a body corporate and politic existing
under the Laws of the State of Colorado which is leasing the Equipment from Lessor.
2.8 "Lessor" means < lessor name >, which is leasing the Equipment to Lessee, and includes
Lessors 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
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3.1 Commencement
The term of this Agreement commences upon the execution hereof and continues unless
terminated as provided elsewhere herein.
3.2 Intentionally Omitted
3.3 Non -appropriation of Funds
Lessee reasonably believes that it will have a need for the Equipment for the duration of the Lease
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, however, the availability of funds in 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 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 nonappropriation of funds
as set forth above. Upon termination of such Lease for non -appropriation, if Lessee has not
exercised the Option to Purchase, 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 rentals under the
Lease shall constitute only a current expense of Lessee and shall not constitute or give rise to a
general obligation or other indebtedness of Lessee within the meaning of any constitutional or
statutory provision or limitation, nor a mandatory charge or requirement against Lessee in any
ensuing fiscal year beyond the then current fiscal year.
3.4 Termination
Any Lease will terminate upon the earliest of any of the following events:
(a) A nonappropriation of funds as provided in Section 3.3;
(b) The exercise by Lessee of any option to purchase granted 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 VI II; or
(d) Upon payment of all payments required to be made by Lessee under the Lease.
1.1
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 power to make such rent
payments from any source other than the Funds.
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 Net Effective 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; and
(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
9