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HomeMy WebLinkAboutPINNACLE PUBLIC FINANCE - CONTRACT - RFP - 7197 LEASE PURCHASE FINANCING 2011 (3)FIRST AMENDMENT TO STANDARD MASTER LEASE AGREEMENT This First Amendment to Standard Master Lease Agreement (this “Amendment”) is entered into this 2nd day of December, 2014, by and between Pinnacle Public Finance, Inc. (“Lessor”) and the City of Fort Collins, Colorado, a home rule municipal corporation (“Lessee”). The Lessor and Lessee are hereafter sometimes jointly referred to as the “Parties”. RECITALS WHEREAS, the Lessor and Lessee have previously entered into that certain “Standard Master Lease Agreement” dated February 15, 2011 (the “Agreement”); and WHEREAS, each “Schedule of Equipment” attached as Exhibit “A” to the Agreement and each corresponding “Payment Schedule” attached as Exhibit “B” to the Agreement, together constitute a “Schedule”; and WHEREAS, each Schedule and the terms and provisions of the Agreement, together with all exhibits attached thereto and any amendments and modifications to the Agreement, are incorporated by reference into each such Schedule and constitute under the Agreement a separate and independent lease and installment purchase of the Equipment therein described and are referred to as a “Lease” in the Agreement; and WHEREAS, under each Lease, the Lessor leases to the Lessee certain “Equipment” as identified in Section 1.1 of the Agreement, which Equipment includes motor vehicles; and WHEREAS, Article V of the Agreement also grants the Lessee the option to purchase any or all of the Equipment in accordance with the provisions of Article V of the Agreement; and WHEREAS, Sections 1.3, 2.4, and 3.3 of the Agreement expressly provide that all of the Lessee’s obligations under each Lease are subject to annual appropriation by the Lessee’s City Council (the “Council”) for the funds needed to meet those obligations, which appropriation is entirely within the Council’s sole discretion; and WHEREAS, Section 3.3 of the Agreement provides that if the Council has not appropriated the needed funds and the Lessee has not otherwise exercised its option to purchase the Equipment, the Lessor is entitled to take possession of such Equipment; and WHEREAS, consistent with the lease-purchase nature of each Lease, Section 1.2 of the Agreement provides that during the term of each Lease, title to the Equipment will be in the Lessor subject to any transfer of that title upon the Lessee’s exercise of its option to purchase any or all of the Equipment as provided in Article V of the Agreement; and WHEREAS, notwithstanding this statement in Section 1.2 of the Agreement that the Lessor holds title to the Equipment, Section 1.2 also states: “Lessor and Lessee agree that the 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”; and DocuSign Envelope ID: B99FAAF9-C478-4774-8B1E-763DCCBEB67D WHEREAS, the Lessee and Lessor now wish to clarify in this Amendment, that their original (and current) intent in the Agreement for this motor-vehicle-title language in Section 1.2 was agreed to by the Parties solely for the purposes of: (1) establishing ownership of the Equipment for federal tax purposes; (2) reducing the likelihood of the Lessor’s liability for any civil claims that might arise from the Lessee’s use of the leased motor vehicles under the Lease; and (2) for the Lessee’s administrative convenience in establishing clear title to such motor vehicles when the Lessee does exercise its option under the Agreement to purchase any or all such motor vehicles; and WHEREAS, it is also not the Parties’ intention by entering into this Amendment to now modify, change or in any way diminish the lease-purchase nature of the Agreement and each Lease with respect to the motor vehicles leased under a Lease or to do so with respect to the contingent nature of the Lessee’s obligations under each Lease being subject to Council’s annual appropriation or to do so with respect the Lessee’s fully vested title ownership of the motor vehicles being complete when the Lessee has exercised its option to purchase them under the Agreement; and WHEREAS, the capitalized words and terms used herein shall have the same meaning given to them in the Agreement, except as expressly provided herein. NOW, THEREFORE, in consideration of the mutual covenants and promises of the Parties contained in this Amendment and other good and valuable consideration, the receipt and adequacy of which are acknowledged, the Parties agree to the following terms and conditions of this Amendment. AGREEMENT Section 1. That all of the recitals set forth above in this Amendment are hereby incorporated into this Amendment and the Agreement, as amended by this Amendment, as though fully set forth in the body hereof. Section 2. That Section 1.2 of the Agreement is hereby amended to read in full as follows: 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. Notwithstanding that Lessor holds naked legal title under each Lease until title has fully vested in Lessee, Lessee and Lessor agree Lessee shall be the owner of the Equipment for federal tax purposes and that during the Lease Term, Lessee shall have all the beneficial and equitable rights of ownership and the associated obligations and liabilities including but not limited to insurance, taxes, and maintenance associated with the Equipment. Lessee and Lessor further DocuSign Envelope ID: B99FAAF9-C478-4774-8B1E-763DCCBEB67D agree that Lessee shall be listed as “Owner” on the vehicle titles and shall be treated as the owner for all the purposes stated herein. It will not be necessary for Lessor to be listed as lienholder on vehicle titles. Upon the payment of all rent payable pursuant to Section 4.1 for the original term and all renewal terms, or exercise of the option to purchase as specified herein, Lessor shall immediately transfer title to any Equipment so purchased to Lessee, and Lessor’s interest in such Equipment shall terminate. Following a non-appropriation of funds by Lessee or an event of default by the Lessee under any Lease, the Lessee will, at the Lessee’s expense, execute and deliver such additional instruments, certificates or documents, and will take all such actions as the Lessor may reasonably request for the purposes of implementing or effectuating the provisions of such Lease with respect to title in the Equipment vesting in Lessor or for the purpose of more fully completing, perfecting, continuing, preserving or renewing the rights of the Lessor with respect to the Equipment. Section 3. That a new Section 1.4 is hereby added to the Agreement to read in full as follows: 1.4 Title to Leased Motor Vehicles. Notwithstanding the provision in Section 1.2 of the Agreement that the titles of the motor vehicles leased by the Lessee under the Agreement will list the Lessee as the owner, the Lessee and Lessor acknowledge that naked legal title of each such motor vehicle shall remain in the Lessor unless and until the Lessee exercises its option to purchase the motor vehicles in accordance with Article V of the Agreement. To further clarify that this is the intent of the Parties, the Lessee agrees to promptly deposit with First National Wealth Management, a division of First National Bank of Omaha, the “Escrow Agent” identified in Exhibit “D” (“Escrow Agent”), the original of all of the State of Colorado motor vehicle certificates of title now in the Lessee’s possession for the motor vehicles leased under the Agreement and all original certificates of title the Lessee receives in the future for motor vehicles it hereafter leases under the Agreement. Lessor and Lessee shall also enter into an escrow agreement with the Escrow Agent which shall instruct the Escrow Agent to safely keep and maintain all of the motor vehicle certificates of title delivered into its possession. The escrow agreement shall also provide the following: (1) in the event the Lessee notifies the Lessor under Section 3.3 of the Agreement of a non- appropriation by the Lessee’s City Council of funds needed for any or all of the motor vehicles leased under the Agreement, that the Escrow Agent shall have the Lessee’s power-of-attorney to execute on behalf of the Lessee the assignments of title for each of the certificates of title of the motor vehicles leased hereunder for which funds have not been so appropriated; or (2) in the event that the Lessee has exercised its option to purchase any or all of the motor vehicles leased under the Agreement, the Escrow Agent shall return the original certificates of title for those motor vehicles to the Lessee and the Lessee’s original power of attorney for each such motor vehicle. Lessee agrees to be responsible for all costs incurred with the Escrow Agent with respect to the escrow agreement. DocuSign Envelope ID: B99FAAF9-C478-4774-8B1E-763DCCBEB67D Section 4. That except as expressly amended in this Amendment, the Parties agree that all of the other terms, conditions and provisions of the Agreement shall remain unchanged and in full force and effect. IN WITNESS WHEREOF, this Amendment has been executed by the Parties as of the date and year first stated above. PINNACLE PUBLIC FINANCE, INC. By: ______________________________ Cathy Jimenez, Managing Director/SVP THE CITY OF FORT COLLINS, COLORADO By: __________________________________ Gerry Paul Director of Purchasing & Risk Management ATTEST: Lessee: _____________________________ Wanda Nelson, City Clerk APPROVED AS TO FORM: _____________________________ John R. Duval Senior Assistant City Attorney DocuSign Envelope ID: B99FAAF9-C478-4774-8B1E-763DCCBEB67D