HomeMy WebLinkAboutPINNACLE PUBLIC FINANCE - CONTRACT - RFP - 7197 LEASE PURCHASE FINANCING 2011 (4)1
ESCROW AGREEMENT FOR MOTOR VEHICLE CERTIFICATES OF TITLE
This Escrow Agreement for Motor Vehicle Certificates of Title (this “Escrow Agreement”) is
made and entered into this 6 day of January, 2015, (“Effective Date”) by and between Pinnacle
Public Finance, Inc. (the “Lessor”); the City of Fort Collins, Colorado, a home rule municipality
(the “Lessee”); and First National Wealth Management, a division of First National Bank of Omaha
(the “Escrow Agent”). The Lessor and Lessee shall hereinafter be referred to jointly as “the
Principals.” The Principals and the Escrow Agent shall hereinafter be referred to collectively as
“the Parties.”
RECITALS
WHEREAS, the Lessor and Lessee have previously entered into that certain “Standard
Master Lease Agreement” dated February 15, 2011 (the “Agreement”); and
WHEREAS, under the Agreement, the Lessor leases to the Lessee certain
“Equipment” as identified in Section 1.1 of the Agreement and as further described in “Schedules
of Equipment” as agreed to by the Lessor and Lessee from time-to-time; and
WHEREAS, the Equipment described in the Schedules of Equipment include motor
vehicles being leased by the Lessor to the Lessee (the “Motor Vehicles”); and
WHEREAS, Article V. of the Agreement grants to the Lessee the option to
purchase from the Lessor any or all of the Equipment, including the Motor Vehicles, in
accordance with the provisions of Article V. of the Agreement; and
WHEREAS, Sections 1.3, 2.4, and 3.3 of the Agreement expressly provide that all of
the Lessee’s obligations under the Agreement are subject to annual appropriation by the
Lessee’s City Council (the “Council”) for the funds needed to meet those obligations, which
appropriation is entirely within the Council’s sole discretion; and
WHEREAS, Section 3.3 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 its term, naked legal title to the Equipment will be in the Lessor
subject to any transfer of that title upon the Lessee’s exercise of its option to purchase any or all
of the Equipment as provided in Article V. of the Agreement; and
WHEREAS, notwithstanding this statement in Section 1.2 of the Agreement that the
Lessor holds naked legal title to the Equipment, Section 1.2 also states: “Lessor and Lessee
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
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WHEREAS, the Lessee and Lessor recently entered into that certain “First Amendment
to Standard Master Lease Agreement” dated December 2, 2014 (“the First Amendment); and
WHEREAS, the Lessee and Lessor entered into the First Amendment to clarify that their
original intent in the Agreement for the motor-vehicle-title language in Section 1.2 was agreed to
by them solely for the purposes of establishing ownership of the Equipment for federal tax
purposes, to reduce the likelihood of the Lessor’s liability for any civil claims that might arise
from the Lessee’s use of the leased Motor Vehicles, and 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 the Motor Vehicles and, in so doing, not
to diminish in anyway the lease-purchase nature of the Agreement or the Principals’ intent that
the Lessor continue to hold naked legal title to all of the leased Motor Vehicles until the Lessee
has exercised its option to purchase them; and
WHEREAS, in further support of these clarifications, the Lessor and Lessee agreed in
Section 1.4 of the First Amendment to enter into this Escrow Agreement to establish a process by
which the State of Colorado Certificate of Title for each of the Motor Vehicles that are now being
and will be leased under the Agreement, an example of such a Certificate of Title is attached
hereto as Exhibit “A”, (“Certificates of Title”) will be delivered to the possession of the Escrow
Agent and hereafter administered by the Escrow Agent in accordance with the terms and
conditions of this Escrow Agreement; and
WHEREAS, the Escrow Agent has agreed to take possession of the Certificates of Title
and to administer them in accordance with the terms and conditions of this Escrow Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises of the
Parties contained in this Escrow Agreement and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Parties agree to the following
terms and conditions of this Escrow Agreement.
AGREEMENT
1. Certificates of Title. Within forty five (45) days of the Effective Date, the
Principals agree to deliver to the Escrow Agent the originals of all the Certificates of Title
currently in their possession and to promptly deliver all other original Certificates of Title coming
into their possession after the Effective Date, including, without limitation, those Certificates of
Title relating to future leases of Motor Vehicles under the Agreement. The Escrow Agent agrees
to accept possession of these Certificates of Title and to safely keep and maintain them until
required to deliver them to the Lessor as provided in Section 3 below or to deliver them to the
Lessee as provided in Section 4 below.
2. Powers of Attorney. Within forty five (45) days of the Effective Date, the Lessee
shall deliver to the Escrow Agent the Lessee’s original and executed “State of Colorado Power of
Attorney for Motor Vehicle Only,” the form for which is attached as Exhibit “B”, for each of the
current Certificates of Title required to be delivered to the Escrow Agent in Section 1 above
(“Powers of Attorney”). The Lessee shall also promptly deliver its Power of Attorney for each
Certificate of Title delivered to the Escrow Agent after the Effective Date and under future leases
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of Motor Vehicles under the Agreement as provided in paragraph 1 above. Each Power of
Attorney shall be completed and executed by the Lessee to appoint the Escrow Agent as the
Lessee’s agent to complete and execute the assignment section of the corresponding Certificate of
Title when the Escrow Agent is required to assign and deliver the Certificate of Title to the Lessor
as provided in Section 3 below.
3. Assignment and Delivery of Certificate of Title to Lessor. In the event the
Lessee notifies the Lessor in writing under Section 3.3 of the Agreement of a non-appropriation by
the Lessee’s Council for the lease payments for any of the Motor Vehicles, the Lessee shall
provide that same written notice to the Escrow Agent and in that notice shall specify by vehicle
identification number the Motor Vehicles for which a non-appropriation has occurred. Upon
receiving such notice, the Escrow Agent is authorized and directed to complete and execute the
assignment section of the Certificate of Title for each such Motor Vehicle in order to assign that
Certificate of Title to the Lessor. The Escrow Agent shall deliver the original of the assigned
Certificate of Title, together with its corresponding original Power of Attorney, to the Lessor
within fourteen (14) days after receiving the Lessee’s said written notice.
The Lessee shall also provide the Escrow Agent with written notice at the end of the Lease
Term for each Motor Vehicle when the Lessee has elected not to exercise its option to purchase
under Article V. of the Agreement, which notice shall include the vehicle identification number
for each such Motor Vehicle not purchase by the Lessee at the end of its Lease Term. Upon
receiving such notice, the Escrow Agent is authorized and directed to complete and execute the
assignment section of the Certificate of Title for each such Motor Vehicle in order to assign that
Certificate of Title to the Lessor. The Escrow Agent shall deliver the original of the assigned
Certificate of Title, together with its corresponding original Power of Attorney, to the Lessor
within fourteen (14) days after receiving the Lessee’s said notice.
4. Deliver of Certificate of Title to Lessee. In the event the Lessee exercises its
option under Article V. of the Agreement to purchase any of the Motor Vehicles, the Lessee must
provide the Escrow Agent with a copy of its notice of election the Lessee has provided to the
Lessor as required in Section 5.2 of the Agreement. That notice shall include the vehicle
identification numbers for each Motor Vehicle to be purchased. Within ten (10) days after the
Lessee has made all rental payments to the Lessor for the purchase of those identified Motor
Vehicles, as required in Section 5.3 of the Agreement, the Lessor shall, within ten (10) days of
such payment, provide the Escrow Agent and the Lessee with written confirmation that the Lessee
has satisfied all its payment requirements under Section 5.3 for the purchase of the identified
Motor Vehicles. Within five (5) days of receiving such notice from the Lessor, the Escrow Agent
is authorized and directed to deliver to the Lessee the original Certificate of Title for each Motor
Vehicle together with the original, corresponding Power of Attorney.
5. Payment for Escrow Services. The Lessee shall be responsible for the payment of
all fees charged by the Escrow Agent for its services under this Escrow Agreement and agrees to
indemnify the Lessor for all such fees. The Lessee shall pay the Escrow Agent $4,000 each year
for its services under this Escrow Agreement within thirty (30) days of being billed. The Escrow
Agent reserves the right to change its services and fees hereunder after first giving the Lessor and
Lessee thirty (30) days prior written notice. If either the Lessor or Lessee object to any such
change in services or fees, they shall each have thirty (30) days after receiving the Escrow Agent’s
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notice in which to terminate this Agreement by sending written notice of such termination to the
other Parties.
6. Principals’ Agreements. The Escrow Agent shall have no duty to determine the
performance or nonperformance of any provision of any agreement between the Principals,
including, without limitation, the Agreement and the First Amendment, and the original, or a copy,
of any such agreement deposited with the Escrow Agent shall not bind the Escrow Agent in any
manner. The Escrow Agent assumes no responsibility for the validity or sufficiency of any
documents or papers or payments deposited or called for hereunder except as may be expressly
and specifically set forth in this Escrow Agreement in clear and unambiguous language.
7. Amendments. This Escrow Agreement may be supplemented, altered, amended,
modified or revoked by writing only, signed by the Principals, and approved by the Escrow Agent,
upon payment of all fees, costs and expenses incident thereto.
8. Assignments. No assignment, transfer, conveyance or hypothecation of any right,
title or interest in and to this Escrow Agreement or the subject matter of this Escrow Agreement
shall be binding upon the Escrow Agent unless written notice thereof shall be served upon the
Escrow Agent and all fees, costs and expenses incident thereto shall have been paid and then only
upon the Escrow Agent's assent thereto in writing.
9. Notice. Notices required, permitted or to be given under this Escrow Agreement
shall be in writing and shall be deemed given upon personal delivery or upon deposit in the United
States Mail, certified mail, return receipt requested, postage fully prepaid, address as follows or to
such other address as any of the Parties may designate from time to time by notice to the other
Parties given in accordance with this Section:
To Lessor: Cathy Jimenez
Managing Director/SVP
Pinnacle Public Finance, Inc.
8377 E. Hartford Drive, Suite 115
Scottsdale, AZ 85255
To Lessee: Gerry Paul
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: Fort Collins City Attorney’s Office
P.O. Box 580
Fort Collins, CO 80522
To Escrow Agent: First National Bank
Attn: Cathy L. Schott, Director, Private Client Services
P.O. Box 2010
Fort Collins, CO 80522
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10. Disclaimer of Liability. The Escrow Agent shall not be personally liable for any
act it may do or omit to do hereunder as such agent, while acting in good faith and in the exercise
of its own best judgment, and any act done or omitted by it pursuant to the advice of its own
attorneys shall be conclusive evidence of such good faith. The Escrow Agent shall have the right
at any time to consult with counsel upon any question arising hereunder and shall incur no liability
for any delay reasonably required to obtain the advice of counsel.
11. Warnings or Court Orders. The Escrow Agent is hereby expressly authorized to
disregard any and all notices or warnings given by either of the Principals, or by any other person,
firm or corporation, excepting only orders or process of court, and is hereby expressly authorized
to comply with and obey any and all process, orders, judgments or decrees of any court, and in
case the Escrow Agent obeys or complies with any such process, order, judgment or decree of any
court, it shall not be liable to either of the Principals or to any other person, firm or corporation by
reason of such compliance, notwithstanding any such process, order, judgment or decree by
subsequently reversed, modified, annulled, set aside or vacated, or found to have been issued or
entered without jurisdiction.
12. Indemnification. In consideration of the acceptance of this escrow by the Escrow
Agent, the Lessee agrees to pay the Escrow Agent its charges and fees hereunder, and to
indemnify and hold it harmless as to any liability by it incurred to any other person, firm or
corporation by reason of its having accepted the same, or in connection herewith, and under such
circumstance, or in the event of a dispute, whether or not resulting in litigation, between the
Principals, or between the Principals and the Escrow Agent, to 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 5 above, and are intended as compensation for the Escrow
Agent's ordinary services as contemplated by this Escrow Agreement. In the event the conditions
of this Escrow Agreement are not promptly fulfilled or any dispute arises hereunder, or if for any
other reason, the Escrow Agent renders services not provided for in these Instructions, Lessee
agrees to pay reasonable compensation for such extraordinary services. In the event of any action
to recover the Escrow Agent's fees, expenses or charges, the Escrow Agent shall be entitled to
reasonable attorneys' fees and costs incurred with respect to any such action. No provision in any
attached special instructions shall alter Lessee’s liability to the Escrow Agent for such fees,
charges and expenses. The Principals shall not be liable for gross negligence or intentional acts of
the Escrow Agent.
13. No Duty to Ascertain Identity or Authority. The Escrow Agent shall be under no
duty or obligation to ascertain the identity, authority or rights of the Principals (or their agents)
executing or delivering or purporting to execute or deliver this Escrow Agreement or any
documents or papers or payments deposited or called for hereunder, including, without limitation,
the Certificate of Title and the Powers of Attorney.
14. Statute of Limitations and Laches. The Escrow Agent shall not be liable for the
outlawing of any rights under any statute of limitations or by reason of laches in respect to this
Escrow Agreement or any documents or papers deposited hereunder.
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15. Interpleader Action. In the event of any dispute between the Parties as to the facts
of default or execution, the validity or meaning of this Escrow Agreement or any other fact or
matter relating to the transaction between the Parties, the Escrow Agent is instructed as follows:
(a) That it shall be under no obligation to act, except under process or order of
court, or until it has been adequately indemnified to its full satisfaction, and shall
sustain no liability for its failure to act pending such process or court or
indemnification; and
(b) That it may in its sole and absolute discretion deposit the Certificates of
Title and corresponding Powers of Attorney described herein, or so much thereof as
remains in its hands, with the then Clerk, or acting Clerk, of the District Court of
the County of Larimer, State of Colorado, and interplead the Principals, and upon
depositing such property and filing its complaint in interpleader it shall be relieved
of all liability under the terms hereof as to the property so deposited and shall be
entitled to recover in such interpleader action, from the Principals, its reasonable
attorney fees and related costs and expenses incurred in commencing such action
and furthermore, the Principals for themselves, their heirs, legal representatives,
successors and assigns do hereby submit themselves to the jurisdiction of said court
and do hereby appoint the then Clerk, or acting Clerk, of said court as their Agent
for the Service of all process in connection with such proceedings. The institution
of any such interpleader action shall not impair the rights of Escrow Agent under
paragraph numbered 6, 10, 11, 13, and 14, above.
16. Termination. This Escrow Agreement will expire on or before June 1
st
, 2021. If
the deposits hereunder are not withdrawn or this Escrow Agreement otherwise terminates before
that date, the Escrow Agent shall mail the Certificates of Title and Powers of Attorney remaining
in its possession as follows, and upon such mailing, the Escrow Agent shall be relieved from
further responsibility or liability.
CITY OF FORT COLLINS
Revenue Division
P.O. Box 580
Fort Collins, Colorado 80522
17. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns.
18. Resignation of Escrow Agent. The Escrow Agent may resign by giving notice in
writing to the Principals of its intent to resign. The resignation shall become 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 9 above unless these addresses
have been changed. The Principals shall advise the Escrow Agent in writing of the name of the
new Escrow Agent. If the Principals cannot agree as to the new Escrow Agent, or fail to advise
the Escrow Agent within the time set forth, the Escrow Agent may treat this as a dispute and
proceed under paragraph 15 above. If the new Escrow Agent is designated, then upon delivery of
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all documents to the new Escrow Agent, the Escrow Agent is relieved of all further responsibility
or liability hereunder.
19. Governing Law. This Escrow Agreement shall be construed and governed in
accordance with the laws of the State of Colorado.
20. Severability. Any provisions of this Escrow Agreement found to be prohibited by
law shall be ineffective only to the extent of such prohibition, and shall not invalidate the
remainder of this Escrow Agreement.
21. Entire Agreement. This Escrow Agreement (and, with respect to Lessor and
Lessee, the Agreement and First Amendment) constitutes the entire agreement of the Parties
relating to the subject matter hereof.
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PRINCIPALS:
PINNACLE PUBLIC FINANCE, INC.
_____________________________________
By: Cathy Jimenez, Managing Director/SVP
Pinnacle Public Finance (Lessor)
8377 E. Hartford Drive, Suite 115
Scottsdale, Arizona 85255
ESCROW AGENT:
__________________________________
By: _________________________
Title: _______________________
First National Wealth Management
A division of First National Bank of Omaha
PO Box 2010
Fort Collins, CO 80522
THE CITY OF FORT COLLINS, COLORADO
By:
Gerry Paul
Director of Purchasing & Risk Management
City of Fort Collins, CO (Lessee)
PO Box 580
Fort Collins, CO 80522
ATTEST: Lessee:
_________________________
Wanda Nelson, City Clerk
APPROVED AS TO FORM:
__________________________
John R. Duval
Senior Assistant City Attorney
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