HomeMy WebLinkAboutRFP - 8345 LEASE PURCHASE FINANCING 2016 (3)RFP 8345 Lease Purchase Financing 2016 Page 1 of 35
REQUEST FOR PROPOSAL
8345 LEASE PURCHASE FINANCING 2016
The City of Fort Collins is requesting proposals from qualified firms to lease purchase financing
of equipment and vehicles to be used by City departments in the performance of their duties.
As part of the City’s commitment to Sustainable Purchasing, proposals submission via
email is preferred. Proposals shall be submitted in a single Microsoft Word or PDF file
under 20MB and e-mailed to: purchasing@fcgov.com. If electing to submit hard copy
proposals instead, five (5) copies, will be received at the City of Fort Collins' Purchasing
Division, 215 North Mason St., 2nd floor, Fort Collins, Colorado 80524. Proposals must be
received before 3:00 p.m. (our clock), October 14, 2016 and referenced as Proposal No.
8345. 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. Please
note, additional time is required for bids mailed to the PO Box to be received at the
Purchasing Office.
The City encourages all Disadvantaged Business Enterprises (DBEs) to submit proposals in
response to all requests for proposals. No individual or business will be discriminated against
on the grounds of race, color, sex, or national origin. It is the City’s policy to create a level
playing field on which DBEs can compete fairly and to ensure nondiscrimination in the award
and administration of all contracts.
Questions regarding bid should be directed to Doug Clapp, CPPB, Senior Buyer at
(970) 221-6776 or dclapp@fcgov.com.
All questions must be submitted in writing via email to Doug Clapp no later than 5:00 PM
our clock on October 5, 2016. Questions received after this deadline will not be answered.
A copy of the RFP may be obtained at www.rockymountainbidsystem.com.
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. All provisions of any contract resulting from this request for proposal will be
public information.
New Vendors:
The City requires new vendors receiving awards from the City to fill out and submit an IRS form
W-9 and to register for Direct Deposit (Electronic) payment. If needed, the W-9 form and the
Vendor Direct Deposit Authorization Form can be found on the City’s Purchasing website at
www.fcgov.com/purchasing under Vendor Reference Documents.
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-
Financial Services
Purchasing Division
215 N. Mason St. 2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6775
970.221.6707
fcgov.com/purchasing
RFP 8345 Lease Purchase Financing 2016 Page 2 of 35
making authority concerning such sale or any supervisory authority over the services to be
rendered. This rule also applies to subcontracts with the City. Soliciting or accepting any gift,
gratuity favor, entertainment, kickback or any items of monetary value from any person who has
or is seeking to do business with the City of Fort Collins is prohibited.
Collusive or sham proposals: Any proposal deemed to be collusive or a sham proposal will be
rejected and reported to authorities as such. Your authorized signature of this proposal assures
that such proposal is genuine and is not a collusive or sham proposal.
The City of Fort Collins reserves the right to reject any and all proposals and to waive any
irregularities or informalities.
Utilization of Award by Other Agencies: The City of Fort Collins reserves the right to allow other
state and local governmental agencies, political subdivisions, and/or school districts to utilize the
resulting award under all terms and conditions specified and upon agreement by all parties.
Usage by any other entity shall not have a negative impact on the City of Fort Collins in the
current term or in any future terms.
Sustainability: Consulting firms/teams participating in the proposal are to provide an overview of
the organization’s philosophy and approach to Sustainability. In no more than two (2) pages
please describe how your organization strives to be sustainable in the use of materials,
equipment, vehicles, fuel, recycling, office practices, etc. The City of Fort Collins incorporates
the Triple Bottom Line into our decision process by including economic (or financial),
environmental, and social factors in our evaluation.
The selected Service Provider shall be expected to sign the City’s standard Agreement without
revision prior to commencing Services (see sample attached to this Proposal).
Sincerely,
Gerry S. Paul
Purchasing Director
RFP 8345 Lease Purchase Financing 2016 Page 3 of 35
REQUEST FOR PROPOSAL
8345 LEASE PURCHASE FINANCING 2016
1.0 PROPOSAL
The City of Fort Collins is soliciting proposals for the lease-purchase financing of vehicles and
equipment. The City generally obtains such lease financing once or twice a year. Leases vary
from $300,000 to $3.5 million; no guarantee of minimum amounts is implied by these
approximations. The City's intent is to enter into a Master Lease-Purchase Agreement and
process individual leases using a separate Lease Schedule for each.
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:
A. Completed Section 2.0 (page 5 of this RFP).
B. Company information, including lease-purchase financing history and financial reports
bearing on company stability.
C. Names and locations of service representatives who shall be responsible for assisting
the City of Fort Collins. Include contact phone numbers and fax numbers.
D. 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.
1.3 LESSOR REQUIREMENTS
Awarded Lessor must enter into a Master Lease-Purchase Agreement, using the City of Fort
Collins Master Lease-Purchase Agreement, attached as Attachment 1.
An Escrow Agreement attached as Exhibit D to the Master Lease-Purchase Agreement will be
entered into between the City, Lessor, and Escrow Agent, the First National Bank of Fort
Collins.
An Escrow Agreement for Motor Vehicle Certificates of Title attached as Exhibit E to the Master
Lease-Purchase Agreement will also be entered into between the City, Lessor, and Escrow
Agent, the First National Bank of Fort Collins.
The Lessor must agree to quarterly lease payments in arrears.
Lessor must produce an amortization table for the overall lease.
RFP 8345 Lease Purchase Financing 2016 Page 4 of 35
1.4 GENERAL LEASE SCHEDULE PROCEDURES
Once a Master Lease-Purchase Agreement is in place, individual leases will be set up using
Lease Schedules. City staff will provide Lessor with an estimate for the amount of equipment to
be purchased and ask for an interest rate quote. The quote must be good for at least 45 days.
Funding of the escrow will generally occur within a week of fully executed Escrow Agreement
documents.
All equipment purchased will be listed on the Lease Schedule in general terms.
Payments from escrow are handled in two ways:
Repayments to the City for equipment already purchased and paid for.
Payments to vendors for equipment to be paid for directly to vendors from escrowed funds.
Samples of Certificate of Acceptance and Request for Payment (Concurrence) letters are
attached as part of the Master Lease-Purchase Agreement. Currently these documents are
emailed to the leasing company for their concurrence, and then emailed from the leasing
company to the Escrow bank for payment. Email transmittal is acceptable if all entities involved
can agree on procedures.
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SECTION 2.0 VENDOR'S RESPONSE
The City of Fort Collins does not anticipate the issuance of long-term, tax-exempt obligations
exceeding $10,000,000 in 2016. Therefore, this agreement will be considered bank qualified.
THE CITY OF FORT COLLINS LEASE-PURCHASE AGREEMENT.
Acceptable? Yes No
(If your response is "No", please explain on a separate sheet.)
The City will consider suggestions for changes in the agreement if those changes are minor in
nature, legally required, or which reflect current industry practice.
COMPANY INFORMATION.
Provide requested information on a separate sheet.
SERVICE REPRESENTATIVES
Include name, title, phone number and email address. List representatives on a separate
sheet
REFERENCES
Include entity name, contact person, email address and phone number. List references on
separate sheet.
INTEREST RATE PROPOSAL
2016 Lease: Sample only for Proposal purposes
Lease agreement date: November 1, 2016
Lease funding date: No later than November 8, 2016.
Principal Amount: $500,000 (estimated)
Type of Equipment financed: New Police vehicles, New Utility maintenance equipment, New
Streets maintenance equipment, new Parks and Golf Course maintenance equipment. All
vehicles and equipment have a service life exceeding five years.
Term: Five (5) years, quarterly payments, in arrears
Proposed interest rate: % (simple)
** Please provide an explanation on how proposed interest rate was determined and
methodology to be used for establishment of the interest rates for future leases.
Quarterly payments: $
First payment due ~ February 8, 2017.
Submitted by: Printed:
Company:
Address:
City, State, Zip:
Phone: Email:
RFP 8345 Lease Purchase Financing 2016 Page 6 of 35
Attachment 1
MASTER LEASE-PURCHASE AGREEMENT
THIS MASTER LEASE-PURCHASE AGREEMENT ("Agreement") between ("Lessor")
and THE CITY OF FORT COLLINS, COLORADO, municipal corporation ("Lessee") dated
, 20 , is as follows:
ARTICLE I -- LEASE OF EQUIPMENT
1.1 Agreement to Lease
Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the equipment (the
"Equipment") as more fully described in each Schedule of Equipment (Exhibit A), which together
with a Payment Schedule (Exhibit B) shall constitute a “Schedule,” subject to the terms and
conditions of and for the purposes set forth in each Lease. Each Schedule and the terms and
provisions of this Agreement (which includes all exhibits hereto, together with any amendments
and modifications pursuant thereto) which are incorporated by reference into such Schedule
shall constitute a separate and independent lease-purchase of the Equipment therein described
and are referred to herein as a “Lease”. Lessor, after having received all required
documentation, shall, no later than two (2) business days thereafter, unless otherwise directed
by Lessee, deposit into escrow the amount listed as the Total Lease Financing on the applicable
Exhibit A, to be used by Lessee for the acquisition of the Equipment according to the terms of
the “Escrow Agreement and Instructions” attached as Exhibit D (“Escrow Agreement”).
Nothing herein shall be construed to obligate the Lessor to enter into any Lease not currently in
existence, and Lessor shall approve each proposed Lease in its sole discretion. Such approval
shall not be unreasonably withheld.
Further, nothing herein shall be construed to obligate Lessee to enter into any lease not
currently in existence. Lessor acknowledges and agrees that Lessee may enter into a lease-
purchase arrangement at any time with any other party, and such agreement shall have no
bearing on this Agreement.
1.2 Title
During the term of each Lease, title to the Equipment will be in Lessor subject to the transfer to
Lessee upon Lessee’s purchase of the Equipment as provided herein. Upon the termination of
the Lease for any reason other than Lessee’s purchase of the Equipment, title to any Equipment
not purchased by Lessee at the time of termination shall remain in Lessor. Lessor at all times
with reasonable written notice will have access to the Equipment for the purpose of inspection.
Notwithstanding that Lessor holds naked legal title under each Lease until title has fully vested
in Lessee, as provided in Article V. of this Agreement, Lessee and Lessor agree Lessee shall be
the owner of the Equipment for federal tax purposes and that during the Lease Term, Lessee
shall have all the beneficial and equitable rights of ownership and the associated obligations and
liabilities including but not limited to insurance, taxes, and maintenance associated with the
Equipment. Lessee and Lessor further agree that Lessee shall be listed as “Owner” on the
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vehicle titles and shall be treated as the owner for all the purposes stated herein. It will not be
necessary for Lessor to be listed as lienholder on vehicle titles. Upon the payment of all rent
payable pursuant to Section 4.1 for the original term and all renewal terms, or exercise of the
option to purchase as specified herein, Lessor shall immediately transfer title to any Equipment
so purchased to Lessee, and Lessor’s interest in such Equipment shall terminate. Following a
non-appropriation of funds by Lessee or an event of default by the Lessee under any Lease, the
Lessee will, at the Lessee’s expense, execute and deliver such additional instruments,
certificates or documents, and will take all such actions as the Lessor may reasonably request
for the purposes of implementing or effectuating the provisions of such Lease with respect
to title in the Equipment vesting in Lessor or for the purpose of more fully completing, perfecting,
continuing, preserving or renewing the rights of the Lessor with respect to the Equipment.
1.3 Lease Not a Pledge of City's Revenues
Nothing contained in a Lease shall constitute a pledge of the general tax revenues, funds or
monies of Lessee except amounts appropriated for the purpose of making Lease payments
during the Lessee’s current fiscal year.
1.4 Title to Leased Motor Vehicles.
Notwithstanding the provision in Section 1.2 of this Agreement that the titles of the motor
vehicles leased by the Lessee under this Agreement will list the Lessee as the owner, the
Lessee and Lessor acknowledge that naked legal title of each such motor vehicle shall remain in
the Lessor unless and until the Lessee exercises its option to purchase the motor vehicles in
accordance with Article V of this Agreement. To further clarify that this is the intent of the
Parties, the Lessee agrees to promptly deposit with First National Wealth Management, a
division of First National Bank of Omaha, the “Escrow Agent” identified in the Escrow Agreement
(“Escrow Agent”), the original of all of the State of Colorado motor vehicle certificates of title the
Lessee receives in the future for motor vehicles it hereafter leases under this Agreement.
Lessor and Lessee shall also enter into the “Escrow Agreement for Motor Vehicle Certificates of
Title” attached as Exhibit “E” with the Escrow Agent which instructs the Escrow Agent to safely
keep and maintain all of the motor vehicle certificates of title delivered into its possession (“Title
Escrow Agreement”). The Title Escrow Agreement also provides the following: (1) in the event
the Lessee notifies the Lessor under Section 3.2 of this Agreement of a non-appropriation by the
Governing Body of the funds needed for any or all of the motor vehicles leased under the
Agreement, that the Escrow Agent shall have the Lessee’s power-of-attorney to execute on
behalf of the Lessee the assignments of title for each of the certificates of title of the motor
vehicles leased hereunder for which funds have not been so appropriated; or (2) in the event
that the Lessee has exercised its option to purchase any or all of the motor vehicles leased
under this Agreement, the Escrow Agent shall return the original certificates of title for those
motor vehicles to the Lessee and the Lessee’s original power of attorney for each such motor
vehicle. Lessee agrees to be responsible for all costs incurred with the Escrow Agent with
respect to the Title Escrow Agreement.
RFP 8345 Lease Purchase Financing 2016 Page 8 of 35
ARTICLE II -- DEFINITIONS
When used in this Agreement, the following words and terms shall have the meanings indicated
below unless the context clearly requires otherwise:
2.1 “Agreement Term” or “Term of this Agreement” means the period from the date of
execution and delivery of this Agreement until terminated as provided herein.
2.2 “Commencement Date” for each Lease means the date interest commences to accrue
under such Lease which shall be the earlier of (i) the date on which the Equipment listed in such
Lease is accepted by Lessee in the manner described in Section 9.4; or (ii) the date on which
sufficient monies to purchase the Equipment listed in such Lease are deposited for that purpose
with the Escrow Agent.
2.3 "Equipment" means all or any of the property described in Exhibit A which Lessor is
leasing to Lessee.
2.4 "Funds" means funds of Lessee legally available and which have been properly
appropriated.
2.5 "Governing Body" means the Fort Collins, Colorado City Council or any successor
governing body of Lessee.
2.6 "Lease Term" or “Term of a Lease” means the period commencing on the Commencement
Date of each Lease and continuing as provided in the applicable Exhibit B, unless sooner
terminated as provided for in Section 3.2 or 3.3 hereof.
2.7 "Lessee" means the City of Fort Collins, Colorado, a home rule municipality and body
corporate and politic existing under the Laws of the State of Colorado which is leasing the
Equipment from Lessor.
2.8 "Lessor" means , which is leasing the Equipment to Lessee, and includes Lessor’s
assigns.
2.9 "Vendor" means the manufacturers of the Equipment (or the manufacturers' agent or
dealer) from whom Lessee purchased or is purchasing the Equipment.
ARTICLE III -- LEASE TERM
3.1 Commencement
The term of this Agreement commences upon the execution hereof and continues unless
terminated as provided elsewhere herein.
3.2 Non-appropriation of Funds
Lessee reasonably believes that it will have a need for the Equipment for the duration of the
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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; provided, however, the availability
of funds in future fiscal years is dependent upon appropriation of funds by the Governing Body,
which appropriation is entirely discretionary.
Lessee will seek funding each year as part of its Governing Body’s budget process. If funds
intended for the continued leasing of the Equipment for any ensuing fiscal period are not
appropriated for such purpose, Lessee may terminate the Lease for which funds were not
appropriated at the end of the fiscal period then in effect for such Lease without penalty.
Lessee will notify Lessor at least thirty (30) days prior to the expiration of the fiscal period if
funds are not available for the payments required under a Lease by reason of non-appropriation
of funds as set forth above. Upon termination of such Lease for non-appropriation, if Lessee
has not exercised the option to purchase under Article V of this Agreement, Lessor shall be
entitled to take possession of the Equipment. Lessee shall prepare the equipment for pickup by
Lessor within a reasonable period of time following termination.
Lessor and Lessee understand and intend that the obligation of Lessee to pay rent under the
Lease shall constitute only a current expense of Lessee and shall not constitute or give rise to a
general obligation, multiple-fiscal year debt or other indebtedness or financial obligation of
Lessee within the meaning of any constitutional, statutory or Fort Collins Home Rule Charter
provision or limitation, including, without limitation, Article X, Section 20 of the Colorado
Constitution, nor a mandatory charge or requirement against Lessee in any ensuing fiscal year
beyond the then current fiscal year.
3.3 Termination
Any Lease will terminate upon the earliest of any of the following events:
(a) A non-appropriation of funds as provided in Section 3.2;
(b) The exercise by Lessee of any option to purchase 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 VIII of this Agreement; or
(d) Upon payment of all payments required to be made by Lessee under the Lease.
ARTICLE IV -- RENT
4.1 Amount
Lessee will pay Lessor rental payments for the lease of the Equipment on the dates and in the
amounts set forth in the applicable Exhibit B. Lessee shall have no obligation to make such rent
payments from any source other than the Funds.
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4.2 Portion of Rent Attributable to Interest
The portion of each rent payment which is paid as and is representative of interest is set forth in
the applicable Exhibit B. The interest rate for each Lease shall be shown on each Exhibit B.
4.3 Tax Representations
Lessee understands that Lessor intends to exclude the interest component of the rental
payments from Federal gross income pursuant to the Internal Revenue Code of 1986, as
amended (the "Code"). Lessee covenants and agrees on the date hereof and as of the
Commencement Date of each Lease that it will, for each Lease:
(i) use a book entry system to register the owner of each Lease so as to meet the
applicable requirements of Section 149(a)(3) of the Internal Revenue Code of 1986, as
amended;
(ii) timely file a Form 8038-G (or, if the invoice price of the Equipment is less than $100,000,
a Form 8038-GC) with the Internal Revenue Service in accordance with Section 149(e)
of the Code;
(iii) not permit the Equipment to be directly or indirectly used for a private business use
within the meaning of Section 141 of the Code;
(iv) rebate an amount equal to excess earnings on the Escrow fund to the Federal
Government if required by and in accordance with Section 148 (f) of the Code, and make
the annual determinations and maintain the records required by the regulations
applicable thereto;
(v) ensure that the monies deposited by Lessor in Escrow are not invested in such manner
so as to result in the Lease being treated as an "Arbitrage bond or Federally guaranteed
bond" within the meaning of Section 148(a) or Section 149(b) of the Code respectively;
and
(vi) comply with all applicable provisions of Section 103 of the Code.
Lessee acknowledges and agrees that in the event Lessor is to reimburse Lessee under any
Lease for Equipment which was acquired prior to the commencement of such Lease, Lessee
shall comply with all Internal Revenue Code and Treasury Regulations regarding
reimbursements.
4.4. No Right to Withhold
Notwithstanding any dispute between Lessor and Lessee, or Vendor and Lessee, Lessee will
make all payments of rent when due, without withholding any portion of such rent, pending final
resolution of such dispute by mutual agreement between Lessor and Lessee or by a court of
competent jurisdiction.
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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 Lessee personnel. Price will be agreeable to both
parties. In addition, when purchasing individual items, the Lessee agrees to pay a re-
amortization fee of $250.
5.2 Manner of Exercise of Option
To exercise the option granted in Section 5.1, Lessee must deliver to Lessor written notice of
such election, specifying the date of which Equipment is to be purchased, at least thirty (30)
days prior to the purchase date specified in such notice.
5.3 Conditions of Exercise to Option
Lessee may purchase the Equipment pursuant to the option granted by Section 5.1 only if
Lessee has made all rent payments when due (or has remedied any defaults in the payment of
rent, in accordance with the provisions of the Lease) and if all other representations, covenants,
warranties, and obligations of Lessee under the Lease have been satisfied (or all breaches of
the same have been waived by Lessor in writing).
ARTICLE VI -- REPRESENTATIONS, COVENANTS, AND WARRANTIES OF LESSEE
Lessee represents, covenants, and warrants on the date hereof and as of the Commencement
Date of each Lease as follows:
6.1 Status of Lessee
Lessee is a Colorado home rule municipality duly organized and existing under the Constitution
and the laws of the State of Colorado.
6.2 Authorization to Execute Lease
Lessee is authorized by the Colorado Constitution, laws of the State of Colorado, City Charter
and City Code to enter into the transactions contemplated by this Agreement and each Lease,
including all exhibits hereto and thereto, and to effect all of the Lessee's obligations under each
Lease and all exhibits. This Agreement and each Lease and all exhibits hereto and thereto
constitutes the valid and binding obligation of the Lessee enforceable in accordance with their
terms.
6.3 Satisfaction of Procedures and Funding Requirements
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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
reasonably related matters.
ARTICLE VII -- REPRESENTATIONS, COVENANTS AND WARRANTIES OF LESSOR
7.1 Enjoyment
During the term of each Lease, Lessor will provide Lessee with quiet use and enjoyment of the
Equipment, without suit, or hindrance from Lessor, except upon default by Lessee as to such
Lease, as set forth in Section 8.1 herein.
7.2 Disclaimer of Warranties and Status of Lessor, Etc
Lessee has selected the Equipment and desires to lease the Equipment for use in the
performance of its governmental functions. Lessor will not be liable for specific performance or
for damages if the Vendor of the Equipment for any reason fails to fill, or delays in filling, the
order for the Equipment (or similar Equipment) and does not inspect the Equipment prior to
delivery to Lessee. For the purposes of each Lease and of any purchase of the Equipment
affected under any Lease, Lessor expressly disclaims any warranty with respect to the
condition, quality, durability, suitability, or merchantability of the Equipment in any respect, and
any other representation, warranty, or covenant, express or implied. Lessor will not be liable to
Lessee for any liability, loss, or damage caused or alleged to be caused directly or indirectly, by
any inadequacy, deficiency, or defect in the Equipment, or by use of the Equipment,
whatsoever. Lessor assigns to Lessee, without recourse, for the term of each Lease, all
manufacturer warranties and guarantees, express or implied, pertinent to the Equipment, and
Lessor authorizes Lessee to obtain the customary services furnished in connection with such
guarantees and warranties at Lessee's expense, subject to Lessee's obligation to reassign to
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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 their terms.
ARTICLE VIII -- DEFAULT
8.1 Events of Lessee Default
Lessee will be in default under a Lease upon the happening of any one or more of the following
events:
(a) Lessee fails to make any rent payment or other payment (including, without limitation,
insurance premiums, taxes, utilities, fines, and fees) when due; or
(b) Lessee fails to satisfy promptly any representation, covenant, warranty, or other
obligation under the Lease; or
(c) Lessee comes within the jurisdiction of any court as debtor under any bankruptcy,
reorganization, or similar law, whether or not such law is in existence on the date such
Lease commences.
8.2 Remedies on Default
To the maximum extent permitted by law, upon any event of default, Lessor may in its sole
discretion pursue any one or more of the following remedies (which will be exercisable
cumulatively and concurrently or separately), provided notice of default is given by Lessor 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 original and any renewal terms and any other amounts owed to Lessor
under such Lease at the time of Lessor's election under this paragraph;
(b) Terminate such Lease, repossess the Equipment subject to the Lease under default,
and sell (free and clear of any interest of Lessee in the Equipment) all or any portion of
the Equipment at any public or private sale without demand or notice of intention to sell,
applying the proceeds of such sale (after deducting the costs of repossessing, repairing,
storing, moving, and selling the Equipment, including attorneys' fees) against any rent
unpaid for the remainder of the original and any renewal Terms and any other amounts
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owed to Lessor under such Lease at the time of Lessor's election under this paragraph;
and
(c) Avail itself of any other remedy at law or equity.
A default as to any one Lease shall in no way affect or impair Lessee’s rights or obligations as
to any other Lease then in effect.
8.3 Default by Lessor
In the event Lessor should fail to perform in any material respect its obligations under this
Agreement, Lessor may be declared in default of this Agreement. To the maximum extent
permitted by law upon any event of default, the Lessee may, in its sole discretion, pursue one or
both of the following remedies provided notice of default is given by Lessee to Lessor by
certified mail and provided further that Lessor shall have at least thirty (30) days time after
receipt of such notice within which to cure any such default:
(a) Terminate this Agreement and seek actual damages; and
(b) Avail itself of any other remedy at law or equity.
A default by Lessor shall in no way affect or impair Lessee’s rights or obligations as to
any lease then in effect.
8.4 Interest on Unpaid Rent
In addition to all of the remedies in Section 8.2, Lessee will be liable to the maximum extent
permitted by law for interest on any unpaid rent or other payment under a Lease at the rate of
eight per cent (8%) per annum.
8.5 Attorneys' Fees
In the event either party to this Lease should incur attorneys' fees for litigation in order to
enforce this Agreement or any Lease or to protect its rights hereunder, then, in that event, the
prevailing 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
RFP 8345 Lease Purchase Financing 2016 Page 15 of 35
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 good condition, repair, appearance, and working order , ordinary wear and tear
excepted. At its own cost, Lessee will replace any and all parts and devices which may from
time to time become worn out, lost, stolen, destroyed, damaged beyond repair, or rendered unfit
for use or any reason whatsoever. All such replacement parts, mechanisms, and devices will
be free and clear of all liens, encumbrances, and rights of others, and immediately will become
a part of the Equipment and will be covered by the Lease.
10.3 Alterations
Lessee may install such miscellaneous equipment as may be necessary for use of the
Equipment for its intended purposes so long as either:
RFP 8345 Lease Purchase Financing 2016 Page 16 of 35
(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, 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
RFP 8345 Lease Purchase Financing 2016 Page 17 of 35
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 $100,000 or less. Lessee, at its
own expense, will provide commercial property insurance and liability insurance for any
Schedule for Equipment valued at more than $100,000. Equipment will be 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 for the equipment) Lessee will provide Lessor with proof of
insurance upon request.
11.3 Damage to or Destruction of the Equipment
If all or any part of the Equipment is lost, stolen, destroyed, or damaged, Lessee will give Lessor
prompt notice of such event and will repair or replace the same with equipment of equal or
greater value at Lessee's cost within sixty (60) days after such event, and any replaced
Equipment will be substituted in the Lease by appropriate endorsement. If Lessee fails or
refuses to make the required repair or replacement, Lessee will buy out the individual piece of
Equipment not repaired or replaced, at the next payment date (as set forth in Exhibit B.) No
loss, theft, destruction, or damage to the Equipment will impose any obligation on Lessor under
the Lease, and the Lease will continue in full force and effect regardless of such loss, theft,
destruction, or damage. Lessor does not assume any risk and/or liability for loss, theft,
destruction, or damage to the Equipment and for injuries or deaths of persons and damage to
property however arising, whether such injury or death be with respect to agents or employees
of Lessee or of third parties, and whether such damage to property is to Lessee's property or to
the property of others.
ARTICLE XII -- MISCELLANEOUS
12.1 Assignment and Sublease by Lessee
Lessee may not assign, transfer, pledge, or encumber this Agreement or any Lease or any
portion of the Equipment (or any interest in a Lease or the Equipment) or sublet the Equipment,
without the prior written consent of Lessor which consent shall not be unreasonably withheld.
12.2 Assignment and Sublease by Lessor
Lessor may not assign, transfer, pledge, or encumber this Agreement or any Lease or any
interest in a Lease without the prior written consent of Lessee. Any such assignment without
the City’s written approval shall be considered null and void with no effect. Immediately after
receiving notice of such assignment or transfer, Lessee will then make all payments directly to
the assignee or transferee (as its interests may appear) and, within thirty (30) days of such
RFP 8345 Lease Purchase Financing 2016 Page 18 of 35
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, 2nd Floor, P.O. Box 580, Fort Collins,
Colorado 80522 attention Purchasing Director with copy to the City Attorney; and
(b) if to Lessor, ,
until either Lessee or Lessor gives written notice to the other specifying a different address.
12.5 Manner of Payment
All payments by Lessee will be made by check or by other manner acceptable to Lessor.
12.6 Nonwaiver
No breach by Lessee in the satisfaction of any representation, covenant, 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 this 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 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.
RFP 8345 Lease Purchase Financing 2016 Page 19 of 35
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 and 12.2, of this Agreement and each Lease are
binding upon and inure to the benefit of Lessor and Lessee and their respective successors and
assigns.
12.11 Governing Law and Venue
This Agreement and each Lease shall be governed by the laws of the State of Colorado. The
venue for any judicial action arising under this Agreement shall only be in Larimer County,
Colorado in the District Court for the Eighth Judicial District.
12.12 Headings
Headings used in this Agreement are for convenience of reference only and the interpretation of
this Agreement will be governed by the text only.
12.13 Transmittal Fees
Transmittal of all documentation required for payment will be sent in an electronic format
acceptable to all parties from the Lessee to the Lessor and from the Lessor to the Escrow
Agent. Expedited overnight mail service may be substituted at the Lessor's expense.
EXECUTED this day, of , 20 .
PRINCIPALS:
By:
By:
Printed: Printed: Gerry Paul
Title: Title: Purchasing Direct
Organization: Organization: City of Fort Collins, Colorado
Address: Address: PO Box 580
City, State, Zip: City, State, Zip: Fort Collins, CO 80522
ATTEST (LESSEE):
APPROVED AS TO FORM:
RFP 8345 Lease Purchase Financing 2016 Page 20 of 35
Schedule of Equipment No.
Exhibit A - Sample
RE: MASTER LEASE-PURCHASE AGREEMENT entered into as of , 20 ,
("Agreement"), between ("Lessor") and the City of Fort Collins, Colorado ("Lessee"). All
terms used and not otherwise defined herein have the meanings ascribed to them in the
Agreement.
The following items of Equipment are hereby included under this Schedule to the Agreement:
Line
No.
Department Qty. Description Total Cost Term
(yrs)
1 5
2 5
3 5
4 5
5 5
6 5
Total 5-year Financing $
Total Lease Financing $
Lessee hereby represents, warrants and covenants that its representations, warranties and
covenants set forth in the Agreement are true and correct as though made on the
Commencement Date of Payments under this Schedule. The terms and provisions of the
Agreement (other than to the extent that they relate solely to other Schedules or
Equipment listed on other Schedules) are hereby incorporated into this Schedule by
reference and made a part hereof.
LESSOR: LESSEE:
By:
By:
Printed: Printed: Gerry Paul
Title: Title: Purchasing Direct
Organization: Organization: City of Fort Collins, Colorado
Address: Address: PO Box 580
City, State, Zip: City, State, Zip: Fort Collins, CO 80522
RFP 8345 Lease Purchase Financing 2016 Page 21 of 35
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.
RFP 8345 Lease Purchase Financing 2016 Page 22 of 35
EXHIBIT C: Certificate of Acceptance and Concurrence (Samples)
FAX DOCUMENT
Certificate of Acceptance and Request for Payment
<DATE>
<COMPANY NAME>
Attn: <CONTACT NAME>
<ADDRESS>
<CITY, STATE, ZIP>
Dear <CONTACT NAME>:
The undersigned hereby certifies that he is duly qualified to act on behalf of the City of Fort
Collins, State of Colorado, with respect to Schedule of Equipment No. , dated ,
20 , to the Master Lease-Purchase Agreement dated , 20 , by and between
the City of Fort Collins, Lessee, and Pinnacle Finance, Lessor, and certifies that the following
equipment has been delivered to and accepted by Lessee:
Qty
Description Invoice #
Amount
$
Enclosed is a copy of the purchase order # and invoice for the above items.
Please review the documents, sign the concurrence and fax them to our escrow agent, First
National Bank of Fort Collins for payment. Email the form to: cotrust-cdt@1stnationalbank.com
Thank you for your assistance. Should you have further questions, please contact Doug Clapp
at 970-221-6776.
Sincerely;
Gerry Paul
Purchasing Director
Enclosures
cc: Accounting
file
Financial Services
Purchasing Division
215 N. Mason St. 2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6775
970.221.6707- fax
fcgov.com/purchasing
RFP 8345 Lease Purchase Financing 2016 Page 23 of 35
Certificate of Acceptance and
Request for Payment
<DATE>
Ms. Cathy Schott
First National Wealth Management
PO Box 2010
Fort Collins, CO 80522
Re: Lease Purchase
Dear Ms. Schott:
In accordance with the terms of the escrow agreement between Pinnacle Public Finance and
the City of Fort Collins dated , 20 , (escrow account # ), you are hereby
authorized to disburse funds for:
Qty
Description Invoice #
Amount
$
A copy of the acceptance certificate is attached. Please make remittance in the amount of
$ payable to:
Thank you for your assistance.
Sincerely; Concurrence:
_________________________________
Gerry Paul
Purchasing Director
By: _______________________________
Title: ______________________________
Date: ____________________
cc: Accounting
file
Financial Services
Purchasing Division
215 N. Mason St. 2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6775
970.221.6707- fax
fcgov.com/purchasing
RFP 8345 Lease Purchase Financing 2016 Page 24 of 35
EXHIBIT D (sample)
ESCROW AGREEMENT AND INSTRUCTIONS
Schedule of Equipment No.
THIS AGREEMENT is made this day of 20 , by and between , as
Lessor, and the City of Fort Collins, Colorado, as Lessee, hereinafter jointly called the
"Principals", and the First National Wealth Management, a division of First National Bank of
Omaha, P.O. Box 2010, Fort Collins, Colorado 80522, hereinafter called "Escrow Agent".
The subject matter shown in Schedule A hereof has been delivered to Escrow Agent by
Principals, or with the consent of Principals, and is to be held by Escrow Agent subject to the
Special Instructions shown in Schedule B hereof, and the General Provisions hereof.
SCHEDULE A - SUBJECT MATTER*
A. An executed copy of Schedule of Equipment No. dated , 20 , and the
Master Lease-Purchase Agreement dated , 20 , between the Principals (jointly,
the "Lease") All exhibits to the Lease, except Exhibit C (Certificate of Acceptance), are
attached and executed. Executed copies of Exhibit C will be furnished to Escrow Agent
prior to disbursement of funds.
B. Funds in the amount of $ to be deposited with the Escrow Agent as directed by the
Lessee (“Escrow Account”), but not before and no later than .
*(Documents will be described as "originals" unless they are copies. If not so described, they
will be presumed to be copies. If subject matter is listed which is not delivered, all copies of the
Escrow Agreement and documents will be held a reasonable time [not exceeding thirty (30)
calendar days] pending delivery and a receipt will be given only for documents received. If all
documents are not received within a reasonable time, the documents will be returned to parties.
Only subject matter received at the time of execution will be listed above.)
SCHEDULE B - SPECIAL INSTRUCTIONS*
A. Escrow Agent will invest funds held in the Escrow Account at the direction of Lessee in a
Money Market Fund or such other fund as agreed to by Lessee.
B. Escrow Agent will promptly deposit all earnings from such investments in the Escrow Fund
created hereunder.
C. Funds deposited with the Escrow Agent shall be used to pay for the cost of acquisition of
items of equipment listed on Exhibit A to the Lease. Escrow Agent shall make payment for
each piece of leased equipment only upon receipt of both an executed copy of the
appropriate Exhibit C of the Lease and a letter of disbursement authorization signed by both
Principals (Lessor and Lessee).
RFP 8345 Lease Purchase Financing 2016 Page 25 of 35
D. Provide to Lessor and Lessee on a monthly basis, for the term of this Escrow Agreement,
reports indicating the following:
- Amount of disbursements for the purchase of investments.
- Amount of disbursements for the payment of invoices.
- Amount of principal and interest received from investments.
- An inventory of outstanding investments.
*(Any notice which Escrow Agent is required to give must be specifically set out in these Special
Instructions.)
GENERAL PROVISIONS
1. The Escrow Agent shall have no duty to determine the performance or 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
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
RFP 8345 Lease Purchase Financing 2016 Page 26 of 35
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.
7. The Escrow Agent is hereby expressly authorized to disregard any and all notices or
warnings given by any of the parties hereto, or by any other person, firm or corporation,
excepting only orders or process of court, and is hereby expressly authorized to comply with
and obey any and all process, orders, judgments or decrees of any court, and in case the
Escrow Agent obeys or complies with any such process, order, judgment or decree of any
court it shall not be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance, notwithstanding any such process, order,
judgment or decree by subsequently reversed, modified, annulled, set aside or vacated, or
found to have been issued or entered without jurisdiction.
8. In consideration of the acceptance of this escrow by the Escrow Agent, the Lessee agrees,
to pay the Escrow Agent its charges and fees hereunder, if any, and to indemnify and hold it
harmless as to any liability by it incurred to any other person, firm or corporation by reason
of its having accepted the same, or in connection herewith, and under such circumstance, or
in the event of a dispute, whether or not resulting in litigation, between the parties hereto, or
between the parties hereto and the Escrow Agent, to reimburse the Escrow Agent for all its
expenses, including, among other things, court costs and reasonable attorneys' fees
incurred in connection therewith. Escrow fees or charges, as distinguished from other
expenses hereunder, shall be as set forth in paragraph 16, and are intended as
compensation for the Escrow Agent's ordinary services as contemplated by these
Instructions. In the event the conditions of this escrow are not promptly fulfilled or any
dispute arises hereunder, or if for any other reason, the Escrow Agent renders services not
provided for in these Instructions, Lessee agrees to pay reasonable compensation for such
extraordinary 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.
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,
RFP 8345 Lease Purchase Financing 2016 Page 27 of 35
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 principal or interest under the Lease or for the purchase
of equipment for Lessee’s own use, and upon such mailing, the Escrow Agent shall be
relieved from further responsibility or liability.
CITY OF FORT COLLINS
Purchasing Director
P.O. Box 580
Fort Collins, Colorado 80522
13. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
14. The Escrow Agent may resign by giving notice in writing to all parties of its intent to resign.
The resignation shall become effective no sooner than sixty (60) days from the date of
mailing of the notice. The notice will be sent certified mail with return receipt requested to
the addresses set forth in paragraph 18 below unless these addresses have been changed.
The Principals shall advise the Escrow Agent in writing of the name of the new Escrow
Agent. If the Principals cannot agree as to the new Escrow Agent, or fail to advise the
Escrow Agent within the time set forth, the Escrow Agent may treat this as a dispute and
proceed under paragraph 11 above. If the new Escrow Agent is designated, then upon
delivery of all documents to the new Escrow Agent, the Escrow Agent is relieved of all
further responsibility or liability.
RFP 8345 Lease Purchase Financing 2016 Page 28 of 35
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. Lessee and Lessor agree that Lessor shall have a security interest in the Escrow Account,
and such security interest is hereby granted by the Lessee to secure payment of all sums
due to the Lessor under the Lease. For such purpose, the Escrow Agent hereby agrees to
act as agent for the Lessor in connection with the perfection of such security interest and
agrees to note, or cause to be noted, on all books and records relating to the Escrow
Account, the Lessor’s interest therein.
18. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
PRINCIPALS:
By:
By:
Printed: Printed: Gerry Paul
Title: Title: Purchasing Direct
Organization: Organization: City of Fort Collins, Colorado
Address: Address: PO Box 580
City, State, Zip: City, State, Zip: Fort Collins, CO 80522
ESCROW AGENT:
By:
Printed:
Title:
Organization: First National Wealth Management
A division of First National Bank of Omaha
Address: PO Box 2010
City, State, Zip: Fort Collins, Co 80522
RFP 8345 Lease Purchase Financing 2016 Page 29 of 35
Attachment 2
ESCROW AGREEMENT FOR MOTOR VEHICLE CERTIFICATES OF TITLE
This Escrow Agreement for Motor Vehicle Certificates of Title (this “Escrow Agreement”) is
made and entered into this day of , 20 , (“Effective Date”) by and between
(the “Lessor”); the City of Fort Collins, Colorado, a home rule municipality (the “Lessee”);
and First National Wealth Management, a division of First National Bank of Omaha (the “Escrow
Agent”). The Lessor and Lessee shall hereinafter be referred to jointly as “the Principals.” The
Principals and the Escrow Agent shall hereinafter be referred to collectively as “the Parties.”
RECITALS
WHEREAS, the Lessor and Lessee have previously entered into that certain “Master
Lease-Purchase Agreement” dated , 20 (the “Agreement”); and
WHEREAS, under the Agreement, the Lessor leases to the Lessee certain “Equipment”
as identified in Section 1.1 of the Agreement and as further described in “Schedules of
Equipment” as agreed to by the Lessor and Lessee from time-to-time; and
WHEREAS, the Equipment described in the Schedules of Equipment include motor
vehicles being leased by the Lessor to the Lessee (the “Motor Vehicles”); and
WHEREAS, Article V. of the Agreement grants to the Lessee the option to
purchase from the Lessor any or all of the Equipment, including the Motor Vehicles, in
accordance with the provisions of Article V. of the Agreement; and
WHEREAS, Sections 1.3, 2.4, and 3.2 of the Agreement expressly provide that all of the
Lessee’s obligations under the Agreement are subject to annual appropriation by the
Lessee’s City Council (the “Council”) for the funds needed to meet those obligations, which
appropriation is entirely within the Council’s sole discretion; and
WHEREAS, Section 3.2 of the Agreement provides that if the Council has not
appropriated the needed funds and the Lessee has not otherwise exercised its option to
purchase the Equipment, the Lessor is entitled to take possession of such Equipment; and
WHEREAS, consistent with the lease-purchase nature of each Lease, Section 1.2 of the
Agreement provides that during its term, naked legal title to the Equipment will be in the Lessor
subject to any transfer of that title upon the Lessee’s exercise of its option to purchase any or all
of the Equipment as provided in Article V. of the Agreement; and
WHEREAS, notwithstanding this statement in Section 1.2 of the Agreement that the
Lessor holds naked legal title to the Equipment, Section 1.2 also states: “Lessor and Lessee
further agree that the Lessee shall be listed as “Owner” on vehicle titles and shall be treated as
the owner for all purposes stated therein”; and
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WHEREAS, notwithstanding the foregoing, the Lessee and Lessor have acknowledged
and agreed in Section 1.2 of the Agreement that the intent of this motor-vehicle-title language in
Section 1.2 is for the purposes of establishing ownership of the Equipment for federal tax
purposes and to reduce the likelihood of the Lessor’s liability for any civil claims that might arise
from the Lessee’s use of the leased Motor Vehicles, and it is also more convenient
administratively for the Lessee in perfecting clear title to such Motor Vehicles when the Lessee
does exercise its option under the Agreement to purchase any or all the Motor Vehicles and, in
so doing, not to diminish in anyway the lease-purchase nature of the Agreement or the
Principals’ intent that the Lessor continue to hold naked legal title to all of the leased Motor
Vehicles until the Lessee has exercised its option to purchase them; and
WHEREAS, in further support of these clarifications, the Lessor and Lessee agreed in
Section 1.4 of the Agreement to enter into this Escrow Agreement to establish a process by
which the State of Colorado Certificate of Title for each of the Motor Vehicles that are now being
and will be leased under the Agreement, an example of such a Certificate of Title is attached
hereto as Exhibit “A”, (“Certificates of Title”) will be delivered to the possession of the Escrow
Agent and hereafter administered by the Escrow Agent in accordance with the terms and
conditions of this Escrow Agreement; and
WHEREAS, the Escrow Agent has agreed to take possession of the Certificates of Title
and to administer them in accordance with the terms and conditions of this Escrow Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises of the
Parties contained in this Escrow Agreement and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Parties agree to the following
terms and conditions of this Escrow Agreement.
AGREEMENT
1. Certificates of Title. The Principals agree to promptly deliver to the Escrow Agent the
originals of all the Certificates of Title coming into their possession after the Effective Date
relating to all leases of Motor Vehicles under the Agreement. The Escrow Agent agrees 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. The Lessee shall promptly deliver to the Escrow Agent the Lessee’s
original and executed “State of Colorado Power of Attorney for Motor Vehicle Only,” the form
for which is attached as Exhibit “B”, for each of the current Certificates of Title delivered to
the Escrow Agent as required in Section 1 above (“Powers of Attorney”). Each Power of
Attorney shall be completed and executed by the Lessee to appoint the Escrow Agent as
the Lessee’s agent to complete and execute the assignment section of the corresponding
Certificate of Title when the Escrow Agent is required to assign and deliver the Certificate of
Title to the Lessor as provided in Section 3 below.
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3. Assignment and Delivery of Certificate of Title to Lessor. In the event the Lessee notifies
the Lessor in writing under Section 3.2 of the Agreement of a non-appropriation by the
Lessee’s Council for the lease payments for any of the Motor Vehicles, the Lessee shall
provide that same written notice to the Escrow Agent and in that notice shall specify by
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’snotice in which to terminate this Agreement by sending written
RFP 8345 Lease Purchase Financing 2016 Page 32 of 35
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 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 or permitted to be given under this Escrow Agreement shall be in
writing and shall be deemed given upon personal delivery or upon deposit in the United
States Mail, certified mail, return receipt requested, postage fully prepaid, address as follows
or to such other address as any of the Parties may designate from time to time by notice to
the other Parties given in accordance with this Section:
To Lessee: Gerry Paul
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
With a copy to: Fort Collins City Attorney’s Office
P.O. Box 580
Fort Collins, CO 80522
To Escrow Agent: First National Bank
Attn: Cathy L. Schott, Director, Private Client Services
P.O. Box 2010
Fort Collins, CO 80522
10. Disclaimer of Liability. The Escrow Agent shall not be personally liable for any act it may do
or omit to do hereunder as such agent, while acting in good faith and in the exercise of its
own best judgment, and any act done or omitted by it pursuant to the advice of its own
attorneys shall be conclusive evidence of such good faith. The Escrow Agent shall have the
right at any time to consult with counsel upon any question arising hereunder and shall incur
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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 this Escrow Agreement,
Lessee agrees to pay reasonable compensation for such extraordinary services. In the
event of any action to recover the Escrow Agent's fees, expenses or charges, the Escrow
Agent shall be entitled to reasonable attorneys' fees and costs incurred with respect to any
such action. No provision in any attached special instructions shall alter Lessee’s liability to
the Escrow Agent for such fees, charges and expenses. The Principals shall not be liable
for gross negligence or intentional acts of the Escrow Agent.
13. No Duty to Ascertain Identity or Authority. The Escrow Agent shall be under no duty or
obligation to ascertain the identity, authority or rights of the Principals (or their agents)
executing or delivering or purporting to execute or deliver this Escrow Agreement or any
documents or papers or payments deposited or called for hereunder, including, without
limitation, the Certificate of Title and the Powers of Attorney.
14. Statute of Limitations and Laches. The Escrow Agent shall not be liable for the outlawing of
any rights under any statute of limitations or by reason of laches in respect to this Escrow
Agreement or any documents or papers deposited hereunder.
15. Interpleader Action. In the event of any dispute between the Parties as to the facts of default
or execution, the validity or meaning of this Escrow Agreement or any other fact or matter
relating to the transaction between the Parties, the Escrow Agent is instructed as follows:
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(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 . If the deposits
hereunder are not withdrawn or this Escrow Agreement otherwise terminates before that
date, the Escrow Agent shall mail the Certificates of Title and Powers of Attorney remaining
in its possession as follows, and upon such mailing, the Escrow Agent shall be relieved from
further responsibility or liability.
CITY OF FORT COLLINS
Purchasing Director
P.O. Box 580
Fort Collins, Colorado 80522
17. Binding Effect. This Escrow Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and assigns.
18. Resignation of Escrow Agent. The Escrow Agent may resign by giving notice in writing to
the Principals of its intent to resign. The resignation shall become 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 ofall documents to the new Escrow Agent, the Escrow Agent
is relieved of all further responsibility or liability hereunder.
19. Governing Law. This Escrow Agreement shall be construed and governed in accordance
with the laws of the State of Colorado.
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20. Severability. Any provisions of this Escrow Agreement found to be prohibited by law shall
be ineffective only to the extent of such prohibition, and shall not invalidate the
remainder of this Escrow Agreement.
21. Entire Agreement. This Escrow Agreement (and, with respect to Lessor and Lessee, the
Agreement and First Amendment) constitutes the entire agreement of the Parties relating to
the subject matter hereof.
PRINCIPALS:
By:
By:
Printed: Printed: Gerry Paul
Title: Title: Purchasing Direct
Organization: Organization: City of Fort Collins, Colorado
Address: Address: PO Box 580
City, State, Zip: City, State, Zip: Fort Collins, CO 80522
ATTEST (LESSEE):
APPROVED AS TO FORM:
ESCROW AGENT:
By:
Printed:
Title:
Organization: First National Wealth Management
A division of First National Bank of Omaha
Address: PO Box 2010
City, State, Zip: Fort Collins, Co 80522