HomeMy WebLinkAbout12639RESOLUTION NO. 12639
A RESOLUTION APPROVING A STATE AND MUNICIPAL
LEASE/PURCHASE AGREEMENT BETWEEN THE CITY OF
PUEBLO, A MUNICIPAL CORPORATION, AND COMMERCE
BANK, A MISSOURI BANKING CORPORATION, AND
APPROVING AN ESCROW AGREEMENT, AUTHORIZING
EXECUTION THEREOF BY THE PRESIDENT OF THE CITY
COUNCIL, AUTHORIZING THE EXECUTION AND DELIVERY OF
ALL OTHER DOCUMENTS REQUIRED THEREWITH BY THE
CITY MANAGER, AND AUTHORIZING ALL OTHER ACTION
NECESSARY TO THE CONSUMMATION OF THE
TRANSACTION CONTEMPLATED BY THIS RESOLUTION
WHEREAS, the City of Pueblo, a Municipal Corporation (hereinafter “City”), is a
Colorado home rule city duly organized and existing under and by virtue of Article XX of
the Colorado Constitution, and is authorized thereby to purchase and lease personal
property for its municipal purposes for the benefit of City and its inhabitants and to enter
into contracts with respect thereto; and
WHEREAS, the City desires to purchase, acquire and lease certain new
computer equipment and software constituting personal property necessary for the
performance of police officer functions on the field; and
WHEREAS, in order to acquire such equipment, City proposes to enter into a
Lease/Purchase Agreement, (the “Agreement”), with Commerce Bank, a Missouri
Banking Corporation or a subsidiary thereof (the “Lessor”), and Escrow Agreement with
the Escrow Agent in substantially the form as attached hereto; and
WHEREAS, City Council, as the governing body of the City, deems it for the
benefit of City and for the efficient and effective administration thereof to enter into the
Agreement for the purchase, acquisition and leasing of equipment therein described on
the terms and conditions therein provided; and
WHEREAS, the funds made available under the Agreement will be applied to the
acquisition of the equipment in accordance with the terms of such Agreement and
Escrow Agreement;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO,
that:
SECTION 1.
The form, terms and provisions of the Agreement are hereby approved in
substantially the form attached hereto with such insertions, omissions and changes as
shall be approved by the President of City Council and the City Attorney, the execution
of such documents being conclusive evidence of such approval; and the President of
the City Council is hereby authorized and directed to execute the Agreement and to
deliver the Agreement, and the City Clerk is authorized and directed to attest same and
affix the seal of the City thereto.
SECTION 2.
The City Manager is authorized and directed to take all action necessary or
reasonably required by the parties to the Agreement, to carry out, give effect to and
consummate the transactions contemplated thereby and to take all action necessary in
conformity therewith, including, without limitation, the execution and delivery of any
closing and other documents required to be delivered in connection with the Agreement.
SECTION 3.
The Agreement is expressly made subject to sufficient appropriations being
made therefore in each fiscal year including and after 2013. Nothing contained in this
Resolution and the Agreement, nor any other instrument, shall be construed with
respect to the City as incurring a pecuniary liability or charge upon the general credit of
the City or against its taxing power, nor shall the breach of any agreement contained in
this Resolution and the Agreement or any other instrument or document executed in
connection therewith impose any pecuniary liability upon the City or any charge upon its
general credit or against its taxing power, except to the extent that the rental payments
payable under the Agreement are special limited obligations of the Lessee as provided
in such Agreement. Nothing in the Agreement is intended, nor shall it be construed, to
create any multiple-fiscal year direct or indirect debt or other financial obligation
whatsoever of the City.
SECTION 4.
The City Manager and Director of Finance of the City are each hereby
designated to act as authorized representatives of the City for purposes of the
Agreement until such time as the City Council shall designate any other or different
authorized representative for purposes of the Agreement.
SECTION 5.
This Resolution shall be effective immediately upon passage and approval.
INTRODUCED: April 8, 2013
BY: Ami Nawrocki
Background Paper for Proposed
RESOLUTION
DATE: April 8, 2013 AGENDA ITEM # Q-1
DEPARTMENT: Finance Department
Deborah Morton – Interim Director
Police Department
Luis Velez - Chief of Police
Information Technology
Lori Pinz - Director
TITLE
A RESOLUTION APPROVING A STATE AND MUNICIPAL LEASE/PURCHASE
AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND
COMMERCE BANK, A MISSOURI BANKING CORPORATION, AND APPROVING AN
ESCROW AGREEMENT, AUTHORIZING EXECUTION THEREOF BY THE PRESIDENT
OF THE CITY COUNCIL, AUTHORIZING THE EXECUTION AND DELIVERY OF ALL
OTHER DOCUMENTS REQUIRED THEREWITH BY THE CITY MANAGER, AND
AUTHORIZING ALL OTHER ACTION NECESSARY FOR THE CONSUMMATION OF THE
TRANSACTION CONTEMPLATED BY THIS RESOLUTION
ISSUE
Should the City of Pueblo enter into a lease/purchase agreement for the acquisition of sixty
(60) Panasonic Tough-book Laptop computers and associated docking stations and
authentication software which will be used in the police departments patrol vehicles?
RECOMMENDATION
Approval of the Resolution
BACKGROUND
The Pueblo Police Department mobile computer fleet is comprised of sixty (60) laptops
which are currently failing at an alarming rate. The Department of Information Technology
reports that the rate of failure is between 40% and 50%. These computers are no longer
under warranty, which compounds the issue, and repairs are being done by salvaging parts
from other computers. Available spare parts are now becoming limited so the Police
Department will need to start purchasing replacement parts in order to complete repairs.
The officers are experiencing lengthy periods of rebooting, loss of connectivity causing loss
of report narratives, and battery failures. Additionally, the existing equipment is not mounted
properly, which could cause officer injury under certain conditions. The average useful
lifespan of these computers has been reached and they must be replaced ensuring optimal
field efficiency for our officers.
The Purchasing Agent has opted to take advantage of the Piggy Back Provision of a
Colorado Springs Request for Proposal and to utilize the resultant award at the proposed
price of their awarded purchase agreement. In 2012 the City of Colorado Springs, CO,
competitively bid the acquisition, deployment and planning of their mobile computing
environment. Part of the scope of this initiative included the purchase of semi-rugged
laptops for their Police and Fire Departments. Their contract was awarded to Portable
Computer Systems dba PCS Mobile.
This Resolution approves a lease/purchase agreement for the acquisition of sixty (60) new
semi-rugged Panasonic Toughbooks including a 4-year protection plan, power supplies,
docking station, internal antenna and cellular card, and two-factor authentication software
required to be in place by September 2013 to ensure the Police Department meets the
Criminal Justice Information System standards outlined by the Department of Homeland
Security. In response to the proposal prepared by PCS Mobile, the City will be entering into
a Purchase Agreement in the amount of $278,740.40.
FINANCIAL IMPACT
The new laptop computer equipment and software package, including interest, totals
$284,580.60 which will be amortized over four (4) years. The Police Department will make
lease payments through their annual operating budget. The City’s obligation under the
equipment lease shall be subject to annual appropriation by the City Council.
Payment schedule for the lease/purchase payments, including interest at a 1.32% fixed rate
is as follows:
06/01/2013 $71,145.15
06/01/2014 $71,145.15
06/01/2015 $71,145.15
06/01/2016 $71,145.15
COMMERCE BANK
STATE & MUNICIPAL LEASE/PURCHASE AGREEMENT
Lease Number: 1001112 -002
This State and Municipal Lease/Purchase Agreement (the "Lease ") is made and entered into on this, the 29th day of March 2013 by and between Commerce
Bank with offices at 8000 Forsyth Boulevard, St. Louis, Missouri 63105 (herein called the "Lessor'), and City of Pueblo, A Municipal Corporation with its
principal address at 230 S. Mechanic Street, Pueblo, CO 81003 (herein called the "Lessee "), wherein it is agreed as follows:
1. LEASE OF EQUIPMENT: Lessee hereby requests Lessor to acquire the equipment described in Exhibit A attached hereto and made a part hereof.
Subject to the terms and conditions hereof, Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor the equipment described in
Exhibit A, with all replacement parts, repairs, additions and accessories incorporated therein or affixed thereto (herein collectively called the
"Equipment').
2. DELIVERY AND ACCEPTANCE: Lessee agrees to order the Equipment from the supplier of such Equipment, but will not be liable for specific
performance of this Lease or for damages if for any reason the supplier delays or fails to fill the order. Lessee will cause the Equipment to be delivered
at the location specified in Exhibit A (the "Equipment Location "). Lessee will pay all transportation and other costs, if any, incurred in connection with the
delivery and installation of the Equipment. Any delay in such delivery will not affect the validity of this Lease. Lessee will accept the Equipment as soon
as it has been delivered and is operational, or as soon as any manufacturer or vendor preacceptance test period has expired. Lessee will have no more
than thirty (30) days from the date of delivery of the Equipment to accept such Equipment. In the event the Equipment is not accepted by Lessee within
thirty (30) days from the date of its delivery, Lessor, at Lessor's sole option, will have the right to terminate this Lease. Lessee will evidence its
acceptance of the Equipment by executing and delivering to Lessor a delivery and acceptance certificate in the form of Exhibit B attached hereto and
made a part hereof (the "Acceptance Certificate "). Lessee hereby authorizes the Lessor to add to this Lease and to any other description of the
Equipment the serial number of each item of Equipment when available.
3. TERM: This Lease will become effective upon the execution hereof by Lessee and Lessor. The initial term of this Lease will commence on the earlier of
the date Lessee executes the Acceptance Certificate or the date funds sufficient to purchase the Equipment are deposited with a bank or trust company
in an escrow fund (the "Start Date ") and will extend through the end of Lessee's fiscal year containing the Start Date. Unless earlier terminated as
expressly provided for in this Lease, the term of this Lease will be automatically renewed on a year - to-year basis for the number of annual fiscal periods
necessary to comprise the lease term as set forth in Exhibit C attached hereto and made a part hereof (the "Lease Term ").
4. RENT: Lessee agrees to pay Lessor or any Assignee (as defined in Section 22 below), the rental payments for the Equipment as set forth in Exhibit C
(the "Rental Payments "). A portion of each Rental Payment is paid as and represents the payment of interest as set forth in Exhibit C. The Rental
Payments will be payable without notice or demand, at the office of Lessor (or such other place as Lessor or any Assignee may designate in writing,
from time to time) and will commence on the Start Date or as otherwise set forth in Exhibit C, and the remaining Rental Payments will be payable on the
same day of each consecutive month or quarter or semiannual or annual period thereafter (as designated in Exhibit C) for the duration of the Lease
Term. Any notice, invoicing, purchase orders, quotations or other forms or procedures requested by Lessee in connection with payment will be fully
explained and provided to Lessor or any Assignee sufficiently in advance of the payment due date for the completion thereof by Lessor or any Assignee
prior to such payment date, but none of the foregoing will be a condition to Lessee's obligation to make any such payment. If Lessee fails to pay any
monthly rental payment or any other sums under the Lease within ten (10) days when the same becomes due, Lessee shall pay to Lessor (in addition to
and not in lieu of other rights of Lessor) a late charge equal to the greater of five (5 %) percent of such delinquent amount or Twenty-Five Dollars
($25.00), but in any event not more than the maximum permitted by law. Such late charge shall be payable by Lessee upon demand by Lessor and shall
be deemed rent hereunder. Lessee acknowledges and agrees that the late charge (i) does not constitute interest, (ii) is an estimate of the costs Lessor
will incur as a result of the late payment and (iii) is reasonable in amount. Lessor and Lessee understand and intend that the obligation of Lessee to pay
Rental Payments hereunder will constitute a current expense of Lessee and will not in any way be construed to be a debt of Lessee in contravention of
any applicable constitutional or statutory limitation or requirement conceming the creation of indebtedness by Lessee. EXCEPT AS SPECIFICALLY
PROVIDED IN SECTION 8 HEREOF, THE RENTAL PAYMENTS SHALL BE ABSOLUTE AND UNCONDITIONAL IN ALL EVENTS AND WILL
NOT BE SUBJECT TO ANY SETOFF, DEFENSE, COUNTERCLAIM, ABATEMENT OR RECOUPMENT FOR ANY REASON WHATSOEVER.
Notwithstanding the foregoing, in the event that Lessee, by its use of the Equipment or by its actions or omissions or by any means whatsoever, causes
any interest payments as set forth in Exhibit C to be included in Lessor's gross income, Lessee agrees that the interest portion of the Rental Payments
on Exhibit C will be adjusted commencing with the first day of the next succeeding fiscal year of the Lessee, but only if this Lease is renewed for such
fiscal year, and thereafter, so that Lessor, its Assignees and any participants with such, will be in the same after -tax position they would have been in
had such payment been excluded from the gross income of Lessor, its Assignees and any participants with such under Section 103 of the Code.
5. AUTHORITY AND AUTHORIZATION: Lessee represents, warrants and covenants that (a) it will do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its existence, and (ii) subject to Section 8 hereof, the Lease; (b) it has complied with all bidding and
budgeting requirements where necessary and by due notification has presented this Lease for approval and adoption as a valid obligation on its part and
that all requirements have been met and procedures have been followed to ensure the enforceability of the Lease; (c) it has sufficient appropriations or
other funds available to pay all amounts due hereunder for the current fiscal year period: (d) no event has occurred and no condition exists which, upon
the execution of this Lease or with notice or the passage of time or both, would constitute a default under any debt, revenue or purchase obligation which
it has issued or to which it is a party (the "Obligation ") nor has it been in default under any Obligation at any time during the past five (5) years, and (e)
no lease, rental agreement or contract for purchase, to which Lessee has been a party, at any time during the past five (5) years, has been terminated by
Lessee as a result of insufficient funds being appropriated in any fiscal period.
6. LESSEE CERTIFICATION: Lessee warrants and covenants that (i) it is a state, or a political subdivision thereof, within the meaning of Section 103 of
the Internal Revenue Code of 1986, as amended (the "Code "), and the related regulations and rulings thereunder; (ii) subject to Section 8 hereof,
Lessee's obligation under this Lease constitutes an enforceable obligation issued by or on behalf of a state, or political subdivision thereof, such that any
interest income derived under this Lease and due Lessor or its Assignee, including, but not limited to, those amounts designated as interest in Exhibit C,
will not be includable in the gross income of Lessor, its Assignee or any participants with such for the purposes of federal income taxation; (iii) this
Lease represents a valid deferred payment obligation of Lessee for the amount herein set forth; (iv) Lessee has the legal capacity to enter into this Lease
and is not in contravention of any state, county, district, city or town statute, rule, regulation or other govemmental provision; (v) during the Lease Term,
the Equipment will not be used in a trade or business of any other person or entity; (vi) Lessee will complete and file on a timely basis, Internal Revenue
Service form 8038G or 8038GC, as appropriate, in the manner set forth in Section 149(e) of the Code; (vii) Lessee will not take any action or permit the
omission of any action reasonably within its control which action or omission will cause the interest portion of any Rental Payment hereunder to be
includable in gross income for federal income taxation purposes.; (viii) Rental Payments represent the fair value of the use of the respective Equipment,
and that the Purchase Price represents the fair purchase price of the Equipment and the Rental Payments do not exceed a reasonable amount so as to
place the Lessee under an economic or practical compulsion to appropriate moneys to make Rental Payments under the Lease or to exercise its option
to purchase the Equipment pursuant to the Exhibit C. In making such determinations, Lessee has given consideration to the current market value of the
Equipment, the cost of acquiring the Equipment and the option to purchase the Equipment; and (ix) the duration of the Lease Term does not exceed the
weighted average useful life of the Equipment.
7. APPROPRIATIONS AND ESSENTIAL USE: Lessee reasonably believes that sufficient funds can be obtained to make all Rental Payments during the
Lease Term. The responsible financial officer of Lessee will do all things lawfully within his or her power to obtain funds from which the Rental
Payments, including any Rental Payments required by Section 4 hereof, may be made, including making provisions for such payments, to the extent
necessary, in each proposed annual budget submitted for approval in accordance with applicable procedures of Lessee. Notwithstanding the foregoing,
the decision whether or not to budget or appropriate funds or to extend this Lease for any subsequent annual fiscal period is solely within the discretion
of the then current goveming body of Lessee. It is Lessee's current intent to make the Rental Payments for the full Lease Term if funds are legally
available therefore, and in that regard Lessee represents that (a) the use of the Equipment is essential to its proper, efficient, and economic functioning
or to the services that it provides to its citizens; (b) Lessee has an immediate need for and expects to make immediate use of substantially all the
Equipment, which need is not temporary or expected to diminish in the foreseeable future; and (c) the Equipment will be used by the Lessee only for the
purpose of performing one or more of its governmental or proprietary functions consistent with the permissible scope of its authority.
8. NONAPPROPRIATION OF FUNDS: In the event no funds or insufficient funds are appropriated and budgeted or otherwise made available for Rental
Payments, including any Rental Payments required by Section 4 hereof, for any fiscal period in which the Rental Payments for the Equipment are due
under this Lease, then, without penalty, liability or expense to Lessee, this Lease will thereafter terminate and be rendered null and void on the last day of
the fiscal period for which appropriations were made, except as to (i) the portions of the Rental Payments herein agreed upon for which funds have been
appropriated and budgeted or are otherwise available and (ii) Lessee's other obligations and liabilities under this Lease relating to, accruing or arising
prior to such termination. Lessee will, not less than sixty (60) days prior to the end of such applicable fiscal period, in writing, notify Lessor and any
Assignee of such occurrence, but failure to give such notice will not prevent such termination. In the event of such termination, Lessee agrees to
peaceably surrender possession of the Equipment to Lessor or its Assignee on the day of such termination, packed for shipment in accordance with
manufacturer's specifications and eligible for manufacturer's maintenance, and freight prepaid and insured to any location in the continental United
States designated by Lessor, all at Lessee's expense, Lessor or its Assignee may exercise all available legal and equitable rights and remedies in
retaking possession of the Equipment.
9. EXCLUSION OF WARRANTIES; LIMITATIONS OF LIABILITY; DISCLAIMER OF CONSEQUENTIAL DAMAGES: LESSEE HAS SELECTED
BOTH THE EQUIPMENT AND THE VENDOR(S) FROM WHOM LESSOR IS TO PURCHASE THE EQUIPMENT IN RELIANCE HEREON.
LESSEE ACKNOWLEDGES AND AGREES THAT THE EQUIPMENT IS OF A SIZE, DESIGN AND CAPACITY SELECTED BY LESSEE, THAT
LESSOR IS NOT A MANUFACTURER, VENDOR, DISTRIBUTOR OR LICENSOR OF SUCH EQUIPMENT, AND THAT LESSOR LEASES THE
EQUIPMENT AS IS AND HAS NOT MADE, AND DOES NOT HEREBY MAKE, ANY REPRESENTATION, WARRANTY OR COVENANT,
EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, CONDITION, QUALITY, DURABILITY, DESIGN, OPERATION,
FITNESS FOR USE, OR SUITABILITY OF THE EQUIPMENT IN ANY RESPECT WHATSOEVER OR IN CONNECTION WITH OR FOR THE
PURPOSES AND USES OF LESSEE, OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT OF ANY KIND OR CHARACTER,
EXPRESS OR IMPLIED, WITH RESPECT THERETO INCLUDING ANY WARRANTIES OF TITLE OR AGAINST INFRINGEMENT OR ANY
WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR PRACTICE, ALL OF WHICH ARE SPECIFICALLY DISCLAIMED BY
LESSOR AND IN NO EVENT SHALL LESSOR BE OBLIGATED OR LIABLE FOR ACTUAL, INCIDENTAL, CONSEQUENTIAL OR OTHER
DAMAGES OF OR TO LESSEE OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR IN CONNECTION WITH THE EQUIPMENT,
INCLUDING BUT NOT LIMITED TO THE SALE, LEASE, USE, PERFORMANCE OR MAINTENANCE OF THE EQUIPMENT, INCLUDING
INTERRUPTION OF SERVICE, LOSS OF DATA, LOSS OF REVENUE OR PROFIT, LOSS OF TIME OR BUSINESS, OR ANY SIMILAR LOSS,
EVEN IF ANY SUCH PERSON IS ADVISED IN ADVANCE OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES AND EVEN IF LESSEE
ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS LEASE.
Lessee acknowledges that neither the original vendor nor licensor of the Equipment (including the salespersons of any of them) is an agent of Lessor,
nor are they authorized to waive or alter any terms of this Lease. Lessee hereby waives any claim (including any claim based on strict or absolute liability
in tort) it might have against Lessor or any assignee of the Lessor for any loss, damage or expense caused by or with respect to the Equipment. Lessor
hereby assigns to Lessee during the Lease Term, to the extent permitted by law, all manufacturer's warranties, if any, that it may have with respect to the
Equipment, and Lessor authorizes Lessee to obtain the customary services furnished in connection with such warranties at Lessee's expense. Lessor
authorizes Lessee, to the extent permitted by law, to enforce in its own name any warranty, representation or other claim enforceable against the
manufacturer. Lessor assumes no responsibility for shipment, delivery, installation or maintenances, and all claims of Lessee with respect thereto,
whether for delay, damage or otherwise, will be made against the manufacturer. Lessor, at its option, may provide in its purchase order that the
manufacturer agrees that any of such claims may be made by Lessee directly against the manufacturer. The obligation of Lessee to pay the Rental
Payments as defined in Section 4 will not be abated, impaired or reduced by reason of any claims of Lessee with respect to the Equipment, including but
not limited to its condition, quality, workmanship, delivery, shipment, installation, defects or otherwise.
10. TITLE TO THE EQUIPMENT. The Equipment shall be acquired pursuant to a contract or purchase order issued by the City of Pueblo, CO, (the "City ")
which contract or purchase order shall provide that legal title to the Equipment acquired thereunder be vested in Lessor, subject to the beneficial interest
of Lessee hereunder. Notwithstanding this method of acquisition, neither The City' nor the Lessee shall be deemed to be the "Vendor" of the
equipment under this Lease pursuant to the terms of such contract or purchase order. During the Lease Term, title to the Equipment and any and all
additions, repairs, replacements or modifications thereto shall be in Lessor; provided, however, that in the event this Lease is terminated by reason of the
occurrence of an event described in Sections 3, 20, or 21 hereof, title to the Equipment will be transferred to the Lessee. In the event that the provisions
of Section 20 are availed of by Lessor, or in the case of an Event of Nonappropriation as set forth in Section 8 hereof, Lessee will surrender its interest in
and possession of the Equipment to Lessor.
11. PERSONAL PROPERTY: The Equipment is, and will remain, personal property and will not be deemed to be affixed or attached to real property or any
building thereon. If requested by Lessor, Lessee will, at Lessee's expense, furnish to Lessor landlord or mortgagee waiver with respect to the
Equipment.
12. USE; REPAIRS: Lessee will use the Equipment in a careful manner for the use contemplated by the manufacturer of the Equipment and will comply
with all laws, ordinances, insurance policies and regulations relating to, and will pay all costs, claims, damages, fees and charges arising out of, its
possession, use or maintenance. Lessee, at its sole costs and expense, will maintain the Equipment according to the manufacturer's recommended
guidelines or the equivalent and meet any and all recertification requirements and will furnish proof of such maintenance, if requested by Lessor and will
fumish all needed servicing and parts, which parts will become part of the Equipment. If the Equipment is such as is customarily covered by a
maintenance agreement, Lessee will fumish Lessor with a maintenance agreement with a party satisfactory to Lessor.
13. ALTERATIONS: Lessee will not make any alterations, additions or improvements to the Equipment without Lessor's prior written consent, and any
permitted alteration or attachment which cannot be readily removed without damaging the Equipment's originally intended function or value will become
part of the Equipment.
14. LOCATION; INSPECTION: The Equipment will not be removed from, or if the Equipment consists of rolling stock, its permanent base will not be
changed from the Equipment Location without Lessor's prior written consent, which consent will not be unreasonably withheld. Lessor will be entitled to
enter upon the Equipment Location or elsewhere during reasonable business hours to inspect the Equipment or observe its use and operations.
15. LIENS AND TAXES: Lessee will keep the Equipment free and clear of all levies, liens and encumbrances except those created under this Lease.
Lessee will pay, when due, all charges and taxes (federal, state and local) which may now or hereafter be imposed upon the ownership, leasing, rental,
sale, purchase, possession or use of the Equipment, excluding however, all taxes on or measured by Lessor's income. If Lessee fails to pay said
charges and taxes when due, Lessor will have the right, but will not be obligated, to pay said charges and taxes. If Lessor pays any charges or taxes for
which Lessee is responsible or liable under this Lease, Lessee will, upon demand, reimburse Lessor therefor.
16. RISK OF LOSS; DAMAGE; DESTRUCTION: Lessee assumes all risk of loss of or damage to the Equipment from any cause whatsoever, and no
such loss of or damage to the Equipment will relieve Lessee of the obligation to make the Rental Payments or to perform any other obligation under this
Lease. In the event of damage to any item of Equipment, Lessee will immediately place the same in good repair (the proceeds of any insurance recovery
will be applied to the cost of such repair). If Lessor determines that any item of Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee,
at the option of Lessor, will (a) replace the same with like equipment in good repair; or (b) on the next Rental Payment date pay to Lessor (i) all amounts
owed by Lessee under this Lease, including the Rental Payment due on such date, and (ii) an amount not less than the balance of the Rental Payments
then remaining unpaid hereunder. In the event that Lessee is obligated to make such payment with respect to less than all of the Equipment, Lessor will
provide Lessee with the pro rata amount of the Rental Payment and the balance of the Rental Payments then remaining unpaid hereunder, as applicable,
to be made by Lessee with respect to the Equipment which has suffered the event of loss.
17. INSURANCE: Lessee will, at its expense, maintain at all times during the Lease Term (a) fire and extended coverage, public liability and property
damage insurance with respect to the Equipment in such amounts, covering such risks, and with such insurers as will be satisfactory to Lessor. In no
event will the insurance limits be less than the greater of (i) an amount equal to the balance of the Rental Payments then remaining for the Lease Term
or (ii) any minimum required by any co- insurance provisions of such insurance, (b) liability insurance that protects Lessor from liability in all events in
form and amount satisfactory to Lessor, and (c) workers' compensation coverage as required by the laws of the state in which Lessee is located. Each
insurance policy required by clause (b) of the preceding sentence will name Lessee as an insured and Lessor or its assigns as an additional insured and
loss payee, as appropriate, and each insurance policy required by the preceding sentence will contain a clause requiring the insurer to give Lessor or its
Assignee at least thirty (30) days prior written notice of any alteration in the terms of such policy or the cancellation thereof. The proceeds of any such
policies will be payable to Lessee and Lessor or its assigns, as their interest may appear. Upon acceptance of the Equipment and upon each insurance
renewal date, Lessee will deliver to Lessor a certificate evidencing such insurance. In the event of any loss, damage, injury or accident involving the
Equipment, Lessee will promptly provide Lessor with written notice hereof and make available to Lessor all information and documentation relating
thereto. Notwithstanding the foregoing, with Lessor's prior written consent, Lessee may self- insure against any and all risks for which insurance is
required.
18. INDEMNIFICATION: To the extent permitted by law, and solely from legally available funds, Lessee agrees to indemnify Lessor against, and hold
Lessor, its Assignees, or any participants with such, harmless from, any and all claims, actions, proceedings, expenses, damages, liabilities or losses
(including, but not limited to, attorneys' fees and court costs) arising in connection with the Equipment, including, but not limited to, its selection,
purchase, delivery, possession, use, operation or return and the recovery of claims under insurance policies thereon.
19. EVENTS OF DEFAULT: The Term "Event of Default" as used in this Lease, means the occurrence of any one or more of the following events: (a)
Lessee fails to make any Rental Payment (or any other payment) as it becomes due in accordance with the terms of this Lease, and any such failure
continues for ten (10) days after the date thereof; (b) Lessee fails to perform or observe any other covenant, condition or agreement to be performed or
observed by it hereunder and such failure is not cured within ten (10) days after written notice thereof by Lessor; (c) the discovery by Lessor that any
statement, representation or warranty made by Lessee in this Lease or in any document delivered by Lessee pursuant hereto or in connection herewith is
false, misleading or erroneous in any material respect; (d) Lessee becomes insolvent, is unable to pay its debts as they become due, makes an
assignment for the benefit of creditors, applies or consents to the appointment of a receiver, trustee, conservator or liquidator of Lessee or of all or
substantial part of its assets, a petition for relief is filed by Lessee under federal bankruptcy, insolvency or similar laws, or a petition in a proceeding
under any bankruptcy, insolvency or similar laws, is filed against Lessee and is not dismissed within thirty (30) days thereafter; (e) Lessee suffers an
adverse material change in its financial condition or operations from the date hereof and, as a result, Lessor deems itself insecure; or (f) Lessee is in
default under any other agreement executed at any time with Lessor, its affiliates or Lessor's Assignee or under any other agreement or instrument by
which it is bound.
20. REMEDIES: Upon the occurrence of an Event of Default, Lessor may, at its option, exercise any one or more of the following remedies: (a) by written
notice to Lessee, declare an amount equal to all amounts then due under this Lease and all remaining Rental Payments which will become due during
the then current fiscal year of Lessee to be immediately due and payable, whereupon the same will become immediately due and payable; (together with
interest on such amount at the lesser of one and one -half (1 1 /z %) percent per month or the maximum permitted by law from the date on which Lessor
has declared this Lease to be in default; (b) by written notice to Lessee, request Lessee to (and Lessee agrees that it will), at Lessee's expense,
promptly retum the Equipment to Lessor in the manner set forth in Section 8 hereof, or Lessor, at its option, may enter upon the premises where the
Equipment is located and take immediate possession of and remove the same without liability to Lessor or its agents for such entry or for damage to
property or otherwise; (c) sell or lease the Equipment or sublease it for the account of Lessee, holding Lessee liable for (i) all Rental Payments and other
payments due to the effective date of such selling, leasing or subleasing, and (ii) for the difference between the purchase price, rental and other
amounts paid by the purchaser, lessee or sublessee pursuant to such sale, lease or sublease and the remaining amounts payable by the Lessee
through the end of the then current fiscal year of Lessee hereunder; and (d) exercise any other right, remedy or privilege which may be available to it
under applicable law, including the right to (i) proceed by appropriate court action to enforce the terms of this Lease, (ii) recover damages for the breach
of this Lease, and (iii) rescind this Lease as to any or all of the Equipment.
In addition, Lessee will remain liable for all covenants and indemnities under this Lease and for all legal fees and other costs and expenses, including
court costs, incurred by Lessor with respect to the enforcement of any of the remedies listed above or any other remedy available to Lessor.
21. EARLY PURCHASE OPTION: Lessee may, upon sixty (60) days prior written notice to Lessor, and provided Lessee has fully paid and performed all
other obligations hereunder and provided no Event of Default has occurred and is continuing, pay to Lessor the applicable amount set forth on Exhibit C
attached hereto, whereupon title to the Equipment will become unconditionally vested in Lessee, and Lessor will transfer any and all of its right, title and
interest in the Equipment to Lessee as is, where is, without warranty, express or implied, except that Lessor will warrant to Lessee that the Equipment is
free and clear of any liens created by Lessor.
22. ASSIGNMENT: Except as expressly provided herein, Lessee will not (a) assign, transfer, pledge, hypothecate or grant any security interest in, or
otherwise dispose of, this Lease or the Equipment or any interest in this Lease or the Equipment or (b) sublet or lend the Equipment or permit the
Equipment to be used by anyone other than Lessee or Lessee's employees unless Lessee obtains the prior written consent of Lessor and an opinion of
nationally recognized counsel in the area of tax - exempt municipal obligations satisfactory to Lessor that such action will not adversely affect the
exclusion of the interest portions of the Rental Payments from gross income for federal income tax purposes.
Lessor, without the consent of Lessee, may assign all or any portion or portions of its right, title and interest in and to this Lease, the Equipment and any
other documents executed with respect to this Lease, and /or grant or assign all or any portion or portions of its security interest in this Lease and the
Equipment, in whole or in part to various assignees, their agents or trustees (each and any one hereinafter referred to as an "Assignee "). Any such
assignment to an Assignee may provide that the Lessor or the Assignee will act as a collection and paying agent for owners of certificates of
participation in this Lease, or may provide that a third -party trustee or agent will act as collection and paying agent for any Assignee, provided that any
such trustee or agent will maintain registration books as a register of all persons who are owners of certificates of participation or other interest in Rental
Payments and Lessee receives written notification of the name and address of the trustee or agent and a copy of the pooling and fractionalization agency
or trustee agreement, if any. Any such Assignee will have all of the assigned rights of Lessor under this Lease. Subject to the foregoing, this Lease will
inure to the benefit of and will be binding upon the heirs, executors, administrators, successors and assigns of the parties hereto. Any assignment or
reassignment of any of Lessor's right, title or interest in this Lease or the Equipment will be effective upon receipt by Lessee of a duplicate original of the
counterpart document by which the assignment or reassignment is made, disclosing the name and address of each such Assignee and, where
applicable, to whom further payments hereunder should be made. During the Lease Term, Lessee covenants that it will keep a complete and accurate
record of all assignments in form necessary to comply with Section 149(a) of the Code and the regulations, proposed or existing, from time to time
promulgated thereunder. Lessee agrees to acknowledge in writing any assignments if so required.
Lessee agrees that, upon notice of assignment, if so instructed it will pay directly to the Assignee, or its Trustee or Agent without abatement, deduction
or setoff all amounts which become due hereunder. Lessee further agrees that it will not assert against any Assignee, Trustee or Agent any defense,
claim, counterclaim or setoff on account of any reason whatsoever with respect to any Rental Payments or other amounts due hereunder or with respect
to any action brought to obtain possession of the Equipment pursuant to this Lease.
23. FINANCIAL STATEMENTS: Each year during the term of this Lease, Lessee hereby agrees to deliver to Lessor a copy of: (i) annual audited financial
statements within one hundred twenty (120) days of Lessee's fiscal year -end; and (ii) within a reasonable period of time, any other financial information
Lessor requests from time to time.
24. NATURE OF AGREEMENT: Lessor and Lessee agree that upon the due and punctual payment and performance of the installments of Rental
Payments and other amounts and obligations under this Lease, title to the Equipment will vest permanently in Lessee as provided in this Lease, free and
clear of any interest, lien or security of Lessor therein.
25. AMENDMENTS: This Lease may be amended or any of its terms modified for the purpose of adding Equipment, with the written consent of the parties
hereto. In such event, additions to or additional exhibits attached hereto will be executed by Lessee. All other amendments or modifications of the terms
of this Lease (except for the addition or serial numbers for the Equipment as set forth in the Acceptance Certificate) must be accomplished by written
consent of Lessee and Lessor, or its Assignee, if any; provided, however, that no amendment of this Lease will operate to reduce or delay any Rental
Payments to be made hereunder without the consent of Lessor, or its Assignee, at the time of such amendment.
26. NOTICES: All notices to be given under this Lease must be made in writing and mailed by certified mail to the other party at its address set forth herein
or at such address as the party may provide in writing from time to time. Any such notice will be deemed to have been received five (5) days subsequent
to mailing.
27. SECTION HEADINGS: All section headings contained herein are for the convenience of reference only and are not intended to define or limit the scope
of any provision of this Lease.
28. GOVERNING LAW: This Lease will be governed by the provisions hereof and by the laws of the State of Colorado.
29. FURTHER ASSURANCES: Lessee will deliver to Lessor (i) an opinion of counsel in substantially the form of Exhibit D attached hereto or as Lessor
may otherwise request; and (ii) if applicable, a certificate of a duly authorized official as to designation as a qualified tax - exempt obligation. Moreover,
Lessee will execute or provide, as requested by Lessor, any documents and information that are reasonably necessary with respect to the transaction
contemplated by this Lease.
30. ENTIRE AGREEMENT: This Lease, together with the exhibits attached hereto and made a part hereof and other attachments hereto and other
documents or instruments executed by Lessee and Lessor in connection herewith, constitute the entire agreement between the parties with respect to
the lease of the Equipment, and this Lease will not be modified, amended, altered or changed except with the written consent of Lessee or Lessor.
31. SEVERABILITY: Any provision of this Lease found to be prohibited by law will be ineffective to the extent of such prohibition without invalidating the
remainder of this Lease.
32. WAIVER: The waiver by Lessor of any breach by Lessee of any term, covenant or condition, hereof will not operate as a waiver of any subsequent
breach hereof.
33. CERTIFICATION AS TO ARBITRAGE: Lessee hereby represents as follows:
(a) The estimated total costs of the Equipment will not be less than the total principal amount of the Rental Payments.
(b) The Equipment has been ordered or is expected to be ordered within six months of the effective date of this Lease, and the Equipment is
expected to be delivered and installed, and the Vendor fully paid, within one (1) year of the effective date of this Lease.
(c) Lessee has not created or established, and does not expect to create or establish, any sinking fund or other similar fund (i) that is reasonably
expected to be used to pay the Rental Payments, or (ii) that may be used solely to prevent a default in the payment of Rental Payments.
(d) The Equipment has not been, and is not expected to be, sold or otherwise disposed of by Lessee, either in whole or in major part, prior to the
final Rental Payment.
(e) To the best of Lessee's knowledge, information and belief, the above expectations are reasonable.
34. ELECTRONIC TRANSACTIONS. The parties agree that the transaction described herein may be conducted and related documents may be stored by
electronic means. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be
authentic and valid counterparts of such original documents for all purposes, including the filing of any claim, action or suit in the appropriate court of
law.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT YOU (LESSEE(S) AND US (LESSOR)
FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS
WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US EXCEPT AS WE MAY LATER AGREE
IN WRITING TO MODIFY IT.
BY SIGNING BELOW, YOU AND WE AGREE THAT THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN US.
LESSOR: Commerce Bank LESSEE: City of Pueblo, A Municipal Corporation
DATE: r- / G -/ 1 DATE: M _ g - )•3
BY: (PRINTED AMEAND ICI Steve Nawrocki, President of City Council
Vice Pre siid
Authorized Sign e and Title: Authorized S. - and Ti. -.
ATTEST:
Gi Dutcher, City Clerk
EXHIBIT A
STATE & MUNICIPAL LEASE /PURCHASE AGREEMENT
Lease No. 1001112 -002
Description of Equipment
DESCRIPTION OF LEASED EQUIPMENT
Make Kind / Description Model Number Unit Price Quantity Cost
Panasonic Tough -book Preferred CF- 53JUQEV1M -CSC $3195.25 60 $191,715.00
Win7, Intel Core i5 -3320M 2.60GHz,
vPro, 14.0" HD Touch, 128GB SSD,
4GB, Intel Wi -Fi a /b /g/n, Bluetooth,
Dual Pass
(Upper: WWAN/ Lower: Selectable),
Verizon 4G LTE, GPS, Contactless
Smartcard Reader, Emissive Backlit
Keyboard, Multi- drive,
Tough -book Preferred
Panasonic Protection Plus — Years 1, 2, 3, 4 CF- SVCLTNF4Y $407.00 60 $24,420.00
Havis Dual Pass Docking Station DS- PAN - 411 -2 -P $655.00 60 39,300.00
for Panasonic CF53
Panasonic 120 Watt Power Supply LPS -112 -P 120.00 60 $7,200.00
Panasonic Antenna — Cellular, GPS, 4G LTE AP- CELL /LTE /GPS $96.00 60 $5,760.00
2FA ONE License (Quantity Discount) 2FA -101 $46.55 140 $6,517.00
2FA MIFARE 13.56 MHz Adhesive Tag CRD -552 $3.75 140 $525.00
Onsite Professional Services 2FA -106 $250.00 8 $2,000.00
*Assist in full deployment, Training &
application support (Does not include
travel expenses)
One year 24/7/365 Maintenance 2FA -103 $9.31 140 $1,303.40
& support Upgrades, patches, fixes,
technical support
TOTAL $278,740.40
Location of Equipment
Street Address: 200 S. Main St
City: Pueblo County: Pueblo
State: Colorado Zip Code: 81003
EXHIBIT B TO
STATE & MUNICIPAL LEASE/PURCHASE AGREEMENT
Lease No. 1001112 -002
DELIVERY AND ACCEPTANCE CERTIFICATE
TO: Commerce Bank
Reference is made to the State and Municipal Lease /Purchase Agreement between the undersigned City of Pueblo, A Municipal
Corporation ( "Lessee "), and Commerce Bank ( "Lessor "), dated March 29, 2013 ( "Lease ") and to the Equipment as such term is
defined therein. In connection therewith we are pleased to confirm to you the following:
1. All of the Equipment has been delivered to and received by the undersigned; all installation or otherwork necessary prior to the
use thereof has been completed; said Equipment has been examined and /or tested and is in good operating order and
condition and is in all respects satisfactory to the undersigned and as represented, and said Equipment has been accepted by
the undersigned and complies with all terms of the Lease. Consequently, you are hereby authorized to pay for the Equipment
in accordance with the terms of any purchase orders for the same.
2. In the future, in the event the Equipment fails to perform as expected or represented we will continue to honor the Lease in all
respects and continue to make our rental and other payments thereunder in the normal course of business and we will look
solely to the vendor, distributor or manufacturer for recourse.
3. We acknowledge that Lessor is neither the vendor nor manufacturer or distributor of the Equipment and has no control,
knowledge or familiarity with the condition, capacity, functioning or other characteristics of the Equipment
4. The serial number for each item of Equipment which is set forth on Exhibit A to the Lease is correct.
This certificate will not be considered to alter, construe, or amend the terms of the Lease.
LESSEE:
City of Pueblo, A Municipal Corporation
WITNESS:
BY: Steve Nawrocki, President of City Council
X
DATE:
Federal Tax ID #: 84- 6000615
EXHIBIT C
Lessee: City of Pueblo, A Municipal Corporation
Lessor: Commerce Bank
Lease Number: 1001112-002
Lease Term in Months: 38 Months
Rental Periods: Annually in Arrears
First Payment Date: 6/1/2013
Capital Cost of Equipment: $278,740.40
Amount
Credited to Amount Credited Early Purchase
Rental Payment Date Payment Amount Interest to Capital Cost Option Price
6/1/2013 $ 71,192.05 $ 511.02 $ 70,681.03 $ 208,059.37
6/1/2014 $ 71,192.05 $ 2,746.38 $ 68,445.67 $ 139,613.70
6/1/2015 $ 71,192.05 $ 1,842.90 $ 69,349.15 $ 70,264.55
6/1/2016 $ 71,192.05 $ 927.50 $ 70,264.55 $ -
TOTAL $ 284,768.20 $ 6,027.80 $ 278,740.40
Interest, if any, accruing from the Start Date to the actual date of funding shall be
retained by Lessor as additional consideration for entering into this Lease Purchase Agreement.
LESSEE: CITY OF P _ fi ler us i .ICIPAL CORP !_:.:j ION
SIGNED BY:
TITLE: Steve Nawrocki , President of City Council
EXHIBIT D TO
STATE & MUNICIPAL NICIPAL LEASE /PURCHASE AGREEMENT
) i M
usiilinima
CITY OF PUEBLO
5 03 N. MAIN STREET, SUITE 2 03 TELEPHONE: (71 9)562 - 3899
PUEBLO, COLORADO 81003 DEPARTMENT OF LAW FAX NO. (719)544-1007
March 29, 2013
COMMERCE BANK
8000 Forsyth Blvd.
St. Louis, Missouri 63105
Re: State and Municipal Lease /Purchase Agreement No. 1001112 -002, dated March
29, 2013 (the "Lease "), between Commerce Bank ( "Lessor ") and Pueblo, a
Municipal Corporation ( "Lessee ")
Ladies and Gentlemen:
As legal counsel to Lessee, I have examined (a) the Lease, which, among other things
provides for the sale to and purchase by the Lessee of the Equipment, (b) an executed
counterpart of the ordinance or resolution of Lessee which, among other things, authorizes
Lessee to execute the Lease and (c) such other opinions, documents and matters of law as I have
deemed necessary in connection with the following opinions.
Based on the foregoing, I am of the following opinions:
1. Lessee is a public body corporate and politic, duly organized and existing under
the laws of the State, and has a substantial amount of one or more of the following sovereign
powers: (a) the power to tax, (b) the power of eminent domain, and (c) police power.
2. Lessee has the requisite power and authority to purchase the Equipment and to
execute and deliver the Lease and to perform its obligations under the Lease.
3. The Lease and the other documents either attached thereto or required therein
have been duly organized, approved and executed by and on behalf of Lessee, and the Lease is a
valid and binding obligation of Lessee enforceable in accordance with its terms.
4. The authorization, approval and execution of the Lease and all other proceedings
of Lessee relating to the transactions contemplated thereby have been performed in accordance
with all open meeting laws, public bidding laws and all other applicable state and federal laws.
5. There is no proceeding pending or threatened in any court or before any
governmental authority or arbitration board or tribunal that, if adversely determined, would
EXHIBIT D TO
STATE & MUNICIPAL LEASE /PURCHASE AGREEMENT
Furthermore, I confirm that the name of the Lessee as stated in the Lease, as Pueblo, a
Municipal Corporation, is the exact legal name of the Lessee for all purposes contemplated
herein.
All capitalized terms herein shall have the same meanings as in the Lease. Lessor, its
successors and assigns and any counsel rendering an opinion on the tax - exempt status of the
interest components of Rental Payments are entitled to rely on this opinion.
Very truly yours,
• )7C t<-
Daniel C. Kogovsek
City Attorney
EXHIBIT E TO
STATE & MUNICIPAL LEASE/PURCHASE AGREEMENT
Lease No. 1001112 -002
I, Gina Dutcher , do hereby certify that I am the duly elected, or appointed and acting Secretary/Clerk of the
City of Pueblo, A Municipal Corporation, an agency duly organized and existing under the laws of the State of Colorado (the
"Lessee "), and that the following resolutions have been presented to and duly adopted by the City Council at a meeting duly
and regularly held and convened in accordance with applicable law on the 8th day of April , 2013 .
WHEREAS, the Lessee is entering a State and Municipal Lease /Purchase Agreement ( "Lease ") dated March 29, 2013, with
Commerce Bank;
WHEREAS, Lessee has carefully reviewed its financing requirements for the current calendar year and reasonably expects that it
will not issue more than ten million dollars ($10,000,000) of tax - exempt obligations during the calendar year;
NOW, THEREFORE, be it RESOLVED, that the Lessee be, and hereby is, authorized to enter into the Lease with Commerce Bank
for a period of 38 months, and be it further
RESOLVED, that the following officials of the Lessee be, and hereby are, authorized, empowered and directed to
sign on its behalf the Lease and any addenda, schedules, notes, UCC financing statements or other instruments
issued under the provision of the Lease and any other instrument or document which may be necessary or
expedient in connection with agreement upon or fulfillment of the provisions of the Lease.
Title Printed Name . • = ure
President of City Council Steve Nawrocki
Interim Dir. Finance Deborah Morton VY4
RESOLVED, that that pursuant to Section 265(b)(3) of the Internal Revenue Code of 1986, as amended, this Lease be
and hereby Is designated a "qualified tax - exempt obligation" includable within the ten million dollars
($10,000,000) of the aggregate issues designated as "qualified tax - exempt obligations" for the calendar year
within which this Lease is entered into.
RESOLVED, that Lessee shall not designate more than ten million dollars ($10,000,000) of tax - exempt
obligations during the current calendar year as qualified tax - exempt obligations and Lessee, together with its
subordinate entities, does not reasonably expect to issue more than ten million dollars ($10,000,000) of tax -
exempt obligations during the current calendar year.
IN WITNESS WHEREOF, I have duly executed this certificate and affixed the seal hereto this day g of
4 , 20(3.
LESSEE: City of Pueblo, A Municipal Corporation
BY:
X
TAX ID NU ER:
89 -6000 5
RESOLUTION NO. 12639
A RESOLUTION APPROVING A STATE AND MUNICIPAL
LEASE /PURCHASE AGREEMENT BETWEEN THE CITY OF
PUEBLO, A MUNICIPAL CORPORATION, AND COMMERCE
BANK, A MISSOURI BANKING CORPORATION, AND
APPROVING AN ESCROW AGREEMENT, AUTHORIZING
EXECUTION THEREOF BY THE PRESIDENT OF THE CITY
COUNCIL, AUTHORIZING THE EXECUTION AND DELIVERY OF
ALL OTHER DOCUMENTS REQUIRED THEREWITH BY THE
CITY MANAGER, AND AUTHORIZING ALL OTHER ACTION
NECESSARY TO THE CONSUMMATION OF THE
TRANSACTION CONTEMPLATED BY THIS RESOLUTION
WHEREAS, the City of Pueblo, a Municipal Corporation (hereinafter "City "), is a
Colorado home rule city duly organized and existing under and by virtue of Article XX of
the Colorado Constitution, and is authorized thereby to purchase and lease personal
property for its municipal purposes for the benefit of City and its inhabitants and to enter
into contracts with respect thereto; and
WHEREAS, the City desires to purchase, acquire and lease certain new
computer equipment and software constituting personal property necessary for the
performance of police officer functions on the field; and
WHEREAS, in order to acquire such equipment, City proposes to enter into a
Lease /Purchase Agreement, (the "Agreement "), with Commerce Bank, a Missouri
Banking Corporation or a subsidiary thereof (the "Lessor "), and Escrow Agreement with
the Escrow Agent in substantially the form as attached hereto; and
WHEREAS, City Council, as the governing body of the City, deems it for the
benefit of City and for the efficient and effective administration thereof to enter into the
Agreement for the purchase, acquisition and leasing of equipment therein described on
the terms and conditions therein provided; and
WHEREAS, the funds made available under the Agreement will be applied to the
acquisition of the equipment in accordance with the terms of such Agreement and
Escrow Agreement;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO,
that:
SECTION 1.
The form, terms and provisions of the Agreement are hereby approved in
substantially the form attached hereto with such insertions, omissions and changes as
shall be approved by the President of City Council and the City Attorney, the execution
of such documents being conclusive evidence of such approval; and the President of
the City Council is hereby authorized and directed to execute the Agreement and to
deliver the Agreement, and the City Clerk is authorized and directed to attest same and
affix the seal of the City thereto.
SECTION 2.
The City Manager is authorized and directed to take all action necessary or
reasonably required by the parties to the Agreement, to carry out, give effect to and
consummate the transactions contemplated thereby and to take all action necessary in
conformity therewith, including, without limitation, the execution and delivery of any
closing and other documents required to be delivered in connection with the Agreement.
SECTION 3.
The Agreement is expressly made subject to sufficient appropriations being
made therefore in each fiscal year including and after 2013. Nothing contained in this
Resolution and the Agreement, nor any other instrument, shall be construed with
respect to the City as incurring a pecuniary liability or charge upon the general credit of
the City or against its taxing power, nor shall the breach of any agreement contained in
this Resolution and the Agreement or any other instrument or document executed in
connection therewith impose any pecuniary liability upon the City or any charge upon its
general credit or against its taxing power, except to the extent that the rental payments
payable under the Agreement are special limited obligations of the Lessee as provided
in such Agreement. Nothing in the Agreement is intended, nor shall it be construed, to
create any multiple - fiscal year direct or indirect debt or other financial obligation
whatsoever of the City.
SECTION 4.
The City Manager and Director of Finance of the City are each hereby
designated to act as authorized representatives of the City for purposes of the
Agreement until such time as the City Council shall designate any other or different
authorized representative for purposes of the Agreement.
SECTION 5.
This Resolution shall be effective immediately upon passage and approval.
INTRODUCED: April 8, 2013
BY: And Nawrocki
OUNCILP ON
APPRO ED.
PRESIDENT OF CITY • UNCIL
ATTESTED BY:
ITY CLERK
STATE & MUNICIPAL LEASE/PURCHASE AGREEMENT
Lease No. 1001112 -002
ESSENTIAL USE/SOURCE OF FUNDS LETTER
March 29, 2013
Commerce•Bank
8000 Forsyth Boulevard
St Louis, Missouri 63105
Re: State and Municipal Lease/Purchase Agreement No. 1001112 -002, dated March 29, 2013 (the "Lease"), between
Commerce Bank ( "Lessor") and City of Pueblo, A Municipal Corporation ("Lessee ")
Ladies and Gentlemen:
This confirms and affirms that the Equipment described in the Lease is essential to the function of the undersigned or to the service
we provide to our citizens.
Further, we have an immediate need for, and expect to make immediate use of, substantially all such Equipment, which need is not
temporary or expected to diminish in the foreseeable future. Such Equipment will be used by us only for the purpose of performing
one or more of our governmental or proprietary functions consistent with the permissible scope of our authority. Specifically, such
Equipment was selected by us to be used as follows: Police Patrol Off r
The estimated useful life of such Equipment based upon manufacturer's representations and our projected needs is f n,ir
years.
Our source of funds for payments of the Rental Payments due under the Lease for the current fiscal year is
PnlirP nprartmant
We currently expect and anticipate adequate funds to be available for all future payments of rent due after the current fiscal year for
the following reasons:
Police Department's budgeeed for rhi G rncr
Very truly yours,
Ltbbtt:
City of Pueblo, A Municipal Corporation
WI S:
BY: ve Nawrocki, President of City Council
X
DATE: - $ - 13
Proof of Insurance
Insurance Agent Name: Ralph Williams
Agency Name: H„h Tntarnatinna1
Address: P.O. BOX 58 Pueblo CO 81002
Phone Number: (77119) 5/A6-6851
E -Mail: Ralph. Williams @HubInternational.com
Ladies and Gentlemen:
Please add Commerce Bank, as both sole loss payee under property insurance covering the equipment listed on attached Exhibit A
and additional insured under the general liability insurance policy. The minimum liability coverage is $1,000,000.00. Please mail or
fax an insurance certificate to:
Commerce Bank
P.O. Box 11309
St. Louis, MO 63105
Fax # 314 - 746 -3744
Please note that the Bank requires 30 day written notice of cancellation of the policy covering leased equipment.
Lessee: Ci of Pueblo, • Municipal Corporation
Title: Steve Nawrocki, President of City Council
Date: y' e " /3
-- 7
AO IN ' CERTIFICATE OF LIABILITY INSURANCE D . / / /DD/YY)
1 a. /a 7• /cola
PRODUCER LI #N /A 1 - 303 - 757 - 5475 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
CIRBA ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
3665 Cherry Creek North Drive ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Denver, CO 80209 INSURERS AFFORDING COVERAGE
INSURED INSURER k CI RSA
City of Pueblo
c/o HUB International INSURER8:RSUI Indemnity Company
P.O. Box 58 INSURER C:
Pueblo, CO 81002 INSURERD:
I INSURER E:
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDrfION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
I`TR POLICY EFFECTIVE POLICY EXPIRATION LIMITS
TYPE OF INSURANCE POLICY NUMBER DATE IMMIDDIYYI DATE IMMIDD/TYI
A GENERAL LIABILITY LIAB 01 - 2013 01/01/13 01/01/14 EACH OCCURRENCE $5,000,000
X COMMERCIAL GENERAL LIABILITY FIRE DAMAGE (Any one tire) $ 5,000,000
X CLAIMS MADE I I OCCUR MED EXP (Any one person) $ 0
X $10m POL E &0 Aggregate PERSONAL&ADVINJURY $ 5, 000 , 000
GENERAL AGGREGATE $
GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $ 5,000,000
n POLICY n .1F87 n LOC
A AUTOMOBILE LIABILITY LIAB 01 - 2013 01/01/13 01/01/14 COMBINED SINGLE LIMIT $1,500,000
X ANY AUTO (Ea acddent)
ALL OWNED AUTOS BODILY INJURY $
SCHEDULED AUTOS (Per person) -
HIRED AUTOS BODILY INJURY $
(Per acddent)
NON -OWNED AUTOS - —
PROPERTY DAMAGE $
(Per acddenl)
GARAGE UABIUTY AUTO ONLY - EA ACCIDENT $
ANY AUTO OTHER THAN EA ACC $
AUTO ONLY: AGO $
EXCESS LIABILITY EACH OCCURRENCE $
n OCCUR n CLAIMS MADE AGGREGATE $
_ $
H DEDUCTIBLE $
RETENTION $ $
WORKERS COMPENSATION AND 16A2 I FR
EMPLOYERS' LIABILITY E.L. EACH ACCIDENT $
E.L. DISEASE - EA EMPLOYEE $
E.L. DISEASE - POLICY LIMIT $
OTHER
B Excess Property N110379523 01/01/13 01/01/14 Pool Limit
A Property PR 01 -2013 01/01/13 01/01/14 6500,000
s
DESCRIPTION OF OPERATIONSILOCATIONS /VEHICLESIEXCLU8ION8 ADDED BY ENDORSEMENT /SPECIAL PROVISIONS
Certificate Holder is Additional Insured on Liability Policies and Loee Payee on Property if required by contract.
As respect to lease to own golf equipment.
CERTIFICATE HOLDER 1 Y 1 ADDITIONAL INSURED; INSURER LETTER: A CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
Commerce Bank, a Missouri Banking Corporation DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. BUT FAILURE TO DO SO SHALL
Purchasing IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR
800 Forsyth Blvd.
REPRESENTATIVES.
St. Louie, 140 63105 USA AUTHORIZED REPRESENTATIVE u d /14 •
q
I
ACORD 25 -S (7/97) cwegman 0 ACORD CORPORATION 1988
30960541
I
ESCROW AGREEMENT
This Escrow Agreement (the "Escrow Agreement "), dated as of March 29, 2013, and entered into
among COMMERCE BANK, a Missouri banking corporation (together with its successors and assigns,
"Lessor "), CITY OF PUEBLO, A MUNICIPAL CORPORATION, a municipal corporation and
political subdivision existing under the laws of Colorado ( "Lessee "), and COMMERCE BANK, a
Missouri banking corporation, as escrow agent (together with its successors and assigns, the "Escrow
Agent ").
Name of Acquisition Fund: "Pueblo II"
Amount of Deposit into the Acquisition Fund: $278,740.40
TERMS AND CONDITIONS
1. This Escrow Agreement relates to and is hereby made a part of the State and Municipal
Lease/Purchase Agreement dated as of March 29, 2013, (the "Lease "), between Lessor and Lessee.
2. Except as otherwise defined herein, all terms defined in the Lease shall have the same
meaning for the purposes of this Escrow Agreement as in the Lease.
3. Lessor, Lessee and the Escrow Agent agree that the Escrow Agent will act as sole Escrow
Agent under the Lease and this Escrow Agreement, in accordance with the terms and conditions set forth
in this Escrow Agreement. The Escrow Agent shall not be deemed to be a party to the Lease, and this
Escrow Agreement shall be deemed to constitute the entire agreement between Lessor and Lessee and the
Escrow Agent.
4. There is hereby established in the custody of the Escrow Agent a special trust fund
designated as set forth above (the "Acquisition Fund ") to be held and administered by the Escrow Agent
in trust for the benefit of Lessor and Lessee in accordance with this Escrow Agreement.
5. Lessor shall deposit in the Acquisition Fund the amount specified above. Moneys held
by the Escrow Agent hereunder shall be invested and reinvested by the Escrow Agent upon written order
of an authorized Lessee representative, in accordance with the Arbitrage Instructions attached as Exhibit
A, in Qualified Investments (as defined below) maturing or subject to redemption at the option of the
holder thereof prior to the date on which it is expected that such funds will be needed. If an Authorized
Lessee Representative fails to timely direct the investment of any moneys held hereunder, the Escrow
Agent shall invest and reinvest such moneys in Qualified Investments described in 6(vi) below. Such
investments shall be held by the Escrow Agent in the Acquisition Fund; any interest and gain earned on
such investments shall be deposited in the Acquisition Fund, and any losses on such investments shall be
charged to the Acquisition Fund. The Escrow Agent may act as purchaser or agent in the making or
disposing of any investment. Qualified Investments described in 6(vi) below will be subject to an
annualized sweep fee charged monthly to the earnings on monies invested.
6. "Qualified Investments" means, to the extent the same are at the time legal for investment
of the funds being invested: (i) direct general obligations of the United States of America; (ii) obligations
the timely payment of principal of and interest on which is fully and unconditionally guaranteed by the
United States of America; (iii) general obligations of the agencies and instrumentalities of the United
States of America acceptable to Lessor; (iv) certificates of deposit, time deposits or demand deposits with
any bank or savings institution including the Escrow Agent or any affiliate thereof, provided that such
certificates of deposit, time deposits or demand deposits, if not insured by the Federal Deposit Insurance
Corporation or the Federal Savings and Loan Insurance Corporation, are fully secured by obligations
described in (i), (ii) or (iii) above; or (v) repurchase agreements with any state or national bank or trust
company, including the Escrow Agent or any affiliate thereof, that are secured by obligations of the type
described in (i), (ii) or (iii) above, provided that such collateral is free and clear of claims of third parties
and that the Escrow Agent or a third party acting solely as agent for the Escrow Agent has possession of
such collateral and a perfected first security interest in such collateral; or (vi) money market mutual funds
that are invested in securities described in (i), (ii) or (iii) and that are rated "Aaa" by Moody's Investors
Service or "AAAm -G" by Standard & Poor's Ratings Services or the comparable rating by Fitch IBCA,
Inc.
7. Moneys in the Acquisition Fund shall be used to pay for the cost of acquisition of the
Equipment listed in the Lease. Such payment shall be made from the Acquisition Fund upon presentation
to the Escrow Agent of one or more properly executed Payment Request and Acceptance Certificates, a
form of which is attached as Exhibit B, executed by Lessee and approved by Lessor, together with an
invoice for the cost of the acquisition of said Equipment and a written approval by Lessor of the Vendor
be paid. In making any disbursement pursuant to this Section 7, the Escrow Agent may conclusively rely
as to the completeness and accuracy of all statements in such Payment Request and Acceptance
Certificate, and the Escrow Agent shall not be required to make any inquiry, inspection or investigation in
connection therewith. The approval of each Payment Request and Acceptance Certificate by the Lessor
shall constitute unto the Escrow Agent an irrevocable determination by the Lessor that all conditions
precedent to the payment of the amounts set forth therein have been completed.
8. The Acquisition Fund shall terminate upon the occurrence of the earlier of (a) the
presentation of a proper Payment Request and Acceptance Certificate and the Final Acceptance
Certificate, a form of which is attached as Exhibit C, properly executed by Lessee, or (b) the presentation
of written notification by the Lessor, or, if the Lessor shall have assigned its interest under the Lease, then
the assignees or subassignees of all of Lessor's interest under the Lease or an Agent on their behalf, that
the Lease has been terminated pursuant to Section 8 or 20 of the Lease. Upon termination as described in
clause (a) of this paragraph, any amount remaining in the Acquisition Fund shall be used to prepay the
principal portion of Rental Payments unless Lessor directs that payment of such amount be made in such
other manner directed by Lessor that, in the opinion of nationally recognized counsel in the area of
tax - exempt municipal obligations satisfactory to Lessor, will not adversely affect the exclusion of the
interest components of Rental Payments from gross income for federal income tax purposes. If any such
amount is used to prepay principal, the Rental Payment Schedule attached to the Lease shall be revised
accordingly as specified by Lessor. Upon termination as described in clause (b) of this paragraph, any
amount remaining in the Acquisition Fund shall immediately be paid to Lessor or to any assignees or
subassignees of Lessor interest in this Lease.
9. The Escrow Agent may at any time resign by giving at least 30 days written notice to
Lessee and Lessor, but such resignation shall not take effect until the appointment of a successor Escrow
Agent. The substitution of another bank or trust company to act as Escrow Agent under this Escrow
Agreement may occur by written agreement of Lessor and Lessee. In addition, the Escrow Agent may be
removed at any time, with or without cause, by an instrument in writing executed by Lessor and Lessee.
In the event of any resignation or removal of the Escrow Agent, a successor Escrow Agent shall be
appointed by an instrument in writing executed by Lessor and Lessee. Such successor Escrow Agent
shall indicate its acceptance of such appointment by an instrument in writing delivered to Lessor, Lessee
and the predecessor Escrow Agent. Thereupon such successor Escrow Agent shall, without any further
-2-
act or deed, be fully vested with all the trusts, powers, rights, duties and obligations of the Escrow Agent
under this Escrow Agreement and the predecessor Escrow Agent shall deliver all moneys and securities
held by it under this Escrow Agreement to such successor Escrow Agent whereupon the duties and
obligations of the predecessor Escrow Agent shall cease and terminate. If a successor Escrow Agent has
not been so appointed with 90 days of such resignation or removal, the Escrow Agent may petition a court
of competent jurisdiction to have a successor Escrow Agent appointed.
10. Any corporation or association into which the Escrow Agent may be merged or converted
or with or into which it may be consolidated, or to which it may sell or transfer its corporate trust business
and assets as a whole or substantially as a whole, or any corporation or association resulting from any
merger, conversion, sale, consolidation or transfer to which it is a party, shall be and become successor
Escrow Agent hereunder and shall be vested with all the trusts, powers, rights, obligations, duties,
remedies, immunities and privileges hereunder as was its predecessor, without the execution or filing of
any instrument or any further act on the part of any of the parties hereto.
11. The Escrow Agent incurs no responsibility to make any disbursements pursuant to the
Escrow Agreement except from funds held in the Acquisition Fund. The Escrow Agent makes no
representations or warranties as to the title to any Equipment listed in the Lease or as to the performance
of any obligations of Lessor or Lessee.
12. The Escrow Agent may act in reliance upon any writing or instrument or signature which
it, in good faith, believes to be genuine, may assume the validity and accuracy of any statement or
assertion contained in such a writing or instrument, and may assume that any person purporting to give
any writing, notice, advice or instructions in connection with the provisions hereof has been duly
authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency or
correctness as to form, manner and execution, or validity of this Escrow Agreement other than its own
execution thereof or any instrument deposited with it, nor as to the identity, authority or right of any
person executing the same; and its duties hereunder shall be limited to those specifically provided herein.
13. Unless the Escrow Agent is guilty of negligence or willful misconduct with regard to its
duties hereunder, Lessee, to the extent permitted by law, and Lessor jointly and severally hereby agree to
indemnify the Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits
or proceedings at law or in equity, or any other expense, fees or charges of any character or nature, which
it may incur or with which it may be threatened by reason of its acting as Escrow Agent under this
Escrow Agreement; and in connection therewith, to indemnify the Escrow Agent against any and all
expenses, including reasonable attorneys' fees and the cost of defending any action, suit or proceeding or
resisting any claim.
14. The aggregate amount of the costs, fees, and expenses of the Escrow Agent in connection
with the creation of the escrow described in and created by this Escrow Agreement and in carrying out
any of the duties, terms or provisions of this Escrow Agreement is a one time fee in the amount of $0.00
to be paid by Lessee concurrently with the execution and delivery of this Escrow Agreement.
Notwithstanding the preceding paragraph, the Escrow Agent shall be entitled to reimbursement
from Lessor of reasonable out -of- pocket, legal or extraordinary expenses incurred in carrying out the
duties, terms or provisions of this Escrow Agreement. Claims for such reimbursement may be made to
Lessor and in no event shall such reimbursement be made from funds held by the Escrow Agent pursuant
to this Escrow Agreement. The Escrow Agent agrees that it will not assert any lien whatsoever on any of
-3-
the money or Qualified Investments on deposit in the Escrow Fund for the payment of fees and expenses
for services rendered by the Escrow Agent under this Escrow Agreement or otherwise.
15. If Lessee, Lessor or the Escrow Agent shall be in disagreement about the interpretation of
the Lease or this Escrow Agreement, or about the rights and obligations, or the propriety of any action
contemplated by the Escrow Agent hereunder, the Escrow Agent may, but shall not be required to, file an
appropriate civil action to resolve the disagreement. The Escrow Agent shall be indemnified by Lessor
and Lessee, to the extent permitted by law, for all costs, including reasonable attorneys' fees and
expenses, in connection with such civil action, and shall be fully protected in suspending all or part of its
activities under this Escrow Agreement until a final judgment in such action is received.
16. The Escrow Agent may consult with counsel of its own choice and shall have full and
complete authorization and protection for any action or non - action taken by the Escrow Agent in
accordance with the opinion of such counsel. The Escrow Agent shall otherwise not be liable for any
mistakes of facts or errors of judgment, or for any acts or omissions of any kind unless caused by its
negligence or willful misconduct.
I7. This Escrow Agreement shall be governed by and construed in accordance with the laws
of Colorado. Venue shall be proper in the court of the competent jurisdiction in Pueblo County, Colorado.
18. In the event any provision of this Escrow Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
19. This Escrow Agreement may not be amended except by a written instrument executed by
Lessor, Lessee and the Escrow Agent.
20. This Escrow Agreement may be executed in several counterparts, each of which so
executed shall be an original.
-4-
IN WITNESS WHEREOF, Lessor, Lessee and the Escrow Agent have caused this Escrow
Agreement to be executed by their duly authorized representatives.
COMMERCE BANK
LESSOR
f F /
By: A e �r r
Title: -
Vice Presiaent
CITY OF PUEBLO, A MUNICIPAL CORPORATION
LESSEE
By:
Title: Steve Nawrocki, President of City Council
COMMERCE BANK
ESCROW AGENT
By:
Title:
-5-
EXHIBIT A
ARBITRAGE INSTRUCTIONS
These Arbitrage Instructions provide procedures for complying with § 148 of the Internal
Revenue Code of 1986, as amended (the "Code "), in order to preserve the exclusion from federal gross
income of the interest portions of the Rental Payments under the Lease.
1. Temporary Period/Yield Restriction. Except as described in this paragraph, money in
the Acquisition Fund must not be invested at a yield greater than the yield on the Lease. Proceeds of the
Lease in the Acquisition Fund and investment earnings on such proceeds may be invested without yield
restriction for three years after the Start Date of the Lease. If any unspent proceeds remain in the
Acquisition Fund after three years, such amounts may continue to be invested without yield restriction so
long as Lessee pays to the IRS all yield reduction payments under § 1.148 -5(c) of the Treasury
Regulations.
2. Opinion of Bond Counsel. These Arbitrage Instructions may be modified or amended in
whole or in part upon receipt of an opinion of nationally recognized counsel in the area of tax - exempt
municipal obligations, satisfactory to Lessor, that such modifications and amendments will not adversely
affect the exclusion of the interest components of Rental Payments from gross income for federal income
tax purposes.
EXHIBIT B
FORM OF PAYMENT REQUEST AND ACCEPTANCE CERTIFICATE
To: COMMERCE BANK, Escrow Agent and Lessor
8000 Forsyth Blvd.
St. Louis, Missouri 63105
Re: Pueblo II Acquisition Fund established by the Escrow Agreement, dated as of March 29,
2013 (the "Escrow Agreement ") among Commerce Bank, as lessor ( "Lessor "), City of
Pueblo, A Municipal Corporation ( "Lessee ") and Commerce Bank, as Escrow Agent (the
"Escrow Agent ")
Ladies and Gentlemen:
The Escrow Agent is hereby requested to pay from the Acquisition Fund to the person or
corporation designated below as Payee, the sum set forth below in payment of a portion or all of the cost
of the acquisition of the equipment or the interest portions of Rental Payment(s) described below. The
amount shown below is due and payable under the invoice of the Payee attached hereto with respect to the
cost of the acquisition of the equipment or payment of the interest portions of Rental Payment(s) and has
not formed the basis of any prior request for payment.
The equipment described below is part or all of the "Equipment" that is listed in State and
Municipal Lease/Purchase Agreement dated as of March 29, 2013 (the "Lease ") described in the Escrow
Agreement.
Equipment:
Payee: PCS Mobile
Amount: $ 278, 740.40
Lessee hereby certifies and represents to and agrees with Lessor and the Escrow Agent as
follows:
(1) The Equipment described above (a) has been delivered, installed and accepted on the date
hereof, or (b) the amount requested is a down payment currently due on said Equipment.
(2) If (1)(a) is applicable, Lessee has conducted such inspection and/or testing of said
Equipment as it deems necessary and appropriate and hereby acknowledges that it
accepts said Equipment for all purposes.
(3) If (1)(a) is applicable, Lessee is currently maintaining the insurance coverage required by
Section 17 of the Lease.
Lessee hereby certifies and represents to Lessor and the Escrow Agent that no event or condition
that constitutes, or with notice or lapse of time or both would constitute, an Event of Default (as such term
is defined in the Lease) exists at the date hereof.
Dated: LA , 20 13 .
CITY OF PUEBLO, A MUNICIPAL CORPORATION
LESSEE
`' awrocki, President of City Council
APPROVED:
COMMERCE BANK
LESSOR
By:
Title:
EXHIBIT C
FINAL ACCEPTANCE CERTIFICATE
[THIS CERTIFICATE IS TO BE EXECUTED ONLY WHEN ALL EQUIPMENT
HAS BEEN ACCEPTED]
The undersigned hereby certifies that the equipment described above, together with the
equipment described in and accepted by Payment Request and Acceptance Certificates previously filed by
Lessee with the Escrow Agent and Lessor pursuant to the Escrow Agreement, constitutes all of the
Equipment subject to the Lease.
Dated:
CITY OF PUEBLO, A MUNICIPAL CORPORATION
LESSEE
By:
Title: Steve Nawrocki, President of City Council
Form Request for Taxpayer Give Form to the
(Rev. December 2011) Identification Number and Certification requester. Do not
Department of the Treasury send to the IRS.
bdemal Revenue Service
Name as shown on your income tax return)
City of Pueblo, A Municipal Corporation
. 8usmess name/dsregarded entity name. if different from above
ry
T'
c
• Check appropriate box for federal tax classification:
o ❑ Individual/sole proprietor ❑ C Corporation 0 S Corporation Lj Partnership ❑ Trust/estate
h
0 0
o ❑ Limited liability company. Enter the tax classification (C =C corporation. 3' $ corporation. P= partnership) ► ❑ Exempt payee
0 2
c
15I Other (see instructions) • Municipal Corporation
Address (number. street, and apt. or suite no.) Requester's name and address (optional►
u
$ 230 S. Mechanic Street
co
▪ City. state. and ZIP code
rn Pueblo, CO 81003
List account number(s) here (optional)
Part Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. The TIN provided must match the name given on the "Name" line I Soclal security number
to avoid backup withholding. For individuals, this is your social security number (SSN). However, for a
resident alien, sole proprietor. or disregarded entity, see the Part I instructions on page 3. For other - - I
entities, it is your employer identification number (EIN). If you do not have a number, see How to get a
TIN on page 3.
Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose Employer Identification number
number to enter. 1
8 4- 6 0 0 0 6 115
Part;; II Certification
Under penalties of perjury, I certify that:
1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be Issued to me), and
2. I am not subject to backup withholding because: (a) I am exempt from backup withholding. or (b) I have not been notified by the Internal Revenue
Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am
no longer subject to backup withholding, and
3. I am a U.S. citizen or other U.S. person (defined below).
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding
because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage
interest paid, acquisition or abandonment of secured property, cancellation of debt. contrlbutlons to an Individual retirement arrangement (IRA), and
generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the
instructions on page 4.
Sign Signature of 1X L ^ 0 Dale g - ,3
Here us. parson ' fd/
General Instructions '1.0•1 +cr40•% 1 rt f-kor +f Fi err.,trejlote. If a requester gives you a form other than Form W -9 to request
your 11N, you must use the requester's form if it is substantially similar
Section references are to the Internal Revenue Code unless otnerwise to this Form W -9.
noted. Definition of a U.S. person. For federal tax purposes, you are
Purpose of Form considered a U.S. person if you are:
• A person who is required file an information return with the IRS must individual who is a U.S. citizen or U.S. resident alien,
ed
obtain your correct taxpayer Identification number (TIN) to report, for • A partnership, corporation, company. or association created or
example, income paid to you, real estate transactions, mortgage interest organized in the United States or under the laws of the United States,
you paid, acquisition or abandonment of secured property, cancellation • An estate (other than a foreign estate), or
of debt, or contributions you made to an IRA. • A domestic trust (as defined in Regulations section 301.7701 -7).
Use Fan W -9 only if you are a U.S. person (including a resident Special rules for partnerships. Partnerships that conduct a trade or
alien), to provide your correct to the person requesting it (the business in the United States are generally required to pay a withholding
requester) and, when applicable, to: tax on any foreign partners' share of income from such business.
1. Certify that the TIN you are giving is correct (or you are waiting for a Further, in certain cases where a Form W -9 has not been received, a
number to be issued). partnership is required to presume that a partner is a foreign person. •
2. Certify that you are not subject to backup withholding, or and pay the withholding tax. Therefore, If you are a U.S. person that is a
3. Claim exemption from backup withholding it you are a U.S. exempt partner in a partnership conducting a trade or business In tore United
payee. If applicable, you are also certifying that as a U.S. person, your States. provide Form W -9 to the partnership to establish your U.S.
allocable share of any partnership income from a U.S. trade or business status and avoid withholding on your share of partnership inoome.
is not subject to the withholding tax on foreign partners' share of
effectively connected income.
Cat. No. 10231X Farm W -9 (Rev. 12 - 2011)
Fom, 8038-G Information Return for Tax- Exempt Governmental Obligations
(Rev. September 2011) • Under Internal Revenue Code section 149(e) OMB No. 1545 - 0720
Department of the Treasury I► See separate instructions.
Internal Revenue Service Caution: If the issue price is under $100,000, use Form 8038 -GC.
Part I; Reporting Authority If Amended Return, check here ts ❑
1 Issuer's name 2 Issuer's employer identification number (EIN)
City of Pueblo, A Municipal Corporation 84 6000615
3a Name of person (other than issuer) with whom the IRS may communicate about this return (see instructions) 3b Telephone number of other person shown on 3a
4 Number and street (or P.O. box if mail is not delivered to street address) Room/suite 5 Report number For IRS Use 0n1y0
230 S. Mechanic Street 1 3
6 City, town, or post office, state, and ZIP code 7 Date of issue
Pueblo, CO 81003 4/12/2013
8 Name of issue 9 CUSIP number
10a Name and title of officer or other employee of the issuer whom the IRS may call for more information (see 10b Telephone number of officer or other
instructions) employee shown on 10a
Naomi Hedden (719) 553 -2350
Part II Y Type of Issue (enter the issue price). See the instructions and attach schedule.
11 Education . . 11
12 Health and hospital 12
13 Transportation 13
14 Public safety . 14
15 Environment (including sewage bonds) 15
16 Housing . . 16
17 Utilities . . 17
18 Other. Describe Police Department 18 278,740. 40
19 If obligations are TANs or RANs, check only box 19a ®❑ ,,
n
If obligations are BANs, check only box 19b ®❑
20 If obligations are in the form of a lease or installment sale, check box 1► 19 r
Part 111 Description of Obligations. Complete for the entire issue for which this form is being filed.
(a) Final maturity date (b) Issue price (c) Stated redemption (d) Weighted (e) Yield
price at maturity average maturity
21 06/1/2016 $ 278,740.40 $ NA 4 years 1.320 %
Part IV Uses of Proceeds of Bond Issue (including underwriters' discount)
22 Proceeds used for accrued interest 22
23 Issue price of entire issue (enter amount from line 21, column (b)) 23
24 Proceeds used for bond issuance costs (including underwriters' discount) . . 24
25 Proceeds used for credit enhancement 25
26 Proceeds allocated to reasonably required reserve or replacement fund . 26
27 Proceeds used to currently refund prior issues 27
28 Proceeds used to advance refund prior issues 28
29 Total (add lines 24 through 28) 29
30 Nonrefunding proceeds of the issue (subtract line 29 from line 23 and enter amount here) . . . 30
Part V Description of Refunded Bonds. Complete this part only for refunding bonds.
31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . . ► years
32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . Is years
33 Enter the last date on which the refunded bonds will be called (MM /DD/YYYY) •
34 Enter the date(s) the refunded bonds were issued ® (MM/DDmrrY)
For Paperwork Reduction Act Notice, see separate instructions. Cat. No. 637738 Form 8038-G (Rev. 9 -2011)
Form 8038 -G (Rev. 9 -2011) . Page 2
Part VI Miscellaneous
35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) . . . 35
36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract k
(GIC) (see instructions)
b Enter the final maturity date of the GIC •
c Enter the name of the GIC provider r �.`
37 Pooled financings: Enter the amount of the proceeds of this issue that are to be used to make loans
to other governmental units 37
38a If this issue is a loan made from the proceeds of another tax- exempt issue, check box • ❑ and enter the following information:
b Enter the date of the master pool obligation •
c Enter the EIN of the issuer of the master pool obligation •
d Enter the name of the issuer of the master pool obligation •
39 If the issuer has designated the issue under section 265(b)(3)(B)(i)(III) (small issuer exception), check box . . . • ❑
40 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box • ❑
41a If the issuer has identified a hedge, check here • ❑ and enter the following information:
b Name of hedge provider ►
c Type of hedge •
d Term of hedge •
42 If the issuer has superintegrated the hedge, check box • ❑
43 If the issuer has established written procedures to ensure that all nonqualified bonds of this issue are remediated
according to the requirements under the Code and Regulations (see instructions), check box • ❑
44 If the issuer has established written procedures to monitor the requirements of section 148, check box • ❑
45a If some portion of the proceeds was used to reimburse expenditures, check here • ❑ and enter the amount
of reimbursement •
b Enter the date the official intent was adopted ►
Under penalties of perjury, 1 declare that I have examined this retum and accompanying schedules and statements, and to the best of my knowledge
Signature and belief, they are true, correct, and complete. I further declare that I consent to the IRS's disclosure of the Issuer's retum information, as necessary to
and process this retum, to the �� pers JJ on that I have authorized above.
Consent l�P.�j0✓ait LDu-- 'y-t flyln(-I r T .ek ��;�� --
Signature of issuer's authorized representative Date "Type or print name and title Y t a.. - Dirzc - tcrr
Paid Print/Type preparer's name ' Preparer's signature Date Check ❑ it PTIN
Preparer self - employed
Use Only Firm's name ► Firm's EIN ►
Firm's address • Phone no.
Form 8038-6 (Rev. 9 -2011)
March 29, 2013
To: Commerce Bank
8000 Forsyth Boulevard, CLLE -5
St. Louis, MO 63105
RE: Lease Number: 1001112 -002
Gentlemen:
Please disburse the proceeds of the above lease as follows:
Wire to: Commerce Bank Escrow Account $278,740.40
Total $278,740.40
Sincerely,
CITY OF PUEBLO, A MUNICIPAL CORPORATION
BSt-
Steve Nawrocki, President of City Council