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HomeMy WebLinkAbout12808RESOLUTION NO. 12808 A RESOLUTION APPROVING A STATE AND MUNICIPAL LEASE/PURCHASE AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND CLAYTON HOLDINGS, LLC, AN EQUITY SUBSIDIARY OF COMMERCE BANK, A MISSOURI BANKING CORPORATION; AND APPROVING AN ESCROW AGREEMENT, AUTHORIZING EXECUTION THEREOF BY THE PRESIDENT OF THE CITY COUNCIL, AND 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 street sweeper equipment constituting personal property necessary for the performance of street maintenance functions; and WHEREAS, in order to acquire such equipment, City proposes to enter into a Lease/Purchase Agreement, (the “Agreement”), with Clayton Holdings, LLC, an equity subsidiary of Commerce Bank, a Missouri Banking Corporation (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 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: October 15, 2013 BY: Ami Nawrocki Background Paper for Proposed RESOLUTION DATE: AGENDA ITEM # M-2 October 15, 2013 DEPARTMENT: Public Works Department Director – Earl Wilkinson, P.E. Finance Department Interim Director - Deborah Morton TITLE A RESOLUTION APPROVING A STATE AND MUNICIPAL LEASE/PURCHASE AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND CLAYTON HOLDINGS, LLC, AN EQUITY SUBSIDIARY OF COMMERCE BANK, A MISSOURI BANKING CORPORATION; AND APPROVING AN ESCROW AGREEMENT, AUTHORIZING EXECUTION THEREOF BY THE PRESIDENT OF THE CITY COUNCIL, AND 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 ISSUE Should the City of Pueblo enter into a lease/purchase agreement for the acquisition of a new Elgin Street Sweeper for Public Works? RECOMMENDATION Approval of the Resolution. BACKGROUND This purchase will replace an existing street sweeper that has been in service since 2004. This Resolution would approve the acquisition of one new Elgin Pelican street sweeper manufactured in Elgin, Illinois, and sold in Colorado by Faris Machinery Company. Elgin is a respected manufacturer of street sweepers and the City of Pueblo has owned and operated similar Elgin models for many years. The City is a member of the National Joint Powers Alliance (NJPA), a service cooperative that offers a multitude of contract purchasing solutions that are competitively bid nationally and awarded on its members’ behalf. Elgin Sweeper Company, is an awarded vendor of NJPA, and the City is taking advantage of this cooperative agreement. FINANCIAL IMPACT The street sweeper financing package totals $167,600.92which will be amortized over three years. The Streets Department will make lease payments through their operating budget. The City’s obligation under the equipment lease shall be subject to annual appropriation by the City Council. Payment schedule for the non-bank qualified lease/purchase payments, including interest at 1.54%, is as follows: 11/21/2013 $55,866.84 11/21/2014 $55,866.84 11/21/2015 $55,866.84 Mae& view CLAYTON HOLDINGS, LLC STATE & MUNICIPAL LEASE /PURCHASE AGREEMENT Lease Number: 5000148 -001 This State and Municipal Lease /Purchase Agreement (the "Lease ") is made and entered into on this, the 15th day of October 2013 by and between Clayton Holdings, LLC 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 wit 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 concerning 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 governing 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 govemmental 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 arty 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, fumish 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 fumish 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 furnish 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 Toss, 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 retum 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 % %) 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 return 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. Venue shall be proper in the court of competent jurisdiction in Pueblo County, 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: Clayton Holdings, LLC LESSEE: City of Pueblo, A Municipal Corporation DATE: L .> DATE: /0 >/$ /3 BY: (PRINTED NAME AND TITLE) BY: (PRINTED NAME AND TITLE) X vfrte.L. Officer Stephen G. Nawrocki President of City Council • Authorized Sig re and Titl - • Auth • _ • Title: 9 , / Officer t — _ - ATTEST BY: .. Gina utcher City Clerk EXHIBIT A TO STATE & MUNICIPAL LEASE /PURCHASE AGREEMENT Lease No. 5000148 -001 } fir z'- �- �� q , , 4'ia� y '�" N 5"nb 'F�" r t� • T" a � o, c b itiae.Y itl i �a a m �lt{ l r e Zti ,`'`'', TTA"�u ''ma a. ?3031 11i3" '.` IIISZEMZ ,. r, .a + a�.. 2 i.t ' " ft f i�" ;�R ,� z t ty DESCRIPTION OF LEASED EQUIPMENT (Make. Kind. Model Number. Serial Number, Any other pertinent identification) 2013 Elgin Pelican NP Street Sweeper with dual side brooms, John Deere 4045TF 74 HP Tier 4i Diesel Engine, High dump hopper with added equipment $164,852.25 TOTAL $164,852.25 w s 2�, rya k a •� r xm f„F'�'`xr'�M•� X ROOM L• 8tt. �. 9 2merl ', .4* .`; {., kP ^ ' .�} .,ff . , . a r ,„ + „ •.gM�TM �` 230 S. Mechanic Street, Pueblo, CO 81003 Lessee hereby certifies that the description of the property set forth above constitutes an accurate account of the Equipment as referred to in the Lease. City of Pueblo, A Municipal Corporation LESLE: BY• • SIGNA RE) 1 (PRINTED NAME & TITLE) Stephen G. Nawrocki President of City Council UAt . /n, /s /3 EXHIBIT C Lessee: City of Pueblo, A Municipal Corporation Lessor: Clayton Holdings, LLC Lease Number: 5000148 -001 Lease Term in Months: 25 Rental Periods: Annually in Arrears Capital Cost of Equipment: $164,852.25 Amount Credited to Amount Credited Early Purchase Rental Payment Date Payment Amount Interest to Capital Cost Option Price 10/21/2013 $ 164,852.25 11/21/2013 $ 55,866.84 $ 218.66 $ 55,648.18 $ 109,204.07 11/21/2014 $ 55,866.84 $ 1,682.12 $ 54,184.72 $ 55,019.35 11/21/2015 $ 55,866.84 $ 847.49 $ 55,019.35 $ - Total $ 167,600.52 $ 2,748.27 $ 164,852.25 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 MUNICI AL CORPORATION SIGNED BY: - - - - - -- - - - -- - - -- Stephen G. Nawrocki President of City Council /0 „ Lc / 3 TITLE AND DATE: EXHIBIT D TO STATE & MUNICIPAL LEASE PURCHASE AGREEMENT ill 1 h CITY OF PUEBLO 503 N. MAIN STREET, SUITE 203 TELEPHONE: (719)562 -3899 PUEBLO, COLORADO 81003 DEPARTMENT OF LAW FAX NO. (719)544 -1007 October 15, 2013 CLAYTON HOLDINGS, LLC 8000 Forsyth Blvd. St. Louis, Missouri 63105 Re: State and Municipal Lease /Purchase Agreement No. 5000148 -001, dated October 15, 2013 (the "Lease "), between Clayton Holdings, LLC ( "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, at the option of the Lessee, 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 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 execute and deliver the Lease and to perform its obligations under the Lease including, at Lessee's option, the power and authority to purchase the Equipment 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 adversely affect the transactions contemplated by the Lease or the ownership interest of Lessor or its assigns, as the case may be, in the Equipment. 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, <7 V/ .1 Daniel C. Kogovsek City Attorney EXHIBIT E TO STATE & MUNICIPAL LEASE /PURCHASE AGREEMENT Lease No. 5000148 -001 RESOLUTION OF LESSEE'S GOVERNING BODY The undersigned, being the officer identified below of City of Pueblo, A Pueblo Municipal Corporation (the "Lessee ") hereby certifies that the following is a true and correct copy of a resolution adopted by the governing body of the Lessee at a meeting duly held on October 15, 2013. I further certify that the resolution has not been modified, amended, or repealed and is in full force and effect as of the date hereof. Witness my hand this 15 day of October 2013. Lessee: City of Pueblo, A Municipal Corporation Title: Presi Cit i Council RESOLUTION NO. 12808 A RESOLUTION APPROVING A STATE AND MUNICIPAL LEASE /PURCHASE AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND CLAYTON HOLDINGS, LLC, AN EQUITY SUBSIDIARY OF COMMERCE BANK, A MISSOURI BANKING CORPORATION; AND APPROVING AN ESCROW AGREEMENT, AUTHORIZING EXECUTION THEREOF BY THE PRESIDENT OF THE CITY COUNCIL, AND 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 street sweeper equipment constituting personal property necessary for the performance of street maintenance functions; and WHEREAS, in order to acquire such equipment, City proposes to enter into a Lease /Purchase Agreement, (the "Agreement "), with Clayton Holdings, LLC, an equity subsidiary of Commerce Bank, a Missouri Banking Corporation (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 di 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 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: October 15, 2013 BY: Ami Nawroc. ' siP [ SON 1� APPR Air PRESIDENT OF CITY COUNCIL ATTESTED BY: Q CITY CLERK STATE & MUNICIPAL LEASE /PURCHASE AGREEMENT Lease No. 5000148 -001 ESSENTIAL USE /SOURCE OF FUNDS LETTER October 15, 2013 Clayton Holdings, LLC 8000 Forsyth Boulevard St. Louis, Missouri 63105 Re: State and Municipal Lease /Purchase Agreement No. 5000148 -001, dated October 15, 2013 (the "Lease "), between Clayton Holdings, LLC ( "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: The estimated useful life of such Equipment based upon manufacturer's representations and our projected needs is years. Our source of funds for payments of the Rental Payments due under the Lease for the current fiscal year is . 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: Very truly yours, Lt55tt: City of Pueblo, A Municipal Corporation WI ESS: ay.: ,, SIG ;Y: TS 1 / R/NTCO MAR= E TITI F1 Stephen G. Nawrocki President of City Council DATE: /o -/s-i3 Form 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 ® 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 Is ❑ 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 Only) 230 S. Mechanic Street 1 PM 6 City, town, or post office, state, and ZIP code 7 Date of issue Pueblo, CO 81003 10/21/2013 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 Debbie Morton, Interim Finance Director (719) 553 -2620 Part II 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 14 164,852. 25 15 Environment (including sewage bonds) 15 16 Housing . . 16 17 Utilities . . 17 18 Other. Describe Is 18 19 If obligations are TANs or RANs, check only box 19a I► ❑ , $ ,-. If obligations are BANs, check only box 19b ®❑ N *` 20 If obligations are in the form of a lease or installment sale, check box ®D 4 m 1 Part III q Description of Obligations. Complete for the entire issue for which this form is being filed. (c) Stated redemption (d) Weighted (a) Final maturity date (b) Issue price price at maturity average maturity (e) Yield 21 11/21/2015 $ 164,852.25 $ NA 2.08 years 1.540 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 OStir 28 Proceeds used to advance refund prior issues 28 46 29 Total (add lines 24 through 28) 29 30 Nonrefunding proceeds of the issue (subtract line 29 from Tine 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 . . . ® 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 /DD/YYYY) For Paperwork Reduction Act Notice, see separate instructions. Cat. No. 63773S Form 8038 - (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`; (GIC) (see instructions) b Enter the final maturity date of the GIC ► `. c Enter the name of the GIC provider • Ori 37 Pooled financings: Enter the amount of the proceeds of this issue that are to be used to make loans oft 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, I declare that I have examined this return 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 1 consent to the IRS's disclosure of the issuers retum information, as necessary to and process this return, to the person that I have authorized above. RS r t Consent . /0 -/ j - / 3 Peber Mori FirgNcE utRlei Signature of issuer's authorized representative Date Type or print name and title Paid Print/Type preparer's name Pre rer's signature Date PTIN Check 4 if Preparer William Mulder Pre /o/2 �� self-employed P01696981 Use Only Firm's name ► William Mulder Firm's EIN ► Firm's address ► 8000 Forsyth Blvd, Suite 510, St. Louis, MO 63105 Phone no. 314 746 - 3787 Fomi 8038-G (Rev. 9 -2011) ESCROW AGREEMENT This Escrow Agreement (the "Escrow Agreement "), dated as of October 15, 2013, and entered into among CLAYTON HOLDINGS, LLC, (together with its successors and assigns, "Lessor"), CITY OF PUEBLO, A MUNICIPAL CORPORATION, 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 Sch 001 Amount of Deposit into the Acquisition Fund: $164,852.25 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 October 15, 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 act or deed, be fully vested with all the trusts, powers, rights, duties and obligations of the Escrow Agent -2- 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 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. -3- 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. 17. This Escrow Agreement shall be governed by and construed in accordance with the laws of Colorado. Venue shall be proper in the court of competent jurisdiction in Pueblo, 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. CLAYTON HOLDINGS, LLC LESSOR By: Title: Officer CITY OF PUEBLO, A MUNICIPAL CORPORATION LESSEE By: Title:Stephen G. 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: CLAYTON HOLDINGS, LLC, Lessor COMMERCE BANK, Escrow Agent 8000 Forsyth Blvd. St. Louis, Missouri 63105 Re: Pueblo Sch 001Acquisition Fund established by the Escrow Agreement, dated as of October 15, 2013 (the "Escrow Agreement ") among Clayton Holdings, LLC, 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 October 15, 2013 (the "Lease ") described in the Escrow Agreement. Equipment: Payee: Amount: $ 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: / 0 — / S , 20/ 3 . CITY OF PUEBLO, A MUNICIPAL CORPORATION LESSEE By. Title: ephen G. Nawrocki President of City Council APPROVED: CLAYTON HOLDINGS, LLC 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: October 21, 2013 To: Clayton Holdings, LLC 8000 Forsyth Boulevard, CLLE -5 St. Louis, MO 63105 RE: Lease Number: 5000148 -001 Gentlemen: Please disburse the proceeds of the above lease as follows: Wire to: Commerce Bank Escrow Account $164,852.25 Total $164,852.25 Sincerely, CITY OF PUEBLO, A MUNICIPAL CORPORATION B �..�►— L c.. Stephen G. Nawrocki President of City Council