HomeMy WebLinkAbout13895RESOLUTION NO. 13895
A RESOLUTION APPROVING A STATE AND MUNICIPAL
LEASE/PURCHASE AGREEMENT BETWEEN THE CITY OF
PUEBLO, A MUNICIPAL CORPORATION, AND BRANCH BANKING
AND TRUST COMPANY RELATING TO POLICE MOBILE
EQUIPMENT, 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 ACTIONS REQUIRED THEREWITH.
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 a certain new Public Safety
software and hardware constituting personal property necessary for the performance of City
business operations; and
WHEREAS, in order to acquire such equipment, City proposes to enter into a Lease
Purchase Agreement with Branch Banking and Trust Company., a Charlette, North Carolina
Company or a subsidiary thereof (the “Lessor”), and Project Fund 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 Lease Purchase
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 Project Fund
Agreement; NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The form, terms, and provisions of the Lease Purchase Agreement, having been approved
as to form by the City Attorney, are hereby approved in substantially the form attached hereto
with such minor insertions, omissions and changes as shall be approved by the City Manager
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
Lease Purchase Agreement and to deliver said 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 Lease Purchase 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 Lease Purchase Agreement.
SECTION 3.
The Lease Purchase Agreement is expressly made subject to sufficient appropriations
being made therefore in each fiscal year beginning in 2018. Nothing contained in this Resolution
and the Lease Purchase 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 the Lease Purchase 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 Lease Purchase Agreement are special limited obligations, subject
to annual appropriations, of the City as Lessee, as provided in such Lease Purchase Agreement.
Nothing in the Lease Purchase 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 Lease Purchase Agreement until
such time as the City Council shall designate any other or different authorized representative for
purposes of the Agreement. All other officers and staff of the City are hereby authorized and
directed to take such actions as are necessary to implement the lease purchase arrangement
contemplated herein.
SECTION 5.
This Resolution shall be effective immediately upon passage and approval.
INTRODUCED February 26, 2018
BY: Ed Brown
MEMBER OF CITY COUNCIL
APPROVED:
PRESIDENT OF CITY COUNCIL
ATTESTED BY:
ACTING CITY CLERK
City Clerk’s Office Item # M-4
Background Paper for Proposed
Resolution
COUNCIL MEETING DATE:
February 26, 2018
TO: President Christopher A. Nicoll and Members of City Council
CC: Sam Azad, City Manager
VIA: Brenda Armijo, Acting City Clerk
FROM: Lori Pinz, Director of Information Technology
Chief Troy Davenport, Chief of Police
SUBJECT: A RESOLUTION APPROVING A STATE AND MUNICIPAL LEASE PURCHASE
AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION, AND BRANCH BANKING AND TRUST COMPANY RELATING
TO POLICE MOBILE EQUIPMENT, 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 ACTIONS REQUIRED
THEREWITH
SUMMARY:
This Resolution approves a lease purchase agreement for the acquisition for public safety mobile
device replacements and software upgrades.
PREVIOUS COUNCIL ACTION:
None.
BACKGROUND:
This Resolution approves a lease purchase agreement, in the amount of $1,023,686.60 which
includes interest, for the acquisition of:
Item Vendor Costs
GETAC V110 Mobile computers, office HP Inc. $651,525.08
and mobile docking stations
Gamber Johnson vehicle mounts HP Inc. $57,500.00
Sierra Wireless vehicle modems HP Inc. $133,777.29
Total to HP Inc. $842,802.37
Netmotion Software Licenses CDW-G $5,047.00
Identify Automation (2FA) software CDW-G $8,643.00
licenses
Total to CDW-G $13,690.00
Site License for Police Department Record Superion $87,392.00
Management and Mobile Application
Total to Superion $87,392.00
Visio Software for RMS mobile mapping 16,346.00
Total to Insight Public Sector 16,346.00
Project Total $960,230.37
The City began evaluating replacement mobile devices and vehicle mounting systems in February
2017. Several public safety ruggedized computer and mounting system vendors were pilot tested.
Representatives from City Police, Fire, and Information Technology Departments participated in
a pilot program to evaluate rugged mobile computers, docking and vehicle mounting systems.
Department representatives completed a vendor evaluation form rating each system pilot tested.
The products pilot tested are:
Dell, Getac, and Panasonic rugged computers
Havis and Gamber-Johnson vehicle mounting and docking
Cradlepoint and Sierra Wireless cellular modems
The evaluation committee selected Getac V110 computers, Gamber-Johnson vehicle mounting
and computer docks, and Sierra Wireless cellular modems. HP Incorporated is the identified
reseller for the selected equipment, and is on the NASPO (National Association of State
Procurement Officials) contract. Superion Software licensing is a sole-source acquisition, as they
are the only supplier of their licenses, while Netmotion, Identity Automation and Microsoft Visio
are through resellers on the State of Colorado and GSA (General Services Administration)
agreements. The City of Pueblo is a member of and can take advantage of these agreements,
eliminating the need and cost for the City to run its own RFP (Request for Proposal) while ensuring
a competitive process was conducted.
The City of Pueblo’s Police and Fire Department mobile computers are in desperate need of
replacements as the equipment is consistently in use under extreme work and temperature
conditions throughout the year. The current equipment is no longer under warranty, and has an
alarmingly high failure rate of fifty percent (50%). The repairs are being done by salvaging parts
from other computers and/or paying for the repair costs. Due to technological changes in mobile
equipment, the replacement and upgrade will require new laptop docking and mounting systems
to be installed in applicable public safety vehicles.
Further, additional software licenses to include Superion Record Management System (RMS)
software licenses, Microsoft Visio licensing for incident field mapping, and additional NetMotion,
mobile device security and encryption, licenses will be needed. There is a current requirement for
approximately thirty-one (31) new RMS licenses; however, the cost to add these individual
licenses outweighs the cost to convert the City to a site license. Implementing a site license will
prevent the need to purchase new licenses due to changes in staffing, departmental operations,
or multi-agency cooperation.
Criminal Justice Information System (CJIS) compliance mandates are now requiring two-factor
authentication and controls for Public Safety personnel authentication, in order to access the
City’s network from a mobile device. To adhere to these mandates and meet the public safety
use case requirements, the Information Technology Department must expand the use of two-
factor authentication via Identity Automation’s 2FA product, and implement cellular modems, by
Sierra Wireless, for all public safety mobile vehicles.
The cost for the project is $960,230.32. It was determined during the 2018 City Budget that the
City needed to fund this project through a lease. In January 2018, RFP 18-008 was distributed,
and five responses were received. The responses were evaluated and Branch Banking and Trust
(BB&T) Company provided the best financing and interest option for the City.
Because Police and Fire’s equipment is at end-of-life and no longer supports the needs, it is staff’s
recommendation that the City enter into this lease agreement with BB&T in the amount of
$960,230.37.
This Resolution is presented for City Council consideration concurrently with an Ordinance to
establish the project, and budget and appropriate funds.
FINANCIAL IMPLICATIONS:
The new Public Safety Mobile Device Replacement and Software Upgrades, including interest,
1,023,686.60
totals $which will be amortized over five years. The City’s obligation under the lease
agreement shall be subject to annual appropriation by the City Council with the 2018 debt service
payment already approved in the 2018 City Budget.
Payment schedule for the lease/purchase payments, including a fixed interest rate of 3.17%, or
$63,456.23, beginning April 1, 2018 is as follows:
BOARD/COMMISSION RECOMMENDATION:
None.
STAKEHOLDER PROCESS:
Not applicable.
ALTERNATIVES:
If City Council does not approve this Ordinance, the project will be cancelled, equipment will
continue to fail, and the City will be out of compliance with CJIS mandates.
RECOMMENDATION:
Approval of the Resolution.
Branch Banking and Trust Company
Financing for the City of Pueblo,Colorado-- Document Checklist(Taxablel
Lantons and Related Enuipment Financing
1. Lease Agreement,with Exhibits:
A) Project/Equipment description
B) Payment schedule
2. Project Fund Agreement
3. Closing Certificate
4. Copy of Resolution approving financing
5. Evidence of General Liability Insurance
6. UCC Financing Statement [no signatures required; to be filed post-closing by BB&T]
7. Attorney Opinion Letter
Note: Copies of Certificate of Insurance and Invoices to be provided by the Borrower post-closing
with requisitions for funds from project fund escrow account.
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9906000269000031418
LEASE PURCHASEAGREEMENT
THIS LEASE PURCHASE AGREEMENT (this "Agreement") is dated as of March 2,
2018 , and is between the CITY OF PUEBLO, COLORADO a Colorado municipal corporation
(the "City"), and BRANCH BANKING AND TRUST COMPANY ("BB&T").
RECITALS:
The City has the power to lease such personal property as it may deem appropriate for
carrying out its governmental and proprietary functions, and to acquire such property pursuant to
lease purchase agreement. This Agreement provides for BB&T to make available to the City the
sum of$960,230.37 to enable the City to acquire the Equipment (as defined below) by lease, and
provides for securing the City's obligations under this Agreement by creating certain security
interests in favor of BB&T.
NOW THEREFORE, for and in consideration of the mutual promises in this Agreement,
and other good and valuable consideration, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Unless the context clearly requires otherwise, capitalized terms used in this Agreement and
not otherwise defined shall have the following meanings:
"Additional Payments" means any of BB&T's reasonable and customary fees and expenses
related to the transactions contemplated by this Agreement, any of BB&T's expenses (including
attorneys' fees) in prosecuting or defending any action or proceeding in connection with this
Agreement, any required license or permit fees, state and local sales and use or ownership taxes or
property taxes which BB&T is required to pay as a result of this Agreement, inspection and re-
inspection fees, and any other amounts payable by the City (or paid by BB&T on the City's behalf)
as a result of its covenants under this Agreement (together with interest that may accrue on any of
the above if the City shall fail to pay the same, as set forth in this Agreement).
"Amount Advanced" has the meaning assigned in Section 2.02.
"Base Payments" means the rental payments payable by the City pursuant to Section 3.01.
111111 IIIII HIII 1101 IIII III
9906000269000029957
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"Budget Officer" means the City officer from time to time charged with preparing the
City's draft budget as initially submitted to the Governing Board for its consideration.
"Business Day" means any day on which banks in the State are not by law authorized or
required to remain closed.
"Closing Date" means the date on which this Agreement is first executed and delivered by
the parties.
"City"means the City of Pueblo,Colorado.
"City Representative" means the City's Finance Director or such other person or persons at
the time designated, by a written certificate furnished to BB&T and signed on the City's behalf by
the presiding officer of the City's Governing Board, to act on the City's behalf for any purpose (or
any specified purpose)under this Agreement.
"Equipment" has the meaning assigned in Section 2.04, and is generally expected to
include the personal property described in Exhibit A.
"Event of Default" means one or more events of default as defined in Section 6.01.
"Event of Nonappropriation" means any failure by the Governing Board to adopt, by the
first day of any Fiscal Year, a budget for the City that includes an appropriation for Required
Payments as contemplated by Section 3.05.
"Fiscal Year" means the City's fiscal year beginning January 1, or such other fiscal year as
the City may later lawfully establish.
"Governing Board" means the City's governing board as from time to time constituted.
"Net Proceeds," when used with respect to any amounts derived from claims made on
account of insurance coverages required under this Agreement, any condemnation award arising out
of the condemnation of all or any portion of the Equipment, or any amounts received in lieu or in
settlement of any of the foregoing, means the amount remaining after deducting from the gross
proceeds thereof all expenses(including attorneys' fees and costs) incurred in the collection of such
proceeds, and after reimbursement to the City or BB&T for amounts previously expended to
remedy the event giving rise to such payment or proceeds.
"Payment Dates" means the date indicated in Exhibit B.
"Prime Rate" means the interest rate so denominated and set by Branch Banking & Trust
Company of North Carolina (whether or not such Bank, or any affiliate thereof, is at any time the
counterparty to this Agreement)as its"Prime Rate,"as in effect from time to time.
"Project Costs" means all costs of the design, planning, acquiring and installing the
Equipment as determined in accordance with generally accepted accounting principles and that
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will not adversely affect the exclusion from gross income for federal income tax purposes of the
designated interest component of Base Payments payable by the City under this Agreement,
including (a) sums required to reimburse the City or its agents for advances for any such costs,
(b) interest during the period of the acquisition and installation of the Equipment and for up to
six months thereafter, and (c) all costs related to the financing of the Equipment through this
Agreement and all related transactions.
"Project Fund" has the meaning assigned in Section 2.02.
"Project Fund Agreement" has the meaning assigned in Section 2.02.
"Required Payments"means Base Payments and Additional Payments.
"Security Property" means the Equipment and all amounts on deposit from time to time in
the Project Fund.
"State"means the State of Colorado.
"UCC" means the Uniform Commercial Code or any successor law as in effect from time
to time in the State, currently Title 4 of the Colorado Revised Statutes.
All references in this Agreement to designated "Sections" and other subdivisions are to
the designated sections and other subdivisions of this Agreement. The words "hereof' and
"hereunder" and other words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision unless the context indicates otherwise. Words importing
the singular number shall include the plural number and vice versa.
ARTICLE II
LEASE; ADVANCE; SECURITY
2.01. Lease. BB&T hereby leases to the City, and the City hereby leases from BB&T, the
Equipment, for a term beginning on the Closing Date and ending upon final payment of all
Required Payments, unless this Agreement is earlier terminated. The City shall be entitled to
possession of all property constituting any portion of the Equipment and may retain possession of
all property constituting any portion of the Equipment so long as no Event of Default is continuing
under this Agreement and no Event of Nonappropriation has occurred.
2.02. Advance. BB&T advances $960,230.37(the "Amount Advanced") to the City on the
Closing Date, and the City hereby accepts the Amount Advanced from BB&T. BB&T is advancing
the Amount Advanced by making a deposit into a Project Fund (the "Project Fund") as provided in
a Project Fund Agreement of even date (the "Project Fund Agreement") between the City and
BB&T. All amounts on deposit from time to time in the Project Funds, including the
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Amount Advanced and all investment earnings, shall be used only for Project Costs until the Project
Funds are terminated as provided under the Project Fund Agreement.
2.03. Title to the Equipment. During the term of this Agreement, title to the Equipment
and any and all substitutions, repairs, replacements or modifications will be vested in the City;
provided that in the event this Agreement is terminated by reason of the occurrence of an event
described in Sections 6.01 or 6.04, title to the Equipment will immediately be transferred to BB&T
or its assigns. Neither BB&T nor its assigns shall have any right or interest in the Equipment or
any additions, repairs, replacements or modifications thereto except as expressly set forth in this
Agreement.
2.04. UCC Security Agreement.
(a) This Agreement is intended as and constitutes a security agreement pursuant to the
UCC with respect to the following:
(i) all moneys on deposit from time to time in the Project Funds; and
(ii) all property acquired by the City with funds advanced by BB&T pursuant to this
Agreement, all personal property obtained in substitution or replacement therefore, and all personal
property obtained in substitution or replacement for any portion of the Security Property, and all
proceeds of the foregoing(collectively, the "Equipment").
The City hereby grants to BB&T a security interest in the Equipment and in the moneys on deposit
from time to time in the Project Fund to secure the Required Payments.
(b) The City shall allow BB&T to deliver and file, or cause to be filed, in such place or
places as may be required by law, financing statements (including any continuation statements
required by the UCC or determined by BB&T) in such form as BB&T may reasonably require to
perfect and continue the security interest in the Equipment and in the moneys on deposit from time
to time in the Project Fund.
2.05. City's Limited Obligation.
(a) No provision of this Agreement shall be construed or interpreted as creating a pledge
of the City's faith and credit within the meaning of any constitutional debt limitation. No provision
of this Agreement shall be construed or interpreted as an improper delegation of governmental
powers or as a donation or a lending of the City's credit within the meaning of the State constitution.
No provision of this Agreement shall be construed to pledge or to create a lien on any class or
source of the City's moneys (other than the funds held under the Project Fund Agreement or this
Agreement), nor shall any provision of this Agreement restrict the future issuance of any of the
City's bonds or obligations payable from any class or source of the City's moneys (except to the
extent this Agreement restricts the incurrence of additional obligations secured by the Security
Property). To the extent of any conflict between this Section and any other provision of this
Agreement,this Section shall take priority.
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(b) Nothing in this Section is intended to impair or prohibit execution on the Security
Property if the Required Payments are not paid when due or otherwise upon the occurrence of an
Event of Default under this Agreement or the Project Fund Agreement.
2.06. City's Continuing Obligations. The City shall remain liable for full performance
of all its covenants under this Agreement (subject to the limitations described in Section 2.05),
including payment of all Required Payments, notwithstanding the occurrence of any event or
circumstances whatsoever, including any of the following:
(a) BB&T's waiver of any right granted or remedy available to it;
(b) The forbearance or extension of time for payment or performance of any obligation
under this Agreement, whether granted to the City, a subsequent owner of the Equipment or any
other person;
(c) The release of all or part of the Equipment or the release of any party who assumes
all or any part of such performance;
(d) Any act or omission by BB&T (but this provision does not relieve BB&T of any
of its obligations under this Agreement or the Project Fund Agreement);
(e) The sale of all or any part of the Equipment; or
(f) Another party's assumption of the City's obligations under this Agreement.
ARTICLE III
CITY'S PAYMENT OBLIGATION AND RELATED MATTTERS
3.01. Rental; Purchase Option.
(a) As rental for the Equipment, the City shall make Base Payments to BB&T in lawful
money of the United States at the times and in the amounts set forth in Exhibits B-1 and B-2, except
as otherwise provided in this Agreement. As indicated in Exhibits B-1 and B-2, the Base Payments
reflect the repayment of the Amount Advanced and include designated interest components.
(b) Upon payment of all the Base Payments and all Additional Payments, the City may,
at its option, purchase all of BB&T's interest in the Equipment, on an as-is, where-is basis, upon
notice and payment to BB&T of the sum of Ten Dollars. This option to purchase the Equipment is
personal to the City and is not assignable.
3.02. Additional Payments. The City shall pay all Additional Payments on a timely basis
directly to the person or entity to which such Additional Payments are owed in lawful money of the
United States.
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3.03. Prepayment. At its option on any date, the City may prepay the outstanding
principal component of the Amount Advanced (in whole but not in part), and thereby obtain
ownership of all the Equipment free of this lease, by paying (a) all Additional Payments then due
and payable, (b) all interest accrued and unpaid to the prepayment date, and (c) 100% of the
outstanding principal component of the Amount Advanced.
3.04. Late Payments. If the City fails to pay any Base Payment when due, the City shall
pay additional interest on the principal component of the late Base Payment at an annual rate equal
to the Prime Rate from the original due date.
3.05. Appropriations.
(a) The Budget Officer shall include in the initial proposal for each of the City's annual
budgets the amount of all Base Payments and estimated Additional Payments coming due during
the Fiscal Year to which such budget applies. Notwithstanding that the Budget Officer includes
such an appropriation for Required Payments in a proposed budget, the Governing Board may
determine not to include such an appropriation in the City's final budget for such Fiscal Year.
(b) The Budget Officer shall deliver to BB&T, within 15 days after the beginning of
each Fiscal Year, a certificate stating whether an amount equal to the Base Payments and estimated
Additional Payments coming due during the next Fiscal Year has been appropriated by the City in
such budget for such purposes.
(c) The actions required of the City and its officers pursuant to this Section shall be
deemed to be and shall be construed to be in fulfillment of ministerial duties,and it shall be the duty
of each and every City official to take such action and do such things as are required by law in the
performance of the official duty of such officials to enable the City to carry out and perform the
actions required pursuant to this Section and the remainder of this Agreement to be carried out and
performed by the City.
(d) The City reasonably believes that it can obtain funds sufficient to pay all Required
Payments when due.
3.06. No Abatement. There shall be no abatement or reduction of the Required Payments
for any reason, including, but not limited to, any defense, recoupment, setoff, counterclaim, or any
claim (real or imaginary) arising out of or related to the Equipment, except as expressly provided in
this Agreement. The City assumes and shall bear the entire risk of loss and damage to the
Equipment from any cause whatsoever. The Base Payments shall be made in all events unless the
City's obligation to make Base Payments is terminated as otherwise provided in this Agreement.
3.07. RESERVED
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ARTICLE IV
CITY'S COVENANTS,REPRESENTATIONS AND WARRANTIES
4.01. Indemnification. To the extent permitted by law, the City shall indemnify, protect
and save BB&T and its officers and directors harmless from all liability, obligations, losses, claims,
damages, actions, suits, proceedings, costs and expenses, including attorneys' fees, arising out of,
connected with, or resulting directly or indirectly from the Equipment or the transactions
contemplated by this Agreement, including without limitation the possession,condition or use of the
Equipment. The indemnification arising under this Section shall survive the Agreement's
termination.
4.02. RESERVED
4.03. Validity of Organization and Acts. The City is validly organized and existing
under State law, has full power to enter into this Agreement and has duly authorized and has
obtained all required approvals and all other necessary acts required prior to the execution and
delivery of this Agreement. This Agreement is a valid, legal and binding obligation of the City.
4.04. Maintenance of Existence. The City shall maintain its existence, shall continue to
be a local governmental unit of the State, validly organized and existing under State law, and shall
not consolidate with or merge into another local governmental unit of the State, or permit one or
more other local governmental units of the State to consolidate with or merge into it, unless the local
governmental unit thereby resulting assumes the City's obligations under this Agreement.
4.05. Acquisition of Permits and Approvals. All permits, consents, approvals or
authorizations of all governmental entities and regulatory bodies,and all filings and notices required
on the City's part to have been obtained or completed as of today in connection with the
authorization, execution and delivery of this Agreement, the consummation of the transactions
contemplated by this Agreement and the acquisition and installation of the Equipment have been
obtained and are in full force and effect, and there is no reason why any future required permits,
consents, approvals, authorizations or orders cannot be obtained as needed.
4.06. No Breach of Law or Contract. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated by this Agreement, nor the
fulfillment of or compliance with the terms and conditions of this Agreement, (a) to the best of the
City's knowledge, constitutes a violation of any provision of law governing the City or(b) results in
a breach of the terms, conditions or provisions of any contract, agreement or instrument or order,
rule or regulation to which the City is a party or by which the City is bound.
4.07. No Litigation. There is no litigation or any governmental administrative proceeding
to which the City (or any official thereof in an official capacity) is a party that is pending or, to the
best of the City's knowledge after reasonable investigation, threatened with respect to (a) the City's
organization or existence, (b) its authority to execute and deliver this Agreement or to comply with
the terms of this Agreement, (c) the validity or enforceability of this Agreement or the transactions
contemplated by this Agreement, (d)the title to office of any Governing Board member or any other
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City officer, (e) any authority or proceedings relating to the City's execution or delivery of this
Agreement,or(f)the undertaking of the transactions contemplated by this Agreement.
4.08. No Current Default or Violation. (a) The City is not in violation of any existing
law, rule or regulation applicable to it, (b) the City is not in default under any contract, other
agreement, order,judgment, decree or other instrument or restriction of any kind to which the City
is a party or by which it is bound or to which any of its assets are subject, including this Agreement,
and (c) no event or condition has happened or existed, or is happening or existing, under the
provisions of any such instrument, including this Agreement, which constitutes or which, with
notice or lapse of time, or both,would constitute an event of default hereunder or thereunder.
4.09. No Misrepresentation. No representation, covenant or warranty by the City in this
Agreement is false or misleading in any material respect.
4.10. Environmental Warranties and Indemnification.
(a) The City warrants and represents to BB&T that, to the best of the City's
knowledge after thorough investigation, the Equipment is not now and has not ever been used to
generate, manufacture, refine, transport,treat, store, handle, dispose,transfer,produce or process
Hazardous Materials.
(b) The City covenants that the Equipment shall be kept free of Hazardous Materials
and shall not be used to generate, manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce or process Hazardous Materials, except in connection with the normal
maintenance and operation of the Equipment, and the City shall not cause or permit, as a result
of any intentional or unintentional act or omission on the part of the City or any lessee, the
release of Hazardous Materials onto the Equipment or suffer the presence of Hazardous
Materials on the Equipment, except in connection with the normal maintenance and operation of
the Equipment.
(c) The City shall comply with, and ensure compliance by all users and lessees with,
all applicable federal, State and local laws, ordinances, rules and regulations with respect to
Hazardous Materials and shall keep the Equipment free and clear of any liens imposed pursuant
to such laws, ordinances, rules and regulations. If the City receives any notices from any
governmental agency or any lessee with regard to Hazardous Materials on, from or affecting the
Equipment, the City shall immediately notify BB&T. The City shall conduct and complete all
investigations, studies, sampling and testing and all remedial, removal and other actions
necessary to clean up and remove all Hazardous Materials on, from or affecting the Equipment in
accordance with all applicable federal, State and local laws, ordinances, rules, regulations and
policies and to BB&T's satisfaction.
(d) "Hazardous Materials" means any explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related materials, asbestos or any
materials containing asbestos, or any other substance or material as defined by any federal, State
or local environmental law, ordinance, rule or regulation including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended
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(42 U.S.C. sections 960l et seq.), the Hazardous Materials Transportation Act, as amended (49
U.S.C. sections 1801 et seq.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. sections 960I et seq.), and the regulations adopted and publications promulgated pursuant
thereto.
(e) To the extent permitted by law, the City shall indemnify and hold BB&T harmless
from and against (i) any and all damages, penalties, fines, claims, liens, suits, liabilities, costs
(including clean-up costs), judgments and expenses (including attorneys', consultants' or experts'
fees and expenses) of every kind and nature suffered by or asserted against BB&T as a direct or
indirect result of any warranty or representation made by the City in subsections (a) through (c)
above being false or untrue in any material respect,or(ii)any requirement under any law, regulation
or ordinance, local, State or federal, which requires the elimination or removal of any hazardous
materials,substances, wastes or other environmentally regulated substances by BB&T or the City or
any transferee or assignee BB&T or the City.
(f) The City's obligations under this Section shall continue in full force and effect
notwithstanding full payment of the Required Payments.
4.11. Further Instruments. Upon BB&Ts request, the City shall execute, acknowledge
and deliver such further instruments reasonably necessary or desired by BB&T to carry out more
effectively the purposes of this Agreement or any other document related to the transactions
contemplated by this Agreement, and to subject to the liens and security interests hereof and thereof
all or any part of the Equipment intended to be given or conveyed hereunder or thereunder, whether
now given or conveyed or acquired and conveyed subsequent to the date of this Agreement.
4.12. BB&T's Advances for Performance of Citl's Obligations. If the City fails to
perform any of its obligations under this Agreement, BB&T is hereby authorized, but not obligated,
to perform such obligation or cause it to be performed. All expenditures incurred by BB&T
(including any advancement of funds for payment of taxes, insurance premiums or other costs of
maintaining the Equipment, and any associated legal or other expenses), together with interest
thereon at the Prime Rate, shall be secured as Additional Payments under this Agreement. The City
promises to pay all such amounts to BB&T immediately upon demand.
4.13. Equipment Will Be Used and Useful. The acquisition and installation of the
Equipment is necessary and expedient for the City, and will perform essential functions of the City
appropriate for units of local government. The City has an immediate need for, and expects to make
immediate use of, all of the Equipment, and does not expect such need or use to diminish in any
material respect during the term of the Agreement. The Equipment will not be used in any private
business or put to any private business use.
4.14. Financial Information.
(a) The City shall send to BB&T a copy of the City's audited financial statements for each
Fiscal Year within 30 days of the City's acceptance of such statements, but in any event within 270
days of the completion of such Fiscal Year.
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(b) The City shall furnish BB&T, at such reasonable times as BB&T shall request, all
other financial information (including, without limitation, the City's annual budget as submitted or
approved) as BB&T may reasonably request. The City shall permit BB&T or its agents and
representatives to inspect the City's books and records and make extracts therefrom.
4.15. Taxes and Other Governmental Charges. The City shall pay, as Additional
Payments, the full amount of all taxes, assessments and other governmental charges lawfully made
by any governmental body during the term of this Agreement. With respect to special assessments
or other governmental charges which may be lawfully paid in installments over a period of years,
the City shall be obligated to provide for Additional Payments only for such installments as are
required to be paid during the Agreement term. The City shall not allow any liens for taxes,
assessments or governmental charges with respect to the Equipment or any portion thereof to
become delinquent (including, without limitation, any taxes levied upon the Equipment or any
portion thereof which, if not paid, will become a charge on any interest in the Equipment, including
BB&T's interest, or the rentals and revenues derived therefrom or hereunder).
4.16. City's Insurance.
(a) The City shall, at its own expense, acquire, carry and maintain broad-form extended
coverage property damage insurance with respect to all Equipment in an amount equal to the actual
cash value of the Equipment. Such property damage insurance shall include BB&T as loss payee.
The City shall provide evidence of such coverage to BB&T promptly upon installation of the
Equipment. Any Net Proceeds of the insurance required by this subsection (a) shall be payable as
provided in Section 5.14.
(b) The City shall, at its own expense, acquire, carry and maintain comprehensive
general tort liability insurance (and auto liability insurance, if applicable) in an amount not less than
$600,000 for personal injury or death and $600,000 for property damage.
(c) The City shall also maintain workers' compensation insurance issued by a
responsible carrier authorized under State law to insure the City against liability for compensation
under applicable State law as in effect from time to time.
(d) All insurance shall be maintained with generally recognized responsible insurers and
may carry reasonable deductible or risk-retention amounts. All such policies shall be deposited with
BB&T, provided that in lieu of such policies there may be deposited with BB&T a certificate or
certificates of the respective insurers attesting the fact that the insurance required by this Section is
in full effect. Prior to the expiration of any such policy, the City shall furnish BB&T evidence
satisfactory to BB&T that the policy has been renewed or replaced or is no longer required by this
Agreement.
(e) No City agent or employee shall have the power to adjust or settle any property
damage loss greater than $50,000 with respect to the Equipment, whether or not covered by
insurance, without BB&T's prior written consent.
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(t) BB&T shall not be responsible for the sufficiency or adequacy of any required
insurance and shall be fully protected in accepting payment on account of such insurance or any
adjustment, compromise or settlement of any loss agreed to by BB&T.
(g) The City shall deliver to BB&T annually by June 30 of each year a certificate stating
that the risk coverages required by this Agreement are in effect, and stating the carriers, policy
numbers, coverage limits and deductible or risk-retention amounts for all such coverages.
ARTICLE V
THE EQUIPMENT
5.01. Acquisition and Installation. The City shall comply with all provisions of law
applicable to the acquisition of the Equipment, accept all portions of the Equipment when
properly delivered, provide for the proper installation thereof and thereafter promptly place each
such portion in service.
5.02. Chances in Location. The City shall promptly inform BB&T if any component
of the Equipment shall be moved from the location designated for such Equipment at the time of
its acquisition.
5.03. Acquisition and Installation within Funds Available. The City represents that,
based upon its examination of the plans and specifications for the Equipment, estimated installation
costs and the Equipment's anticipated configuration, the Equipment can be acquired and installed
for a total price within the total amount of funds to be available therefore in the Project Fund,
income anticipated to be derived from the investment thereof and other funds previously identified
and designated for such purposes. If the total amount available for such purposes from the Project
Fund shall be insufficient to pay the entire cost of acquiring and installing the Equipment, the City
promises to pay any such excess costs, with no resulting reduction or offset in the amounts
otherwise payable by the City under this Agreement.
5.04. Disclaimer of Warranties. The City agrees that BB&T has not designed the
Equipment, that BB&T has not supplied any plans or specifications with respect thereto and that
BB&T(a) is not a manufacturer of, nor a dealer in, any of the component parts of the Equipment or
similar Equipment, (b) has not made any recommendation, given any advice nor taken any other
action with respect to (i) the choice of any supplier, vendor or designer of, or any other contractor
with respect to, the Equipment or any component part thereof or any property or rights relating
thereto, or(ii) any action taken or to be taken with respect to the Equipment or any component part
thereof or any property or rights relating thereto at any stage of the acquisition, installation and
equipping thereof, (c) has not at any time had physical possession of the Equipment or any
component part thereof or made any inspection thereof or of any property or rights relating thereto,
and (d) has not made any warranty or other representation, express or implied, that the Equipment
or any component part thereof or any property or rights relating thereto (i) will not result in or cause
it
injury or damage to persons or property, (ii) has been or will be properly designed, or will
accomplish the results which the City intends therefor, or(iii) is safe in any manner or respect.
BB&T MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION
OF ANY KIND WHATSOEVER WITH RESPECT TO THE EQUIPMENT OR ANY
COMPONENT PART THEREOF, INCLUDING BUT NOT LIMITED TO ANY WARRANTY
OR REPRESENTATION WITH RESPECT TO THE MERCHANTABILITY OR THE FITNESS
OR SUITABILITY THEREOF FOR ANY PURPOSE, and further including the design or
condition thereof; the safety, quality or capacity thereof; compliance thereof with the requirements
of any law, rule, specification or contract pertaining thereto; any latent defect; the Equipment's
ability to perform any function; that the Amount Advanced will be sufficient to pay all costs of the
acquisition and installation of the Equipment; or any other characteristic of the Equipment; it being
agreed that the City is to bear all risks relating to the Equipment, the installation thereof and the
transactions contemplated by this Agreement, and the City hereby waives the benefits of any and all
implied warranties and representations of BB&T.
Provided the City is in compliance with the terms and conditions of this Agreement,
BB&T shall assign to the City any and all manufacturer's warranties with respect to the Equipment.
The provisions of this Section shall survive the Agreement's termination.
5.05. Right of Entry and Inspection. BB&T and its representatives and agents shall
have the right to enter upon the City's property and inspect the Equipment from time to time during
installation and after the completion of installation, and the City shall cause any vendor, contractor
or sub-contractor to cooperate with BB&T and its representatives and agents during such
inspections.
No right of inspection or approval granted in this Section shall be deemed to impose upon
BB&T any duty or obligation whatsoever to undertake any inspection or to make any approval. No
inspection made or approval given by BB&T shall be deemed to impose upon BB&T any duty or
obligation whatsoever to identify or correct any defects in the Equipment or to notify any person
with respect thereto, and no liability shall be imposed upon BB&T, and no warranties (either
express or implied) are made by BB&T as to the quality or fitness of any improvement, any such
inspection and approval being made solely for BB&T's benefit.
5.06. Compliance with Requirements.
(a) The City shall cause the Equipment to be installed in a careful manner and in
compliance with all applicable legal requirements.
(b) The City shall observe and comply promptly with all current and future
requirements relating to the Equipment's use or condition imposed by(i) any judicial, governmental
or regulatory body having jurisdiction over the Equipment or any portion thereof or (ii) any
insurance company writing a policy covering the Equipment or any portion thereof, whether or not
any such requirement shall necessitate structural changes or improvements or interfere with the use
or enjoyment of the Equipment.
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(c) The City shall obtain and maintain in effect all licenses and permits required for the
Equipment's operation.
(d) The City shall in no event use the Equipment or any part thereof, nor allow the same
to be used, for any unlawful purpose, or suffer any act to be done or any condition to exist with
respect to the Equipment or any part thereof, nor any article to be brought thereon, which may be
dangerous, unless safeguarded as required by law, or which may, in law, constitute a nuisance,
public or private, or which may make void or voidable any insurance then in force with respect
thereto.
5.07. Use and Operation. The City shall use and operate the Equipment and related
property as set forth in Exhibit A hereto, and for no other purpose unless required by law. The City
shall be solely responsible for the Equipment's operation, and shall not contract with any other
person or entity for the Equipment's operation.
5.08. Maintenance and Repairs; Additions.
(a) The City shall keep the Equipment in good order and repair (reasonable wear and
tear excepted) and in good operating condition, shall not commit or permit any waste or any other
thing to occur whereby the value or usefulness of the Equipment might be impaired, and shall make
from time to time all necessary or appropriate repairs, replacements and renewals.
(b) The City may, also at its own expense, make from time to time any additions,
modifications or improvements to the Equipment that it may deem desirable for its governmental or
proprietary purposes and that do not materially impair the effective use, nor materially decrease the
value or substantially alter the intended use, of the Equipment. The City shall do, or cause to be
done, all such things as may be required by law in order fully to protect the security of and all
BB&T's rights under this Agreement.
(c) Any and all additions to or replacements of the Equipment and all parts thereof shall
constitute accessions to the Equipment and shall be subject to all the terms and conditions of this
Agreement and included in the "Equipment" for the purposes of this Agreement.
(d) Notwithstanding the provisions of subsection (c) above, however, the City may,
from time to time in its sole discretion and at its own expense, install machinery, equipment and
other tangible property in or on the Equipment. All such property shall remain the City's sole
property in which BB&T shall have no interest; provided, however, that any such property which
becomes permanently affixed to the Equipment shall be subject to the lien and security interest
arising under this Agreement if BB&T shall reasonably determine that the Equipment would be
damaged or impaired by the removal of such machinery, equipment or other tangible property.
5.09. Security. The City shall take all reasonable steps necessary to safeguard the
Equipment against theft. The security afforded the Equipment shall at all times he equal to or better
than the security afforded the City's personal property that is not subject to this Agreement.
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5.10. Utilities. The City shall pay all charges for utility services furnished to or used on or
in connection with the Equipment.
5.11. Risk of Loss. The City shall bear all risk of loss to and condemnation of the
Equipment.
5.12. Condemnation.
(a) The City shall immediately notify BB&T if any governmental authority shall
institute, or shall notify the City of any intent to institute, any action or proceeding for the taking of,
or damages to, all or any part of the Equipment or any interest therein under the power of eminent
domain, or if there shall be any damage to the Equipment due to governmental action, but not
resulting in a taking of any portion of the Equipment. The City shall file and prosecute its claims
for any such awards or payments in good faith and with due diligence and cause the same to be
collected and paid over to BB&T, and to the extent permitted by law hereby irrevocably authorizes
and empowers BB&T, in the City's name or otherwise, to collect and receipt for any such award or
payment and to file and prosecute such claims. If the City receives any Net Proceeds arising from
any such action, the City shall apply such Net Proceeds as provided in Section 5.14.
(b) If any of the real or personal property acquired or improved by the City (in whole
or in part) using any portion of the Amount Advanced consists of or is located on any real
property acquired by the City through the exercise of the power of eminent domain, or through
the threat of the exercise of the power of eminent domain, then during the term of this
Agreement the City may not transfer any interest in such real property to any entity other than a
local governmental unit without BB&T's prior express written consent.
5.13. No Encumbrance, Mortgage or Pledge of Equipment.
(a) The City shall not directly or indirectly create, incur, assume or suffer to exist any
mortgage, pledge, lien (including mechanics' and materialmen's liens), charge, encumbrance or
other claim in the nature of a lien on or with respect to the Equipment. The City shall promptly, at
its own expense,take such action as may be duly necessary to discharge any such mortgage, pledge,
lien, charge, encumbrance or claim not excepted above which it shall have created, incurred or
suffered to exist.
(b) The City shall reimburse BB&T for any expense incurred by BB&T to discharge or
remove any such mortgage, pledge, lien, security interest, encumbrance or claim, with interest
thereon at the Prime Rate.
5.14. Damage and Destruction; Use of Net Proceeds.
(a) The City shall promptly notify BB&T if (i) the Equipment or any portion thereof is
stolen or is destroyed or damaged by fire or other casualty, (ii)a material defect in the installation of
the Equipment shall become apparent, or (iii) title to or the use of all or any portion of the
Equipment shall be lost by reason of a defect in title. Each notice shall describe generally the nature
and extent of such damage, destruction or taking.
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(b) If the Net Proceeds arising from any single event, or any single substantially related
sequence of events, is not more than $50,000, the City shall retain such Net Proceeds and apply the
same to the prompt completion, repair or restoration of the Equipment, and shall promptly thereafter
report to BB&T regarding the use of such Net Proceeds.
(c) If the Net Proceeds arising from any single event, or any single substantially related
sequence of events, is more than $50,000, then the City shall cause such Net Proceeds to be paid to
an escrow agent (which shall be a bank, trust company or similar entity exercising fiduciary
responsibilities)designated by BB&T for deposit in a special escrow fund to be held by such escrow
agent. The City shall thereafter provide for the application of all Net Proceeds to the prompt
completion, repair or restoration of the Equipment, as the case may be. The escrow agent shall
disburse Net Proceeds for the payment of such costs upon receipt of requisitions in substantially the
form of Exhibit A to the Project Fund Agreement. If the Net Proceeds shall be insufficient to pay in
full the cost of completion, repair or restoration, the City shall either (i) complete the work and pay
any cost in excess of the Net Proceeds, or (ii) not carry out such completion, repair or restoration,
and instead apply the Net Proceeds, together with other available funds as may be necessary, to the
prepayment of all outstanding Required Payments pursuant to Section 3.03.
(d) Any repair, restoration, modification, improvement or replacement paid for in whole
or in part out of Net Proceeds shall be the BB&T's property and shall be part of the Equipment.
ARTICLE VI
DEFAULTS AND REMEDIES; TERMINATION
6.01. Events of Default. An "Event of Default" is any of the following:
(a) The City's failing to make any Base Payment when due.
(b) The City's breaching or failing to perform or observe any term, condition or
covenant of this Agreement or of the Project Fund Agreement on its part to be observed or
performed, other than as provided in subsection (a) above, including payment of any Additional
Payment, for a period of 15 days after written notice specifying such failure and requesting that it be
remedied shall have been given to the City by BB&T, unless BB&T shall agree in writing to an
extension of such time prior to its expiration.
(c) The institution of proceedings under any bankruptcy, insolvency, reorganization or
similar law by or against the City as a debtor, or the appointment of a receiver, custodian or similar
officer for the City or any of its property, and the failure of such proceedings or appointments to be
vacated or fully stayed within 30 days after the institution or occurrence thereof.
(d) Any warranty, representation or statement made by the City in this Agreement is
found to be incorrect or misleading in any material respect on the Closing Date (or, if later, on the
date made).
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(e) Any lien, charge or encumbrance affecting the validity of the Agreement or the
Project Fund Agreement is found to exist, or proceedings are instituted against the City to enforce
any lien, charge or encumbrance against the Equipment and such lien, charge or encumbrance
would be prior to this Agreement.
(f) The City's failing to pay when due any principal of or interest on any of its general
obligation debt.
6.02. Remedies on Default. Except for an Event of Nonappropriation, upon the
continuation of any Event of Default, BB&T may, without any further demand or notice, exercise
any one or more of the following remedies:
(a) Declare the unpaid principal components of the Base Payments immediately due and
payable;
(b) Proceed by appropriate court action to enforce the City's performance of the
applicable covenants of this Agreement or to recover for the breach thereof; and
(c) As provided in the Project Fund Agreement, require BB&T to pay over any balance
remaining in the Project Funds to be applied against outstanding Required Payments in any manner
BB&T may reasonably deem appropriate; and
(c) Avail itself of all available remedies under this Agreement, including repossession
as provided in Section 6.03, and recovery of attorneys' fees and other expenses.
6.03. Execution on Personal Property. Upon the continuation of any Event of Default
and in addition to all other remedies granted in this Agreement, BB&T shall have all the rights and
remedies of an owner of personal property under the UCC and may proceed to recover and
repossess the Equipment.
6.04. Consequences of Nonappropriation. Upon an Event of Nonappropriation, the
City shall have no further obligation to pay Base Payments beyond the end of the Fiscal Year for
which amounts have been appropriated for Base Payments. This Agreement shall terminate on the
last day of the Fiscal Year for which amounts have been appropriated for Base Payments without
any penalty to the City whatsoever. The City agrees to peaceably surrender possession the
Equipment to BB&T or its assignees on the first day of the Fiscal Year to which the Event of
Nonappropriation applies, packed for shipment in accordance with manufacturer specifications and
freight prepaid and insured to any location in the continental United States or Canada designated by
BB&T.
In addition, upon the occurrence of any Event of Nonappropriation, BB&T may, without
any further demand or notice, take action with respect to the City and the Equipment as
contemplated in Section 6.05. An Event of Nonappropriation and resulting termination of this
Agreement shall not relieve the City of liability for any defaults under this Agreement occurring
prior to the Event of Nonappropriation, or of liability under those provisions of this Agreement
which are stated to survive termination.
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6.05. Possession of Equipment. Upon the continuation of an Event of Default or the
occurrence of an Event of Nonappropriation, the City shall immediately lose the right to possess,
use and enjoy the Equipment (but may remain in possession of the Equipment as a lessee at will of
BB&T), and thereupon the City (a) shall pay monthly in advance to BB&T a fair and reasonable
rental value for the use and possession of the Equipment(in an amount BB&T shall determine in its
reasonable judgment), and (b) upon BB&T's demand, shall deliver possession of the Equipment to
BB&T or,at BB&T's direction, to any purchaser of the Equipment after surrender of the Equipment
to BB&T.
In addition, upon the continuation of any Event of Default or the occurrence of an Event of
Nonappropriation, BB&T, to the extent permitted by law, is hereby authorized to (i) take possession
of the Equipment, with or without legal action, (ii) lease the Equipment, (iii) collect all rents and
profits therefrom, with or without taking possession of the Equipment, and (iv) after deducting all
costs of collection and administration expenses, apply the net rents and profits first to the payment
of necessary maintenance and insurance costs, and then to the City's account and in reduction of the
City's corresponding Required Payments in such fashion as BB&T shall reasonably deem
appropriate. BB&T shall be liable to account only for rents and profits it actually receives.
6.06. No Remedy Exclusive; Delay Not Waiver. All remedies under this Agreement are
cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall
not be deemed an election of such remedy or preclude the exercise of any other remedy. If any
Event of Default shall occur and thereafter be waived by BB&T, such waiver shall be limited to the
particular breach so waived and shall not be deemed a waiver of any other breach under this
Agreement.
6.07. Payment of Costs and Attorney's Fees. If BB&T employs an attorney to assist in
the enforcement or collection of Required Payments, or if BB&T voluntarily or otherwise shall
become a party to any suit or legal proceeding(including a proceeding conducted under any state or
federal bankruptcy or insolvency statute) to protect the Equipment, to protect BB&T's rights under
this Agreement, to enforce collection of the Required Payments or to enforce compliance by the
City with any of the provisions of this Agreement, the City agrees to pay reasonable attorneys' fees
and all of the costs that may reasonably be incurred (whether or not any suit or proceeding is
commenced), and such fees and costs (together with interest at the Prime Rate) shall be secured as
Required Payments.
ARTICLE VII
MISCELLANEOUS
7.01. Notices.
(a)Any communication required or permitted by this Agreement must be in writing.
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(b) Any communication under this Agreement shall be sufficiently given and deemed
given when delivered by hand or five days after being mailed by first-class mail, postage prepaid,
addressed as follows:
(i) If to the City, to City of Pueblo, 1 City Hall Place, Pueblo, Colorado 81003,
Attention: Finance Director;with a copy to:
City Attorney, 1 City Hall Place, 3rd Floor, Pueblo,CO 81003
(ii) If to BB&T, to BB&T Governmental Finance, 5130 Parkway Plaza
Boulevard, Building 9, Charlotte, North Carolina 28217, Attention: Account
Adm inistration/Municipal.
(c) Any addressee may designate additional or different addresses for communications
by notice given under this Section to each of the others.
7.02. No Assignments by City. The City shall not sell or assign any interest in this
Agreement.
7.03. Assignments by BB&T. BB&T may, at any time and from time to time,assign
all or any part of its interest in the Equipment or this Agreement, including, without limitation,
BB&T's rights to receive Required Payments. Any assignment made by BB&T or any subsequent
assignee shall not purport to convey any greater interest or rights than those held by BB&T pursuant
to this Agreement.
The City agrees that this Agreement may become part of a pool of obligations at BB&T's or
its assignee's option. BB&T or its assignees may assign or reassign all or any part of this
Agreement, including the assignment or reassignment of any partial interest through the use of
certificates evidencing participation interests in this Agreement. Notwithstanding the foregoing, no
assignment or reassignment of BB&T's interest in the Equipment or this Agreement shall be
effective unless and until the City shall receive a duplicate original counterpart of the document by
which such assignment or reassignment is made disclosing the name and address of each such
assignee.
The City further agrees that BB&T's interest in this Agreement may be assigned in whole
or in part upon terms which provide in effect that the assignor or assignee will act as a collection
and paying agent for any holders of certificates of participation in this Agreement, provided the City
receives a copy of such agency contract and such collection and paying agent covenants and agrees
to maintain for the full remaining term of this Agreement a written record of each assignment and
reassignment of such certificates of participation.
The City agrees to execute any document reasonably required in connection with any
assignment. Any assignor must provide notice of any assignment to the City, and the City shall
keep a complete and accurate record of all assignments as required by the Code. After the giving of
any such notice,the City shall thereafter make all payments in accordance with the notice to the
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assignee named therein and shall, if so requested, acknowledge such assignment in writing, but such
acknowledgment shall in no way be deemed necessary to make the assignment effective.
7.04. Amendments. No term or provision of this Agreement may be amended, modified
or waived without the prior written consent of the City and BB&T.
7.05. Governing Law. The City and BB&T intend that State law shall govern this
Agreement.
7.06. Liability of Officers and Agents. No officer, agent or employee of the City shall
be subject to any personal liability or accountability by reason of the execution of this Agreement or
any other documents related to the transactions contemplated by this Agreement. Such officers or
agents shall be deemed to execute such documents in their official capacities only, and not in their
individual capacities. This Section shall not relieve an officer, agent or employee of the City from
the performance of any official duty provided by law.
7.07. Severability. If any provision of this Agreement shall be determined to be
unenforceable,that shall not affect any other provision of this Agreement.
7.08. Non-Business Days. If the date for making any payment or the last day for
performance of any act or the exercising of any right shall not be a Business Day, such payment
shall be made or act performed or right exercised on or before the next preceding Business Day.
7.09. Entire Agreement. This Agreement constitutes the City's entire agreement with
respect to the general subject matter covered by this Agreement.
7.10. Binding Effect. Subject to the specific provisions of this Agreement, and in
particular Section 7.03, this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
The remainder of this page has been left blank intentionally; signature page follows.
19
IN WITNESS WHEREOF, the parties have duly signed, sealed and delivered this
Agreement by duly authorized officers, all as of the date first above written.
(SEAL)
SEAL CITY OF P EBL , a . r.•o municipal
corporate. 1 /%
Attes 'l R lC By . .1,4111(
PiCtifC City Clerk Pre• •of the City Council
BRANCH BANKING AND
TRUST COMPANY
By:11/404241
Printed Name: Ihta D• 94-5/‘-‘49-
Title: ?/),40116
[Lease Agreement between the City of Pueblo, Colorado, and Branch Banking and Trust Company]
20
EXHIBIT A -- PROJECT ANI) EQUIPMENT DESCRIPTION
Laptops and related equipment, as may be more particularly described in documentation
submitted with requisitions pursuant to the Project Fund Agreement.
Equipment Schedule As of 13 2018
Item Vendor Costs
GETAC V110 mobile computers,office HP Inc. $651.525.08
and mobile docking stations
Gamber Johnson vehicle mounts HP Inc. $57,500.00
Sierra Wireless vehicle modems HP Inc. 8133,777.29
Total to HP Inc. $842,802.37
Netmotion Software Licenses CDW-G $5.047.00
Identity Automation(2FA)software CDW-G $8,643.00
licenses
Total to CDW-G $13,690.00
Site License for Police Department Record Superion $87.392.00
Management and Mobile Application
Total to Superion $87,392.00
Visio Software for RMS mobile mapping 516,346.00
Total to Insight Public Sector $16,346.00
Project Total $960,230.37
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EXHIBIT B --PAYMENT SCHEDULE
(Laptops & Related Equipment)
Payment Schedule to Lease Purchase Agreement dated as of March 2, 2018 (the "Lease
Agreement"), between the City of Pueblo, Colorado, and Branch Banking and Trust
Company
Contract Number: 9906000269-00003
The payments required to repay the advance made pursuant to the Lease Agreement call
for an amortization period of approximately forty-nine (49) months. Payments are annual in
arrears in the amount of $204,737.32. A portion of each payment is paid as and represents
payment of interest at an annual interest rate of 3.17%.
Payments are due beginning on April 1, 2018, and annually thereafter, with a final
payment of all outstanding principal and accrued and unpaid interest due on April 1, 2022, all as
set forth in the attached amortization schedule.
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City of Pueblo,CO Customer No.9906000269 NA ICS:921 140
Laptops&Related Equipment Contract No.00003
Dated
Date 3/2/2018
Delivery
Date 3/2/2018
Period Annual Debt Bond Total Bond
Ending Principal Coupon Interest Debt Service Service Balance Value
3/2/2018 960,230.37 960,230.37
4/1/2018 202,285.27 3.170% 2,452.05 204,737.32 757,94510 757,945.10
12/31/2018 204,737.32 757,945.10 757,945.10
4/1/2019 180,710.46 3.170% 24,026.86 204,737.32 577,234.64 577,234.64
12/31/2019 204,737.32 577,234.64 577,234.64
4/1/2020 186,438.98 3.170% 18,298.34 204,737.32 390,795.66 390,795.66
12/31/2020 204,737.32 390,795.66 390,795.66
4/1/2021 192,349,10 3.170% 12,388.22 204,737.32 198,446.56 198,446.56
12/31/2021 204,737.32 198,446.56 198,446.56
4/1/2022 198,446.56 3.170% 6,290.76 204,737.32
12/31/2022 204,737.32
960,230.37 63,456.23 1,023,686.60 1,023,686.60
23
PROJECT FUND AGREEMENT
THIS PROJECT FUND AGREEMENT is dated as of March 2, 2018, and is by and
between the CITY OF PUEBLO, COLORADO, a Colorado municipal corporation (the "City"),
and BRANCH BANKING AND TRUST COMPANY ("BB&T").
RECITALS
The City is, simultaneously with the execution and delivery of this Project Fund Agreement,
executing and delivering a Lease Agreement dated as of March 2, 2018 (the "Lease Agreement"), by
and between the City and BB&T. The purpose of the Lease Agreement is to provide for BB&T's
advance of$960,230.37 to the City to finance the City's acquisition of equipment, as defined in the
Lease Agreement. In partial consideration for BB&T's entering into the Lease Agreement, the City
has agreed to provide for financing proceeds to be deposited and disbursed pursuant to this Project
Fund Agreement.
NOW,THEREFORE,the parties agree as follows:
SECTION 1. DEFINITIONS
In this Project Fund Agreement, the term "Project Costs" means all costs of the design,
planning, acquiring, installing of the Equipment as determined in accordance with generally
accepted accounting principles and that will not adversely affect the exclusion from gross income
for federal income tax purposes of the designated interest component of Installment Payments
payable by the City under the Lease Agreement, including (a) sums required to reimburse the City or
its agents for advances made for any such costs, (b) interest during the installation process and for
up to six months thereafter, and (c) all costs related to the financing of the Equipment through the
Lease Agreement and all related transactions.
In addition, any capitalized terms used in this Project Fund Agreement and not otherwise
defined shall have the meanings assigned thereto in the Lease Agreement.
SECTION 2. PROJECT FUND.
2.1. Project Fund. On the Closing Date, BB&T will deposit $960,230.37 into a special
account of the City at Branch Banking and Trust Company to be designated "2018-00003 City of
Pueblo Project Fund" (the "Project Fund"). This account shall be held separate and apart from all
other funds of the City. The Project Fund is the City's property, but the City will withdraw amounts
on deposit in the Project Fund only as provided in the Project Fund Agreement and only for
application from time to time to the payment of Project Costs. Pending such application, such
amounts shall be subject to a lien and charge in favor of BB&T to secure the City's obligations
under the Lease Agreement.
1111101H 111II
9906000269000039968
2.2. Requisitions from Project Fund. The City may withdraw funds from the Project
Fund only after authorization from BB&T. BB&T will disburse funds from the Project Fund only to
the City and only upon its receipt of written requisitions from one of the designated Authorized
Representatives named in the Certificate of Authorized Representatives contained herein and
substantially in the form of Exhibit A attached hereto.
2.3. Disposition of Project Fund Balance.
(a) Upon completion -- Promptly after the acquisition and installation of the Equipment
has been completed, the City shall deliver to BB&T a certificate to such effect signed by a City
Representative.
(b) Upon default -- Upon the occurrence of an Event of Default, BB&T may withdraw
any balance remaining in the Project Fund and apply such balance against outstanding Required
Payments.
(c) Upon event of nonappropriation — Upon an event of nonappropriation, BB&T may
withdraw any balance remaining in the Project Fund and apply such balance against outstanding
Required Payments.
(d) After delay or inactivity-- If (i) more than two years have elapsed from the
Closing Date or(ii) at least six months has passed from BB&T's most recent receipt of a requisition
for Project Costs, then BB&T, upon 30 days' notice from BB&T to the City, may withdraw any
balance remaining in the Project Fund and apply such balance against outstanding Required
Payments.
(e) Application of Project Fund balance -- BB&T will apply any amounts paid to it
pursuant to this section (i) first against all Additional Payments then due and payable, (ii) then to
interest accrued and unpaid to the prepayment date, and (iii) then to the prepayment, in inverse order
of maturity and without premium (notwithstanding any contrary provisions of Section 3.03 of the
Lease Agreement), of the outstanding principal components of Installment Payments. Such
prepayment, however, will not affect any other City payment obligation under the Lease
Agreement. BB&T will notify the City of any withdrawal from the Project Fund made under this
Section 2.3, and in the notice will describe its application of the funds withdrawn.
2.4. Investment. (a) The City and BB&T agree that money in the Project Fund will be
continuously invested and reinvested in a public funds money rate savings account.
(b) From and after the date that is three years from the Closing Date, the City will not
purchase or hold any investment which has a "yield," as determined under the Code, in excess of the
"yield" on the City's obligations under the Lease Agreement, unless the City has supplied BB&T
with a Bond Counsel Opinion to the effect that such investment will not adversely affect the
exclusion from gross income for federal income tax purposes to which the interest components of
Installment Payments would otherwise be entitled.
2
(c) Investment obligations acquired with money in the Project Fund shall be deemed at
all times to be part of the Project Fund. The interest accruing thereon and any profit or loss realized
upon the disposition or maturity of any such investment shall be credited to or charged against the
Project Fund.
(d) All earnings on moneys in the Project Fund must be used for Project Costs.
SECTION 3. MISCELLANEOUS.
3.1. Notices. Any notice or other communication required or contemplated by this
Project Fund Agreement shall be deemed to be delivered if in writing, addressed as provided below
and if(a) actually received by such addressee, or (b) in the case of mailing, when indicated to have
been delivered by a signed receipt returned by the United States Postal Service after deposit in the
United States mails, postage and registry fees prepaid, and clearly directed to be transmitted as
registered or certified mail:
(i) If intended for the City, addressed to it at the following address: City of
Pueblo, Attention: Finance Officer, 1 City Hall Place, Pueblo, Colorado 81003,.
(ii) If intended for BB&T, addressed to it at the following address: 5130 Parkway
Plaza Boulevard, Charlotte, North Carolina 28217, Attention: Governmental Finance.
Any party may designate a different or alternate address for notices by notice given under this
Project Fund Agreement.
3.2. Survival of Covenants and Representations. All covenants, representations and
warranties made by the City in this Project Fund Agreement and in any certificates delivered
pursuant to this Project Fund Agreement shall survive the delivery of this Project Fund Agreement.
3.3. Choice of Law. The parties intend that Colorado law shall govern this Project Fund
Agreement.
3.4. Amendments. This Project Fund Agreement may not be modified or amended
unless such amendment is in writing and signed by BB&T and the City.
3.5. No Third-Party Beneficiaries. There are no parties intended to be or which shall
be deemed to be third-party beneficiaries of this Project Fund Agreement.
3.6. Successors and Assigns. All of the covenants and conditions of this Project Fund
Agreement shall be binding upon and inure to the benefit of the parties to this Project Fund
Agreement and their respective successors and assigns.
3.7. Severability. If any court of competent jurisdiction shall hold any provision of this
Project Fund Agreement invalid or unenforceable, such holding shall not invalidate or render
unenforceable any other provision of this Project Fund Agreement.
3
3.8. Counterparts. This Project Fund Agreement may be executed in any number of
counterparts, including separate counterparts, each executed counterpart constituting an original but
all together only one agreement.
3.9. Termination. Except as otherwise provided in this Project Fund Agreement, this
Project Fund Agreement shall cease and terminate upon payment of all funds (including investment
proceeds) from the Project Fund.
The remainder of this page has been left blank intentionally; signature page follows.
4
CERTIFICATE DESIGNATING AUTHORIZED REPRESENTATIVES
In accordance with the terms herein, the City designates the following persons as Authorized
Representatives authorized to sign requisitions to withdraw funds from the Project Fund account:
Printed Name: i ature:
Sam Azad
Roni Kimbrel Rftv.t. ItAA4T=a-Vij,
Lara Keys 4-�'� ►
The City may designate additional Representatives to sign requisitions upon written
notification to BB&T.
IN WITNESS WHEREOF, each of the parties has caused is P oject Fund Agreement to
be signed and delivered by a duly authorized officer, all as of the • .to fir above written.
f
ATTEST CITY OF 1E L G,a C ado municipal
corpor. io
Ba1Ct[Xl By: 414167i I
Printed Name: Brenda Armijo Printed Name: Christopher A. Nicoll
Title: Acting City Clerk Title: President of City Council
SEAL
BRANCH BANKING AND
'- TRUST COMPANY
By:
/
�f'l/..�'J/
Printed Name: Via.o4 • S,T4v4-
Title:iffINtThi D DFa‘ .
/Project Fund Agreement dated as of March 2, 2018
5
EXHIBIT A
oto be prepared on City's letterhead for submission/
PROJECT FUND REQUISITION
[Date]
E-MAIL REQUISITIONS TO: GFProjectfunds@bbandt.com
Requisition Team telephone: 252-296-0653 or 252-296-0452
Branch Banking and Trust Company
(Governmental Finance)
Re: Request for disbursement of funds from the Project Fund related to
Contract No. 9906000269-00003 with the City of Pueblo, dated March 2, 2018.
To Whom It May Concern:
Pursuant to the terms and conditions of the Project Fund Agreement dated as of March 2,
2018, the City of Pueblo (the "City"), requests the disbursement of funds from the Project Fund
established under the Project Fund Agreement for the following Project Costs:
This is requisition number from the Project Fund.
Disbursements will be to the City of Pueblo
Amount: $
For equipment, attach the following to this requisition
• Copies of applicable vendor invoices or spreadsheet of expenditures;
• Certificate of Insurance showing:
o property coverage with "Branch Banking and Trust Company, P. 0. Box
261510, Miami, FL 33126"listed as loss payee and certificate holder;
o make, model, serial number of each piece of equipment;
o loan contract number 9906000269-00003.
Project Description: Laptops& Related Equipment
Location of Equipment/Facilities:
6
To receive funds via wire transfer please include:
ABA Routing Number:
Account Number:
Physical address of City:
City of Pueblo makes this requisition pursuant to the following representations:
1. The City has appropriated in its current fiscal year funds sufficient to pay the Installment
Payments and estimated Additional Payments due in the current fiscal year.
2. The purpose of this disbursement is for partial payment on the project provided for under the
Contract referenced above.
3. The requested disbursement has not been subject to any previous requisition.
4. No notice of any lien, right to lien or attachment upon, or claim affecting the right to receive
payment of, any of the moneys payable herein to any of the persons, firms or corporations
named herein has been received, or if any notice of any such lien, attachment or claim has
been received, such lien, attachment or claim has been released or discharged or will be
released or discharged upon payment of this requisition.
5. This requisition contains no items representing payment on account of any percentage
entitled to be retained on the date of this requisition.
6. No Event of Default is continuing under the Lease Agreement, and no event or condition is
existing which, with notice or lapse of time or both, would become an Event of Default.
7. The City authorizes BB&T to file or cause to be filed any Uniform Commercial Code
financing statements with respect to the equipment that is the subject of this requisition.
8. The City has in place insurance on this portion of the Facilities that complies with the
insurance provisions of the above-referenced Contract.
Each amount requested for payment in this requisition either (a) represents reimbursement to
the City for a Project Cost expenditure previously made, or (b) will be used by the City promptly
upon the receipt of funds from BB&T to make the payments to third parties described in this
requisition.
Attached is evidence that the amounts shown in this requisition are properly payable at this
time, such as bills, receipts, invoices, architects' payment certifications or other appropriate
documents.
CITY OF PUEBLO, COLORADO
By:
Printed Name:
Title:
8
CLOSING CERTIFICATE
The undersigned officers of the City of Pueblo, Colorado (the "City"), hereby certify as
follows:
The City's governing board (the "Board") adopted the attached resolution (the
"Resolution"), authorizing and providing for a lease financing with Branch Banking and Trust
Company. The Resolution was duly adopted at a meeting duly called and held at which a quorum
was present and acting throughout. The Resolution has not been repealed, revoked, rescinded or
amended, but remains in full effect as of today.
2. The signatures set forth below are the true and genuine signatures of the persons
holding the indicated offices. The indicated persons have held such offices at . I times since the
Resolution was adopted.
Printed Name Title .i n r
Christopher A. Nicoll
p President or City Manager
rte►
Roni Kimbrel Finance Officer
•
Brenda Armijo Acting City Clerk a-A-W.4f
3. The City has duly authorized, executed and delivered the Lease Agreement and the
Project Fund Agreement provided for by the Resolution. We have reviewed the City's
representations as set forth in such Agreements, and all of such representations are correct and
complete in all material respects as if made today. The City has appropriated at least $204,737.32
for Installment Payments under the Lease Agreement coming due between today and the end of the
City's current fiscal year.
4. No further approval, consent or withholding of objections is required from any
federal, state or local government authority with respect to the City's entering into the Lease
Agreement, the City's performing its obligations thereunder or the transactions contemplated
thereby. The City has complied with all applicable public-bidding procedures regarding the
Equipment (as defined in the Lease Agreement) and the transactions contemplated by the Lease
Agreement.
4. The seal impressed below is the City's official seal, and has been the City's official
seal since prior to the adoption of the Resolution.
111111103
II SII
9906000269000039972
WITNESS r signatures and the seal of the City of Pueblo, Colorado, this v day of
March, 2018.
(SEAL)
By: _ By: f3,4&U-lettt £L -
President or City Manager Finance Officer Acting CitVlerk
Closing Certificate
RESOLUTION NO. 13895
A RESOLUTION APPROVING A STATE AND MUNICIPAL
LEASE/PURCHASE AGREEMENT BETWEEN THE CITY OF
PUEBLO, A MUNICIPAL CORPORATION, AND BRANCH BANKING
AND TRUST COMPANY RELATING TO POLICE MOBILE
EQUIPMENT, 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 ACTIONS REQUIRED THEREWITH.
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 a certain new Public Safety
software and hardware constituting personal property necessary for the performance of City
business operations; and
WHEREAS, in order to acquire such equipment, City proposes to enter into a Lease
Purchase Agreement with Branch Banking and Trust Company., a Charlette, North Carolina
Company or a subsidiary thereof (the "Lessor"), and Project Fund 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 Lease Purchase
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 Project Fund
Agreement; NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The form,terms, and provisions of the Lease Purchase Agreement, having been approved
as to form by the City Attorney, are hereby approved in substantially the form attached hereto
with such minor insertions, omissions and changes as shall be approved by the City Manager
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
Lease Purchase Agreement and to deliver said 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 Lease Purchase 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 Lease Purchase Agreement.
SECTION 3.
The Lease Purchase Agreement is expressly made subject to sufficient appropriations
being made therefore in each fiscal year beginning in 2018. Nothing contained in this Resolution
and the Lease Purchase 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 the Lease Purchase 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 Lease Purchase Agreement are special limited obligations, subject
to annual appropriations, of the City as Lessee, as provided in such Lease Purchase Agreement.
Nothing in the Lease Purchase 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 Lease Purchase Agreement until
such time as the City Council shall designate any other or different authorized representative for
purposes of the Agreement. All other officers and staff of the City are hereby authorized and
directed to take such actions as are necessary to implement the lease purchase arrangement
contemplated herein.
SECTION 5.
This Resolution shall be effective immediately upon passage and approval.
INTRODUCED February,2 2 18
BY: Bro
ME R BF/Cr
!" oit9 !; 1\
' L
APPROVED: hE,..i,//17 /
DENT OF CITY COUNCIL
i1 /
ATTESTED BY,;_illk, j7 CLO Lt,L 114
ACTING CITY CLERK
ACORD, CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DDIYY)
02/14/2018
PRODUCER LIC #N/A 1-303-757-5475 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
CIRSA 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
City of Pueblo INSURER A:See Attached Schematic
INSURER B:CIRSA
c/o HUB International Insurance Services INSURER C:
PO Box 58
Pueblo, CO 81002 INSURER D:
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 CONDITION 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.
INSR POLICY EFFECTIVE POLICY EXPIRATION
LTR TYPE OF INSURANCE POLICY NUMBER DATE(MM/DD/YYI DATE IMM/DD/YY1 LIMITS
GENERAL LIABILITY EACH OCCURRENCE $ __
COMMERCIAL GENERAL LIABILITY FIRE DAMAGE(Any one fire) $
CLAIMS MADE OCCUR MED EXP(Any one person) $
PERSONAL 8 ADV INJURY $
GENERAL AGGREGATE $
GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ _
POLICY JECOT LOC
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $
ANY AUTO (Ea accident)
ALL OWNED AUTOS BODILY INJURY $
SCHEDULED AUTOS (Per person)
HIRED AUTOS
BODILY INJURY $
NON-OWNED AUTOS (Per accident)
PROPERTY DAMAGE $
(Per accident)
GARAGE UABILITY AUTO ONLY-EA ACCIDENT $
ANY AUTO EA ACC $
OTHER THAN _
AUTO ONLY: AGG $
EXCESS LIABILITY EACH OCCURRENCE $
OCCUR CLAIMS MADE AGGREGATE $ _
DEDUCTIBLE
RETENTION $ $
WORKERS COMPENSATION AND WC STATU- OTH-
EMPLOYERS'LIABILITY _ TORY LIMITS ER
E.L.EACH ACCIDENT $
E.L.DISEASE-EA EMPLOYEE $
E.L.DISEASE-POLICY LIMIT $
OTHER
A Property (Excess Prop) See Attached Schematic 01/01/18 01/01/19 Prop Pool Limit $500,000,000
B Property (Primary) PR 01-2018 01/01/18 01/01/19 $1,000,000
DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLESIEXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS
Certificate Holder is Loss Payee if required by contract/agreement.
As respects laptops & related equipment under Contract #9906000269-00003. Value at time of lease: $960,230.37
CERTIFICATE HOLDER N ADDITIONAL INSURED;INSURER LETTER: CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
Branch Banking and Trust Company 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
P.O. Box 261510 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR
REPRESENTATIVES.
Miami, FL 33126 AUTHORIZED REPRESENTATIVE �J�f/
USA //�
ACORD 25-S(7/97) Moniquef OACORD CORPORATION 1988
52070124
J
Colorado Intergovernmental Risk Sharing Agency
Property Coverage Schematic
January 1,2018 to January 1,2019
Layer
$300 Million x$200 Million Insurer B.Axis Insurance Company
Policy#MAF790958-18
NAIC#37273
Insurer C.Aspen Specialty Insurance Company
Policy#PROO7HE18
NAIC#10717
Insurer D. Liberty Surplus Insurance Corporation
Policy#1000285729-01
(1)RSUI-100% NAIC#10725
Insurer E. First Specialty Insurance Corporation
Policy#ESP 2002790 00
NAIC#34916
Insurer F. First Specialty Insurance Corporation
Policy#ESP 2002817 00
NAIC#34916
Insurer G. The Princeton Excess and Surplus
$100 Million x$100 Million Lines Insurance Company
Policy#3VA3PP0000119-00
NAIC#10786
Insurer H. United National Insurance Company
Policy#LPE1154669
NAIC#13064
Insurer I. HDI Global Insurance Company
$50 Million x$50 Million Policy#CPXD5444600
NAIC#41343
2/JInsurerJ. RSUI Indemnity Company
N
Policy#NHD902792
NAIC#22314
$25 Million x$25 Million
(E)First Specialty-32%
$25 Million
�~Y
city of
p PUEBLO
colorado
One City Hall Place,Third Floor Telephone: (719) 562-3899
Pueblo, Colorado 81003 DEPARTMENT OF LAW Fax No.(719) 562-3889
March 2, 2018
City of Pueblo,Colorado
Branch Banking and Trust Company("BB&T")
Charlotte,Colorado
$960,230.37 Lease Financing for the City of Pueblo,Colorado
Ladies and Gentlemen:
I have represented the City of Pueblo, Colorado (the "City"), in connection with the City's authorization,
execution and delivery of the following:
(1) A Lease Agreement dated as of March 2,2018(the"Lease Agreement"),between the City and BB&T;
and
(2) A Project Fund Agreement dated as of March 2, 2018 (the "Project Fund Agreement"), between the
City and BB&T.
In this connection,I have reviewed(a)the Constitution of the State of Colorado and other applicable law; (b)
certain proceedings taken by the City, including a resolution (the "Resolution"), duly adopted by the City,pertaining
to the authorization of the Lease Agreement and related transactions; (c) an executed copy of the Lease Agreement;
and the Project Fund Agreement (the "Agreements") (d) such other information and documents as I have deemed
relevant in order to render this opinion.
Based upon the foregoing, it is my opinion that:
1. The City is a Colorado public body duly existing pursuant to Colorado law.
2. The City has duly adopted the Resolution.
3. The City has duly authorized, executed and delivered each Agreement. Assuming the due
authorization, execution and delivery of an Agreement by every other party thereto, each such Agreement
constitutes a valid and binding agreement of the City enforceable in accordance with its terms. The enforceability
of the City's obligations with respect to the Agreement is subject to the provisions of bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement of creditors' rights. The enforceability of
such obligations is also subject to usual equity principles, which may limit the specific enforcement of certain
remedies.
4. No further approval, consent or withholding of objections is required from any federal, state or
local government authority with respect to the City's entering into the Lease Agreement, the City's performing
its obligations thereunder or the transactions contemplated thereby. The City has complied with all required
public-bidding procedures regarding the Equipment (as defined in the Lease Agreement) and the transactions
contemplated by the Lease Agreement.
5. All of the Equipment described in the Lease Agreement as intended to be financed by the City will
be personal property when installed as expected, and no portion will be real property or a "fixture" within the
meaning of the Colorado Uniform Commercial Code.
6. To the best of my knowledge after reasonable investigation, neither (a) the adoption of the
Resolution, nor (b) the execution and delivery of the Lease Agreement or the consummation of the transactions
contemplated thereby, nor (c) the fulfillment of or compliance with the terms and conditions of the Lease
Agreement breaches or violates any provision of any contract, lease, instrument or other agreement or any
judgment, order or decree of any court or other governmental authority to which the City is a party or by which
the City is bound. No event or condition has happened or existed,or is happening or existing,under the provisions
of any such instrument which, at this time, constitutes a default or which, with notice or lapse of time or both,
would constitute an event of default under any such contract, lease, instrument or other agreement or any such
judgment, order or decree.
7. There is no litigation or any proceeding before any governmental agency pending or, to the best
of my knowledge after reasonable investigation, threatened against the City(or any official thereof in an official
capacity)with respect to(a)the City's organization or existence, (b)the City's authority to execute and deliver the
Lease Agreement, to adopt the Resolution or to comply with the terms thereof, (c) the transactions contemplated
by the Lease Agreement and the Resolution, (d) the title to office of any City governing board member or any
other City officer, or (e) any authority or proceedings relating to the City's execution or delivery of the Lease
Agreement.
Very truly yours,
.>&4\01-41 • /-' 617;01/4-2-i-
Daniel C. Kogovsek
City Attorney