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CITY SECIETAW
CONTRACT 40 I
CAPITAL EQUIPMENT LEASE AGREEMENT
BETWEEN
CITY OF FORT WORTH
AND
ANDRITZ SEPARATION INC.
2.OM BELT FILTER PRESS
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
CAPITAL EQUIPMENT LEASE AGREEMENT
This CAPITAL EQUIPMENT LEASE AGREEMENT made this 9'h day of.Tunes 2016
(hereinafter called the"Effective Date")between CITY OF FORT WORTH,Texas, a municipal
corporation, located in Tarrant, Denton,Parker and Wise Counties,(hereinafter called the
"Lessee"), and ANDRITZ SEPARATION INC., a Texas corporation, having its principal place
of business at 1010 Commercial Blvd. S.,Arlington, TX 76001 (hereinafter called the
"Lessor").
WHEREAS, Lessor has developed and acquired specialized techniques, inventions,
practices,knowledge, know-how, skill,experience and other proprietary information relating to
the Equipment(as hereinafter defined)that is the subject of this Contract; and
WHEREAS, Lessee desires to lease certain belt press equipment("Equipment'),as set
forth in the Contract Documents, in connection with Lessee's process facility(hereinafter called
the"Project")at Village Creek Biosolids Processing facility,2501 Greenbelt Road,Fort
Worth,TX 76118(hereinafter called the"Site");
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereby agree as follows:
1. Contract Documents
The Contract Documents, which constitute the entire agreement(hereinafter
sometimes collectively referred to as the "Contract") between Lessor and Lessee,consist of:
(i) This Capital Equipment Lease Agreemcnt(called the"Lease');
(ii) Attachment A—Technical Description of Scope
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2. The Equipment
Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, subject to the
terms and conditions hereinafter set forth,the Equipment as more specifically described in
Appendix A. Lessee agrees to give Lessor access to The Equipment for testing and technical
development purposes during the Lease Term.
3. The Equipment Value and the Capital Equipment Value
The present equipment value for the Equipment is $265,000 US (the"Equipment
Value"). The Equipment Value includes all payroll taxes imposed with respect to the
Equipment, but is exclusive of all other taxes,as provided in Article 16 below.
4. Lease Term
This Lease shall begin when both parties having signed the Capital Equipment Lease
Agreement("Effective Date")and shall terminate five years from the Effective Date, unless
extended by written agreement signed by both Parties(hereinafter called"Termination Date"),
unless otherwise terminated in a manner consistent with the terms of this Lease.
5. Purchase Price and Option to Purchase
The Purchase Price of the Equipment at Termination Date shall be$14,000.00.
If the Lessee is not in default under this Lease, the Lessee shall have the option to
purchase the Equipment on the Termination Date for the Purchase Price. The Lessee may
exercise this option by providing written notice to the Lessor of such intent as least one(1)
month before the Termination Date. At the Termination Date, if the Lessee has not provided
Lessor notice of its election to purchase the Equipment at the Purchase Price the option to
purchase shall expire and the Lessee will dismantle,pack and ship at its own cost the Equipment
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to Lessor's site selected by the Lessor. Lessee shall pay Lessor for damage it causes to the
Equipment other than for ordinary wear and tear, if any.
The Parties may agree to allow for the Lessee to purchase the equipment prior to
the Termination Date. If the agreed upon Purchase Price of the equipment is more than
$49, 995.00 then the Lessee must obtain authority from the Fort Worth City Council.
6. Lease Payments
The yearly lease payment shall be paid in advance in installments of$ 1.00 US
each year,beginning date of first payment and on the first day of each succeeding month until
the Termination Date. Such payment shall be made to Andritz Separation Inc., Attention:
Accounts Payable, at 1010 Commercial Blvd. S., Arlington,TX 76001.
7. Site and Delivery of Equipment.
The Equipment shall be located at Village Creek Biosolids Processing Facility,
called the"Site",during the Lease Term, and shall not be removed from that location without the
Lessor's prior written consent and instructions.
Lessor shall deliver the Equipment to Lessee, DDP the Site, on or about
June 9,2016. Lessor will provide Lessee written notification of equipment shipping dates and
estimated delivery dates.
8. Mechanical Warranty.
Lessor warrants to Lessee that the Equipment will be delivered free from defects
in material and workmanship. This mechanical warranty shall commence upon Delivery of the
Equipment and shall expire on the earlier to occur of thirty-six(36)months from initial operation
of the Equipment and forty-two(42)months from final delivery of the Equipment(the
"Mechanical Warranty Period"). If during the Mechanical Warranty Period Lessee discovers a
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defect in material or workmanship and gives Lessor prompt written notice thereof, subject to
Lessor's right to review and audit Lessee's maintenance and operating records, Lessor will, at its
option, either deliver to Lessee, DDP the Site,a replacement part or repair the defect in place.
Lessor will have no warranty obligations under this paragraph 8.1 (i)if the Equipment has not
been operated and maintained in accordance with generally approved industry practice and with
Lessor's specific written instructions and the defect results from such operational or maintenance
failure; (ii) if the Equipment is used in connection with any mixture or substance or operating
condition other than that for which it was designed and such mixture, substance or operating
condition causes the defect; (iii) if the Equipment is repaired by someone other than Lessor
(without Lessor's approval),but only to the extent that such repair increased the cost of repair or
replacement,or was the cause, of the defect; (iv) if the Equipment has been intentionally or
accidentally damaged, other than by Lessor or its personnel and such damage causes the defect;
or(v)for corrosion,erosion,ordinary wear and tear or in respect of any parts which by their
nature are exposed to severe wear and tear or are considered expendable and were otherwise in
conformity with the relevant specifications.
The Lessee shall maintain at the Lessee's cost,the Equipment in good repair and
operating condition,allowing for reasonable wear and tear. Any parts for the repair of the
Equipment should be from the Lessor's OEM list.
THE EXPRESS WARRANTIES LESSOR MAKES IN THIS PARAGRAPH 8
ARE THE ONLY WARRANTIES IT WILI,MAKE, THERE ARE NO OTHER
WARRANTIES, WHETHER STATUTORY,ORAL,EXPRESS OR IMPLIED. IN
PARTICULAR, THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
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9. Risk of Loss and Damages
The Lessee assumes all risks of loss or damage to the Equipment from any causes
starting upon delivery at Site, and shall provide evidence of insurance, which may be self
insurance,or other ability to reimburse Lessor satisfactory to Lessor against loss until the
Equipment is returned to the Lessor or until Lessor is in receipt of payment for the Residual
Value from the Lessee, and Title is transferred to the Lessee. If the Residual Value of the
Equipment is more than $49,995.00,the Lessee must seek approval from the Fort Worth City
Council to settle claim.
10. Title
The Equipment will be deemed to be personal property of the Lessor,regardless
of the manner in which it may be attached to any other property or become a fixture thereof. The
Lessor shall be deemed to have retained title to the Equipment at all times, unless the Lessee
elects the option to purchase the Equipment, in which case title shall transfer to Lessee only upon
full payment for the Purchase Value for the Equipment. The Lessee shall immediately advise the
Lessor regarding any notice of any claim, levy, lien, or legal process issued against the
Equipment.
Lessor warrants to Lessee that, upon such transfer of Title, if any,the Equipment
will be free of any liens or encumbrances of any kind. If there are any such liens or
encumbrances, Lessor will cause them to be discharged promptly after Lessor becomes aware of
them or after notification from Lessee.
11. Assignment
The Lessee shall not assign or sublet any interest in this Lease or the Equipment
or permit the Equipment to be used by anyone other than the Lessee,Lessee's employees or
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Lessor's employees without Lessor's written consent, except Lessee may permit use of the
equipment by employees of any company that is controlled,controlled by, or under common
control ("Affiliate")of the Lessee.
Neither party shall assign any rights or obligations under this Lease without the
prior consent of the other party.
12. Non-Waiver
The failure of either party to enforce any provision of this Lease shall not be construed as
a waiver or limitation of that party's right to subsequently enforce and compel strict compliance
with every provision of the Lease.
13. Limitation of Liability
Notwithstanding any other provision in this Lease,the following limitations of liability
shall apply:
In no event, whether based on contract,tort(including negligence), strict liability
or otherwise, shall Lessor, its officers,directors,employees, subcontractors, suppliers or
affiliated companies be liable to Lessee for loss of profits or revenue or business opportunity,
loss by reason of shutdown of facilities or inability to operate any facility at full capacity,or cost
of obtaining replacement power,or for any special, incidental or consequential damages of any
nature.
The aggregate liability of Lessor,its officers, directors, employees,
subcontractors, suppliers or affiliated companies,to Lessee for any claim of any kind for any loss
or damage resulting from, arising out of or connected with this Lease or from the performance or
breach thereof, whether based on contract, warranty, tort(including negligence), fault, strict
liability,indemnity, or otherwise, shall in no event exceed the Equipment Value,exclusive for
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third party claims for bodily injury, including death, indemnified by Lessor pursuant to
paragraph 24.
All liability of Lessor, its officers,directors,employees, subcontractors,suppliers
or affiliated companies,to Lessee arising out of this Lease shall terminate on the fifth
anniversary of the date of this Lease.
The provisions of this Paragraph 14 shall supersede any inconsistent provisions in
any instrument forming part of this Contract. The remedies provided in this Lease are Lessee's
exclusive remedies.
14. Insurance
Lessee shall provide evidence of insurance,or self insurance, to the satisfaction of
Lessor, sufficient to cover:
a. All risk insurance against of physical loss of and damage to the Equipment for
not less than the full the Equipment Value,naming Lessor as loss payee, and;
b. Combined public liability and property damage insurance with limits as
approved by Lessor of not less than $2,000,000.
15. Taxes
Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances.
Lessee,or Lessor at Lessee's expense from the time Lessee takes possession of the
equipment.
16. Changes
Neither party shall be entitled to make changes in the Equipment or to the Contract unless
Lessor and Lessee have executed a written Change Order for such change. A Change Order
regarding Equipment will include an appropriate adjustment to price and delivery terms. If the
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change impairs or improves(or speeds up) Lessor's ability to satisfy any of its obligations to
Lessee, the Change Order will include appropriate modifications to the Contract. If, after the
date of this Lease, new or revised governmental requirement should require a change in the
Equipment,the change will be subject to this Article 17.
17. Notices
Any and all notices required or permitted to be given hereunder shall be in writing
and delivered in person, sent by facsimile where receipt can be verified, or sent by certified mail,
return receipt requested, postage prepaid, addressed to the respective parties as follows:
To Lessor: Andritz Separation Inc.
1010 Commercial Blvd. S.
Arlington, TX 76001
Attn: John Madden
Fax: +1 (817)419-1901
To Lessee: City of Fort Worth
Ft. Worth, TX
Attn:
Fax:
Unless otherwise specified in the Contract, any notice required or permitted to be
given under the Contract shall be deemed delivered: 1) in the case of hand delivery or courier,
when delivered; 2) in the case of facsimile, twenty-four hours after transmission to the number
identified above with confirmed answer back; and 3) in the case of certified mail, three working
days after deposit in the United States mail with postage fully prepaid addressed to the party at
the address set forth above or as changed by written notice thereof to the other party pursuant to
this Article.
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18. Additional Documents
If Lessor shall so request, Lessee shall provide such documents as is reasonably
necessary for purposes of Lessor recording or filing to protect its interests in the Equipment.
19. Set Off
Neither Party nor any of its affiliates shall have any right to set off claims against the
other Party or any of its affiliates for amounts owed under this Contract or otherwise.
20. Force Majeure
Force Majeure Defined. For the purpose of this Contract "Force Majeure" will
mean all unforeseeable events, beyond the reasonable control of either party which affect the
performance of this Contract, including,without limitation,acts of God, acts or advisories of
governmental or quasi-governmental authorities, laws or regulations,strikes, lockouts or other
industrial disturbances, acts of public enemy, wars, insurrections,riots,epidemics,pandemics,
outbreaks of infectious disease or other threats to public health, lightning,earthquakes, fires,
storms, severe weather, floods, sabotage,delays in transportation, rejection of main forgings and
castings, lack of available shipping by land, sea or air, lack of dock lighterage or loading or
unloading facilities, inability to obtain labor or materials from usual sources,serious accidents
involving the work of suppliers or sub-suppliers,thefts and explosions.
Suspension of Obligations. If either Lessee or Lessor is unable to carry out its
obligations under this Contract due to Force Majeure,other than the obligation to make
payments due hereunder, and the party affected promptly notifies the other of such delay,then all
obligations that are affected by Force Majeure will be suspended or reduced for the period of
Force Majeure and for such additional time as is required to resume the performance of its
obligations, and the delivery schedule will be adjusted to account for the delay.
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Option to Terminate. If the period of suspension or reduction of operations extends for
more than four(4)consecutive months or periods of suspension or reduction total more than six
(6)months in any twelve (12)month period, then either Lessee or Lessor may terminate this
Contract.
21. Governing Law and Forum
This Contract and the performance thereof will be governed by and construed according
to the laws of the State of Texas without regard to its principles of conflicts of laws. The parties
hereto irrevocably submit to the jurisdiction of the Federal District Court for the Northern
District of Texas, Fort Worth Division, and waive any claims as to inconvenient forum. All
unresolved disputes, other than any matter for which a party seeks injunctive relief, can be
referred to final and binding arbitration under the Commercial Rules of the American Arbitration
Association or to the Federal District Court for the Northern District of Texas, Fort Worth
Division.
22. Intellectual Property Indemnity
Lessor shall defend against any suit or proceeding brought against Lessee to the
extent based on a claim that any Equipment,or any part thereof, infringes any United States
device patent;provided Lessor is notified promptly in writing and given authority, information
and assistance for the defense of such suit or proceeding.
Lessor shall satisfy any judgment or settlement,and all of Lessee's costs in
connection therewith, for damages entered against Lessee in such suit.
If such judgment enjoins Lessee from using any Equipment or a part thereof, then
Lessor shall,at its option: (a) obtain for Lessee the right to continue using such Equipment or
part; or(b)eliminate the infringement by replacing or modifying all or part of the Equipment,
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following which neither Lessee nor Lessor shall have any further claims against the other under
this Contract in connection with such allegation of infringement.
Lessor's obligation to defend and indemnify Lessee shall not applywhere the
Equipment is used in any manner other than as specified or as approved by Lessor in writing and
such misuse and/or modification or modified use is the basis for the claim of infringement.
23. Generallndemnity
Lessor agrees to defend and indemnify Lessee from and against any third party claim,
including claims of employees of Lessor or of any subcontractor of Lessor, for bodily injury
(including death)or physical property damage("Loss")arising in connection with the goods
provided by Lessor hereunder or the work performed by Lessor hereunder, but only to the extent
such Loss has been caused by the negligence, willful misconduct or other legal fault("Fault") of
Lessor.
24. Confidentiality
In order to facilitate the Contract, it may be necessary for each of the parties to
disclose to the other certain information belonging to the disclosing party relating to the
disclosing party's business and products that may contain the disclosing party's trade secrets and
other trade data of a confidential or proprietary nature(hereinafter referred to as"Business
Information").
As used herein,the term "Confidential Information"means any and all Business
Information that either party,directly or through any of its affiliates or subsidiaries or any of
their respective employees, agents or advisors("the Discloser"),furnishes to the other party("the
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Recipient")in connection with the Contract,whether furnished before,on or after the date
hereof,whether furnished orally or in writing or gathered by inspection, and regardless of
whether specifically identified as"confidential", together with all analyses, compilations, studies
or other documents prepared by the Discloser or any of its agents,representatives(including
attorneys,accountants,consultants or financial advisors)or employees that contains or otherwise
reflects such information or their review of the same.
Each of the parties hereby agrees that it will maintain in confidence all
Confidential Information disclosed to it by the other pursuant hereto and will exercises the same
degree of care to prevent disclosure of such Confidential Information to any third party as it
would use for its similar information. Each of the parties further agrees that internal
dissemination of the Discloser's Confidential Information by the Recipient shall be limited to
those employees of the Recipient whose duties justify their need to know such information and
then only on the basis of a clear understanding by those employees of their obligation to maintain
the confidentiality of such Confidential Information and to restrict the use of such Confidential
Information solely to the use granted to the Recipient under this Contract.
Each of the parties acknowledges that the Recipient shall not have any obligations
under this Contract with respect to any Confidential Information, or part thereof:
i. that is,at the time of disclosure, generally known to the trade or
public;
ii. that becomes at a later date generally known to the trade or public
through no fault of the Recipient and then only after said later date;
+age
iii. that is possessed by the Recipient, as evidenced by the Recipient's
written or other tangible evidence, before receipt thereof from the
Discloser;
iv. that is disclosed to the Recipient in good faith by a third party who
has an independent right to such Confidential Information and
obligation to the Discloser with respect to the same;
v, that is subject to the Texas Public Information Act, Texas
Government Code Chapter 552; or
vi. that is independently developed by Recipient's employee(s) who
neither directly nor indirectly had access to such Confidential
Information.
provided, that the Recipient shall give the Discloser not less than five (5) business days prior
notice of any intended disclosure or use under this subparagraph 25.3, which notice shall identify
that portion of the Confidential Information to be disclosed or used, the subparagraph of this
subparagraph 25.3 under which the Recipient claims the right to disclose or use, and the full
name and address of all persons to whom the Recipient proposes to make disclosure.
In the event that the Recipient shall be compelled by applicable law or legal
process to disclose any Confidential Information, such disclosure shall not constitute a breach of
the Contract provided that, prior to such disclosure, (i)the Recipient provides the Discloser with
prompt notice of such requirement so that the Discloser may seek an appropriate protective order
or other remedy, and (ii) the Recipient consults with the Discloser with respect to possible means
of narrowing the scope of the required disclosures.
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The obligations of the parties hereunder shall continue(i)with respect to any
Confidential Information that constitutes a trade secret under applicable law, for so long as such
item shall continue to constitute a trade secret under applicable law,provided that the Discloser
shall identify in writing those aspects of the Confidential Information that Discloser believes to
constitute a trade secret under applicable law; and(ii)with respect to any Confidential
Information that does not constitute a trade secret under applicable law,for a period of five(5)
years from and after the Termination Date.
Each of the parties acknowledges that nothing contained in this Contract shall be
construed as creating any right or license, express or implied,to use any of the Confidential
Information disclosed to it by the Discloser other than in connection with the Purpose. In
addition,both parties acknowledge and agree that disclosure of Confidential Information
pursuant hereto is on as "as is"basis and creates no warranties or any kind, express or implied,as
to the adequacy, accuracy,completeness quality or suitability of the information disclosed.
Each of the parties acknowledges that the provisions of this Section 25 are
reasonably necessary to protect the confidential nature of their respective Confidential
Information and that use or disclosure by it of the Confidential Information disclosed to it by the
Discloser except as permitted by this Section 25 would cause immediate and irreparable harm to
the Discloser for which money damages would be inadequate. Therefore,the parties agree that
the Discloser shall be entitled to seek injunctive relief for the Recipient=s breach of any of its
obligations hereunder. Such remedy shall not be deemed to be the exclusive remedy for such
breach, but shall be in addition to all other remedies available at law or in equity. However,
Lessor acknowledges and agrees that Lessee is subject to the Texas Public Information Act,
Texas Government Code Chapter 552.
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25. Termination; L)efault
Termination for Convenience. Following Delivery, Lessee may terminate for its
convenience, this Lease upon written notice to Lessor. Lessee shall promptly return the
Equipment.
Default. The occurrence of any of the following shall constitute a default under
this Lease:
i. If Lessee fails to pay any Lease Payment, the Residual Value or
other amount herein provided within thirty (30)days after the same
is due and payable and or approved by the Fort Worth City
Council.
ii. The violation of any other provision or requirement of this Lease
that is not corrected within thirty (30) days after written notice of
the violation is given to Lessee.
iii. The insolvency of the Lessee or the subjection of any of Lessee's
property to any levy, seizurc, assignmcnt, application or sale for or
by any creditor or government agency.
Rights on Default. In addition to any other rights afforded the Lessor by law, if
the Lessee is in default under this Lease, notice to the Lessee, the Lessor may take possession
during reasonable hours, of the Equipment as provided by law.All of Lessor's remedies provided
by law and this Contract are cumulative, and may be exercised concurrently or separately.
Bankruptcy. This lease shall be deemed an"executory contract" within the
meaning of Title 18, section 365 of United States bankruptcy code.
i`
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26. General
Lessor represents that any Equipment or parts thereof manufactured by Lessor
will be produced, and when delivered to Site will be, in compliance with all applicable Federal,
State and local laws applicable to their manufacture and shipment and in accordance with
applicable engineering standards and engineering codes. Lessor shall not be liable for failure of
the Equipment to comply with any other specifications (except those specified herein or
otherwise pursuant to this Contract), standards, laws or regulations.
The Contract is binding upon and enforceable against, and shall inure only to the
benefit of, Lessee and Lessor and their respective legal representatives, successors and permitted
assigns.
The Contract Documents contain the entire and only agreement between the
parties with respect to the subject matter hereof and supersede all prior oral and written
understandings between Lessee and Lessor concerning the Equipment and any prior course of
dealings or usage of the trade not expressly incorporated herein, including, without limitation,
any proposal or part thereof presented to Lessee by Lessor that is not part of the Attachment A
hereto. The Contract may be modified, supplemented or amended only by a writing signed by an
authorized representative of each of the parties.
27. Security Interest
Lessor shall retain a security interest and Lessee hereby grants Lessor a lien upon and
security interest in the Equipment until all payments hereunder have been made in full. Lessee
acknowledges that Lessor may file a UCC-1 financing statement and make take all other action it
deems reasonably necessary to perfect and maintain such security interest and protect Lessor's
interest in the Equipment.
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IN WITNESS WHEREOF,the parties hereto have caused this Contract to be
executed by their duly authorized officers as of the day and year first above written.
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OFFICIAL RECORD
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Page 18
APPENDIX A
SCOPE OF SUPPLY Andritz Project# Amu
VILLAGE CREEK 821365
2.OM SMX - BELT FILTER PRESS
Quantity Description
1 2.Om SMX - BELT FILTER PRESS
1 6"VENTURI MIXER
1 FOUNDATION BEAMS
1 LOCAL CONTROL PANEL
1 SET CLIPPER SEAMED BELTS
1 O&M MANUAL
l
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