HomeMy WebLinkAboutContract 40755 ITY ECRU
CONTRACT NO. Low
MUNICIPAL EQUIPMENT LEASE/PURCHASE AGRr,,,MEN "
(AcQuisITION FUND)
This Municipal Equipment Lease/Purchase Agreement (the "Agreement") dated as of
September 7, 201'0, and entered 'into between Johnson Controls, Inc., whose nailing address is
507 East M ch gan Street, Milwaukee, Wisconsin 53201 o� 23 ("Lessor"), and the City of Fort
Worth., a borne ride municipal corporation situated in Tarrant, Denton, Parker, and wise
Counties, Texas, whose mailing address is 1000 Throe kinorton Street, Fort Worth, Texas 76102
d"Lessee All),
IN SEH:
WHEREAS, Lessee desires to lease and acquire from Lessor certain Equipment, ,subject to
the terms and conditions hereof; and
WHEREAS, Lessor desires to sell, transfer, assign o'r otherwise convey all of Lessor's
right, title and interest in and to this Agreement, all Rental Payments and other~ amounts, due
hereunder, the Equipment and the Acquisition Fund to Founder and
WHEREAS, Founder simultaneously will sell, t,ansfer, assign or otherwise convey its
right, title and interest in and to tills Agreement, all Rental Payments and other amounts due
hereunder, the Equipment and the Acquisition Fund to the Trust and the Trust will issue
Certificates to the Certificate Holder; and
WT-IEREAS, Lessor will provide ;lessee with true and correct copies of the assignments of
Lessor. to Founder and fto'm Founder to the Trust as described above, which assignments
together with related documents establish the Certificate elder's r g. t to receive payment
hereunder from.Lessee; and
WYIEREAS, Lessee is authorLzed under the constitution and laws of the State to eater into
this Agreement for the purposes set forth herein,
Now, q EREFOR-,', for good and valuable consideration, receipt of which is hereby
acknowledged, and In consideration of the premises hereinafter contained, the parties hereby
agree as follows
ARTICLE I
Section 1.01. Definitions., The following terms will have the meanings indicated below
unless the context clearly requires otherwise:
"A cquisition mount" means $15,365,397.,00. The Acquisition Amount is the amount
represented by Lessee to 'be sufficient, together with other funds of Lessee: if and) that are
legally available for the purpose, to acquire and install the Equipment.
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"Acquisition Fund)) means the fund established and held by Acquisition Fund Custodian
pursuant to the Acquisition Fund Agreement, if any. Earlier agreements and communications
between the parties referred to this -ftmd as the Escrow Fund.
"Acquisition Fund Agreement" means the Acquisition Fund and Account Control
Agreement in form and substance acceptable to and executed by Lessee, Lessor and Acquisition
Fund Custodian, pursuant to which the Acquisition Fund is established and administered. Earlier
agreements and communications between the parties referred to this agreement as the Escrow
Agreement.
"Ac quist"tion Fund Custodian"' means Deutsche and National Trust Company, in its
capacity as acquisition fund custodian under. the Acquisition Fund Agreement, and its successors
and assigns. Earlier agreements and communications between the parties referred to the
Custodian as the Escrow Agent,
"'Acquisitl'on Period" means the period ending five (5) business day's prior to July 7,
2012.
Agreement"'means this Municipal Equipment Lease/Purchase Agreement, including the
exbibits hereto, together with any amendments and modifications to the Agreement pursuant to
Section 13.o4.
"'Certificate Holder 0)means Bane of America Public Capital Corp and its successors, and
assigns.
"Certificates" means those certain Johnson Controls Performance Pass Through Trust
Certificates, Series 2001-:1, Class No. N-0 dated September _,, 2010, issued pursuant to
the Pass Tlu-o-ugh Agreement and the Trust Supplement. Each Certificate represents fractional
undivided interests in the Trust and the property of the Trust,
"Code" means, the Internal Revenue Code of 1986, as amended. Each reference to a
Section of the Code he-rein shall be deemed to include the United States Treasury Regulations
proposed or in e,ffect thereunder.
"Commencement Date 1)means the date when Lessee's obligation to pay rent commences
hereunder,: which shall be the date on which the Acquisition Amount is deposited with
Acquisition Fund Custodizm.
"Contract Rale" means 3.69 percent and is the rate. identified as such in the Payment
Schedule.,
"Dated Date"means the date h ereinabove first written.
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Equipment means the property listed in the Equipment Schedule and all replacements,
repairs, res torations, modifications and im m
proveents thereof or thereto made pursuant to
Section 8.01 or Article V. Whenever, reference is made in this Agreement to Equipment, such
reference shall be deemed to 'include all such replacements, repaim, restorations, modifications
and improvements of or to such Equipment.
"Equipment Costs"means the total cost of the Equipment, including related costs such as
freight, installation and taxes, capitalizable costs, and costs of issuance incurred in connection.
with the acquisition and/or fin of the Equipment.
financing I
"Equipment Schedule" n.cans the equipment schedule attached hereto as Exhibit A and
made a part hereof
"Event ofDej ult)"means an Event of Default described in Section 12.01.
"Event of'Nonapprop rot ion" means the termination or nonTenewal of the tenn of this
Agreement, in accordance with its terms, at the end of a Fiscal Pen"od. of Lessee due to the failure
or reffisal of the governing body of Lessee to appropriate monies sufficient to pay the Rental
Payments for the next succeeding Renewal Term as provided herein.
"Fiscal Period)", means the annual or biennial period used from time to time by Lessee
for its financial accounting and budgeting purposes.
"Founder"me Johnson Controls Performance Funding, LLC, as:founder of the Trust.
I a en
,In'ti I Term'-' rneans the period from the Dated Date to midnigbt of the last day of
Lessee's current Fiscal Period.
"Lease Term"' means the Initial Term and all Renewal Terms) with a maximurn Lease
Term reflected on the Payment Schedule.,
"Legally Available Funds" i-nean-s funds that the governing body of Lessee duly
appropriates for the purpose of paying Rental Payments and other amounts tinder this
Agreement. Nothing contained herein steal ever be construed so as to require Lessee to create a
sinIcing fund or to access, levy and collect any tax to fund obligations under this Agreement.
Lc-;.Pssee"means the entity referred to as Lesscein the first paragraph of this Agreement.
"Lessor" means (a) the entity referred to as Lessor in the first paragraph of this
Agreement or (b) any assignee or transferee of'any right, title or interest of Lessor in and to this
Agreement, i'nCluding the Equipment, the Rental Payments and other amounts due hereunder,
pursuant to Section I 1.0 1, or the Acquisition Fund, but does not include any entity solely by
reason of that entity retaining or assuming any obligation of Lessor to perform hereunder.
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"Material Adverse Change"' means any change in Lessee's creditworthiness that could
have a material adverse eff-ect on (i) the financial condition or operations of Lessee, or
(I'I*) Lessee"s ability to perform its obligations under this Agreement
"Pass Through Agreement 10 means that certain Johnson Controls Performance Funding
Trust Pass Through Trust Agreement, Series 2001-1, dated as of October 15, 2001 between
Founder and the Trustee.
"Payment Schedule"means the payment schedule attached hereto as Exhibit B and made
a part hereof,
"Purchase Price"" means the amount that Lessee shall pay to Lessor to purchase the
Equipment as provided 'in the Payment Schedule.
"Renewal Term" means each successive one year period, in addition to the Initial Ten-n,
that is coextensive with Lessee's Fiscal Period and for which Lessee has extended the term of
this Agreement as provided herein.,
"Rental Payments 1) means the basic rental payments payable by Lessee hereunder
pursuant to Section 4.01, consisting of a pn*ncl'pal component and an interest component,
"State"means the State of Texas.
I CI
Taxable Rate," mcajis an interest rate equal to, the Contract Rate plus, a rate siiffii dent
such that the total 'Interest to be paid on any payment date would, after such interest was reduced
by the amount of tiny Federal, state or local incom e tax (including any interest, penalties or
imposed thereon, equal the amount of interest otherwise due
additions to tax) actually" to Lessor.
"Trust"rn eans Johnson C ontro I s P erformance Funding lass Through Trust, Series'2001-
1, Class No. -O_, established pursuant to the Pass Through Agreement, as supplemented by
the Trust Supplement,
"Trustee ' means Wells Fargo Bank, National Association, as trustee, and its successors
and assigns.
".gust Supplement 1)means, that certain Trust Supplement No. —dated as of September
t* .
2010, among Founder,,the Certificate Holder, as purchaser, and the Trustee.
di Vendor means Johnson Controls, Inc., in its capacity as vendor -under the Vendor
Agree.-nent.
"Vendor Agreement' means the [Energy Services Contract] dated LAO/ Z
L31 20JO
between Lessee and Vendor,with respect to the acquisition and installation o the Equipment.
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..........
ARTICLE 11
Section 2.01. Representations and Covenants ofLessee. Lessee represents, covenants and
i 1,
warrants for the benefit of Lessor on the date hereof as, follows-
(a), Lessee is a polliticalsubdivislon of the State within the meaning of Section 103(c)of
the Code, duly organized and existing under the constitUtion and laws of the State, with full
power and authority to enter 'Into this Agreement and the transactions contemplated hereby and
to perform all of its obligations hereunder.
(b) Lessee has duly authorized the execution and delivery of this Agreement and the
Acquisition Fund Agreement (also referred to as an Escrow Agreement) by proper, action of its
governing body at a meeting duly called, regularly convened and attended throughout by the
requisite quorum of the members thereof, or by other appropriate official approval, and all
requirements have been met and procedures have occurred in order to ensure the validity and
enforceability of this Agreement and the Acquisition Fwid Agreernent.
(c) No event or condition that constitutes, or with the giving of notice or the lapse of
time or both would constitute,l an Event of Default exists at the date hereof.
(d) Lessee will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence as a body corporate and politic.
(e) Lessee has complied with such public bidding requirements as may be applicable to
this Agreement,and the acquisition by Lessee of the Equipment.
(0 D:unng the Lease Tenn, the Equipment will be used by Lessee only for the purploise
of performing essential goven-u-nental Or proprietary functions of Lessee consistent with the
permissible scope off"Lessees authority. Lessee does: not intend to sell or otherwise dispose of
the Equipment or any interest therein prior to the last Rental Payment (including all Renewal
Terms) scheduled to be paid hereunder.
(g) Lessee has kept, and th-roughout the Lease '"rlerm shall keep, its books and records in
accordance with generally accepted accounting principles and practices consistently applied, and
shall deliver to Lessor (11) annual audited financial statements (including (111) a balance sheet,
(2)statement of revenues7 expenses and changes, in fund balances for budget aiid actual,
(3)statement of cash flows, and (4)footnotes, schedules and attar rents to the financial
statements,) within 2,10 days of its Fiscal Period end, (1i)such other financial statements and
information as Lessor may reasonably request, and (iii)its annual budget for the following Fiscal
Period when approved but not later than 30 days prior to its current Fiscal Period end., The
-financial statements described 'in subsection (g) shall be accompanied by an unqualified opinion of
Lessiee's auditor. Credit information relating to Lessee may be disseminated among Lessor and
any of its affiliates and any of their respecti'vc successors and assigns,
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('n) Lessee has an immediate need for the Equipment and expects to make immediate
use of the Equipment. Lessee's need for the Equipment is not ternporary mid Lessee does not
expect the need for any itein of the Equipment to diminish durm' g the Lease Term.
(0 The payment of the Rental Payments or any portion thereof' is not directly or
indirectly (x)secured by any interest in property used or to be-used in any activity carried on by
any person other than a state or local governmental tin-it or payments in respect of such property;
or (y) on a present value basis, derived from payments (whether or not to Lessee) 'in respect of
property, or borrowed money, used or to be used in any activity carried on by any person other
than a state or local governmental unit. Lessee sba,ll not permit the Federal govemment to
guarantee any Rental Payments, The Equipment will not be used, directly, or indirectly, in any
activity cam"ed on by any person other than a state or local governmental unit, No portion of the
Acquisition Arnount will be used, directly or indirectly,, to make or finance loans to any person
other than Lessee. Lessee has not entered into any management or other service contract with
respect to the use and operation of the Equipment.
were is no pending litigation,, tax claim, proceeding OTdispute that may adversely
affect Lessee's financial condition or impairs its ability to perform. its obligations under this
Agreement or the Acquisition Fund Agreement. Lessee will, at its expense, maintain, its legal
existence and do any further act and execute, acknowledge, deliver, file, register and record any
further documents Lessor may reasonably request, in order to protect Lessor's first priority
't-Y interest in the Equ'pment and the Acquisition Ftind Agreement and Lessor's riots and
securl, 1 1 1 1 1 n
benefits under this Agreement and the Acquisition Fund Agreement.
0c) Lessee is the fee owner of the real estate where the Equipment is and will be located
and has good and marketable title thereto, and there exists no mortgage, pledge, lien, security
interest, charge or other encumbrance of any nature whatsoever on or with respect to such real
estate.
(1) Lessee has entered into this Agreement and Acquisition Fund Agreement for the
purpose of purchasing, acquirmg and leasing the Equipment and not for the purpose of
'refinancing any outstanding obligations of the Lessee more than ninety (90) days in advance of
the payment or prepayment date. The Purchase Price of the Equipment will be paid directly by
the Acquisition Fund Custodian from the Acquisition Fund pursuant to the Acquisition Fund
Agreement, to Johnson Controls, Inc., as Vendor, and no portion of the Purcbase Price for the
Equipment will be paid to Lessee as reimbursement for any expenditure paid by Lessee more
than sixty(60)days prior to the Dated Date.
ARTICLE III
Sec tl*o n 3.0 1. Lease of Equ*ment. Sub�ject to the terms of this Agreement, Lessor agrees
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to -provide the Acquisition Amount to acquire the Equipi-nent. Lessor bereby demises, leases,
transfers wid lets to Lessee, and Lessee hereby acquires, rents and leases, fToi-n Lessor, the
Equipment. The Lease Term may be continued, solely at the option of Lessee, at the end of the
Initial Term or any Renewal Term for the next succeeding Renewal Term up, to the maximum
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Lease,Ten-n as set forth in the Payment Schedule. At the end of the Initial Term and at the end of
each Renewal Term until the maximum Lease Term has been completed, Lessee shall be deemed
to have exercised its option to continue this Agreement for the next Renewal Term unless Lessee
shall have terminated this Agreement pursuant to Section 3.0,3 or Section 10.01, The terms and
conditions during any Renewal Term shall be the same as the terms and conditions during the
Initial Term, except that the Rental Payments s,halil be as provided in the Payl-nexit Schedule.
Section 3. 2, Continuation of Lease Term. Lessee 'Intends, subject to Section 3.03, to
continue the Lease Term and to pay the Rental Payments Linder the Lease through the Initial
Term and all Renewal Terms, Lessee affirms that suffi- cient funds are available :for its current
Fiscal Period to play any Rental Payments, when due during the current Fiscal Period, and Lessee
reasonably believes that an amount sufficient to make all Rental Payments during the entire
Lease Term can be obtained from Legally Available Funds.
Section 3.03. Nona-pproj)riation. Lessee is obligated only to pay such Rental Payments as
may lawfully be made from ftmds budgeted and appropn'ated for that purpose during Lessee's
then current Fiscal Period. Should Lessee fail to budget, appropriate or otherwise make available
funds to pay Rental Payments following the then current Initial Tenn or Renewal Term, this
Agreement shall be deemed terminated at the end of the then current Initial Tema or Renewal
Term. Lessee agrees to deliver notice to Lessor of such termination promptly after any decision
to non-appropriate is made, but failure to give such notice shall not extend the term beyond such
Initial Term or Renewal Term, If this Agreement is terminated in accordance witli this Section,
Lessee agrees to cease use of the Equipment and peaceably deliver the Equipment to Lessor at
the location(s)to be specified by Lessor.
Section 3.04. Conditions to Lessor's Pet rmance.
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(a) As a prerequisite to the per.fon-nance by Lessor of any of its obligations under this
Agreement, Lessee shall deliver to Lessor the following:
(I*) An Acquisition Fund Agreement in the form set forth in Exhibit H hereto,
satisfactory to Lessor and executed by Lessee and Acquisition Fund alstodian;
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(11) A certified copy of a resolution, ordinance or other offlicial action of
Lessee's governing body, substantially in the form attached hereto as Exhibit C-1 and
related Mayor and Council communication in the form attached hereto as Exhibit C-2,
autbon'zing the execution and delivery of this Agreement and the Acquisition Fund
(referred to as an Escrow AgTeernent therein) Agreement and performarim by Lessee of
its obligations tinder this Agreement and the Acquisition Fund Agreement;
(111) A Certificate executed by the Clerk or Secretary or other comparable
officer of Lessee, in substantially the form attached hereto as Exhibit C-3, completed to
the satisfaction of Lessor;
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(tv) An opinion of counsel to Lessee in substantially the form attached hereto
as Exhibit D and otherwise satisfactory to Lessor and an opinion of special tax counsel in
2,
form satisfactory to Lessor, and in each case satisfactory to the Certificate Holder;
(v) Evidence of insurance as required by Section,7.02 hereof;
(vi) All documents, including financing statements, affidavits, notices and
,similar instruments, in form satisfactory to Lessor, which Lessor deems necessary or
appropriate at that time pursuant to Section 6.02;
(vii) A waiver or waivers of interest in the Equipment, satisfactory to Lessor,
frorn any mortgagee or any other party having an interest in the real estate on which the
Equipment will be located and/or landlord of the real estate on which the Equipment will
be located;
(viii) If Lessee has designated this Agreement as a "qualified tax-exempt
obligation""' within the meaning of Section 265(b)(3) of the Code, a certificate executed
1,
b rear y an authorized official of Lessee rarlding,such matters as,required by Les,soria,
(ix) A copy of a fully completed and executed Form 8038-G-
(x) A certified copy of any Surety Bond satisfying the conditions set forth in
Section 7'.014 or�, at the Certificate Holder's sole, discretion,1 such Surety Bonds may be
p ided after the Commencement Date provided however, that no "Disbursement
rovi I
Request" pursuant to the Acquisition Fund Agreement shall be authorized by the
Certificate Holder until such Surety Bonds satisfying the conditions set forth in Section
7.04 have been delivered to the Trustee; and
(xi) Such other items reasonably required by Lessor or the Certificate Holder.
(b) In addition, the performance by Lessor of any of its obligations under this
Agreement and the Acquisition Fund Agreement shall be subject to: (1) no Material Adverse
Change in the financial condition of Lessee since the Dated Date, and (ii) no Event of Default
having occurred and continuing,
(c) Subject to satisfaction of the foregoing, Lessor will deposit the Acquisition Amount
with the Acquisition Fund Custodian.
ARTICLE IV
&ction 4.OL flental Pay men . Subject to Section 3.o3 Lessee shall promptly pay
Rental Payments, in lav ful.money of the United States of America, to Lessor on the dates and in
such amounts as provided in the Payment Schedule. Interest on the Acquisitlon Amount shall
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begin to accrue as of the Commencement Date. Lessee shall pay Lessor a charge on any Rental
Payment not paid on the date such payment is due at a rate equal to the Contract Rate plus 5%
per annum,or the maximum amount permitted by law, whichever is less, from such date.
Section 4.02. Interest and Principal Components, A portion of each Rental Payment is
paid as, and represents payment of, interest, and the balance of each Rental Payment is paid as,
and represents payment of principal as more filly detailed on the Payment Schedule.
Section 4, 3. Rental Payments to Constitute a Current Expense o 'Lessee. Ussor and
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Lessee understand and, intend that the obligation of Lessee to pay Rental, Payments shall
constitute a current expense of Lessee payable solely from its general fund or other funds that are
legally available for that purpose and shall not in any way be construed to be a debt of Lessee in
contravention of any applicable constitutional or statutory limitation or requirement concerning
the creation of'Indebtedness by Lessee, nor shall anything contained herein constitute a pledge of
the general tax revenues, funds or moneys of Lessee.
Sept"Mon 4.014, Rental Payments to be Unconditional, Except as provided in Section 3.031,
the obligations of Lessee to make Rental Payments and to perform and observe the other
covenants and agreements contained in this Agreement shall be absolute and unconditional in all
events without abatement, diminution, deduction, set-off or defense, for any -reason, including
without limitation any failure of the Eqijipment, wcy defects, malfimctions, breakdowns, or
infirmities in the Equipment, disputes with the Vendor or Lessor, failtue of the Vendor under the
Vendor Agreement to perform any of its obligations thereunder for whatever reason, including
bankruptcy, insolvency, reorganization or any similar event with respect to the
Vendor under the Vendor Agivement, or any accident, condemnation or unforeseen
circumstances.
Section 4.o5. Tax Covenants. Lessee agrees that it will not take any action that wo-uld
cause die interest component of Rental Payments to be or to become ineligible for the exclusion
from gross income of the owner or owners thereof for federal income tax ptirposes, nor will it
o "t to take or cause to be yen, 1 n timely manner, any action, which om'ss" n Id cause the
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interest component of Rental Paynients, to be or to become ineligible for the exclusion from gross
income of the owner or owners thereof for federal income tax purposes.
Section 4.06 Event of Taxability. Upon the 00GLUTence of an Event of Taxability, the
interest component of Rental Payments and any charge on Rental Payments or other ainotints
payable based on the Contract Rate shall have accrued and be payable at the Taxable Rate
retroactive to the date as of which the interest component is determined by the Internal Revenue
Service to be includible in the gross income of the owner or owners thereof for federal 'income
tax purposes,, and, Lessee shall, pay, but solely fog Legally Available Funds, such additional
amount as will result in the owner receiving the interest component at the Taxable axable Rate.
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For purposes of this Section, "Event of Taxabifilyp' means a determination that the
interest component is 'Includible for federal income tax purposes in the gross 'income of the
owner thereof due to Lessee's action or failure to take any action.
Section 4.,o7' Mandatory Prepayment' Any funds not applied to Equipment Costs and
remaining in the Acquisition Fund on the earlier of(a) the expiration of the Acquisition Period
and (b) the date on which Lessee executes an Acceptance Certificate ('in the fon-n attached hereto
as Exhibit E), shall be applied by Lessor on any Rental Payment date to all or a portion of the
Rental Payment due and owing in the succeeding twelve (12) months and any remaining
amounts shall be applied by Lessor as prepayment to the remaining principal balance owing
hereunder in the inverse order of Rental Payment dates.
ARTICLE V
Section 5,01. Delivery, Installation and Acceptance ofEquipment.
(a) Lessee shall order the Equiprnent� cause the Equipment to be delivered and installed
at the location specified in the Equipment Schedule and pay any and all delivery and installation
costs mid other Equipment Costs in connection therewith. When the Equipment has been
delivered and *Installed, Lessee shall promptly accept such Equipment and evidence said
acceptance by executing and delivering to Lessor an Acceptance Certificate in the fon-n attached
hereto as Exhibit B.
(b) Lessee shall deliver to Lessor original invoices (and proof of payinent of such
invoices) and bills, of sale (if title to such Equipment has passed to Lessee) relating to each 'Item
of Equipment accepted by Lessee.
Section 5.02. Quiet Enjoyment of m
ip
Equ, ent. Sol l i
ong as, Lessee, is not n default
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'ther Lessor nor any enflty claiming by, through or under Lessor, shall interfere
liereunder, nel I I
with Lessee's quiet use and enjoyment of the Equipment during the Lease Term.
Section 5.03. Location,,- Inspection, Once installed, no item of the Equipment will be
moved of relocated from the location specified for it in the Equipment Schedule without Lessor's
prior written consent, which consent shall not be unreasonably withheld, Lessor shall have the
right at all reasonable times during regular business, hours to enter into and upon the property
where the Equipment is located for the purpose of inspecting 6ic Equipment,
Section 5,04 Use and Maintenance of the Equ'inenl. Lessee shall not install, -use,
operate, or maintain the Equipment (or cause the Equipment to be installed, operated or
maintained) improperly, carelessly, in violation of any applicable law or in a manner contrary to
that contemplated hereby., Lessee shall provide, all permits and licenses, 'if any, necessary for the
installation and operation of the Equipment. In addition, Lessee agrees to comply in all respects,
with all applicable laws, regulations and rulings of any legislative, executive, administrative, or
judicial body;provided that Lessee may contest in good faith the validity or application of any
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-nanner that does, not 1 opinion
such law, regulation or ruling in any reasonable i n the of Lessor,
adversely affect the interest of Lessor in and to the Equipment or its interest or rights hereunder.
Lessee agrees that it will maintsain, preserve, and keep the Equipment in good repair and
working order, in a condition comparable to that recon-u-nended by the manufacturer, Lessor
shall have no responsibility to maintain,, repair or make improvements or additions to the
Equipment. In all cases, Lessee agrees, to pay any costs necessary for the manufacturer to re-
certify the Equipment as eligible for manufacturer's maintenance upon the return of the
Equipment to Lessor as provided for herein.
Lessee shall not alter any item of Equipment or 'install any accessory, equipment or
device, on an "Item of Equipment if that would impair any applicable warranty,, the originally
intended function or the value of that Equipment. All repairs, parts, acciessori,es,, eqiiipilnent and
devices fumished, affixed to or installed on any Equipment, excluding temporary replacements,
shall thereupon become subject to the security interest of Lessor.
ARTICLE V1
n
Section 601 I
. Title to the Equ'ment. During the term of this Agreement, all right, title
and 'interest in and to each 'Item of the Eq-uipment shall be vested in Lessee, subject to the rights
of Lessor under this Agreement including upon the occurrence of an Event of Default or an
Event of Nonappropn*ation, in which event full and unencumbered legal title to the Equipment
shall immediately vest in Lessor free,and clear of any right,, title or interest of Lessee. Lessee, at
its expense, will at all times protect and idefeinid Lessee's title to the Equipment and Lessor's
rights and 'Interests therein and will keep the Equipment free and clear from any and all claims,
liens, encumbrwices and legal processes of Lessee's creditors and other persons. All items of
Equipment shall at all times be and remain personal property notwithstanding that any such
Equipment may now or hereafter be affixed to realty. Upon the occurrence of such an Event of
Default or Event of Nonappropirtation, Lessee shall execute and deliver to Lessor such
documents as Lessor may request to evidence the passage of such legal title to Lessor and the
termination of Lessee's interest therein, and upon request by Lessor shall deliver possession of
the Equipment to Lessor in accordance with Section 12.02.
Section 6,02. Security Interest. To secure the payment and performance of all of Lessee's
obligations, hereunder, Lessee hereby grants, to Lessor a security interest co ns,titufing a first lien
on (a)the Equipment delivered hereunder, on all attachrnents, repairs, replacements and
modifications thereto or therefore and on any and all proceeds th,ereftom, and (b) moneys and
investments held from time to time in the Acquisition Fund and any and all proceeds therefrom.
Lessee agrees to execute and deliver such additional documents, including, without limitation,
1 4 -n satisfactory to Lessor, wh*ch Lessor
opinions of counsel, no�tices, and similar instruments in fon I
deems necessary or appropriate to establish wid maintain its security interest in the Equipment,
the moneys and investments in the Acquisition Fund and the proceeds thereof or for the
confirmation or perfection of this Agreement and Lessor's rights hereunder, including SUM
financing statements with respect to personal property and fixtures -under A-fticle 9 of the
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applicable Uniform Commercial Code and treating such Article as applicable to entities such as
Lessee.
Under the taws of the State of Texas, each pledge, assigru net, lien or other security
interest made to secure any prior obligations which ranks on parity with or prior to the security
granted hereby, is and shall be prior to any judicial lien hereafter imposed on such collateral to
enforce a Judgment against Lessee. Lessor will have filed all financing statements showing
Lessee as debtor and the Equipment as collateral no later than the related Acceptance Date under
the applicable Acceptance Certi ficate delivered pursuant to Section 5.01(a), and transferred Stich
possession or control over such collateral (and for so long as any is outstanding will file,
continue and amend all such financing statements and transfer such possession and control) as
may be necessary to establish and maintahl such priority in each Jurisdiction in which the
collateral may be located or that inay otherwise be applicable pursuant to Uniform Commercial
Code 9.,3011 - 91. 06 of such Jurisdiction.
Section 6.03. No Encumbrances. Lessee shall not create, incur, assume or permit to exist
any mortgage, pledge, lien, security interest, charge or other encumbrance of any nature
whatsoever on any of the real estate where the Equipment is or will be located or enter into any
agreement to sell or assign or enter into any sale/leaseback arrangement of such real estate
without the prior coins 0
w consent of Lessor,' provided that Lessor acknowledges and agrees, that Lessee
shall not be liable or responsible under this Section 6,03 for the actions of other parties or
persons over which Lessee has no control in this regard; provided further, that if Lessor or its
assigns is furnished with a waiver of interest in the Equipment acceptable to Lessor or its assigns
in its discretion f-rom, any party taking an interest in any such real estate prior to such 'Interest
taking effect, such consent shall not be unreasonably withheld.
ARTICLE V11
Section 7.01. Liens, Taxes, 01her Governmental Charges and Utility Charges. Lessee
shall keep the Equipment free of all levies,liens, and encumbrances except those created by this
Agreement. The parties to, this Agreement contemplate that the Equipment will be used for a
governmental or proprietary purpose of Lessee and that the Equipment will therefore be exempt
from all property taxes. If the use, possession or acquisition of any Equipment is nevertheless
determined to be subject to taxation, Lessee shall pay, from Legally Available Funds, when due
all taxes and governmental charges lawfully assessed or levied against or with respect to such
Equipment. Lessee shall pay all-utility and other charges, 'incurred in,the use and maintenance of
the Equipment,. Lessee shall pay such taxes or charges as the same may become due;provided
that, with respect to any such taxes or charges that may lawfully be paid in installments over a
period of years, Lessee shall be obligated to pay only such installments as accrue during the
Lease Term.
Section 7.0121. Insurance,, Lessee shall during the Lease Term maintain or cause to be
maintained an actuarially sound self-insurance program. On or prior to the Conunencierrent Date,
Lessee shall deliver to Lessor evi dell 0c; of such self-insurance in form and substance satisfactory
to Lessor. Lessee shall not cancel or modify such self-insurance coverage in any way that would
-12-
affect the interests of Lessor without first giving written notice thereof to Lessor at least 30 days
0 11 1111 00
in advance of such cancellation or moiairication, In the event that Lessee shall determine no
longer to self-insure with respect to any or all of such coverages, Lessee shall establish and
inaintain commercial insurance with such insurers and in such amounts and for such coverages
as shall be acceptable to Lessor and naming Lessor and its assigns as loss payee and additional
insured.
Section 7'.03. R'i'sk of Los s. To the fullest extent permitted by T'elxas, law, and only
from Legally Available Funds, whether or not covered by insurance or self-insuranc-e. Lessee
hereby assumes all risk of loss of, or damage to and liability related to injury or damage to any
persons, or property arising from the Equipment from any cause whatsoever, and no such loss of
or damage to or liability arising from the Equipment shall relieve Lessee of the obligation to
make the Rental Payments or to perform any other obligation under this Agreement. Nothing
contained herein is 'Intended to relieve Vendor of its responsibilities under the Vendor
Agreement nor to be construed as an imidenification,i.
Section 7,04. Surety Bonds; Lessee to Pursue Remedies Against Contractors and Sub-
Contractors and Yheir Sureties. Lessee shall secure from the Vendor directly employed by
Lessee, in connection with the acquisition, construction installation I improvement or equipping
of the Equipment, a payment and performance bond ("Surety Bond"') executed by a surety
company authorized to do business in the State, having a financial strength rating by A.M. Best
Company of ''A" or better,, and otherwise satisfactory to the Trustee as directed by the
Certificate 1-folder pursuant to the Trust Agreement as provided therein) and naming the Trustee
as a co-obligee in a sum equal to the entire amount to become payable under the Vendor
Agreement. Each bond shall be conditioned on the completion of the wor1c in accordance with
the pil,ans, and speCi fic at loins, foiri the! Equipment and upon payment of all clairns, of subcontractors
and suppliers. Vendor shall cause the sure ty company to add the Trustee as a co-obligee on each
Surety Bond, and shall deliver a certified copy of each Surety Bond to the Trustee. In the event
of a material de-fault of the Vendor tinder the Vendor Agreement in connection with the
maintenance andlor aci qwsi ion, construction, servicing of the Equipment or in the event of a.
material breach of warranty with respect to any material workmanship or performance guaranty
with respect to the Equipment, Lessee will promptly proceed to exhaust its rernedies, against the
Vendor in default. Lessee shall advise lessor of the steps, it intends to tal(e in connection with
any such default.
Section 7.05. Advances, In the event Lessee shall fail to keep the Equipment in good
repair, and wolrking order, or shall fail to maintain any insurance or self-insurance required by
Section 7.02 hereof, Lessor may, but shall be under no obligation to, maintain and repair the
Equipment or obtain and maintain any such insurance coverages, as the case may be, and pay the
cost thereof. All amounts so advanced by Lessor shall constitute additional rent for the then
current Initial Terni or Renewal Term and Lessee covenants and agrees to play such amounts so,
advanced by Lessor with-interest thereon from die date advanced-until paid at a rate equal t o t he
Contract Rate plus 5%per annum or the maximuni amount permitted by law, whichever is less.
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ARTICLE V111
Section, &01 Damage, Destruction and Condemnation. If,prior to the termination of the
Lease Term, (a) the Equipment or any portion thereof is destroyed, in whole or in part, or is
damaged by fire or other casualty or (b) title to, or the temporary use of, the Equipment or any
part thereof shall be taken under the exercise or threat of the power of eminent domain by any
governmental body or by any person, firm or corporation acting pursuant to governmental
authority, (i) Lessee and Lessor will cause the Net Proceeds of any insurance claim or
condemnation award or sale under threat of condemnation to be applied to the prompt
replacement, repair, restoration, modification or improvement of the Equipment and any balance
of the Net Proceeds remaining after such work has been completed shall, be paid to Lessee or (11)
Lessee shall exercise its option to purchase the Equipment in accordance with Section 10,01.
If Lessee elects to replace any item of the Equipment (the "Replaced Equ*ment")
1P
pursuant to this Section, the replacement equipment (the "Replacement Equ'ment") shall be
IP
new or of'a quality, type, utility and condition at least as good as the Replaced Equipment, shall
be of equal or greater value than the Replaced Equipment and shall provide at least the same
level of energy and/or operational savings expected in the aggregate from the Replaced
Equipment prior to such casualty, destruction or coindemnatioin. Lessee shall grant to Lessor a
-first priority security interest in any such Replacement Equipment. Lessee shall represent,
warrant and covenant to Lessor that each item of Replacement Equipment is free and clear of all
I It
claims,, liens,, security interests and encumbrances, excepting only those liens, created or
through Lessor, and shall provide to Lessor any and all documents as Lessor may reasonably
request in connection with the replacement, 'Including, but not limited to', documentation in form
and substance satisfactory to Lessor evidencing Lessor's i security interest in the Replacement
Equipment. Lessor atid Lessee bereby acknowledge and agTee that any Replacement Equipment
acquired pursuant to this paragraph shall constitute"Equipment" for purposes of this Agreement.
Lessee shall complete the documentation of Replacement Equipment on or before the next
Rental Payment date after the oiectirrence of a casualty event, or be required to exercise ,its option
to purchase the damaged equipment in accordance with Section 10.01. For purposes of this
Article, the term "Net Proceeds" shall mean the amount remaining from the gross proceeds of
any insurance cim"m or condemnation award or sale tinder threat of condemnation after deducting
all expenses, including attorneys' fees,incurred in the collection thereof.
Section 8.02. Insufficiency of Net Proceeds. If'the Net Proceeds are insufficient to pay in
full the cost of any repair, restoration, modification or improvement referred to in Section 9.01,
Lessee shall either (a) complete such replacement, repair, restoration, modification or
improvement and pay from Legally Available Funds any costs thereof in excess of the amount of
the Net Proceeds, or (b) pay or cause to be paid to Lessor the amount of the then applicable
Purchase Price for the Equipment, and, upon such payment, the Lease 'reri-ri shall terminate and
Lessor's security interest in the Equipment shall terminate as provided in Section 6.011 hereof.
The zurount of the Net Proceeds, if any, remaining Mer completing such repair, restoration,
modification or improvement or after purchasing such Equipment shall be retained by Lessee. If
Lessee shall make any payments pursuant to this, Section, Lessee shall not be entitled to any
-14-
reimbursement therefor fiom Lessor nor shall Lessee be entitled to any diminution of the
amounts payable under Article IV,
ARTICLE IX
Section 9,01. Disclaimer of Warranties. Lessee acknowledges that the
Equipment to be acquired, purchased and leased hereunder is being manufactured and installed
by Johnson Controls, Inc,, in its capacity as the Vendor under the Vendor Agreement. Lessee
acknowledges that Lessor intends to sell and assign Lessor's right, title and 'Interest in and to this
Ageement, the Eq-ulpment leased hereunder and the Rental Payments payable pursuant hereto to
the T-rustele as permitted by Section 11.01 hereof LESSEE FURTHER ACKNOWLEDGES THAT,
EXCEPT AS EXPRESSLY SET FORT14 IN THE VENDOR AGREEMENT, LESSOR IN ITS SEPARATE
CAPACITY As LESSOR UNDER THIS AGREEMENT MAKES NO WARRANTY, REPRESENTATION OR
COVENANT, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATEVER, INCLUDING BUT NOT LIMITED
TO4- THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR. PURPOSE,
THE DESIGN OR CONDITIONS OF THE EQUIPMENT, TIME QUALITY OR.CAPACITY OF THr-,EQUIPMENT,
T14E WORKMANSHIP IN THE EQUIPMENT, COMPLIANCE OF THE EQ,Uipwwr WITH THE REQUIREMENT
OF ANY LAW, RULE, SPECI-FICATION OR CONTRACT PERTAINING T14ERE71-0) PATENT TNFRINGEMENT
OR LATENT DEFECTS. The Vendor's warranties with respect to the Equipment are set forth in the
Vendor Agreement and not herein. Lessee accordingly agrees to assert any claim with respect to
the Equipment,solely against the Vendor under the Vendor Agreement and not against the Lessor
(including the Trustee and any other pen-nit ted assignees) hereunder. Lessee further agrees,
regardless of cause, not to assert any claim whatsoever against Lessor for any direct, indirect,
consequential, incidental or special damages or loss of any classification., FOR P�URP,O,S,ES,
HEREOF, LESSEE ACQUIRES5 PURCHASES AND LEASES THE EQujPMENT "WHERE IS, AS IS" AND:
"WITH ALL FAULTS." LEssEE's OBLIGATIONS TO PAY RENTAL PAYMENTS AND OTI-11-:R AMOUNTS
14EREUNDER SHALL BE AND ARE ABSOLUTE AND UNCONDITIONAL, SUBJECT TO THE TERMS AND
CONDITIONS HEREOF. NOTHING 1JEREW SHALL MODIFY LESSEE'S RIGHTS AGAINST THE VENDOR
UNDER THE VENDOR AGREEMENT.
ARTICLE X
Section 10.01. Purchase Option. Lessee is hereby granted the option from and after the
date specified if any) in the Payment Schedule the "'Purchase, Option Commencement Date 7))
to purchase the Equipment, in whole but not in part,prior to the scheduled payment of the Rental
Payments in full pursuant to this Agreement, on each Rental Payment date at a,prim equal to any
Rental Payments due plus the Purchase Price Shown for the Rental Payment date on which such
purchase is to be effective under the column titled "Purchase Price" on the Payment Schedule.
To exercise die option granted tinder this Section 10.01, Lessee shall give Lessor a written notice
exercising such option and desigiiating the Rental Payment date on which such purchase is to be
effective mid the applicable Purchase Price, which notice shall be delivered to Lessor at least
thirty (301) days in advance of the proposed purchase date. The purchase option herein granted
may be exercised by Lessee whether or not one or more Events of'Default have occurred and ai.-e
then continuing at the time of such exercise; provided, however'� that the purchase of the
"15-
P,quipment upon the exercise of such option during the continuance of an Event of Default shall
not limit,, reduce or otherwise affect liabilities or obligations that Lessee has incurred as a result
of stich Event of Default or otherwise terminate the term of this Agreement notwithstanding
anything in this Agreement to the contrary.
Immediately upon any such purchase being made, Lessor shall execute all, documents
reasonably necessary to confirm in Lessee free and unencumbered title in and, to the Equipment
(including but not limited to bills of sale), but without warranties, and in "where-is, as-is"
condition,: and release Lessor's security interest in the Equipment and shall deliver such,
documents to Lessee. Lessor shall further cooperate in providing!. for the filing of any necessary
termination statements, releases or other similar documents.
ARTICU,X1
Section 11" 1. 4ssignment by,Lessor. Lessor may, at any time and frorn time to time,
assign, transfer or otherwise convey all or any part of its interest in the Equipment or the
Acquisition Fund, this Agreement or the Acquisition Fund Agreement, including Lessor's rig is
to receive the Rental Payments or any part thereof in which event Lessee agrees to make all
Rental Payments thereafter to the assignee designated by Lessor), to terminate this Agreement or
Lessee's rights hereunder, to receive tax indemnity payments and to repossess the Equipment
and exercise Lessor's other rights and remedies under this Agreement. No such assignment,
transfer or conveyance shall be effective until Lessee shall have received a written notice of
assignment that discloses the riru-ne and address of each such assignee. Lessee agrees, if so
requested, to acknowledge each stich assignment in writing within 15 days after request therefor,
but such acknowledgment shall in no way be deemed necessary to make any assignment
effective. Lessee ftirther agrees that any moneys or other property received by Lessor as a result
of any such assignment, transfer or conveyance shall not "Inure to Lessee's benefit.
Section 11.02. No Sale, Assignment or Other Disposition by Lessee. Lessee agrees not to
(a)sell, assign, transfer, lease, sublease, pledge or otherwise encumber or suffer a lien or
encumbrance upon or against any interest in this Agreement, the Acquisition Fund Agreement
(including the funds thereuricer) or the Equipment, (b)remove the Equipment from its
Equipment Location or (c) enter into any contract or agreement with respect to the use and
operation of any of the Equipment by, any person other than Lessee, without Lessor's prior
w ritten
i
itten consent n eacli nstance, Lessee shall at all tinies remain liable for the performwice of
ri
the covenants and conditions on its part to be performed, notwithstanding any assigning,
transf'erring or other conveyance that may be made with such consent. Lessee shall take no
action that may adversely affect the excludability fi-om gross incorne for federal, income tax
purposes,of any portion of the interest component of'the Rental Payments.
ARTICLE,X11
Section 12.01. Events of Default DOned, Any of the following events, shall constitute an
"'Event of Default))under this Agreement.-
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(a) Failure by Lessee to (i) pay any Rental .Payment or other payment required to be
paid -under this Agreement within 10 days after the date when due as specified herein or
al
(ii)mainta-i insurance as required herein (except if such failure is due to an Event of
Nonappropriation)o
(b) Failure by Lessee to observe and perform any covenant, condition or agreement
contained in this Agreement on its part to be observed or performed, other than as referred to in
subparagraph (a) above, for a period of 30 days after written notice specifying such failure and
requesting that it be remedied is given to Lessee by Lessor, unless Lessor shall agree in writing
to an extension of such time prior to its expiration; provided that, if the failure stated in, the
notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold
its consent to an extension of such time if con-ective action is instituted by Lessee within the
aPPlicable,period and diligently pursued until the default is corrected,
(c) Any warranty, representation or statement that Lessee made in writing in
connection with this Agreem is s, found to be incorrect or, intentionally misleading in any
material respect on the date made,
(d) Less,ee shall (0 apply for or consent to the appointment of a, receiver, trustee,
^ V
custodian or liquidator o,t Lessee or of all or a substantial part of the assets of Lessee, or (11)
institute any proceedings under any bankruptcy, 'insolvency,moratorium or similar law,, or
(e) An order, judgment or decree shall be entered by any court of competent
jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator for
Lessee or of all or a substantial part of the assets of Lessee, in each case without its application,
approval or consent, and sitch,order,Judgment or decree shall continue unstayed and in effect for
any period of 30 consecutive days.
Section 12.02. Rej)ossession and Lessor's Other Remedies Upon Event of Default:
Immediately upon the occurrence of an Event of Default, Lessor may terminate thi's Agreement
I
or Lessee's rights hereunder and in any such event repossess the Equipment, which Lessee
hereby a grees to surrender to Lessor at such location in Cie continental United States as Lessor
shall direct. Sucb right of repossession and other rights as specifically provided in this Section
shall constitute the sole remedies for Lessee's failure to make.Par-nients or otherwise perfort-n its
obligations when required hereunder. If Lessor is entitled to repossess the Equipment hereunder,
Lessee shall permit Lessor or its agents, to enter the premises where the Equipment is then
located. In the event of any such repossession, Lessee shall execute and deliver sucii ciocurnents,
as may reasonably be required to restore title to and possession ofthe Equipment to Lessor, fi-ee
and clear of all liens,and security interests,to which the Equipment may have become subject,
Any termination of this Agreement at Lessor's option as provided in this Section shall
talce effect at the end of the Initial Term or the Renewal Term then in effect,unless Lessor(at its
option) elects to terminate this Agreement on an earlier (late.
4 7.
Upon repossession, if the Equipment is damaged or otherwise made less suitable for the
purposes for which it was manufactured than when delivered to Lessee, Lessee agrees, at
Lessor's option, to.- (a) repair and restore the Equipi-fient, to the same condition in which it was
received by Lessee (reasonable wear and tear excepted) or (b)pay to Lessor the reasonable costs
of such repair and restoration.
If Lessor terminates this Agreement pursuant to this and Lessee continues to use the
Equipment after the Initial Term or any Renewal Term dIll'ing which the Event of Default occurs
or if Lessee otherwise refuses to pay Rental Payments due during a Renewal Term for which
Lessee's governing body has appropriated sufficient legally available funds to play such Rental
Payments,, Lessor shall be entitled to, bring such action at law or in equity to recover damages,
which shall ]include but not be limited to reasonable attorney's fees, attributable to such holdover
If for tor the Equipment that Lessee,continues to use or to the remainder of such Renewal Term
for which such appropriations have been made.
Lessor shall also be entitled to exercise any or all remedies available to a secured party
under the applicable Uniform Commercial Code and all other rights and remedies that Lessor
may have at law or in equity,, including the exercise of any rights and remedies to which Lessor
is entitled with respect to the Acquisition Fund under the Acquisition Fund Agreement and
hereunder.
Upon repossession, if the l" quipment is darnaged or otherwise made less
suitable for the purposes for which it was manufactured than when delivered to Lessee, Lessee
-ul 1 1
agrees, at Lessor's option, to: (a) repair and restore the Equipment to the same con&tion in
which it was received by Lessee (reasonable wear and tear excepted) or (b) pay to Lessor the
reasonable costs of such repair and restoration.
If Lessor terminates this Agreement pursuant to this Section or an Event of
Nonappropriation occurs and Lessee continues to use the Equipment after the Mitial Term or any
i
Renewal Term dung which the, Event of Default or Event of Nona,pipirolpiriation o 1 f
ccurs, or
Lessee otherwise refuses,to play Rental Rayinents,due during a Renewal Term for which Lessee"s
governing body has appropriated sufficient legally available funds to pay such Rental Payments,
Lessor shall be entitled to bring such action at law or in equity to recover damages, which shall
include but not be limited to reasonable attorney's fees, attributable to such holdover period for
the Equipment that Lessee continues to use or to the remainder of such Renewal Tenn for which
such appropriations have been made.
Lessor shall also be entitled to exercise any or all rernedies available to a
secured party tinder the applicable Uniform Commercial Code and all otlier rights and remedies
that Lessor may have at law or in equity, including the exercise of any rights and remed�ie,s, to
which Lessor is entitled with respect to the Acquisition Fund under the Acquisition Fund
Agreement and hereunder,
Section 12.03, Arc Remedy Exchisive. No remedy herein conferred upon or reserved to
Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in
-18-
addition to every other remedy given hereunder now or hereafter existing at law or in equity. No
delay or Omission to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right or power may be
exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor
to exercise any remedy reserved to it in this Article it shall not be necessary to give any notice
other than such notice as may be required in this Article.
Section 12.04. No Waiver of Immunity. Nothing in the performance of this Agreement
shall impose any liability for claims against Lessee other than claims for which liability may be
imposed by the Texas Tort Claims Act. This Agreement may not be interpreted to waive the
sovereign immunity of Lessee to the extent Lessee has imi-nunity under Texas law.
ARTICLE X11t
Section 13.01. Notices. All notices, certificates or other communications under this
Agreement shall be sufficiently given and shall be deemed given when delivered or mailed by
registered mail, postage prepaid, or delivered by overnight courier, or seat by facsimile
transmission (with electronic confirmation) to the parties hereto at the addresses immediately
after the signatures to this Agreement (or at such other address as either party hereto shall
designate in writing to the other for notices to such party) and to any assignee at its address as it
appears on the registration books maintained by Lessee.
Section 13.02. Binding Effect. This Agreement shall inure to the benefit of and shall be
binding upon Lessor and Lessee and their respective successors and assigns.
Section 13.03. Severability. In the event any provision of this Agreement shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision hereof.
Section 13.04. Amendments, Changes and Modifications. This Agreement may only be
amended by Lessor and Lessee in writing.
Section 13.05. Execution in Counterparts. This Agreement xnay be simultaneously
executed in several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 13.06. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
Section 13.o7. Captions, The captions or headings in this Agreement are for convenience
only and in no way define, limit or describe the scope or intent of any provisions or sections of
this Agreement.
[Signature Page F ollows]
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N WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in
their names by their duly authorized representatives as of the date first above written,
Lessee,- Gity of Fort Worth,Texas Lessor: Johnson Controls,Inc.
WOW
Fernando Costa Michael Crowe
Assistant City Manager Regional Vice President
Recommended by:
S.Fmnk Crumb, P.E.
Director, Water Department
Approved to Form and Legality.
.. ..............
Amy J. MIA,,
Assistant Ci y Attorney
Attest:
OR
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16.6 0
Marty Hendrix: 0 10
............... 0 0;P4 0,
x am
6
0 0
City Secretary 0 0
0 0
0000c)()0- 00
A-utliorizadon: M&C C-24360
Approved: July 20, 2010
Counterpart No. of nianually executed: and serially numbered counterparts,
To the extent that this Agreement constit-Lites, chattel paper (as defined in the Uniform
Commercial Code), no security interest herein may be created through the transfer or possess1*011
of any Counterpart other than Counterpart No. 1,
-201- F RM FIC1,
[Signature Page ofMunicipal E quipme )urc
net Lease Agreelne AL RECO
Fc�
[TY R"Y
F WORTHY TX
List of Exhibits,
Exhibit A Equipment Schedule
Exhibit B Paynient Sebedifle
Exhibit C-1 Form of Authorizing Resolution
Exhibit C-2 Mayor and Council Communication
Exhibit C-3 Form of Incumbency and Authorization Certificate
Exhibit D Form of Opinion of Counsel
ExbIbIt E Form of Acceptance Certiti cat
e
Exhibit F Form of Self Insurance Certificate]
Exhibit G [Reserved]
Exhibit H F'orm of Acquisition and and Account Control Agreement
Exhibit I No Arbitrage Certificate
Exhibit J Request for Sales Tax Exemption Certificate and Legal Descriptions
-22-
EXHIBIT A
EQLriPmr4,NT SC HE,DULR
Location and Description of Eqiiipineiit:
- S Soo olf'Work Schedule Below.-I
SCOPE OF WORK SCHEDULE
GENERAL SCOPE OF WORK:
JCI will provide the City with the scope of work(Work)identified on this Schedule. JCl shall supervise and direct the
Work and shall be responsible for construction means, methods, techniques, sequences, and procedures and for
coordinating all portions of the Work under this Agreement. JCI shall be responsible to pay for all labor, materials,
equipment, tools, construction equipment and machinery, transportation, and other facilities and services necessary
for the proper execution and completion of the Work, whether temporary or permanent and whether or not
Incorporated or to be Incorporated in the Work.All completed work will be fully functional and installed and Inspected
as In compliance with all local governing codes,.
General Work Includes the follll�owiin�gi:
Final engineering:work for each Facility Improvement Measure(FIM ., Once final engineering work is complete,
some minor: modifications to Work may be required. No modifications will be made to Work without prior
acceptance by the City.
0 Five (5) copies of construction drawings, equipment submittals, performance specifications and sequences of
operation for each FIM will be provided for City's review and acceptance at the completion of the final
engineering design phase.
0 Five (5) copies of O&M manuals and as-built construction drawings for each FIM will be submitted to City at
completion of construction phase.
0 Two(2)copies of electronic CAD as-built construction I'llos,for each FIM will be provided to City at completion of
construction phase.
0 City retains the right to keep any removed equipment or material, unless specified differently in other areas of
this Agreement.
01 All work will be coordinated with City personnel to minimize interruptions,delays,or safety violations.
01 All materials being installed shall he now.
Necessary protection will be providedl to avoid damage to adjacent services,in the surrounding work areas.
i
0 Work will be Performed In accordance with all applicable codes and'standards.
Due to potential health hazards and requirements of the Texas Commission on Environmental Qulall'ty (TCEQ)
and U.S. EPA, existing wastewater treatment facilities shall be maintained in operation during construction of
new equipment. Degree of treatment during construction shall be equal to or exceed efficiency of facility before
construction started.
Freese & Nichols, Inc. Construction Management Services(FNI CMS)will assist JCI with on-site supervision of
FIM#3A, 3B and 5. FNI will also assist JCl with construction management of the work for FIM#21 3A,313, 5. FNI
CIVIS Includes: Senior Construction Manager for 448 hours, Construction Manager for 1792 hours and some
engineering and administraflon support and expenses.
CDIVI Construction Management Services will assist JCl with on-site Supervision of additional Distributed Control
System(DCS)work.
General Exclusions:
0 HAZARDOUS MATERIALS. Unless specifically noted in thil�s,Schedule,JC,lI"s,obligations,expressly exclude any
'Work or Services of any nature l associated or connected with the identification, testing,, abatement, cleanup,,
control, removal, or disposal of hazardous maltehals or substances, including but not limited to asbestos, or
PCBs, in or on the premises.
0 Any structural modifications to existing equipment and infrastructure that is required due to previously unknown
structural conditions.
0 Local governing code upgrades for existing infrastructure and equipment scheduled to remain.
Mechanical:
All new pumps shall Include new pump accessories,including strainers,pump pads and pressure gauges.
Provide and Install all necessary concrete pads for new mechanical equipment.
-23-
Pipingis Provide and Install molded "foam la " pipe Insulation wi an Aluminum jacket our all now piping In
compliance with process needs and standard energy code requirements, Zeston covers shall be
Installed at new indoor pipe fittin gs and eulurninurn flitting covers at new outdoor pipe fittings.
All new chilled water pipe Insulation shall be"closed cell"insuletliran.
Provide ide Band Install piping Identification with flow arrows on new chilled water, steam, steam condensate, beating
water,and plant water piping..
Where existing piping Is painted,,ell new pi plirug with r w i'thiolut insulation is to aint 1 to,match existing.
0 All new chilled water, steam condensate, heating water and condensate piping will be eci eadule 40 'bleach
steel with welded joints where piping is larger than 2" and screw piping with malleable fittings where
piping Is 2"or smaller.
0 All' new high pressure steam piping shall'be schiedulle 80(chase 300 N
0 All new high pressure steam welds are to be performed by certified welders.
All new welded pipe fittings are to be hang radius steel,Joined by field weld applied joints.Victaulic pipe
connections are not acceptable without special permission.
Provide hangers and supports for all new piping.
Maintain new pipe Installation sew no trapped pockets exist withOUlt slope to ea drain opening,
For all new equipment,provide new Isolation valves on Inlet and outlet connections.
Electrical-,
For all new mechanical equipment, provide&Install new starters and disconnect switches.
Verify,Identify and babel all new electrical circults at dlilsconnect switch,panel.,
Provide hangers and supports for all new electrical conduit and equipment
All new electrical conduit will be rigid aluminum and comply with Fort Worth titer Departmnt raceway
atandlarde.
Provide flexible conduit with PVC Jacket et ground'wiring at all new moitllon erqulpr ent.
Provide and install all necessary concrete pads for new electrical equipment.
All new wiring is to be tinned copper.
All now electrical housings will be minimum III MI X.
All work is to be performed by licensed electricians or apprentices
SUMMARY
The followings FIM's will be included In this Agreement:
FIM# FIM Description
.5 Turbine Waste Heat Recovery
3A.5 Codigestion
313,5 Digester Mixing Upgrades
IDI no is Zones
FACILITIES-.
The following facility will be included In this Agreement:
w --------. �.
' .
Dept Facility N Street Address Year Built
Water Village cree �wTP 4500 Wilma Ln 1958,1972,1 980,1088,1999
,2o.�
b
..
Fill m 2.5
IM NAME: Turbine Waste bleat Recovery
FIM DESCRIPTION,.'
is im rove ent measure will result In the renovation/installation of two 2 existing 1000 p Roots aeration blowers
that Will be powered) by steam turbiines. Steam will be generated by the 'fleet Recovery ery t ern Generator HRS,G
that Is powered by combustion turbine exhaust as conditioned by e duct turner fueled with digester and/or landfill
as.
GOALS;
01 Reduce the number of electrical blowers rep�uiired to run the,eeratioin system
Optlrnize cornbustlon gas turbine waste heat recovery
Provide an energy,conversion source for two no team blowers
Improve overall efcieno "of'com us,tiioan gas turbine
Eliminate or reduce flaring of beneficial dl nester and landfill'gas
Electrical power savings through reduction of total electrical blower tier horsepower
-2
ASSUMPTIONS:
• The waste heat recovery improvement measure was developed with the premise that all electrical power
generated by the combustion turbines would be used on site to prevent exporting of power. This is consistent
with the current operating procedures.
■ From October 2007 to September 2008, the plant purchased 43.0 million kWh of electricity. During that same
time, the plant generated 36.7 million kWh of electricity, resulting in a total plant electrical load of 79.7 million
kWh. If a second CGT were operated at the plant, after energy conservation Is implemented, the CGT's would
typically generate more electricity than is required to operate the facility.
• Engineering analysis performed to assess the additional volume of digester gas that will be produced by the
Implementation of anaerobic Co-Digestion(FIM#3a)and Digester Mixing Upgrades(FIM#313)estimates a 30%
increase in digester gas production. This Increase In digester gas production, or an increase in landfill gas, is
required to operate both steam driven blowers and achieve full cost benefits of this FIM.
• The site contains two (2) Roots Model 1-I-30 aeration blowers, each rated at 31,000 scfm at 7.5 psig discharge.
To achieve this performance,the blower would need a driver rated at 1,144 horsepower and turning 5,000 rpm.
Refitting these blowers with turbine drivers and placing them on-line will supplement the aeration blower capacity
at the Village Creek WWTP.
• Landfill gas will continue to be supplied to the Village Creek WWTP.
• all construction work will be accomplished in stages to accommodate operation of existing facilities during
construction period.
➢ Only one of two existing CGT's will be out of service at any given time.
FINAL ENGINEERING:
• Development of construction drawings and equipment submittals.
■ Finalize equipment performance requirements,
SCOPE OF WORK:
This FIM comprises the construction of a new turbine heat recovery system for the Village Creek Wastewater
Treatment Plant.. This FIM includes:
• Replace two(2)existing hot oil heat recovery systems with one(1)new heat recovery steam generator Including
HRSG stack,duct burner,bypass stack and turbine exhaust diver-ter valve and other accessories.
• Two(2)new surface condenser packages and two(2)new condensate pumps per package and other
accessories.
■ One(1)new deaerator package including boiler feedwater pumps and other accessories.
• Three(3)new plate and frame heat exchangers.
■ Three(3)new heat recovery circulation pumps.
■ One (1) new wafer treatment package Including boiler wager makeup system, water softener system, and local
control panel.
■ Two (2)rebuilt Roots blowers and two (2) new steam turbine driver packages including tube oil system, lube oil
heat exchanger,casing condensate pump(steam driven),steam traps,digital govemor and other accessories.
■ Installation of new Interconnecting piping and pipe support systems.
• Installation of new concrete foundations and retrofitting of existing foundations.
■ Installation of electrical improvements as required for new equipment functionality.
• Furnish and Install new piping, materials and supplementary equipment as necessary to provide a fully functional
system for the purposes of heat recovery and aeration air delivery. This work shall include:
> Steam traps and associated condensate piping.
A Piping expansion joints and/or piping halr pin elbow configurations as necessary to absorb thermal
expansion forces without adverse effects on equipment or structure.
Concrete foundations and support structures as needed for equipment with large rotating masses and high
pressure steam piping.
Pipe routing, pipe supports, hangers and insulation.
> Manual isolatlon and check valves at header piping,at all equipment connections and as necessary to allow
maintenance or disassembly.
> Supervlsory controls as needed to Integrate the individual control packages provided with each new major
piece of equipment.
■ New DCS control points associated with this FIM are listed in Table 1 below:
_2.5_
Table
FIM#2.5 New DGS Control Points
Heat Re for Recovery Monitoring Equipment New l"'otes
Points Niumber Points,
Pressure Pressure Pressure Sensor Monitor Level on
linear scale
Temperature Temperature
Temperature Monitor Level on
Tensor linear scale
Flog Rate Flow Meter Monitor position on
Steam Flow 1 linear scale
Flow Volume Same Flora Meter Integrate Flow Rate-
By-Pass Dswm r Position Damper l Monitor Position
Blew-down Operating Staters; Blo^wdown Location 1 Monitor Status
O ervclos+e Q en/Close
Duct Burner-Digester Gas Flow sate Flow Meter Monitor position on
Feed 1 linear scale
Flow Volume Sarre Flow Meter Integrate Flow Rate
Duct Burner-Landflll Gas Flow Rate Flow Meler Monitor position on
Feed linear scale
Flow Volume Sane Flaw Meter Integrate Flow Rate
Duct Burner-Natural Gas Flow Rate Flow Mater Monitor posltlon on
Feed 1 linear scale
Flow Volume Same Flow meter Integrate Flow Rate
Alarms-Common Alarm All I All Alarms 1 OnlOfflleswet
Table 1 gorwVoll
Fl #2.6 New,ITS Control Points
Steam Turbine No.1 Monitoring Equipment New plates
PLC Points Number Points
Alarms-Common Alarm All All Alarms 'i On/Off Roet
�Vibrationjemp,Oil IFlown
Olt 1lemp#etch
Steam!Turbine N� 2
l on r to r r Equipment N ew
'PLC' Points Nu Points Notes
Alarms, Common Allarrn AIII All Alarms 1 On/Off/Reset
Vibration,T'ernp,Oil Flowl,
Oil Tern e,etc.
Surface Condenser MonitorliV Equipment New Notes
PLC Points Number er Paints
Temperature within `° Temperature Monitor Level on
Condensers Temperature Sensor linear scale
Operating Status: Monitor only.
Deaerator Feed Pumps On or Olf Pumps 2 Start/Stop In the
field.
Hot Water Circulation Operating Status; Monitor only.
Pumps(Heat Sink Pumps) On or Off Pumps 2 Start/Stop in the
field.
Temperature In CW Temperature Monitor level on
approach to Surface Temperature 1
Sensor linear scale
Condenser
Temperature In Wtr to "Temperature �r onitor Level on
Circulation Loo Temperature p$ratune ure Sensor linear scale
Alarms-Common Alarm All All Alarms i On/Off/Reset
Deaerator(PLC) Monitoring Equipment New bate
Points 'Number Points.
Temperature Temperature
Temperature M�I ltoarrLevoil vn
Sensor ne scale
Boller Pumps
Speed Pumps 2 Monitor speed
Alarms-Common Alil Alll Alarms 11 OrVOIVReset.
Fill' 21. „Total Nlewr
Points
26
Refer to Figures'I -5 for additional scope of work details associated with this Improvement measure.
Hot WateT
Steam mmmmmTo DlgeMer 8 Emuent
.Surface Condenser
(New)
:�� HRSG ,��•-w Process Air
BIoGa6 r"
�• ; p Witti Burner
y (Now)
CGT 141 Steam Turbines&
(Exist) Heat Steam Rebuilt Blowers
(Relrof i)
+.-•. Process AIr Hat Water
W WA W w "���" �� r« To Dlgeste
Effluent
CGT#2 k T
(Exist) Steam
Surface Condenser
� a
CloG
(New)
condenaaie
Deaerator
(New)
Figure 1
New Turbine Waste Heat RecoverV Flow Dla ram
REMOVE EXISTM FiOT OL
i W RMO&RY SYSTEMS
AM11-M .Nra,mmuow„t°'IU4 iaNPo'Vr79'�f,R n'rV?',"m9mWrymcv'i« "u+uvv, liw.�-c:.. urr/L.rr,rllba �......�.. n
-:rrx----
I � AMAIN DNrM ER
.--r IlE AND Y TACK
.may..-.aE�.�-.� �...`_... .�,..�,rum,�.. w... • �,�..�._ ......._.�_.�._� �.�..•�►:.�,.
:. �_
------------
j Y.Sir` --.:.'L Cl`:i`w c.� :a��� _:•`�•
Figure Z
Demolition of Existing Hof Oil Heat Exchangers
-27-
w,wxxxx..xrxxw.,. W ew, �'Mi,rte .,�•�
M �^ I M !
_ w
1 777 ��....
M'�MM . :............
N.
° I
;0A, + M
It
1Yv
Fijjuro
New S LU lemental Wormer
n..rrrw... hr.
row
Fr
k. " w
r
_ "�Mr YMrI,rMxTM aw rr,wy... 1
°
w ... F-1-1-
L •' �..
T............. ww
.w�
_..... ... ,.. ,..NMNMF«MNIY WMr..r.........,......�........—.._...« .«.. ...«....•.,,..."«r r.�.w
L YIM ul.aNkY.!M MxYaM 9WY'MM pP+WMWwII+M�Y«awl�trll Ylifr��4�+MM�ctlfl��lt
Figure
New Steam[given Slower SVstem
28
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X$ew�
P WV
<>
-44
D5-]C>. r ry C► t..............
......................-
Ve"o
Rork ......
inure 5
Heat recover v Process Flow Diagram
DEMOL"I ION: ..............
All dernolitton will be conducted in conformance:with applicable:laws.
EXCLUSIONS:
• Repair or replacement of existing man-ways or handralls.
• Rernoval of oil storage tanks and disposal of all existing oil.,
• Replacement or repair of existing motor control panels or breaker panels.
Cleaning of any existing sariltary sewer piping,vents or drains.
Now emergency eye washers,showers or plumbing fixtures.
• Fire protection or security systems,
• Repair or replacement of existing overhead crane.
• Audible alarm speakers or strobe lights.
COMM ISSION1 NG,-,,,
0 Refer to General Work for all close out document requirements
TRAINING:
• Three(3,)days of on-site training will be provided to designated City personnel.
WARRANTIES:
• Two(2)year warranty on materials and labor beginning at the date of Substantial Completion.
• Specific details on each extended warranty will be provided in O&M manuals.
FIM M 3A.5
-29-
FIM NAME: Anaerobic Co-Digestion
FIM DESCRIPTION:
This Improvement measure will include the installation of new facilities to enable the GO-digestion of
high strength waste in the aneroble digesters,thereby increasing digester gas production.
GOALS-11,
increased digester(methane)gas production
Increased combustion turbine generation capacity
Energy source for new steam driven aeration blower operation(see FIM#2.5)
Operation&maintenance savings
ASSUMPTIONS:
FIM#3113.5 will also be Implemented.
Several food industries, and industries with compatible wastes, have expressed Interest in co-digestlon at Village
Creek in the Fort Worth area, One other waste stream available within the plant site is scum from the plant's
clarifiers. The City of Fort Worth is responsible for providing adequate food waste resources for the co-cilgestion
process.,
FINAL ENGINEERING
Development of construction drawings and equipment submittals.
Finalize equipment performance requirements,
SCOPE OF WORK:
This FIM comprises the Implementation of a fully functional high strength waste receiving,storage,blending,and feed
facility which will be located just west of the existing digesters as indicated in Figure 7. This FIM includes:
A pump building will be furnished inclusive of labor, materials,equipment and Incidentals necessary to construct
a 17'0" x 21101'-01" (Interior dimension), steel frame building with concrete masonry unit cmu) exterior and metal
I i I i I roll-up door,
roof', Save height will be 10'-0`1 with a 4 in 1,2gabled roof., Building is to include,heat and ventilation,
and pedestrian door to',house pumps:and controls.
0 Two (2) FRP batch tanks (6,000 gallons each) will be furnished with assoclated valves, plping and other
appurtenances according to the following sped fications.,
> Flat-Bottom,above-ground,filament-wound FIT per ASTM D-3299
> Installed on concrete housekeeping pad,with 4 SS hold-down brackets
> Dimensions:working volume=108"ID x 168"side water depth(6453 gallons)
> Freeboard from top of liquid to bottom of dome-24"
> FRP integrally wound dome top
> I"thick polyfoam insulation with gelcoat finish
0 One(1)steel tank with associated valves, piping and other appurtenances.Basic description for one tank:
> Installed on concrete housekeeping pad
> Dimensions,.*working volume=!192"ID x 2,40"'side water depth(30,100 gallons)
> Freeboard from top,of liquid to bottom of'dome=24"
> Fixed roof
> No Insulabon
> The tank structure shall conform to the design requirements of AWWA standard for Welded Steel Tanks for
Water Storage,AWWA Standard D 100-96.
40 Concrete roadway and curbs,
0 Concrete tank foundations and walls for partial containment of spills.
0 Grinder.
6 Recirculationitransfer chopper pump (1)with appurtenances, piping, valves and heat,exchangers for each batch
tank (2). This pump will be used to circulate and mix the contents in each of the two batch tanks. By manually
switching the discharge valves, the pump will transfer the contents of Its tank to the suction line of the mix tank
recirculation pumps. There will be a, transfer line between,the suction of the two pumps so that either could be
used to pump out the contents of the opposite tank if necessary. This, pump will operate only in manual onloff
mode,with low-level shutoff from!the appropdate tanks ultrasonic level sensor,(interlocked With the pump,in use!
-30-
for that t tank . A simple heat exchanger on the discharge of each pump will be controlled by a temperature
sensor In the discharge Ilne. If the recirculation pump Is, operating and the wastewater Is below the operator-,
specified setpoint, the controller well open the solenold valve In the hot water supply to the heat exchanger and.
turn on the hot water booster pump. Once the temperature exceeds the setpoint, the controller will close the
he pump unless the other heat exchanger or the room heater
solenoid valve and turn off t is calling for It to be
running. in the event of a hiq�h amp draw, the recirculation pumps will shut down on their own and an alarm will
sound,
Recirculation copper pumps 2 with appurtenances, piping, valves,and Rota-Mix nozzles for mix tank. These
pumps(one y, standby) mix the contents of the large mix tank, discharging
duty, standb well be used to circulate
into the Rotairnix distribution nozzles. These pumps will operate only In manual on/off rnodle,, with low-level
shutoff from the mix tam's ultrasonic level sensor.
Feed chopper pumps ,piping,valves,and oww meter to transfer mix tank contents to digester a lfol .These
pumps (one duty, one standby)will be used to transfer the contents of the mix tank to digesters 9-14. These
willll elltemate operating)in Ill -minutely cycles a,!q follows;
The motor-operated feed valve for digester#9 will open, feed pump A will turn on and pump an operator-
specified volume of wastewater to the digester, taping several minutes. When the pumped volume,
measured by the manifold flowmeter and totalizer, reaches the setpoint, the pump will shut off and the
dii ester feelid valve will close,
The motor-operated feed valve for digester#10 will open, feed pump B will turn on and pump an operator-.
specified volume of wastewater to a digester, taking several minutes. When the pumped volume,
measured by the manifold flow meter and totalizer, reaches the setpolnt, the pumps will shut off and the
digester feed valve will close.
The cycles will continue from digester to digester,making a complete circuit In one hour.
Operation will alternate between pump A and pump 13.
In casel a pump tums on and a digester feed valve falls to open, a high pressure sensor will alarm. If the
pressure continues to rise after the high pressure alarm has sounded,, then a pressure relief valvo in the
feed line will open and dump wastewater back to the mix tank..
Hot,water supply retunn piping and booster pump to provide hot water to batch tank heat exchangers and room
beater.
Installation of approximately 750-feet of 3-inch P,VC scum: transfer Rune and in-lilne grinder, The exact routing of
the scum line has not yet been determined. There is a possibility that and unused pipe casing could be utilized
during the Installation of this line.
Installation of approximately 200-feet of 3-Inch P'VC thickened WAS,line.The exact routing of this WAS, line has
not yet been determined. It appears that the pipe gallery Will not be able to be used.
+► The Installation of all electrical equipment shall be done in conformance with latest national electrical code.
Equipment shall be sized and installed per manufacturers' recommendations. The project includes modification
to MCC bucket, feeder coinduit and conductors. Also, a 480V distribution panel, combination motor starter
disconnects arnd control's associated with co-gelnera��tion (process equ�Iiprnent wwilll be aidded. See electrical
drawings and specifications for specific details.
New DCS control points associated with this FIM are listed In Table 2 below:
Table 2.
FIM f3 .5 New DCS Control points
C+��l�lwl'It�� Station'� nn M��ri��aor���m�g Il���n�� Equipment'ralr�"r � �a �.....
Notes
Recelvirig Tank Chopper Pionp Operating Status: M l only,
2 P p 2 StarliSt p Ir
t h
fll td.
Ionllt r+irrll .
Ira-line Grind (1)
Operating Oi Slat= I GGrnrrd r tarUSt ,p In tire.
�r�r ter field.
Monitor only.
Redr ularl rare r r c r Operating status,
�rmp� �� � �car l"t 2 lrrr"i Start/Stop p the
field.
Moriltor only.
Feed chopper dump(2) OperaJng
�n or Off field.
P art nl�
fieIcl.
Monitor position on
Uquld level Continuous 3 Tanks 3 linear scale
2 Locallons
Alarms Croat ulr meat (OUtdoof s and 2 Oniloff/Reset
Inside
Marrs Common Alarm All 1-All Alarms 1 +fin/4lf/Resr l
A.5-Total New Pr lints 13
Refer to Figures 6&7 for additional sciope of'work details assoiclated w1th this Improviernent measure.
GNindof xi s(New)
�n
01gostvN F*040 `UV s W4,W1M
Iy
iM �r
tovoigo T*sik(Nov)
iwiilW i'�Ww
� u
,lot Pumps(140")
r
re
C es ion Flow Diagram
".0 pq,1y
yl^xA4eu�.wvW° i R
AI
r
" -
0z
Ilk Ye4
Id
s *
a '
z I,
Lul
W
�:r ryd J,.� Nw7.P
��I �1
r AAA44 yy,� tl1YM�vY '" ��
v
A1+� � W
����yy 14m TOM "gyp
w
1
m
UNLO00"PAD
ri
"Oil AJ
bMwgW�a �. x yS
,oW,NVw,a,�w�wmra�wwwauw „,m. ➢ .' ICI NC NMI NiI�,'1dA ..
a
-
......
Figure�
Co-.Digestion S Layout
32—
« All demolition will be conducted in conformance with applicable laws.
EXCLUSIONS-d"
Not applicable.
COMMISSIONING:
Defer to General Work for all close-out document requirements.
TRAINING:
Four days of on-site training for operation and control of the co-digestion tanks and pumps will be provided to
designated City personnel,
WARRANTIES:
• Two year warranty on materials and labor beginning at the date of Substantial Completion.
• Specific details for each extended warranty will be provided In the O&IVI manuals,
F"IM#: 38.5
FIlln'I NAME: Digester Mixing Upgrades
FIM DESCRIP'"nON:
This Improvement measure will include the replacement of the current digester gas recirculation
mixing system with new linear motion digester mixers LMM's for six anaerobic digesters
(Digesters 91 through 14)1,
COALS:
Improved mixing to enable the digesters to be used for codigestion of wastewater biosolids and high strength
wastes
0 Increased digester(methane)gas production
Reduce electrical energy requirements for mixing
0 Reduce grit accumulation
+ Operation&maintenance savings
Capital cost savings
ASSUMPTIONS:
Preliminary analysis indicates that each digester is structurally capable of supporting the forces created by the
new LM M, Recently, C1 had the opportunity to utilize Dieltatek Engineering to conduct additional evaluation of
the structural integrity of the Digester#13 roof with respect to the installation of the new LIVIM. Further sta ucturai
analysis by Deltatek recommended additional cover supports Inside the digester tanks. Project allowance for
additional structural supports at each of the six digesters is$60,000{total for all six}. Similar structural analysis
will be performed on each of the remaining five digesters..
0 City, will be responsible for clleaning each digester and removal of existing grit prior to the installation of each
LM .
All work i8 to be conducted in staves to accommodate operation of existing facilities throughout time construction
schedule..
> Only two digesters may be out of service at any given time.
FINAL IENCINIEERI'NG
Development of construction drawings and equipment submittals,
Finalize equipment performance requirements.
-33-
SCOPE OF WORK:
This FIM comprises the installation of six(6)now Linear Motion Mixers in Anaerobic Digesters 9 through 14.This FIM
includes:
Six(6 IMCO Type Linear Motion Mixers—Each mixer will Include the following.-
> Mlild steel construction ruction except as noted
> X04 stainless,Steel hl dlro-disk
)> 30!4 stainless,steel lower shaft
> Precision machined cam driving system
> Motor. 0 hp explosion proof, 1200 rpm,480 V,3 0j 60 Hz
> Carbon steel sea]tube
)> Carbon steel mounting plate matching mounting port bolt pattern
)> 304 stainless steel fasteners for mounting plate
>
Mixer port cover including bolts,nuts and gasket
> One coat of primer Tnemec 66-1211 @ 3-5 DFT mils for mild steel items
)> One coat of finish painting Tnemer,69 @ 3-4 DFT mils for mild steel items
> Local control station for remote/local operation
> Two remote control panels for three mixers each Including the main disconnect and VFD unit
The motor drive assembly will consist of exploslon-proof, variable speed motor driving a cam-scotch-yoke
mechanism that moves the hydro-disk shaft vertically.
A, minimum 84,"'outside diameter hydro-disk mounted at the end of the vertical drive sha,ft will be provided. The
desIgri willl create a vertical '11 up and down 11 motion of the h�ydlrol-disk producing a turbulent,"liquid-core"of micro
and macro eddy currents thait extend through its range of motion and the tank contents!.
The seal tube will be welded to the mixer mounting,flange In a gas-tight connectl,o:nl, The mounting: base will be
designed to support the entire weight of the linear motion mixer.
The mixer manufacturer will supply a structural fabricated steel mixer mounting port designed to be Installed to
the existing digester cover mounting ring. The mounting port will be provided with gaskets and 304 stainless
steel flange bolts.The port Oil be designed to support and transfer all dynamic and dead loads imposed by(lie
mixer to the cover.
Installation of electrical improvements as required.
Once City has removed the grit and cleaned each digester,a State of Texas licensed engineer will be contracted
by,.ICI to conduct a structural analysis of each digester roof prior to Installation of LIVIM IS.
A$60,000 allowance is included to Install additional digester cover supports.
New DCS control points associated with this FIM are listed In Table 3 below:
Tab,le 3
F'IM#313.51 New D ,Controll Poinits
Linear Motion Mixer's Monitoring Equipm,ent New Notes
Points 'Number Points
Operating Status: I mixer per digester Monitor only.
Digester Mixers On or Off x 6 digesters 6 SlarVStop In the
field.
DEMOLITION:
0 All demolition will be conducted In conformance with applicable laws.
EXCLUSIONS,,,
0
Inside or outside cleaning of'existing dli,gesters and removal of grit.
0 De-watering of the digesters.
0 Repair or replacement of man-ways or handralls.
0 Repair of existing digester coating and insulation)unless damaged during constructlon.
0 Installation of additional handrails.
0 Ventilation of the digesters.
-34-
� M ISSINING:
• Shop test mixers prior to shipment. Three )copie s o shop test,
reports will be submitted to City. Shop testng
procedures
of new digester mixing equipment shall include as a minimum the foollowiing:
Run the mixer drive unit with the hydro-disk In dry or wet eondIdons In the shop for at least 2 hours.
> Check the shark for straightness and plumbness.
Check the cam system for operation without Interference and friction.
Complete check of the local button control station to ensure proper operation.
i" akde all final adjustments as required prior to shipment..
• Refer to General Work for all close-out document requirements.
TRAINING:
Two 2 days of on-s 'e training for new linear motion mixer equipment will be provided to designated City
personnel.
WARRANTIES:
0 Two(2)year warranty on materials and labor beginning at the date of Substantial Completion.
0 Speciflc details for each extended warranty will be provided In the O&M manuals.
FIM is 5.5.
FIM NAME: Aeration AnoxIc Zones
FIM DESCRIPTIOM.
This improvement measure will include the reconfiguration of six(6)existing aeration basins, Basins
1-6,In order to operate using anoxic zones.
GOALS:
• Reduce oxygen required for;activated sludge treatment
• Deduce energy required for aeration process
• Improve ni!trogon removal
• Improve Sludge Volume Index SI
• Improve alkalinity
• Improve settle ability in clarifiers
Reduce the sludge associated with the nitrogen bubbles produced from,denitriflcatlon In the sludge blanket.
Operation&maintenance savings
ASSUMPTIONS:
The Belt Filter Press recycle dch in;Ammonia will continue to be returned to Aeration Basins, -61.
All work is to be conducted in stages to accommodate operation of existing facilities throughout the construction
schedule.
Only one of Aeration Basins 1 through 6 may be out of service at any given time.
FINAL ENGINEERING.*
0 Development of construction drawings and equipment submittals.
46 Finalize equipment performance requirements,
SCOPE OF WORK,7
This FIM comprises all materials and supplementary equipment as necessary to provide six( )fully functional anoxic
zones within existing!,Aeration Basins 1 --6. This FIM Includes.
The installation of eighteen (1 8) Invent Hyper+classic Evolution 6 mixers 3 per basin), 3 hp motor, drives, and
support walkways. These mixers will only operate In an on/off fashion.
-3 -
oil 7. z I a rz
Iry AW
liv
dr
V 1w
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----—---------------- —------------
Is
Oil 101a
A Oil op
0,k,
o If toll If f4 Jr,
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4
fit
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it w
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ILI
DEMl 'LITIlO�NI:
All,dem:611111on will be conducted In conformlianicie,with aipplllcab�lle laws,.
EXCLUSIONS:
0 Repair or replacement of existing leaking valves or gates.
0 Repair of existing aeration as concrete walls nor wnc floors of fraicture cracks.
0 All existing grit lying In the bottom of the aeration basins Is to be removed and hauled to the local Class I landfill
by ICI. Any grit refused by the local landfill Authorities will become the City of Fort Worth responsibility to
relocate to another site and all cost associated with this relocation will be the responsibility of the City of Fort
Worth.
COMMISSIONING:
# Refer to General Work foir all close-out document requirements.
TRAINING;
Two(2)days of on-site training:for new anoxic zone equipment will be provided:,to diesiginated,City personnel'.
WARRANTIES:
Two(2)year warranty on materials and labor beginning at the date of Substantial Completion.
Specific details for each extended warranty will be provided in the O&M manuals.
-37-
EXHIBIT B
PAYME NT SCH-E DULE
Rental Rental 3.69%
Payment Payment Interest Principal Outstanding P'urchas,e
Date......... Amount Portion Portion— Balance Price
Jun-04-1 2 4751139.75 987,495.65 _(512,355.90) 153877,752.90 16o274,696.72_
So -04-12 475,139.75 1,46,472.27 32806,617.48 15,549,085.42 16,937,812.56
............
Dec-04-12 475,139.75 143,44031 3310699.44 15,217,385:99 15,5971820-613
Mar-04-13 475,139.75 1401380-39 334,759.36 14188216,26.62_ 15,2541,69,229
Jun-04-13 410)855.50 1371292.23 273,563.27 14,6091063.35 1419741289.94
Se -04 410,855.50 134,768.61 276,086.89 141332,976.46 1416910300.87_
Dec-04-1 3, 410,855.50 132,221.71 278,633-79 14 964 342.67 14 405 701.24
Mar-04-1,4, 416,8515.50 121916511.31 21,811,204.119 13,773,138.48 14,117,466.94_
Jun-04-14 423,181.00 127,057.20_I 2961123-80 1,31147711014.168 13,18131940.1015
Sep-04-14 423,181.00 1247325.46 298)855.54 13,178,159,14 13,5070613.12
Dec-04-14 4230181.00 121,568.52 301,612.48 12,876)546.66 13o198,460-33
Mar-04-1 5 4230181.00 1181786.14 3040394.86 123572,151.80 12,886,455.60
3'un-04-15 435,876.50 115)978.10 319,898.40 121252,253.40 12,558,559.74
11
Selpi-04-,1,51 435,876.50 1131027.04 1 322 1849.46 11,9291,403.94 12,2,27'6,39.04
Dec-04-15 435,1876.50 1101 048.,75 3,25,827.75 11,603,576.19 1111893166151.601
11111-...........
Mar-04-16 435,876-50 107,042.99 3281833.51 11,274,742.68 11,556,611.25
Jun-04-16 448,952 75 104,009.50 344,943.25 10,929,799.43 11,203,044-42
Se -04-16 448,952.75 100082740 348,125.35 10,581,674.08 10,846,215.94
Dec-04-16 448,952.75 971615.94 351,336.81 10,230,337.28 10,486,095.71
............
Mar-014-17 448,951235 914,374.86 354,577.89 91875,759.39 10 1 122,6 5 3.37
3un:-04-1 7 1462,421.50 91,1103,88 371,317.62 915014$441.77 19,742,0152.81
............. .................
Sep-04-17 4620421.50 87,678.48 374,743.02 91129,69835 91357,941.21 _J
Dec-04-17 462,421-50 841,221.47 378,200-03 81751,498.72 8,970)286.18
-38-
.. ........
Rental Rental 3.69%
Date Amount Portion Portion Balance Price
Mar-04-18 462,421.5.0 80,7'32.58 381,688.92 81369p8Q9.79 81579,055.04
Juin-014-1 8 4,76 29,44,00 771
211.510, 399,0182.50 7,917'0,727.29 8t 16%995.47
Sep-04-1 8 476,1294.00 1 730529.96 40201764.0,4 71M 16,2.313
_j 71963.25 717571
Dec-04-18 476,294.00 69,814A6 406,479-54 711611483.71 7,,340,1520-80
Mar-04-19 476$294.00 66,064.69 410,229.31 6 L7§,I_L?5 4.3 9 61920,035.75
Jun-04-19 4901583.00 62P280.32 4281302,68 6322J951.72 6j481,025-51
S��p-04-1 9! 490583.00 581329.23 4321253.77 518901697.95 610371965.39
D,e,c,-014-19 4190,583.00 54,3141-691 436,241.311 51454?456.63 5590818-05
Mar-04-20 4901583.00 50)317.36 4401265.64 5111014,191,.0101 5)131911514 5.77
Jun-04-20 505,300.50 46)255.91 459,044.59 41155511 46.41 4o669oO25.07
Sep-04-20 5051300.50 42,021.23 463,279.27 4091 867.13 41194,163.81
Dec-04-20 505,300.50 371747.47 467,553-03 316241314.11 31714,921-96
Mar-04-21 5050300.50 .33A34.30 471 866.20 31152,447.91 312311259-10
Ju�n-014-21 5120045191.50 2910181.33 4911378.17 21661,069.74 21727'1596.48
SOP-04-21 520,459.50 241548.37 49 519 11.13, 2111,6:511,58:.61 20,21,911287-57
Dec-04-21 520,459.50 19,973.59 51001485.911-� 11664o672.69 117061,289.51
Mar-04-22 520)459.50 15J356.6-1 5051102.89 1,159,569-80 10188,559-05
Jun-04-22 296,608.79 1 OP697.03 285)911.76 8730658.04 895)499.49
Sep-04-22 2961608,79 81059.50 288549.29 585,108.75 5991736.47
Dec-104-212 29,611608.79 51397.63, 2911,211.16 29,31897.58 3011245.02
1 190782P691.16 1 4V4170294.16.1 15,3651397.00 _2
Contract Rate. The Contract Rate is 3.69% per annum.
Purchase Option Commencement Date, For purposes of Section 10.01 of the Agreement, the
Purchase,Option Commencement Date is,June , 2012
Lessee: City of Fort Worth
Signabre:
Fernando Costa
Assistant CilyMwiager
I /
Date: / /0
Approved as to Form and Le alit Attested By:
.Am- J. Ra Marty Hendrix
Assistant ity ttomey City Secretary
lF(W
0 0000"""OQA�:
IJ4*
Lessor-., Johnson Controls, 'Inc.
0 jo
000
00
4 1
0
-ch
ael Crowe
Re ioinal Vice "'resident
91
...........
OFFICIAL RECORD
R
D' ,
"Y
C IT Y S,E C R E TAi,RY
�X
X
-40- FT WwIF-1,1H,
TX
XHI BI T C-1
Fottm of AUTHORIZIM3 RE,SOLUTION
Whereas, the City of Fort Worth, a Home-Rule Municipal Corporation situated in Tarrant,
Denton, and Wise Counties,, Texas (the "Lessee'), is authorized by laws of the State of Texas to
purchase, acquire and lease personal property for the benefit of the Lessee and its inhabitants and
to enter into contracts with respect thereto and
Whereas, the Lessee desires to purchase, acquire and lease certain equipment constituting
personal property necessary 1br the Lessee to perform essential govern-mental functions,-, and
Whereas, in order to acquire such equipment, the Lessee proposes to enter into that certain
Mwilcipal Equipment Lease`pr Agreement (the "'Agreement"') with Johnson Controls, Tnc.
(the "Lessor') and that certain Acquisition Fund and Account Control Agreement (the
"Acquisition Fund Agreement" with the Lessor and Deutsche Bank National Trust Company,, as
a i ition fund custodian (the "Acqui ition Fund Custodian') which request for execution have
cqu s I IS 11 1 1 1
been presented to the governing body of the Lessee at meetings held July 20, 2010; and
Whereas, the governing body of the Lessee through its approval of Mayor and Council
Communication M&C C-24360 (attached hereto as"Exhibit C-2"), authorized the execution of the
Agreement and the Acquisition F'tind Agreement for the purchase, acquisition and leasing of the
equipment therein described on the terms and conditions therein provided for the benefit of the
Lessee and for the e cient and effective administratI011 thffe0f.
Now,Therefore,
Section 1. Authority to Execute Documents. Pursuant to the Charter of the City of Fort
Worth Texas,, the City Manager through its duly authorized Assistant City Manager, Fernando
Costa., is authorized to execute the Agreement and the Acquisition Fund Agreement under the
terms presented in 'Exhibit C-2 attached hereto, Fwfhem-iore, Marty Hendrix, the City Secretary
for the City of Fort Worth is hereby authorized to affLx the seal of the Lessee to such documents,
&clion 2. Other Actions Authorized., The officers, and empiloye of the Lessee shall take
all action necessary or reasonably required by the parties to the Agreement and the Acquisition
Fund Agreement to carry out, give effect to and consummate the transactions conternplated 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. i the,Agreement and the Acquisition FLmd Agreement.
Section 3, No General Liability. Nothing contained in this Authorization, the Agreement,
the Acquisition F'wid Agreement nor, any other instrument shall be construed with respect to the
Lessee asinCUTring a pecuniary liability or charge upon the general credit of the Lessee or against
its taxing power, nor shall the, breach of ally a i
,agreement contained, n this Authorization, the
Agreement, the Acquisition Fund Agreement or any other instrument or document executed in
connection therewith impose any pecuniary liability upon the Lessee or wiy charge upon its
4 1-
general credit or against its taxing power, except to the extent that the Rental Payments payable
under the Agreement are special limited obligations,of the Lessee as provided in the Agreement.
Section 4. Se'viera, ilityl. If any section,paragraph,clause or provision of this Awhorizatt'on
shall for any reason be bold to be invalid or unenforceable, the invalidity or unenforceability of
0 0
Such Section, Paragraph, clause or provision,shall not affect any of the renimning provisions of this
Authorization.
Section 5. Effecti've Date. This Authorization shall be effective t4e SQ,n+e"e'r 1 2010
4L
e*
0
Sipatur
0
Marty Hendrix
[SEAL] City Secretary
Date:
0
000000000
7
.......
FIFFICoIAL RECORD
1.
"Y SECRETAtRY
R TH T X
FT
1 o
-42- w���llI,ZWAW49N�+D�d&�INMWNfikPWNP9PDWVWY
XHIBIT C-2
[Mayor& Council Communication Attached Here]
-43-
Page 'I of 3
C'Am m
ity, of Fort Worth, Texas
APR&
Mayor and i l Co, unication
COUNCIL ACTION,* Approved on 7/2012010 - Ord, No. 19239-07-2010
DATE: Tuesday, July 20, 2010 REFERENCE DLO.,: C-243160
LOG NAME,: 60VC PHASE, V SECTION 2
SUBJECT:
Authorize Contract Amendment No. 5 in the Amount of$17',889,397.00 to City Secretary Contract No.
29110 with Johnson Controls, Inc., and the Execution of Related Agreements to Implement Phase V,
Section 2 of the City's Energy Savings Performance Contract at Village Creek Wastewater Treatment Plant
and Adopt Appropriation Ordinance (ALL COUNCIL DISTRICTS)
RECOMMENDATIONN
It is recommended that the City Council:
1. Authorize the City Manager to execute a Municipal Equipment Lease Purchase Agreement in the
principal amount of$15,365,397.00 with Johnson Controls, Inc,.:,, at 3.,69 percent interest for a total cost of
$19,782,691.16 to finance the implementation of the City's Energy Savings Performiance Contract, Phase
V, Section 2 at Village Creek Wastewater Treatment Plant;
2. Authorize the City Manager to execute an Escrow Agreement with Johnson controls, Inc., and
Deutsche Bank National Trust Company, as Escrow Agent,, in accordance with, the Municipal, Equipment
Lease-Purchase Agreement;
3. Adopt the attached appropriation ordinance increasing, estimated receipts and appropriations in the
Sewer Capital Projects Fund by $15,365,397.00 from, available funds for Phase V, Section 2 of the City's
Energy Savings Performance Contract with Johnson controls, Inc.,, and
4. Authorize the City Manager to execute Amendment No. 5 in the amount, of$17,88,9,3197.0O to City
Secretary Contract No. 29110 with Johnson Controls, Inc., to implement Energy Savings Performance
Contract, Phase V, Section 2 at Village Creek,Wastewater Treatment Plant.,
DISCUSSIONg.
On, September 2, 2008,, (M&C C-19739)the City Council authorized an Energy Savings Performance
Contract Phase 1, with Johnson Controls, linic,. Subsequently, ESPC Phases 11, 111 and IV were approved
respectively by Amendment Nos., 1, 2, and, 3,.
On September 23, 2008,1 (M&C, C-230146) the City Council authorized a contract with Johnson Controls,
linic,., (J,CI) to conduct a, detailed energy study of the Village Creek Wastewater Treatment Plant (WWTPI)
as Phase V of the successful Energy Savings Performance, Contract(ESPC) Project. The study is
complete and the product of this study, the Utility Assessment Report(LIAR), dated November 2009, has
been reviewed, and approved, by City staff. Kinsman and Associates Engineering Consultants retained by
the City as an independent third-party reviewer(M&C C-2378181)1, has reviewed the, report and verified that
the project costs, guaranteed savings,, and measurement &verification methods are appropriate.
On February 02, 20,1 0,, (M&C C-24070), the City Council authorized Amendment No. 4 to the City's ESPC
for implemientatilon of E,SPC, Phase V, Section 1 at the Village, Creek WWTP. On that same date (III No.
9185), City Council was informed, of City staffs, intent to forward an l&C, seeking authorization to execute
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rags' 2 of 3
an agreement to implement the ESPC Phase V, Section 2 project at the Village Creek WWTP.
The proposed ESPC Phase V, Section 2 scope of work includes energy- and operations-related
conservation measures and treatment process facility improvement measures to be installed at the Village
Creak WWTP. The recommended measures include Turbine Waste-Heat Recovery, Anaerobic Co-
Digestion, Digester Mixing Upgrades and Aeration Anoxic Zones.
The total JCI contract amount for Phase V, Section 2 is $17,889,397.,010. This amount includes
$2,600,000.00 for Final Engineering and Construction Management, which will', be fund'eld through existing
Sewer Capital Projects Fund appropriations,. After implementation of the improvements included in Section
2, the first-year electricity savings are estimated to be $1,528,971.00. Including other cost avoidance, the,
simple payback period is about 1:11 years,. Whi,le miore, than the 1 0-year payment target desired, City staff
and its third-party reviewer,deem it reasonable and appropriate, for the scope of work included, and well
within the 20-year limit set in the applicable, Texas, state law.
In accordance,with the City 11 s, exiisitling ESPC and as allowed by Texas Local Government Code Chapter
3102, JCI published a Request for Bi'd for a Municipal Equipment Lease-Purchase (Municipal Lease)
agreement to finance, the recommended project. This resulted in JCls best value selection of All American
Investment Group, LL,C (AAIG) to provide this financing through JCI. With the concurrence of City staff,
the recommended Municipal Lease financing agreement with JCI will utilize this financier resulting in a
total principal and interest cost to the City of$19,782,691.16 to fund the project construction including a
$76,000.00 underwriting fee. The annual appropriation for the Lease-Purchase payments will be included
in the operating budget requests for Water & Sewer and will be offset by electricity savings at the Village
Creek WWTP.
The recommended Escrow Agreement with JCI is a necessary attachment to the Municipal Lease,
allowing for progress payments to be made to JCI during the construction phase of the recommended
project. The escrow bank associated with All American Investment Group, ITC (AAIG) is Deutsche Bank
National Trust Company. JCI will submit progress pay requests to the City for approval of contracted work
complete. City approved pay requests will then be submitted for payment directly from the escrow account
with Deutsche Bank National Trust Company to JCI for the completed work.
As part of the recommended contract and in accordance with Chapter 302, JCI will guarantee projected
savings to the City and will perform on-going Measurement and Verification services under an annually-
renewable Assured Performance Guarantee (APG) service agreement. As with all project costs, the cost
of the APG is included as an avoided cost to the City. JCI will also manage appropriate applications for
and secure potential utility incentives that may be available for the recommended project work.
Johnson Controls, Inc., is in compliance with the City's M/WBE Ordinance by committing to five percent
M/WBE participation. The City's goal on this project is five percent.
The Village Creek Wastewater Treatment Plant is located in CITY COUNCIL DISTRICT 5 and serves ALL
COUNCIL DISTRICTS.
FISCAL-INFORIVIATION: / CERTIFICATION:
The Financial Management Services, Dlireict,oir certifies, that upon approval of the above recommendations,
and adopt ion of the attached appropriation oirdin�a,nc,el, funds will be available in the current capital budget,
as appropriated, of the Sewer Capita! Projects Fund.
FUND CENTERS,:
TO Fund/Account/'Centers FROM Fund/Account/Centers
1) PS58 487100 070580306420 $15,365,397.00 4) PS 58 531200 070580306420 $2,600,000-00
3) PS58 487100 070580306420 $15,365,397.00 4) PS 58 541200 070580306420 $15,3651397.00
r%
P 541 20� 07�05�8030642Q $15,365,397.00
$58
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lop
Page 3 of 3
CERTIFICATIONS.
Submilft oir Gil I ty Mana.ger"s, Offic, Fernando Costa (6 11122)
Orig,inating DepartmeInt Head: S. Frank Crumb (8207)
Additional Information Contact, Madelene Rafalko (8215)
ATTACHMENTS
1. 60VC P' ease V Slectiol,n 2, BFT.pdf (CF W' Internal)
2. 6 V PHASE V SECTION 2 MAP. pdf- (Public)
3. 60V'C PHASE V SECTION 2 MWBE.pdf (CFA" Internal)
4. 60V'C Phave V Section 2 AO.pdf (Public)
littp-.//apps.cfwnet.org/ecounci1/'print,mc.asp?id=�13767&print=true&,DocType=Print 8/24/2010
EX131BIT C-3
FORM OF INCUMBENCY AN'i)AUTHORIZATION CERTIFICATE
The undersigned,a duly elected or appointed and acting City Secretary of the City of Fort worth,
Texas "Lessee') certifies as follows.-
i
A. The following listed persons, are duly elected or appointed and acting offlicials, of Lessee
(the "Officials'), in the capacity, set forth opposite their respective names below and that the facsimile
signatures,are,true,and correct as of the date hereof',
B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and deliver
the Municipal Equipment Leasel?urchase Agreement dated as of September 7, 2010 by and between
Lessee and Johnson Controls, Inc. ("Lessor"), the Acquisition Fund and Account Control Agreement
dated as of September 7, 2010 among Lessor, Lessee and Deutsche Bank National Tmst Company, as
Acquisition Fund Custodian, and all documents related thereto and delivered in connection therewith
(collectively, the "Agreements'), and the Agreements are each the binding and authorized agreements of
Lessee, enforceable in all respects in accordance with their respective terms.
Name of Official Title Signature
e o Cod
0A r
Approved as F nn and ty-*
Amy ra M-- se
Assistant City ot-ney
In Witness Whereof,I ha J1 Ift ered this rcrtificate.as of this day of September,201 .
00000000,
0
A►
0
U
A%*00
00 Marty Hendrix
00
%
0 0 City Secretary
0 00 cl
As" 7-11
0000
44, 0
Date
(Tbe signer of this Certificate can of be listed above as audiorized to execute the Agreements)
OFFICIAL,,,RECORD
-44- CITY SEGRE'"TIARY
F`011'.WORTH, TX
ExtUDIT D
F ORM OF 0PrN1ON OF COUNSE L,i,,o LESSEE
[Insert Opinion of Counsel Here]
-45-
7
FORT VVORTH
ib
AMY J.RAMS EY (817)3912-7611
AS S I STANT CITY ATTO R N:E Y a,miy.ram,sey@fort .org,
August 31,2010,
Johnson Controls, Inc.
507 E. Michigan Street
Milwatikee, W1 53201-0423
Re: Municipal Equipment Lease-PUrchase Agreement
To Whom It May Concern-,
As Assistant City Attorney for the City of Fort Worth,Texas("Lessee"), I have
exm fined thelorl inalEquipment Lease-Purchase Agreement da,ted July 2O,2010(the
"Agreement') between Lessee and Johnson Controls, Inic,. ("Lessor"), the original
Acquisition Fund Agreement reflected in,Exhibit "H"to the Agreement,, among Lessee,
Lessor,and Deutsche Bank,National Trust Company("Acquisition Fund Custodian"),and
the proceedings taken by the City,of'Fort Worth City Council of Lessee to authorize the
execution and delivery of the Agreement and the Acquisition Fund Agreement(referred
to in the proceedings as the Escrow Agroernent)on behalf of Lessee. used upon the
foregoing examination and upon an examination of such other documents and matters of
law as I have deemed necessary or appropriate, I am of the opinion that.*
1. Lessee is a home-rule municipal corporation duly organized and legally existing
under the Constitution and laws of the State of Texas with full power and
authority to enter into the Agreement nd the Acquisition Fund Agreement,
2, The Agreement acid the Acquisition Fund Agreement have been duly authorized,
executed and delivered by Lessee rand, ass wning due authorization,execution and
delivery thercof by Lessor, constitutes the legal, valid and binding obligation of
Lessee,enforceable against Lessee in accordance with its terms, U
, bject to any
S,
applicable bw-tkrLiptcy% insolvency, moratorium or other laws or equitable
princIpIcs,affecting,the enforcernent of creditors" rights generally.
3. The Equipment leased ursuant to the Agreement, consfittites,personal properly
P A IL
and when subjected to use by Lessee will not be or become a fixttire tinder
applicable law.
OFFICE OF THE CITY ATTORNrN
The City of Fort Worth * 1000 Throckinortan SiTeet *Foil Worth,Texas 76102
817-392-7600* Fax 817-392-8359
4. Lessee has compiled with any applicable public bidding requirements in
connection with the Agreement and the tratisactions contemplated thereby.
S. No litigation or proceeding is pending or, to the best of my knowledge, threatened
to restrain or enjoin the execution, delivery or performance by Lessee of the
Agreement or the Acquisition Fund Agreement or in any way to contest the
validity of the Agreement or the Acquisition Fund Agreement,, to contest or
question the creation or existence of Lessee or its governing body or 'the authority
or ability of Lessee to execute or deliver the Agreement or the Acquisition Fund
Agreement or to comply with oi-perform its obligations thereunder. There is no
litigation pending or, to the best of my knowledge, threatened seeking to restrain
or enjoin Lessee fi-om annually appropriating sufficlent funds to pay the Rental.
Payments,or other amounts contemplated by the Agreement.
6. 'rhe Mayor and Council Commum'cation(C-24360) adopted by the Fort Worth
City Council(Lessee's,governing body)authorizing the execution and delivery of
the Agreement and the Acquisition Fund Agreement and certain other matters was
adopted July 20,2010 at a meeting that was held in compliance with all
applicable laws relating to the holding of open and public meetings.
7. The entering into and perfOTTIftwice of the Agreement and the Acquisition Fund
Agreement do not violate any judfpnent, order, law or regulation applicable to
Lessee or result in any breach of or constitute a default under, or result in the
creation of miy hen, charge, security interest or other encumbrance upon any
assets of Lessee or on the Equipment as defined in the Agreement) or the
Acquisition Fund as defined in the Acquisition Fund Agreement)pursuant to any
indenture,mortgage,deed of trust, bank loan or credit agreement or other
instrument to which Lessee is a party or by which it or its assets may be bound,
*de ' in the Agreement and the Acquisition Fund Agreement.
except as provi 0 1 1
8. The Iessee is the purchaser of the equipment set forth in theAgreernent.
9, This opinion may be relied won by the addressee hereof and its successors,and
assignees of interest in the Agreement, but only with regard to matters specifically
set foirth herein.
Respectfully submitted,
Amy CY
OFFICE OF THE CITY ATTORNEY
Tlie City cat`Fon Worth * 1000 111 rocki nodon Street* Fort Worth,Texas 76 102
817-392-76,010*Fax 817'-392-83519
Ext[IBIT E
FoRm of ACCEPTANCE CERTIFICATE
Banc of America Public Capital Corp.
1]3 3 3 McCormick Rd.
Hunt Valley, MD 2 1031
Re: Municipal Equipment Leaselurchase Agreement, dated as of
September 7, 2010: (the "'Agreement"), between Johnson Controls, Inc,, as
Lessor,
and City of Fort Worth,Texas, as Lessee
Ladies and Gentlemen:
Yn
In accordance with the Mu,nicipai Pquipment, Lease Purchase Agreement (the
'Agreement") described above, the undersigned Lessee hereby certifies and represents to, and
agrees with, Lessor asfollows.-I
1. All of the Equipment as such term is defined in the Agreement) has been
delivered installed and accepted on the date hereof,
2. Lessee has conducted such inspection and/or testing of the Equipment as 'it dwms
necessary and appropriate and hereby acknowledges that it accepts the Equipment for all
purposes,
3 Lessee is currently maintaining the insurance coverage required by Section 7.02
of the Agreement.
4,. Lessee, hereby reaffirms that the representations, warranties and covenants
contained in the Agreement are true and correct as of the date hereof.
5. No event or condition that constitutes, or with notice or lapse of time, or both,
Would constitute, an Event of Default as defined in the Agreement) exists,at the date hereof,
Date:
c T
,
(Seal)
Ill.-IsNumn,F
FORM OF SELF INSURANCE CERTIFICATE
[Rr,,SE RVED]
[Insert Proof of Self Insurance Here]
-47-
Fo.wrW,. ORTH
RE: Request for �r�oof� D�oculmnent,ati�on of Insurance
City of Fort Worth's Self-funded Insurance Program
To Whom It May Concern
liea,se accept this, c,orr�es,poinde!n�c,e pursuant to your request for docUrnentation
of the City of Fort Worth's in lieu of a certificate of commercial insurance. The
City of Fort Worth is basically a self-funded entity subject to statutory tort laws.
The City does not maintain a commercial policy of general liability insurance
and/or ainto l�iability, insurance. Damage for which the C,ity, olf Fort Worth would
ultimately be found liable would be paid directly by the City of Fort 'Worth and not
by a commercial insurance company, City owned property is covered under the
City of Fort Worth Fire and Extended coverage program by a commercial
insurance policy. Statutory workers" compensation insuirancea coverage is se�llf-
funded to a $750,000.00 retention limit per incident over which commercial
coverage responds with no upper cap; and, employer's liability coverage is
maintained at the $1,000,000.00 policy limit.
In the event there are any questions regarding the City of Fort Woirlh' insurance
program, or if I may be of additional assistance, Tease contact nee at the
�d !dd ress provided, � direct to 81 "-3192-x`76 or email,
s�u .. au toter v.org.
Thank you for your time and attention. 'Both a,re appreciated. on behalf of the
City,of fort Worth, °tee look forward to a continued business relationship.
Sincerely,
Sue Haupt
Risk Manager
FINANCIAL M NAGEME T SERVICES DEPARTMENT
THE CITE"of FORT WORTH* 1000 P MROCKMORTON STREET*FORT WORTH,TEXAS 76102
(817)392-8492 (81 92-5874
EXHI131T G
[RESERVED]
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ExniBIT H
FORM OF AcQ,LIS,ITTO,N FUND AND ACCOUNT CONr1`ROL AcRE EMENT
r*11 -nent this "Agreement"), dated as of
This Acquisition Fund and Account Control Agreei I
September 7, 2010, by and among Johnson Controls, Inc. (hereinafter referred to as "'Lessor
the City of Fort Worth,,Texas, a borne rule municipal corporation situated in Tarrant, Denton and
Wise Counties
3 1 Texas hereina ex referred to "Lessee") and Deutsche Bank National Trust
( ft as
Company(hereinafter ref med to as "Acquisition Fund Custodian
Reference is made to that certain Municipal Equipment Lease/Purchase Agreement dated
as of September 7, 2010 between Lessor and Lessee (hereinafter referred to as the "Lease"),
)
covering the acquisition and lease of certain Equipment described therein (the "Eiquipment P$ 0, it
is a requirement of'the Lease that the Acquisition Amount($15,365,397.,00)be deposited into an
escrow under terms satisfactory to Lessor, for the purpose of fully funding the Lease, and
pro v'Iding, a mechanism for the application of such amoL
ints, to the purchase of and payment for
the Equipment.
The parties agree as-follows:
6,
I Creation ofAcquisition Fund.
(a), There is hereby created a special trust fund to be known as the "City of
Fort Worth, Texas Acquisition Fund" (the "Acquisition Fiund') to be held in trust by Acquisition
Fund Custodian for the purposes stated herein,, for the benefit of Lessor and Lessee, to be held,
disbursed and rettirned in accordance with tho terms hereof.
(b) Acquisition Fund Custodian shall 'Invest and reinvest moneys on deposit in
the Acquisition Fund in Qualified Investments in accordance with wi•itten instructions received
from Lessee. Lessee shall be solely responsible for ascertaining that all proposed investments,
and reinvestments are Qualified. Investments and that they comply with federal, state and local
laws, regulations and ordinances governing investment of such Rinds and for, providing
appropriate notice to Acquisition Fund Custodian for the -reinvestment of any matui-ing
investment. Accordingly, neither Acquisition Fund Custodian nor Lessor shall be responsible,for
any liability, cost, expense, loss or claim of any kind, directly or indirectly arising out of or
related to the investment or reinvestment of all or any portion of the moneys on deposit in the
Acquisition Fund, and Lessee agrees to and does hereby release Acquisition Fund Custodian, and
Lessor from any such liability,, cost, expenses, loss or claim. Interest on the Acquisltion Fund
shall become part of the Acquisition Fund, and gains and losses on the investment of the moneys
on deposit in the Ac-q-tilsition Fund shall be borne by the Acquisition Fund. For purposes of this
agreement, "Qualified Invest i-nents" means any investments which meet the requirements of'
Chapter 2256, Texas Government Code, as amended. IN THE ABSENCE OF WRITTEN
I`NSTRUCTION,S) ACQUISITION FUND CUSTODIAN IS HEREBY AUTHORIZEDAN-D
DIRECTED TO INVEST' AND RE-INVEST ALL FUNDS ON HAND I DIRECT
OBLIGATION'S OF' THE UNITED STATES OF AMERICA WITH. FOUR (4) WEEKS!
MATURITY AND Wr[H AN AtJT0MATtC FOUR (4) WEEKS ROLL-OVER UNTIL
0THERWTS,E DIRECTED.
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(c) Unless the Acquisition Fund is earlier terminated in accordance with the
provisions of paragraph (d) below, amounts in the Acquisition Fund shall be disbursed by
Acquisition Fund Custodian in payment of amounts described in Section 2 hereof'upon receipt of
written authorization(s) from Lessor, as is more fully described in Section 2 hereof. If the
amounts in the Acquisition Fund are 'Insufficient to pay such arnounts, Lessee shall provide fiorn
Legally Available Funds any balance of the funds needed to complete the acquisition of the
Equipment. Any moneys remaining in the Acquisition Fund on or after the earlier of (i) the
expiration of the Acquisition Period and (ii) the date on which Lessee executes an Acceptance
Certificate shall be applied as provided in Section 4 hereof,
(d) The Acquisition Fund shall be terminated at the earliest of (1) the final
distribution of amounts in the Acquisition Fund or (11) written notice given by Lessor of the
occurrence of a default or termination of the Lease due to the occurrence of an Event of
NonappropriatiOn.
(e) Acquisition Fund Custodian may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine and may assume the
validity and accuracy of`' any statement or assertion contained in such a writing or instrument.
Acquisition Fund Custodian shall not be liable in any marmer for the sufficiency or correctness
as to form, mariner of execution, or validity of any instrument nor as to the identity, authority, or
right of any person executing the same; and its duties hereunder shall be limited to the receipt of
such moneys, instruments or other documents received by it as Acquisition Fund Custodian, and
for the disposition of'the same in accordance herewith,
(0
Unless Acquisition Fund Custodian is guilty of gross negligence or willful
misconduct with regard to its duties. hereunder, to the extent pen-nitte,d by law, Lessee agrees to
and does hereby release and indemnify Acquisition Fund Custodian and hold it bar less from
any and all claims, liabilities, losses, actions, stilts or proceedings, at law or in equity, or any
oilier expense, fees or charges of any character or nature, which it may incur or with which it
may be threatened by reason of its acting as Acquisition Fund Custodian under tbis, Agreement;
and in connection therewith, does to the extent permitted by law and from Legally Available
Funds (provided that nothing herein is intended or shall be construed to require Lessee to
establish or maintal any sinking fund to provide for any such liability as may otherwise be
required tinder applicable State law) indeimilfy the Acquisition Fund Custodian against any and
all expenses, including reasotiable attorneys' fees, and the cost of defending any action, suit or
proceeding or resisting any claim.
(g) If Lessee and Lessor shall be in disagreement about the interpretation of
the Lease, or about the rights, and obligations, or the propriety of any action contemplated by
Acquisition Fund Custodian hereunder, Acquisition Fund Custodian may, but shall not be
required to!, file an appropriate civil action to resolve the disagreement. Acquisition Fund
Custodian shall be reimbursed by Lessee for all costs, including reasonable attorneys fees, in
connection with such civil action, and shall be fully protected in suspending all or part of"f its
activities'Linder the Lease until a final Judgment in such action is received.
(h,) Acquisition Fund Custodian may consult with cowisel of its own choice
and shall have full and complete authorization and protection with the opinion of such counsel.
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Acquisition Fund Custodian shall otherwise not be liable for any mistakes of faLA or errors of
judgment, or for any acts or omissions of any kind unless caused by its willful misconduct.
Lessee shall reimburse Acquisition Fund Custodian for all reasonable
costs and expenses, including those of Acquisition Fund Custodian's attorneys, agents and
employees incurred for extraordinary administration of' the Acquisition Fund and the
perfomiance of Acquisition Fund Custodian's powem, and duties here-under in connection with
any Event of Default or Event of Nonappropriatl'on under the Lease, or in connection with any
dispute between Lessor and Lessee concerning the Acquisition Fund.
2. Ac uisition of Pro peft y.
(a) Acqqisition Contracts. Lessee will arrange for, supervise and provide for,
or cause to be supervised and provided for, the acquisition of the Equipment, with money's
available in the Acquisition Fund. Lessee represents the estimated costs of the Equipment are
within the funds estimated to be available therefor, and Lessor makes no warranty or
representation with respect thereto. Lessor shall have no liability tinder any of the acquisition or
construction contracts. Lessee, shall obtain all necessary permits and approvals, if any, for the
acquisition, equipping and installation of the Equipment, and the operation and maintenance
thereof.
(b) Authorized Acquisition Fund Disbursements. Disbursements from the
Acquisition Fund shall be made for the purpose of paying (including the reimbursement to
Lessee for advances from its own funds to accomplish the purposes hereinafter described) the
cost of acquiring the Equipment.
(c) Requisition Procedure, No disbursement frorn the Acquisition Fund shall
be made unless and witil Lessor has approved such requisition. Prior to disbursement from the
Acquisition Fund there shall be filed with Acquisition Fund Custodian a requisition for such
payrnent in the form of Disbursement Request attached hereto as Schedule 1, stating each
amount to be paid and the name of the person, firm or corporation to whom payrnent thereofis
due,. Each such requisition shall be signed by an authorized representative of Lessee (an
"Authorized Representative") rand by Lessor, and shall be subject to the foIlowing:
I Dielivery to Lessor of an executed Disbursement Request in the form
attached hereto as Schedule I certifying that:
(1) an obligation in the stated amount has been incurred by Lessee, and that
the same is a proper charge against the Acquisition Fund for costs relating
to the Equipment identified in the Lease, and has not been paid or has
been paid by Lessee and Lessee requests reimbursement thereof); (6) the
Authorized Representative has no notice of any vendor's, mechanic's or
other hens or rights to liens, chattel mortgages, conditional sales contracts
or securlty, interest which should be satisfied or discharged before such
payment is made-, (ill) such requisition contains no item representing
payment on account, or any retained percentages which Lessee is, at the
date of such certificate, entitled, to -retain (except to the extent such
amounts represent a reimbursement to Lessee), (iv) the Equipment is
insured in accordance with the Lease; (v) no Material Adverse Change or
Event of Default (nor any event which, with notice or lapse of time or
both, would become an Event of Default) has occurred and is continuing
and (vi) the representations, warranties and covenants of Lessee set forth
in the Lease are true and correct as of the date hereof.
2. Delivery to Lessor invoices, (and proofs of payment of such invoices, 'if
Lessee seeks reimbursement) and bills of sale if title to such Equipment
has passed to Lessee)therefor as required by Section 3.04 of the Lease and
any additional docinnentation reasonably requested by Lessor; and
3. The dish-ursement shall occur during the Acquisition Period,
3. De Dart to Actiul'sitl"OD Pund. Upon satisfaction of the conditions specified in
Section 31.04 of the Lease, Lessor will cause the Acquisition Amount to be deposited in the
Acquisition Fund. Lessee, agrees to pay from Legally Available Funds any costs with respect to
the Equipment in excess of a-mounts available therefor in the Acquisition Fund.
4. Excessive Acquis,ition Fund. Any funds remaining in the Acquisition Fund on or
after the earlier of(a) the expiration of the Acquisition Period and (b) the date on which Lessee
executes an Acceptance Certificate, or upon a termination of the Acquisition Fund as otherwise
provided herein, shall be applied by the Acquisition Fund Custodian to arnounts owed under the
Lease in accordance with Section 4.07 of the Lease.
51. Security Interest,. Acquisition Fund Custodian and Lessee acknowledge and agree
that the Acquisition Fund and all proceeds thereof are being held by Acquisition Fund Custodian
for disbursement or return as set forth herein. Lessee hereby grants to Lessor a first priority
perfected security interest in the Acqu'stion Fund, and all proceeds thereof, and all investments
inade with any amounts in the Acquisition Fund, If the Acquisition Fund, or any part thereof, is
converted to investments as set forth in this Agreement, such investments shall be made in the
name of Acquisition Fund Custodian and Acquisition Fund Custodian hereby agrees to hold such
in-vesh-nents as bailee,foir Lessor so that Lessor is deemed to have possession of such, investments
for the purpose of perfecting its security interest.
6. Control of Acquisition Account, In oi-der, to perfect Lessor's security interest by
means of control in (0 the Acquisition Fund established herleunder, (iii) all securities entitlements,
investment property and other financial assets now or hereafter credited to the Acquisition Rind,
(iii) all of Lessee's rights in respect of the Acqvil sit ion Fund., such securities entitlements,
investinent property and other financial assets, and (iv) all products, proceeds and revenues of
and from any of the foregoing personal property (collectively, the "Collateral"), Lessor, Lessee
and Acquisition Fund Custodian further agree as fol lows
:
(a) All terms used In this Section 61 which are defined in the Commercial
Code of the State of Texas ("Conimercial Code")but are not otherwise,defined herein shall have
the meanings assigned to such terms In the Commercial Code, as in effect on the date of this
Agreement.
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(b) Acquisition Fund Custodian will comply with all entitlement orders
originated by Lessor with respect to the Collateral, or any portion of the Collateral, without
further consent by Lessee.
(c) Acquisition Fund Custodian hereby represents acid warrants that (a) the
-records of Acquisition Fund Custodian show that Lessee is the sole owner of the Collateral,
(b) Acquisition Fund Custodian has not been served with any notice of levy or received any
notice of any security interest in or other claim to the Collateral, or any portion of the Collateral,
other than Lessor's claim (caw I
pursuant to this Agreement, and Acquisition Fund Custodian is not
presently obligated to accept any entitlement order from any person with respect to the
Collateral, except for entitlement orders that Acquisition Fund Custodian is of to accept
frorn Lessor under this Agreement and entitlement orders that Acquisition Fund Custodian,
subject to the provisions of paragraph (e) below, is obligated to accept from Lessee.
(d,) Without the prior written consent of Lessor, Acquisition Fund Custodian
will not enter into any agreement by which Acquisition Fund Custodian agrees to comply with
any entitlement order of any p�erso�n other than Lessor or, subject to the provisions of
paragraph(e) below, Lessee, with respect to any portion or all of the Collateral. Acquisition
Fund Custodian shall promptly notify Lessor if any person requests Acquisition Fund Custodian
to enter into any such agreement or otherwise asserts or seeks to assert a lien, encumbrance or
adverse claim againist any portion or all of the Collateral,
(e) Except as otherwise provided in this paragraph (e) and sub I J ect to
Section 11(b) hereof, Acquisition Fund Custodian may allow Lessee to effect sales, trades,
transfers and exchanges of Collateral within the Acquisition:fund, but will not, without the prior
written consent of Lessor, allow Lessee to withdraw any Collateral from the Acquisition Fund.
ri I
Acquisition Fund und Custodian acknowledges that Lessor reserves the tight, by detivery of written
notice to Acquisition Fund Custodian, to prohibit Lessee from effecting any withdrawals
(including withdrawals of ordinary cash dividends and interest mcome), sales, trades, transfers or
exchanges of any Collateral held in the Acquisition Fund. Further, Acq-tiisition Fund Custodian
hereby agrees to comply with any and all written instructions delivered by Lessor to Acquisition
Fund Custodian (once it has had a reasonable opportunity to comply therewith) and has no
obligation to, and, will not, investigate the reason for any action taken by Lessor, the amount of
any obligations of Lessee to Lessor, the validity of any of Lessor's claims against or agreements
with Lessee, the existence of any defaults tinder such agreements, or Miy other matter.
(f) Lessee hereby irrevocably authorizes Acquisition Fund Custodian to
comply with alt 'instructions and entitlement orders delivered by Lessor to Acquisitioll -rund
Custodian,
(g) Acquisition Fund Custodian will not attempt to asset l control, and does
not claim and will not accept any security or other interest in, any part of the Collateral, and
Acquisition Fund Custodian will not exercise, enforce or attempt to enforc& any right of'setoff
against the Collateral, or otherwise charge or deduct from the Collate-ral anyainount whatsoever,
(h) Acquisition Fund Custodian and Lessee hereby agree that any property
held in the Acquisition Fund shall be treated as a financial asset under such section of die
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i
Commercial Code as corresponds with Section 8-102 of the Uniform Commercial Code,
notwithstanding any contrary provision of any other agreement, to which Acquisition Fund
Custodian may be a party.
(i) Acquisition Fund aistodian is hereby authorized and instructed, and
hereby agrees, to send to Lessor at its address set forth in Section 7 below, concurrently with the
sending thereof to Lessee, duplicate copies of any and all monthly Acquisition Fund statements
or-reports, issued or sent to Lessee with respect to the Acquisition Fund,
7. Miscellaneous. Capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Lease. 'his Agreement may not be amended except in writing
signed by all parti"es hereto. This agreement may be executed in one or more counterparts, each
of which shall be deerned to be an original "Instrument and each shall have the force and effect of
an original and all of wbich together constitute, and shall be deemed to constitute, one and the
,same instrument, Notices hereunder shall be made in writing, and shall be deemed to have been
duty given when personally delivered or when deposited in the mail, first class postage prepaid,
or delivered to an express carrier, ' I or sent by facsimile with. electronic
, charges prepaid,
confirmation, addressed to each party at its address below:
If to Lessor', Johilson Controls, Inc.
507 East Michigan Street
Mil waukee W I s,cons'I
n 53201-0423
Attn.
Fax
If to Lmee: City of Fort Worth
1000 Throclo-norton Street
Fort Worth, Texas 76102
Attn: pity Manager
Fax: �i-7— 3 1 Z — G t 34
If to Acquisition
Fund Custodian: Deutsche B(-u-d c National Trust Company
200 South Tryon Street, Suite 550
Charlotte,1 NC 28202
Attn: Michael Weber
Phone: 704333-5744
Fax-, 704-333-5852
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In Witness Whereof, the parties, have executed this Acquisition Fund and Account
Control Agreenient as of the date first above written.
,As Lessee: City of Fort Worth
do
Fernando Costa
Assistant City Manager
Approved as to Fors-n and,Legality: Attested By,.,
Amer J. I-aInsey N4arty Hendrix
Assistant City Mey City SecretaTy 0
A7 0000130 ok
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No 0 Q0
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As Lessor: Johnson Controls,Ine. 0 0
0
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010000000 14Y
Slgnattuv: "Or fir `'
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Michael Crowe
Re 91 ional Vice President
Date-.
AsAcquisition Fund Custodian,., Deutsche Bank National Trust Company
Sig-at-we:
Name Printed-,
Title.-
Date:
........
FFK"I"', IC TH -T 10oY NN&
M
DOAL RECOI R�I
UII RETA"dE
F"TRWO ,,
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SCHEDULE
to the Acquisition Fund and Account Con rol Agreement
FORM OF DISBURSEMENT REQUEST
Re-, Municipal Equipment Lease Purchase Agreement dated as of S temb�er 7, 2010 by and
between Johnson Controls, Inc., as Lessor, and the City of Fort Worth, Texas, as Lessee
(the "Lease,") (Caplitalized terins, not otherwise defined herein shall have the meanings
assigned to them in the Lease.)
In accordance, with the terms of the Acquisition Fund and Account Control Agreement,
dated as of S eptemb er 7, 2010 (the "A equisillon.Fund and Account Control Agreement") by and
among Johnson Controls, Inc. ("Lessor'), the City of Fort Worth, Texas ("Lessee") and
Deutsche Bank National Trust Company (the "Acquisition Fund Custodian"), the undersigned
hereby requests the' Acquisition Fund Custodian pay the following persons the following
amounts from the Acquisition Fund created under the Acquisition Fund and Account Control
Agreement for the following purposes,.
Payee's Name and Address Invoice Number Dollar Amount Purpose
The Lindersigned hereby certifies as follows,-,
(0 An obligation in the stated amount has been incurred by Lessee, and file same is a
proper charge against the Acquisition Fund for costs relating to the Equipment identified in die
Lease, and has not been paid or has been paid by Lessee and Lessee requests reirnbursei-nent
thereof), and the Equipment relating to such obligation has been delivered, installed and accepted
by Lessee. Attached hereto is the original invoice with respect to such obligation.
(ii.) The undersigned, as Authorized Representative, has no notice of any vendor's,
mechanic's or other liens or rights to liens, chattel mortgages, conditional sales contracts or
securtty interest which should be satisfied or discharged before such payment is made.
iii'11) his*is requisition contains no item representing p�ayment on account, or any
retained percentages which Lessee is, at the date hereof, entitled to retain (except to the extent
such amounts represent a reimbul'sement to Lessee).,
(iv) The Equipment is insured in accordance with the Lease.
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In Witness Whereof, the parties have executed this Acquisition Fund and Acwunt
Control Agreement as of the date first above written.
As Lessee: City of Fort Worth
Femando C'osta
Assistant City Manager
Approved as to [,'orm and Legality: Attested By
Amy J.Ramsey m Hendrix
Assistant City Attorney City Secretary
As Lessor-. Johnson Controls,Ine.
Si gn atum
Michael Lowe
Regional Vice President
Date:
As Acquisition Fun Us"lat Deutsche Bank National Trust Co,m loon
Slipature, Signature:
U
*N, =e Printcjl N wn e r i nt cc"' Pa 1:Vad,en
TrUSt,UTTmIr
Title: Vice President Tidell,
Date: Date:
(v) No at ,al Adverse Change has occurred and no; Event of Default, and no event,
which with notice or lapse of time, or both, would become an Event of Default, under the Lease
has occurred and is continuing at the date hereof.
(vi) The disbursei-nent shall occur during the Acquisition Period.
it The representations, warranties and covenants of Lessee set forth in the Lease are
true and correct as of the date,hereof
Dated
,CITY OF FORT WORTH,TEXAS,
ByO-
Authorizea Representative
Disbursement of Rinds from the Acquisition
Fund in accordance with the foregoing
Disbursement Request hereby is autborized,
Johnson Controls, Inc,
as Lessor under the Lease
By
Maine
Title:
s , �,�a
EXHIBIT I
No ARnn"RAGE CERTIFICATE
1, the undetsigned Authorized Officer of the City of Fort Worth(the "Lessee ),tuake this
certification for the benefit of all persons interested in the exclusion. from gross, income for
federal income tax purposes of the interest component of the Rental Payments under that certain
MUNICIPAL EQUIPMENT LEASE/PURCHASE AGREE MENIA, dated as of September 7,
2010 by and between Lessee and Jol-Lnson Controls, Inc, as lessor("Lessor").
RESPONSIBLE OFFICER. I AM THE DULY CHOSEN, QUALIFIED AND ACTING OFFICER OF
LESSEE FOR THE OFFICE SHOWN BELOW MY SIGNATURE. As sucH.I AM FAMILIAR wITH THE FACTS
HEREIN CERTIFIED AND I AM DULY AUTHORIZED TO EXECUTE AND DELIVER THIS CERTIFICATE ON
BEHALF OF LESSEE. I AM THE OFFICER OF LESSEE CHARGED, ALONG WITH OTHER OFFICERS OF
LESSEE,,,WITH THE RESPONSIBILITY FOR ISSUING T11E,AGREEMENT.
PURPOSE. THIS CERTIFICATE IS BEING EXECUTED AND DELIVERED PURSUANT TO
SECTIONS 1.148-0 THROUGH 1.148-11, 1.149(D)(1)3 1.149(G)-I) 1.150-1 AND 1.150-2 OF THE
TREASURY REGULATIONS(THE"REGUL "IOMV).
DEFINITIONS, Ti4E CAPITALIZED TERMS USED IN THIS CERTIFICATE (UNLESS OTHERWISE
DEFINED) THAT ARE DI FINED THE AGREEMENT SHALL FOR ALL PURPOSES HEREOF HAVE-,, THE
MEANINGS, THEREfN SPECIFIED. ALL SUCH TERMS DEFINED, IN THE, INTERNAL REVENUE, CODE OF
1986,AS AMENDED THE"COD ri OR RFGULATIONS SHALL FOR ALL PURPOSES HEREOF HAVE THE
MEANINGS AS GIVEN TO THOSE TERMS IN TIC E CODE AND REGULATIONS UNLESS THE CONTEXT
CLEARLY REQUIRES OTHERWISE.
REASONABLE EXPECTATIONS. THE FACTS AND ESTIMATES THAT ARE SET FORTH IN' THIS
CERTIFICATE ARE ACCURATE, AND THE EXPECTATIONS SET FORTH IIERE,rN ARE REASONABLE IN
LIGHT OF SUCH FACTS AND ESTIMATES. "I I HE UNDERSIGNED IS AWARE OF NO FACT, ESTIMATE OR
CIRCUMSTANCE, THAT WOULD CREATE ANY DOUBT REGARDING THE ACCURACY OR
REASONABLENESS OF SUCH FACTS,ESTIMATES OR EXPECTATIONS.
DESCRIPTION OF GOVERNMENTAL PURPOSE AND SIZE. LESSEE IS ENTERING INTO THE
AGREEMENT FOR THE PURPOSES OF FUNDING THE ACQUISITION OF THE EQuiPMENT.
i i
The Equipment will be owned, operated,,, and maintarined by Lessee, and Lessor
has not contracted in any, man-ner with any company, -firm or other person or entity to
operate or maintain the Equipment or any part thereof for and on behalf of Lessee.
There is not, and as of the date hereof, Lessee does not anticipate entering into,
any lease, contract or other-understanding or arrangement, such as a take-or-pay contract
or output contract, with any person,other thaa a State or local goverru-nentat imit,pLies uant
to which Lessee expects that the proceeds of the Agreement, or the Equipment financed
therewith or any part thereof, will be used in the trade or business of si'uch, person
(inc''udiing all activities,of such persons who are not individuals),
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"J"he amotmts received, from the Agreement, when added to the amounts expected
to be received fi-on-i any investment thereof, do not exceed the amounts required to pay
the costs of the Equipment, 'Including payment of the Total Contract Price.
No other obligations of Lessee payable frorn the same source of funds that were
sold or delivered within 'fifteen(15) days from the date hereof.
AMOUNT AND USE OF PROCEEDS OF THE AGREEMEN"I". THE PROCEEDS OF THE AGREEMENT
ARE$15,365,397 OF WHICH OF$761000 IS FOR PAYMENT OF THE COSTS OF ISSUANCE, THERE IS NO
ACCRUED, INTEREST ON THE AGREEMENT. LESSEE WILL PAY FROM ITS OWN FUNDS ANY OTHER
COST OF ISSUANCE. NO PROCEEDS WILL BE, USED TO PAY,, REFUND1,1 RETIRE OR REPLACE- ANY
GOVERNMENTAL OBLIGATIONS PREVIOUSLY ISSUED. rl"HE PROCEEDS WILL BE USED AS FOLLOWS'.
rl'rhe amount of$15 289,,397 is expected to be disbursed to pay or reimburse the
costs of acquisition of the Equipment. The aggregate amount of the costs of acquisition
of the Equipment is anticipated to be not less than such amount. Any costs of the
Equipment not financed out of the proceeds of the Agreement, or any investment
Proceeds thereof,will be financed out of Lessee's, available funds.
No portion of the proceeds of the Agreement will be disbursed to reimburse
Lessee for any expenditures made by Lessee, unless (1) prior to the date that is 60 days
before the date hereof or the date that is 60 days prior to the date Lessee adopted or
expressed its official intent to reimburse such expenditures meeting the requirements of
Section 1.150-2(e)(1) of the Regulations; (i 0 the expenditure is a capital expenditure, an
extraordinary working capital, itern or grant; and (iii the reimbursement is made not later
than 18 months: after the later of (A) the date of the expenditure or (B�)the date the
Equipment was placed 'into service or abandoned but not more than three (3) years after
the date of expenditure.
INVESTMENT PROCEEDS. LESSEE DOES NOT EXPECT TO INVEST ANY OF THE PROCEEDS OF
THE AGREEMENT PENDING EXPENDITURE OF SUCH PROCEEDS FOR COSTS OF ACQUIRING THE
EQuIPMENT. ANY INVESTMENT EARNINGS WILL BE USED TO PAY OR RIB SE THE TOTAL
CONTRACT PRICE OF'THE EQUIPMENT IN ADDITION TO,THOSE DESCRIBED IN PARAGRAPH 6 ABOVE.
No REPLACEMENT PROCEEDS. LESSEE FIAS NOT ESTABLISI-IED AND DOES NOT EXPEL"""TO:
ESTABLISH ANY SINKING FUND, DEBT SERVICE FUND, REDEMPTION FUND, RESERVE FUND,
REPLACEMENT FUND OR SIMILAR FUND TO BE USED TO PAY, DIRECTLY OR WDIRECTLY, PRINCIPAL
OR INTEREST ON THE AGREEMEN1% Lp-.ssEr-- HAS NOT PLEDGED OR OTHERWISE RESTRICTED AND
DOES NOT EXPECT TO PLEDGE, OR RESTRICT ANY OTHER FUNDS OR PROPERTY WHICH AS A RESULT
OF THE PLEDGE OR RESTRICTION COULD BE REASONABLY ASSUIWD '"FO BE AVAILABLE TO PAY,
DIRECTLY OR INDIRECTLY) PRINCIPAL OR INTEREST ON TUE AGREEMENT, EVEN vp; LESSE.E.,
ENCOUNTERS FINANCIAL DIFFICULTY.
EFFECTIvF, RATE OF INTEREST AND 'AM. THE LESSOR 14AS kDVISED THE LESS EETHAT
THE EFFE-crIVE RATE OF TNTERES"I'ON THE AGREEMENT is 3.69
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The Lessor has advised the Lessee that the weighted average maturity of the
obligations inciirred -under the Agreement 'is 7.79 years. The weighted average maturity
of Schedule A No. I does not exceed 120% of the weighted average reasonably expected
economic life in die bands of Lessee of the equipment financed by the Agreement.
IRS Fow8038-G. ATTACHED HERETO As EXHIBIT A IS A COPY OF THE IRS FORM 8038-C-1
REQUIRED TO BE FILED WITI-1 THE INTERNAL REVENUE,SERVICE. TO THE BEST OF MY KNOWLEDGE,
THE INFORMATION fNCUJDED1 IN THE, ArrrACKED IRS FORM 80381-G IS TRUE, ACCURATE, AND
COMPLETE,
REBATE, LESSEE DOES NOT EXPECT TO BE REQUIRED TO MAKE ANY REBATE PAYMENTS TO
THE UNITED STATES PURSUANT TO SECTION 148(F) OF THE CODE BECAUSE LESSEE EXPECTS THAT
THE GROSS PROCEEDS OF THE AGREEMENT(WITHIN THE MEANING OF SECTION 14 (F`)(4)(13)OF THE
CODE) WILL BE EXPENDED FOR THE GOVERNMENTAL PURPOSE FOR WHICH THE AGREEMENT IS
ENTERED INTO AS FOLLOWS
At least 15 percent within 6 months,
At least 60,percent within 12 rmonths-
100 percent within 18 months fi-om the date hereof.
L i
,Lessee has covenanted, however, n the Agreement that in the event that Lessee should be
required to make rebate payments to the United States pursuant to section 148(f) of the Code,
Lessee will make such payments as and When provided in the Code and Regulations.
No ARTIFICE OR DEVICE. IN CONNECTION WITH THE ISSUANCE OF THE AGREEMENT,
LESSEE IIAS NOT (A) EMPLOYED ANY ABUSIVE ARBITRAGE DEVICE, OR (B) OVER-13-URDE-NED THE
MARKET FOR TAX-EXEMPT OBLIGATIONS,
AGREEMENT NOT HEDGE BONDS, LESSEE EXPECTS TO EXPEND WITFIrN THREE (3), YEARS
FROM THE DATE HEREOF, IN ADDITION TO TFIE COSTS OF ISSUANCE OF THE AGREEMENT, AN
AMOUNT OF PROCEEDS OF THE AGREEMENT EQUAL TO NOT LESS THAN 85%OF THE NET PROCEEDS
OF Ti-rE AGREEMENT, No PROCEEDS OF THE AGREEMENT HAVE BEEN OR WILL BE INVESTED IN
NON-PURPOSE INVESTMENTS WHICH HAVE SUBSTANTIALLY GUARANTEED YIELD FOR FOUR (4)
YEARS OR MORE.
No CHANGE IN USE. THE LESSEE, DOES NOT'EXPECT TO DISPOSE OF ANY PORTION OF THE
i
EQUIPMENT, OR TO CHANGE THE USE OF T'HE EQUIPMENT PRIOR TO TERMINATION OF THE
A G R F,E M ENT,
TEMPORARY PERIOD RiE-OUIREMENTS. LESSEE HAS OR WILL, WITHIN SIX MONTHS OF
ISSUANCE OF Tm..,AGREEMENT, ENTER INTO A CONTRACT FOR THE ACQUISITION OF THE EQUIPMENT
PURSUANT TO WHICH LESSEE IS OR WILL BECOME OBLIGATED TO PAY AT I...EAST 5% OF THE COS"rs
OF TIIE EQUIPMENT FINANCED BY THE AGREEMENT. LESSEE EXPECTS TO COMPLETE THE
ACQUISITION WITH DUE DILIGENCE AND EXPEND ALL OF THE PROCEEDS OF THE AGREEMENT BY A
DATE,NO LATER THAN 3 YEARS FROM THE DATE HEREOF,,
No ARBITRAGE. ON THE BASIS OF THE FOREGOING FACTS, ESTIMATES AND
CIRCUMSTANCES, IT IS EXPECTED THAT THE GROSS PROCEEDS OFT E AGREEMENT WILL NOT BE
-6o-
USED IN A MANNER THAT WOULD CAUSE ANY OBLIGATION TO BE AN ".4R)3ITRAGE BOND WITHIN
THE MEANING OF SECTION 148 OF THE CODE AND THF-REGULATIONS.
WITNESS MY RA11,41),THIS -112010.
Lessee: City of Fort Worth
.............0...........
Signature-,
Fernando Costa
.Assistant City Manager
Date: Y//L10
Approved as to F and Legal t Attested By:
01,01 01 0 0,0
Amy J. Rams Marty Hendrix 9 u 00,
0 A4 a �
10
Assistant Cl* ttorney City Secretary F1 oft 0, 01
0
00
0 0
Date:, Date!: 0
0 00
000000OU00
RECORD
R'Yl'
SECRE"
FT, ,,,WORTK Tx
-61-
SCHEDULEI
to the No Arbitrage Certnicate
INSERT 8038 HERE
-62-
Forrin 8038 Information Return Tax-Exempt
(Rev.June g1 T) Private Actiovi"ity, Bond Issues OMB No. 1545-0720
Deparlment of the Treasury (Under Internal Revenue Code section 149(e))
Internal RevenUe SerViCe ► See separate instructions.
1:M- al Reporting Authori'!y Check if Amended Return Illi► El
1 Issuer's name 2 Issi employer ideMificabon nunbeir(EIM
3 Number and street(or P.O. box if mail is not delivered to street address) Room/suite 4 Report number(For/PS Use Only)
L
5 City,town,or post office,state,and ZIP code 6 Date of'issue
'7 Name:of issue, 8 CUSIP number
9 Narne and title of officer of the issuer or other person whom the IRS may call for more mforr-natiton 10 Telophoine number of offiiceir or other person
0M )e of Issue (Enter the issue_price for each Issue Price
11 Exempt facility bond:
a Airport (sections 142(a)(1) and 142(c)) . . . . . . . . . . . . . . . . . . . 11a
b Docks and 'wharves, (sections 11142,(a)1(2) and 142(c)). . . . . . . . . . . . . . 11b
c Water furnishing facilities (sections 142(a)(4) and 142(e)) . . . . . . . . . . . . 11C
d Sewage facilities (section 142(a)(5)) . . . . . . . 11d.,
e Solid waste disposal facilities (section 142(a)(6)). . . . . 11e
f Qualified residential rental projects (sections 142(a)(7) and 142(4)) (see instructions).
Meieilting 20-,510 test, (section 142(d)(1)(A)) . . . . Li Fl
Meeting 40-60 test (section 142(d)(1)(13)) . . . . . . . . . . .
Meeting 25-60 test (NYC only) (,section 142(d)(6)) . . . . . . . . . .
Has an election been made for deep rent skewing (section 1142(d)(4)(B))? Yes No
g Facilities for the local furnishing of electric energy or gas (sections 142(a)(8) and 142(9) 11g_
h Facilities,allowed under a transitional rule, of the Tax Reform Act of 1986(see instructions) 11 h
Facilitytype ------------------------------------------------------------------------------I .................
1986 Act section .....................................--------_-----------------------------------------
i Qualified enterprise zone facility bonds (section 1394) (see instructions) . . . . . . . .
J Qualified empowerment zone facility bonds (section 1394(f)) (see instructions) 11
k, District of Columbia Enterprise Zone facility bonds(section 1400A) . . . 11k
I Qualified public educational facility bonds (sections 142(a)(13) and 142(k)). . . . . . . . ill
m Qualified green building: and, sustainable design, projects,(sections, 1142(a)(1�4) and 142(l)) . . . 1,1M:
n Qualified highway or surface freight transfer facilities (sections 142(a)(15) and 142(m)) 11 n
7 777777
o Other(see instructions) ................... ...... ............. .......... ....... ................
p Qualified New York, Liberty, bonds (section 1400L(d)) ----------------------------------------------- 11P
q Other(see instructions) 11q
12a Qualified mortgage bond (section, 1i 43(a)) . . . . . . . . 1,2a
b Other(see instructions) _-........ .................................... ................... ......... 12b
13 Qualified veterans' mortgage bond (section 143(b)) (see instructions) 13
Check the box if you elect to rebate arbitrage profits to the United States, . . . . . El 1 r�Jf !'f'1%��!�1/;�/
14 Qualified small issue bond (section 144(a)) (see instructions) .. . .. . . .. . . . . . .0, 14
Check the box for$110 million small issue exernipition , . . ., . , . . o MINE
15 Qualified student loan bond (section 144(b)) . , , . . . . . . . . . . . . 15
16 Qualified redevelopment bond (section 144(c)) 16
17 Qualified hospital bond (section 145(c)) (attach schedule—see instructions) . . . . . . . 17
18 Qualified 501(c)(3) nonhospital bond (section 145(b)) (attach schedule—see instructions) . . . 118
21!
10
A
Check box if 9:5% or more of net proceeds, will be used only for capital expenditures,
19 Nongovernmental output property bond (treated as private activity bond) (section 141(d)). . . 1 .......
20a Other (see instructions) .............................................................................
b New York Liberty Zone advance refunding bond (section 140OL(e)) (see instructions) .............. 20b
c Other. Describe(see instructions) No- J 20c
Description of Bonds (,Complete for the entire issue for which thiiis, form is being.,f led.)
(a)Final maturity date (b)Issue price (c)Stated redemption (d)Weighted (e)Yield
price at maturity average maturity
$ $ ears %
For Privacy Act and Paperwork Reduction Act Notice,see separate instructions. Cal.No.49973K Form 8038 (Rev.6-2010)
Fern 8038(Rev, -2010) Pave 2
Uses of Proceeds of Issue (including underwriters` discount Amount
22 proceeds used for accrued interest. 22
2 Issue of e nti re issue (e nt r amount fr rn line 2,1, column b 23
24 Proc eeds used fo r a nd Issuance casts(including underwriters' discount
25 Proceeds used for credit enhancement .
28 Proceeds allocated to reasonabily required reserve or replacement fund
27 Pr oceeds used to cu rr ently refund prior Issue (complete art ul} .
��� f,if✓l,.,/-���1, �/�%ii,,.
2.8 proceeds used to advance refund riot Issue (complete Fart P'l �
p � p ,
29 Add lines 24 through 28 . , , 2
30 l 'anrefundin roceeds of the issue subtract line 9 from line 23 and enter amount here 34
Description of Property Financed by Nonrefun,ding Proceeds
Caution: The total of lines 31a through e below must equal line 30 above. Do not complete for qualified student loan
bonds, qualified mortgage bonds, or qualified veterans'mortgage bands"
31 Type of Property Financed by ' onrefundling Proceeds: Amount
a Land . " . , . . " .
Buildings and structures . . . . . . . .
31b
c Equipment wi th recovery period of more than �years . 31c
d Equipment with recovery period of 5 years or less. . . . . . . . . . . , . , . . 31 d
e Other. Describe (see instructions)10, 31 e
32 North American industry Classification System ( 'AIC3) of the projects financed by nonrefunding proceeds.
NAICS Code Amount of nonrefunding proceeds NAILS Code Amount of nonrefunding proceeds
-
a c
b $ d
Descri tion of Refunded Bands Complete this art 2EIy for refund ing bends.
33 Enter the remaining weighted average maturity of the bonds to be currently refunded. years
34 Enter the remaining weighted average maturity of the bonds to be advance refunded . ► years
35 Enter the last date on which the refunded bonds will be called . . . . . . , ►
38 Enter the date s the refunded bonds were issued 01o,
[= Miscellaneous
37 Name of governmental unit(s) approving issue (see the instructions) 00- ....... . ........._..... _ ,.. __.........._........ _...
38 Check the box if you have designated any issue under section 85(b)(3)(B)(i)(III). . . . . . . . . . . . , ■ EJ
30 Check the box if you have elected to pay a penalty in lieu of arbitrage rebate
40 Check the box if you have identified' a hedge (see instructions) . . . " . . . , ,. . . . , . . . . " ► �
41 Check the box if the issue is comprised of qualified redevelopment, qualified small issue, or exempt facilities bonds and
provide name and EIN of the primary private user. w M► EJ
Dame Ells N
10-Milo "Volume Caps Amount
42' Amount of state volume cap, allocated to the iissuer..Attach copy of state certification . 42
43 Amount of issue subject to the unified state volume cap, , 43
44 Amount of issue not subject to the unified state volume cap or other volume limitations: 44
a Of bonds for governmentally owned solid waste facilities,airports,docks,wharves,environmental
enhancements of hydroelectric generating facilities, or high-speed intercity rail facilities " , , 44a
b Under a carry-forward election. Attach a copy of Form 8828 to this return , 44b.
C Under transitional rules of the Tax Reform Act of' 1 988. Enter Act section 1►......................... 44C
d under the exception for current refunding (section 14 (i)and section 1 1 3(a)of the Tax Reform Act of 1986) 44d
4ai Amouint of tissue of qualified veterans' mortgage bonds 'a
b Enter the ,state limit on qualified veterans' mortgage bonds 45b
8,a Amount of section 1394(o volume cap allocated to issuer, Attach copy of local government certification n6
f 'W",
f m averment gone ,f j ,
b Name e p ....................._._._....__.........__........_...__.._........____ ,?
47' Amount of section 142(k(5) volume cap allocated to issuer,Attach copy of state certification 47
Under penalties of perjury,I declare that I have examMned this return,.and accompanying schedules and statements„and to the best of rry knowledge
Signature and belief,they are true,correct,and complete.I further declare that I consent to the IRS's dusclesuire of the issuer"s return informations,as necessary
and to process this return,to the person that I have authorized above.
Consent
Signature of issuer's authorized representative Date Type or print name and title
Date P`reparer" �� or PTIt�
Preparer"s (heck if
' �� si nature
self.emplo ed`D
Pre a re r s
Firm's name(or Flag
Use O,niliy yours if self-employed),
address,and ZIP code Phone no.
Form 3038 (Rev.6-2010)
EXHIBIT J
REQUEST r,R SALES TAx ExEo MPTION F1 ORM AND LEGAL DESCIUPTIONS
[Insert Sales Tax Exemption Form,-cmd Legal Descripfions Here]
-63.
TEXAS CERTIFICATE OF EXENtPT'ION
I claim an exemption from payment of sales and use taxes for the purchase of taxable items,described
below or on the attached order or invoice.
Description of Items(or an attached order or Invoice)To Be Purchased-,
I claim this exemption for the following reason:
flame of Exempt Organization: CITY OF FORT WORTH,TEXAS
'ITXAS SALES AND USE TI AX PERMIT NUMBER 1-75-6000528-6
Project for which materials and supplies are purchased:
I understand that I will be liable for payment of sales tax,which,may become due for failure to comply
with the provisions of the state,city,and/or metropolitan transit authority sales and use tax laws and
comptroller rules,regarding exempt purchases. Liability for the tax will be determined by the pri ce paid
for the taxable items purchased or the fair market rental value for the period of time used.
I understand that it is a misdemeanor to give an exemption certificate to the seller for taxable items which
I know,at the time of the purchase,will be used in a mm-mer other than that expensed in this certificate
and,upon conviction,may be fined up to$500 per offense.
Tax ExMpt Status Due to Being a Govenuriental En!Lty
Purchaser: CITY OF FORT WORTH,TEXAS
Street Address: 1000 THROCKMORTON ST' T
City,State,Zip Code: FORT WORTH,TEXAS 76102
Sip Here- Date: Junell,2009 Phone: 817-392-8517'
'I -44� JUL
r Al
rina nci p( a mid4s Director
This certificate does not require a number to be valid. Sales and use tax"ex peon numbers"'or Max
exempt"numbers do not exist.
This certificate should be furnished to the supplier. Do not send the completed certificate to the
Comptroller of Public Accounts.
Page I of 3
City of Fort Worth., Texas
I A01% a I 101ft
ma% ,wor andu' ounci t;,o unication
Y
COUNCIL ACTION: Approved on 7/2012010 Ord. No. 19239-07-201,0
wwmmwxm
DATE, Tuesday, July 20, 2010 REFERENCE NO.: C-24360
LOG NAME: 60VC PHASE, V SECTION 2,
SUBJECT:
Authorize Contract Amendment No. 5 in the Amount of$17,889,397.00 to City Secretary Contract No.
291110 with Johnson Controls, Inc., and the Execution of Related Agreements to Implement Phase V,
Section 2 of the City's Energy Savings Performance Contract at Village Creek Wastewater Treatment Plant
and Adopt Appropriation Ordinance (ALL COUNCIL DISTRICTS)
RECOMMENDATION,a
It is recommended that the City Council:
1., Authorize the City Manager to execute a Municipal Equipment Lease-Purchase Agreement in the
principal amount of$15,365,397-00 with Johnson Controls, Inc., at 3.69 percent interest for a total cost of
$19,782,691.16 to finance the implementation of the City's Energy Savings Performance Contract, Phase
V, Section, 2 at Village Creek Wastewater Treatment Plant;
2. Authorize the City Manager to execute an Escrow Agreement with Johnson Controls, Inc., and
Deutsche Blank Nationial Trust Company, as Escrow Agent, in accordance, with the Municipal Equipment
Lease-Purchase Agreement;
3. Adopt the attached appropriation ordinance increasing estimated receipts pts and appropriations in the
Sewer Capital Projects Fund by $15,365,397.00 from available funds for Phase V, Section 2 of the City's
Energy Savings Performance Contract with Johnson Controls, Inc., and
4. Authorize the City Manager to execute Amendment No. 5 in the amount of$17,889,397.00 to City
Secretary Contract No. 29110 with Johnson Controls, Inc., to implement Energy Savings Performance
Contract, Phase V, Section 2 at Village Creek Wastewater Treatment Plant.
DISCUSSION,
On September 2, 2003, (M&C C-19739) the City Council authorized an Energy Savings Performance
Contract, Phase I with Johnson Controls, Inc. Subsequently,, ES,PC Phlasiels, 11, 111 and lVwere approved
respectively by Amendment Nos. 1, 2, and 3.
on September 23, 1200181 (M&C C-23046) the City Council, authorized a contract,with Johnson Controls,
Inc., (JCI) to conduct a detailed energy study of the Village Creek Wastewater Treatment Plant(WWTP)
as Phase V of the successful Energy Savings Performance Contract(ES PC) Project. 'The study is
complete and the product of this study, the Utility Assessment Report(UA,R)l, dated November 2009, has
been reviewed and approved by City staff. Kinsman and Associates Engineering Consultants retained by
the City as an independent third-party reviewer(M&C C-23788), has reviewed the report and verified that
the project costs,, guaranteed, savings, and measurement & verification methods are appropriate.
On February 02, 2010, (M&C C-24070) the City Council authorized Amend me nt No. 4 to the City's ESPC
for implemen�ta,tioln of ESPC Phase V, Section 1 at the Village Creek WWTP. On that same date (IR No.
9185), City Council was informed of City staffs intent to forward an M&C seeking authorization to execute
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Page 2 of 3
an agreement to implement the ESPC Phase V, Section 2 project at the Village Creek WWTP.
The proposed ESPC Phase V, Section 2 scope of work includes energy- and operations related
conservation measures and treatment process facility improvement measures to be installed at the Village
Creak WW'TP. The recommended measures include Turbi e Waste-H eat Recovery, Anaerobic Co-
Digestion, Digester Mixing Upgrades and Aeration Anoxic Zones.
The total JCI contract amount for Phase V, Section 2 is $17,889,397,00. This amount includes
$2,600,000.00 for Final Engineering and' Construction Management, which will be funded through l existing
Sewer Capital Projects Fund appropriations. After implementation of the improvements included in Section
2, the first-year electricity savings are estimated' to be $11,528,,9,71.0,0. Including, other cost avloli'd!anc,el, the
simple payback period is about 11 years. While more than the 10-year payment target desired, City staff
and' its third-party reviewer deem it reasonable, and appropriate l for the scope of'wolrk included, and well
within the 20-year limit set in the applicable Texas state law.
In accordance with the City's existing ESPC and as allowed by Texas Local Government Code Chapter
30l2, JCI published a Request for Bid for a Municipal Equipment Lease-Purchase (Municipal Lease)
agreement to finance the recommended project. This resulted in JCIs best value selection of All American
Investment Group,, LLC C IG to provide, this financing through JCI. With the concurrence of City staff,
the recommended Municipal Lease financing agreement with JCI will utilize this financier resulting in a
total principal and interest cost to t'he City Of$19,1782,,691-16 to fund the project construction including a
$76,000.00 underwriting fee. The annual appropriation for the Lease-Purchase payments will be included
in the operating budget requests for Water & Sewer and will be offset by electricity savings at the Village
Creek WWTP.
'The recommended Escrow Agreement with JCI is a necessary attachment to the Municipal Lease,
allowing for progress payments to be made to JC1 during the construction phase of the recommended
project. The escrow bank associated with All' American Investment Croup, LLC C IG is Deutsche Bank
National Trust Company. JCI will submit progress pay requests to the City for approval of contracted work
complete. City approved pay requests will' then be submitted' for payment directly from the escrow account
with Deutsche Bank National Trust Company to JCI for the completed work.
As part of the recommended contract and in accordance with Chapter 302, JCI will guarantee projected
savli�nig!s to the City and will perform on-going Measurement and Verification services under an annually
renewable Assured Performance Guarantee (APG) service agreement. As with all project costs, the cost
of the APG1 is included as an avoided cost to the City. JCI will also manage appropriate applications for
and secure potential utility incentives that may be available for the recommended project work.
Johnson Controls, Inc., is in compliance with the City's M/WBE Ordinance by committing to five percent
M/WBE participation. The City's goal, on this project, is five percent.
The Village Creek Wastewater Treatment Plant is located in CITY COUNCIL DISTRICT 5 and serves ALL
COUNCIL DISTRICTS.
FISCAL INFORMATION / CERTIFICATION:
The Financial Management Services Director certifies that upon approval of the above recolmmienid�ati�OnS,i,
and adoption of the attached appropriation ordinance, funds will be available in the current capital budget,
as appropriated, of the Sewer Capital Projects Fund.
.UN D CENTERS4,0,
TO Fund/Account/ mere FROM Fund/Accou nt/C enters
1 X58 487100 070580306420 $L5JQ51397.00 4) PS58 531200 070580306420 $21600 000-00
V_1__
�J P:S58 4871100, 070580306420 $J5_JQ5L3 .00 4) PS58 5l412010 07058,03,06,420 1_ TOO
jL_ � 5,,3
3) PS58 541200 070580306420 $15,365 365397.00
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Page 3 of 3
is$
,CERTIFICATION
Submitted fw ON Mianaaer"s Offic Fernando Costa, (6122)
Originiatinq Department Head: S. Frank Crumb (8207)
Additional Information Contact,,, Madelene Rafalko (8215)
ATTACHMENTS,
1. QOVC Phase V Section 2 B'FT.p_of (CFW Internal)
2. 60VC PHASE V SECTION, 2 MAP.pdf (Pu lic)
I 60VC PHASE V SECTION 2 M,WBE.pdf (CFW Internal)
4. 60VC Piave V Section 2 A 'f (P l'ic)
http://apps-cfwnet.org/ecounciI/pr-intmc.asp'.?id=13767&print=true&DocT:ype=Print 8/24/2101 10