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HomeMy WebLinkAboutContract 45350 (2)CITY SECRETS VEHICLE WEIGHT ENFORCEMENT cp�ma�±Y351.) . EQUIPMENT LEASE (GENERAL ELECTRODYNAMICS CORPORATION) This Vehicle Weight Enforcement Equipment Lease ("Lease") is entered into be effective as of the first day of October, 2013 (the "Effective Date"), by and between General Electrodynamics Corporation, a Texas corporation ("Lessor"), and City of Fort Worth, Police Fiscal & Equipment Management, ("Lessee"). 1. Lease and License. , certain portable weighing equipment for use in Lessee's business (the "Equipment") upon the terms and conditions set forth in this Lease. The Equipment leased hereunder is more particularly described on Exhibit "A" attached hereto and made a part hereof. The Equipment shall be used by Lessee at its place of business located in Fort Worth Texas_(the "Licensed Location"), or at such other location as shall be approved in writing by Lessor. In connection with and as part of this Lease, for the Tern of the Lease, Lessor grants to Lessee a non-exclusive, non -transferable license for the use of the vehicle weighing software program and other intellectual property of Lessor that is contained within the Equipment (collectively, the "Intellectual Property"). This license shall terminate automatically whenever the Lease terminates or expires for any reason. 2. Lease Tenn. The "Commencement Date" shall be the date that the Equipment is first delivered to the Licensed Location. The "Tern" of this Lease shall be sixty (60) months commencing on the Commencement Date and expiring sixty (60) months after such date, unless this Lease is sooner terminate or extended, as hereinafter provided. At anytime during the Lease agreement, the City of Fort Worth may elect to purchase said equipment. 3. Rent. In consideration of the leasing of the Equipment and licensing of the Intellectual Property, Lessee agrees to pay to Lessor as rent the sums set forth below: (a) Monthly payments of $638.00 due and payable no later than the 10th day of each month commencing the first month after the Commencement Date, or 5 annual payments of $7645.00 and continuing to be due and payable no later than the 10t11 day of each month thereafter throughout the Tern of this Lease. (b) All payments shall be made payable to the order of General Electrodynamics Corporation, and mailed or delivered to 8000 Calender Road, Arlington, Tarrant County, Texas 76001, or to such other address as Lessor notifies Lessee in writing. RECEIVED Fie 0 7 2014 FBO EQUIPMENT LEASE OFFICM RECOM CITY SECRETARY �Yo WOR vretxf 9 (c) In the event any Rent is not received within thirty (30) days after its due date for any reason whatsoevei, then in addition to the past due amount, Lessee shall pay Lessor interest on the Rent then due at the Maximum Rate (but in no event to exceed one percent (1 %) per month), such interest to accrue continuously on any unpaid balance due to Lessor by Lessee during the period commencing with the Rent Due date and terminating with the date on which Lessee makes a full payment of all amounts owing to Lessor at the time of said payment. Interest payment shall be treated as additional Rent, and shalbe payable immediately on demand. Notwithstanding anything contained in this Section sq*_in this Lease to the contrary, no sum received by Lessor under this Lease as interest shall ever- the Maximum Rate, and Lessor shall immediately refund or credit Lessee any amount received under this Lease in excess of the Maximum Rate. For purposes of this Lease, the term "Maximum Rate' shall mean the greatest of the rates of interest from time to time permitted under applicable federal and state law. (d) In the event no funds or insufficient funds are appropriated by Lessee in any fiscal period for any payments due hereunder, Lessee will notify Lessor of such occurrence and this Lease shall terminate on the last day of the fiscal period for which appropriations we received without penalty or expense to the Lessee of any kind whatsoevei, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4. Training and Support. Within ten days of the Commencement Date, Lessor shall provide, at no additional charge, initial weight and balance training and certification to one or more agents of Lessee designated to be the operators of the Equipment. Thereafter, for a reasonable fee at Lessor's then current rates, upon request, Lessor will train and certify additional agents of Lessee to be operators of the Equipment. 5. Limited Warranty and Conditions. Lessor warrants to Lessee that: (a) Warranties* Lessor warrants to Lessee that: (1) the Equipment will perform in substantial accordance with the specifications and descriptions contained in the documentation or literature provided by Lessor to Lessee relating to the Equipment; (2) the accuracy of the Equipment will meet Federal Standards; (3) the Equipment, under normal use, will be free from defects in materials and workmanship; (b) Warranty Conditions: This warranty shall not apply if: (1) the Equipment is not used in accordance with Lessor's instructions; Page 2 of 9 (2) the Equipment (or the Intellectual Property) has been modified or altered without the prior written consent of Lessor; or (3) any improper act or omission of Lessee causes the malfunction of the Equipment. (c) Warranty Remedies: Lessor's obligations for a breach of the warranties in the Agreement is limited to, at Lessor's sole discretion, making corrections or replacing the non- performing item, or if the corrections or a replacement cannot be made after reasonable effort, permitting Lessee as its sole remedy to terminate this Lease and all Licenses granted hereunder. Such correction, replacement or termination shall be Licensee's sole remedy for breach of this warranty. The liability of Lessoi to Lessee with respect to the Equipment shall in no event exceed the amount actually received by Lessoi from Lessee with respect to each item of Equipment to which any such relates. 6. Lessee's Representations and Warranties. None. 7. Use Lessee shall use the Equipment in a careful and proper manner and shall comply with and conform to all national, state, municipal and other laws, ordinances, and regulations in anywise relating to the possession, use or maintenance of the Fquipment. If at any time during the term of the Lease, Lessor supplies Lessee with labels, plates or other markings, stating that the Equipment is owned by Lessor; Lessee shall affix and keep the same upon a prominent place on the Equipment Lessee agrees that it shall not permit the name of any person interpreted as a claim of ownership or security interest. 8. Lessor's Inspection Lessor shall during business hours, and only twenty-four (24) hours written notice to Lessee, have the right to entei into and upon the premises where the Equipment may be located for the purpose of inspecting the same or observing its use; provide, however, Lessor may not thereby interfere with Lessee's business operations Lessee shall give Lessor immediate notice of any attachment or the judicial process affecting any part of the Equipment and shall, whenever requested by Lessor, advise Lessor of the exact location of the Equipment. 9. Alterations. Without the prior written consent of Lessor which consent may not be unreasonably withheld, Lessee shall not make any alterations, additions or improvements to the Equipment. Any permitted alterations, additions or improvements may, at Lessee's option, be removed by Lessee upon the expiration or earlier termination of this Lease if and only if such removal may be accomplished without material damage to the Equipment or otherwise reducing its value below that which it would have been in the event no such alterations, additions or improvements had been made. Page 3 of 9 10. Repairs Lessee, at its own cost and expense, shall keep the Equipment in good repair, condition and woiking order and shall furnish any and all parts mechanisms and devices required to keep the Equipment in good woiking order. 11. Insurance. The City is a self -funded entity and is not required to procure commeicial insurance under this lease. 12. Loss or Damage. In the event of loss of or damage to Equipment, Lessee, at Lessee's option shall: (a) Repair the Equipment to good working order, or (b) Replace the Equipment with like property in good repair, which property shall then become subject to this Lease. 13. Surrendei. Upon the expiration or earlier termination of this Lease, Lessee shall return the Equipment to Lessor in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof alone expected, by delivering the Equipment at Lessee's cost and expense to such place within the continental United States as Lessoi shall specify. 14. Taxes and Fees. Lessee will pay all license fees, assessments, use, property, or other similar taxes or changes (the "Tax" or Taxes), now or in the future imposed on the Equipment but reason of Lessee's leasing, renting, possession, or use of the Equipment, whether such charges which arise as a result of Lessee's actions, excepting federal, state or local government taxes, or payments in lieu of such taxes, imposed on or measured by income of the Lessor. If any Tax is, by law, to be assessed or billed to Lessor in connections with the levy, assessment, billing, or payment of such Tax and is authorized by Lessor to act on Lessor's behalf in such r espects Lessee will cause all billings of such Taxes to Lessor to be made to Lessor in care of Lessee and will, from time to time, upon reasonable request by Lessoi, submit written evidence of the payment of all Taxes. Licensee shall pay all license fees. However, Licensee is a government entity under the laws of the State of Texas and shall not be subject to the payment of any taxes under this Lease. 15. Optional Payments by Lessor. Should Lessee fail to make any payment or otherwise fail to fulfill any of its obligations under this Lease, then Lessor will have the right but not the obligation, without notice to or demand on Lessee, and without releasing Lessee from any obligation under this Lease, to make or do the same, and to pay, purchase, contest, or compromise any encumbrance, charge or lien that in the judgment of Lessoi appears to affect the Equipment, and in exercising any such rights, incui any liability and expend whatever amounts in its discretion it may deem necessary thereof. All expenses so incurred by Lessor will be due and payable by Lessee upon demand and will bear interest at the rate of ten percent (10%) per year thereafter until paid. Page 4 of 9 16. Liability and Indemnity Lessee shall be liable for any and all loss or damage to the Equipment to the extent such as loss or damage is caused by the negligence or intentional misconduct of Lessee, its employee's officers, directors or agents Lessor agrees to defend, settle, or pay, it its own cost and expense, any claim or action against the Lessee for the infringement of any patent, copyright, trade secret or similar property light arising from Lessee's use of the Intellectual Property in accordance with this Lease Lessor shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle compromise any such claim, but Lessee shall be allowed to participate with Lessor in doing so Lessee agrees to give Lessor timely written notice of any such claim or action, with copies of all papers Lessee may receive relating thereto. If the Intellectual Pi operty or any part thereof is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Lessor shall, at its own expense and as Lessee's sole remedy, either (a) Procure for Lessee the right to continue to use the Intellectual Property; (b) Modify the Intellectual Property to make it non -infringing, provided that such modification does no materially adversely affect Lessee s authorized use of the Intellectual Property; (c) Replace the Intellectual Property with equally suitable, compatible, and functionally equivalent non -infringing Intellectual Property at no additional charge to Lessee; (d) If none of the foregoing alternatives is reasonably available to Lessor, terminate this Lease and refund to Lessee the payments actually made to Lessor under this lease. 17. Default. If Lessee, with regard to the Equipment, fails to pay any rent or other amount herein provided within ten (10) days after the same is due and payable; or if Lessee ceases all or substantially all of Lessee's business operations or those business operations of Lessee in which the Equipment is being used; or if Lessee with regard to the Equipment, fails to observe, keep or perform any other provisions of this Lease required to be observed, kept or performed by Lessee, or breaches any representation or provision contained herein and if Lessee fails to remedy, cure or remove such failure in payment or such other failure or breach in observing, keeping or performing the provisions of this Lease within ten (10) days of receipt of written notice thereof from Lessor, Lessor shall have the right to exercise any one or more of the following remedies: (a) To either: (1) Declare, immediately due and payable, the entire amount of r ent remaining unpaid for the remainder of the term of this Lease less the fair market value of the leasehold estate, discounted to present value at the of ten percent (10%) per annum, or Page 5 of 9 (2) Sue for all rents and other payments, the accrued or thereafter accruing, with respect to the Equipment. (b) To take possession of any or all items of Equipment, without further demand or notice, wherever same may be located, without any court order or other process of law Lessee herby waives any and all damages occasioned by such taking of possession unless caused by Lessor's gross negligence or will full misconduct. Any said taking of possession shall not constitute a termination of this Lease as to any or all items of Equipment unless Lessor expressly so notifies Lessee in writing (c) To terminate this Lease as to any or all items of Equipment. (d) To pursue any other remedy at law or in equity. (e) Notwithstanding any repossession, Lessee shall remain liable for the full performance of all obligations on the part of Lessee to be performed under this Lease. (f) All such remedies are cumulative (except that the remedies in (a) 1 and 2, above are alternative), and may be exercised concunently or separately. (g) Lessor shall have no duty or obligation to mitigate any damages resulting from any default by Lessee. 18. Bankruptcy. Neither this Lease nor any interest herein is assignable or transferable by operation of law. If Lessee files for bankruptcy under that Bankruptcy Act, as amended, or if such an action is commenced against Lessee and is not dismissed within sixty (60) days after the commencement thereof, or if Lessee is adjudged insolvent, or if Lessee makes and assignment for the benefit of creditors or is a writ of attachment or execution is levied on any item or items of the Equipment and is not released or satisfied within thirty (30) days thereafter, to take possession or control of any item or items of the Equipment, Lessor shall have and may exercise any one or of the remedies set forth in paragraph 16 hereof, and this Lease shale, at the option of Lessor, after providing written notice to Lessee immediately terminate and shale not be treated as an asset of Lessee after the exercise of said option. 19. Concur rent Remedies. With the exception of the alternative remedies in paragraph 16 (a) 1 and 2, no right or remedy herein conferred upon is reserved to Lessor is exclusive of any other right or remedy herein or by law or equity provided or permitted; but each such right or remedy shall be cumulative of every other right or remedy given hereunder or now concurrently therewith or from time to time. 20. Effect of Waiver. No delay or omission to exercise any right, power or remedy accruing under the Lease shall impair any such right, power or remedy, noi shall it be construed to be a waiver of such breach or default or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a Page 6 of 9 waiver of any breach or default. Any waiver, perrnit, consent, or approval of any kind of character of any breach or default undei this Lease, or any waiver of any provision or condition of this Lease, must be in wining, signed by Lessor, and will effective only to the extent in such writing specifically set forth. Except as expressly set forth herein, all remedies, under this Lease or by law or other wise, afforded shall be cumulative and not alternative. 21. Attorney's Fees Each party shall be liable for its own attorney's fees. 22. Assignment of Sublease. Without the prior written consent of Lessor which consent shall not be unreasonably withheld, Lessee shall not (a) assign, transfer, pledge or hypothecate this Lease, the Equipment or any part thereof or any interest therein; (b) sublet or lend the Equipment or any part thereof, or (c) permit the Equipment or any part thereof to be used by any other than the Lessee and Lessee's employees. Lessor may assign part or all of its right, title and interest in and to this Lease, with or without notice to Lessee. 23. Location of Equipment. Lessee will not, without prior written consent of Lessor, which consent may not be unreasonably withheld, perrnit the Equipment to be moved from the Licensed Location identified in paragraph 1 above. 24. Title and Proprietary Information. Title and full ownership rights in the Equipment and the Intellectual Property is and will at all times remain with Lessor, and Lessee shall have not right, title or interest therein except as expressly set forth in this Lease Lessee acknowledges that it has been advised by Lessor that the Intellectual Property has been developed by Lessor as valuable trade secrets and constitutes confidential and proprietary information Lessee agrees that the execution of this Lease establishes a confidential relationship between the parties, and Lessee agrees to preserve the confidential and proprietary nature of the Intellectual Property, and agrees to not disassemble reverse compile, or reverse engineer the Intellectual Property, noi permit the use of the Intellectual Property or disclosure of information relating to the Intellectual Property to unauthorized person. Notwithstanding the forgoing, Lessee is a government entity undei the laws of the state of Texas, and all information maintained by Lessee is subject to disclosure undei the Texas Public Information Act Lessee shall not be held liable for any information that is disclosed in accordance with applicable law, rule, regulation or court order. 25. Personal Propel ty. The Equipment leased and the Intellectual Property licensed is, and shall at all times remain, personal property, notwithstanding that it or any part of it may now be, or may in the future become, in any manner attached to, or embedded in, or permanently resting on, real property or any building on such real property, or attached in any manner to what is permanent by means of nails, bolts or screws. 26. Applicable Law. This Lease shall be governed by and construed under the lays of the State of Texas. Page 7of9 27. Notices. Any communications between Lessor and Lessee, payments and notices provided herein to be given or made, may be given or made by mailing them certified mail, return receipt requested, or by hand deliver, to Lessor at General Electrodynamics Corporation, P.O. Box 150089, Arlington, Texas 76015, and to Lessee at 1000 Thiockmorton Street, Fort Worth, Texas 76102, with copy to the City Attorney at the same address. 28. Recording. Lessee shall, at its own expense and responsibility, cause this Lease to be kept, filed and recorded with Lessee s official custodian of Records, City Secretary, to perfect and preserve Lessor's rights hereunder and shall, upon request by Lessor provide evidence of such filing and recording Lessee authorizes Lessor to file notice UCC filing in offices as Lessor deems necessary or appropriate to put the public on notice of Lessor's interest in the Equipment. 29. Gender, Number. Whenever the contents of this Lease require, the masculine, feminine and neuter genders include each of the other genders, and the singular and plural numbers include the other. Whenever the word "Lessor" is used herein it shall include all assignees of Lessor. Whenever the woid "Lessee ' is used herein, it shall include all permitted assignees of Lessee. If there is more than one Lessee named in this Lease, the liability of each shall be joint and several. 30. Titles. The titles of the paragraphs of this Lease are solely for the convenience of the parties and are not an aid in the interpretation of the instrument. 31. Time. Time is of the essence if this Lease and each and all of its provisions. 32. Entire Agreement. This instrument constitutes the entire agreement between Lessor and Lessee, and it shall not be amended, altered or changed except by written agreement signed by both parties hereto. IN WITNESS WHEREOF the parties hereto have executed this Lease to be effective as of the Effective Date. Page 8 of 9 LESSOR: GENERAL ELECTRODYNAMICS C OPORA7'jONj A TEXAS CORPORATION BY: NAME: , CRESPfN BERNAL TITLE: CUSTOMER SERVICE MANAGER DATE: 06/,JAN/2014 LESSEE: CITY OF FORT WORTH POLICE L & EQUIPMENT MANAGEMENT BY: NAME: C p- Its kJ ntiruseic TlTLE: ��f, � Cr 111 e K DATE: 4 2- 4 .e - /4-"" ACCEPTED AND AGED: APPROVAL RECOMMENDED; By:W Jeffre «T Lralstead Chief of Police Date: OFFICIAL RECORD CITY SECREV\RW Ft WOTH, 11/7 J • • . %if APPROVED AS TO FORM AND LEGALITY: Males la Fanner Sr. Assistant City Attorney Contract Authorization: .114&C • Mk — Date Approved: ATTEST: By: Mari/ J. Ka s City Secretary •