HomeMy WebLinkAboutVeolia Buyout Mobile Disc Filter Lease Purchase Agreement 2024 04 25LEASE PURCHASE AGREEMENT
BUYOUT OF MOBILE DISC FILTER
THIS LEASE PURCHASE AGREEMENT ("Agreement") is made and entered into
this 25th day of April, 2024, by and between the CITY OF WINTER SPRINGS, a Florida
Municipal Corporation ("City" or "Buyer"), having offices at 1126 E. State Road 434, Winter
Springs, Florida 32708, and VEOLIA WATER TECHNOLOGIES, INC., a Delaware
Corporation authorized to transact business in the state of Florida, having offices at 945 S. Brown
School Rd., Vandalia, Ohio 45377 ("Seller").
RECITALS
WHEREAS, the City currently leases, on a month -to -month basis, a temporary disc filter
from Seller to provide additional filtration capacity at the West Water Reclamation Facility because
the existing sand filters are beyond the end of their service life and will eventually be replaced
with the anticipated new WRF construction; and
WHEREAS, the City entered into that certain Mobile Service Water Agreement with
Veolia Water Technologies, Inc., dated November 15, 2021, (the "Rental Agreement") following
publication and award of Invitation to Bid (ITB) #05-21 JN by the City Commission on September
27, 2021, to lease the temporary disc filter equipment and receive certain maintenance services for
the equipment; and
WHEREAS, the City now desires to purchase the temporary disk filter as it has provided
additional reliability for the West WRF and it is anticipated to be needed until the West WRF is
replaced; and
WHEREAS, the City and Seller intend to enter into this Agreement to establish the terms
of the lease -purchase; and
WHEREAS, the City agrees to make three (3) purchase payments (separate and apart from
its monthly lease payments) for the temporary disc filter over a period of six months, dw•ing which
the Rental Agreement will remain in full force and effect and the City will continue to make
monthly lease payments during this six (6) month period that will be credited towards the purchase
price of $354,1504 and
WHEREAS, the City also desires to purchase a complete set of replacement panels for the
disc filter and six (6) additional service visits for the filter; and
NOW, THEREFORE, in exchange for mutual promises and good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows:
Purchase Agreement for Disc Filter
City of Winter Springs and Veolia Water Technologies, Inc.
Page I of 10
AGREEMENT
1. Agreement. The parties hereto previously entered into the Rental Agreement dated
November 15, 2021. The terms and conditions of the original Rental Agreement shall continue to
be binding upon the parties until Seller is in receipt of the City's final purchase payment of
$63,862.50.
This Agreement, including these terms, conditions, and the specifications hereto, along with the
original Rental Agreement, constitute the sole and entire agreement between the parties. In the
event of a conflict between the terms of this Agreement and the Rental Agreement, the terms of
this Agreement shall control. Seller's written acceptance of this Agreement is limited to the terms
and conditions hereof. No usage of the trade shall be relevant to supplement or explain any of the
terms or conditions hereof.
2. Effective Date.
The Effective Date of this Purchase Agreement shall be the date
when this Agreement has been fully signed and executed by both parties.
3. Lease Purchase -Price. City agrees to pay Seller a total of three hundred
fifty-four thousand, one hundred fifty dollars and 00/100 ($354,150.00) to transfer ownership
of the disc filter and list of spare parts included in the Rental Agreement (collectively, the "disc
filter") from the Seller to the City. The City agrees to pay Seller in three (3) installments as
described below, plus continuing the $16,450.00 per month lease payments for the next six (6)
months which shall be credited towards the purchase price except as provided herein:
First Pa•� 25% of the credited sale price ($63,862.50), shall be paid by the City
and received by Seller to begin the six (6) month period for purchase
following the date of execution of this Agreement. The City
anticipates the first payment being made on or before May 11, 2024.
The City acknowledges and agrees that should the City fail to make
the first payment on or before May 11, 2024, the City's rental
payment for the period of May 12, 20244une 12, 2024 will be due
and will not be credited towards the purchase price.
Second Pt: 5004 of the credited sale price ($127,725.00), due 120 days from the
date of the First Payment.
Final Pam 25% ($63,862.50), due six (6) months from the date of the First
Payment.
The City acknowledges and agrees that should the City fail to make timely Second and
Final Payments, the monthly rental payment next due and any subsequent monthly payment
that becomes due shall not be credited to the purchase price. However, should the City
resume making installment payments, the rental payments will again be credited towards
Purchase Agreement for Disc Filter
City of Winter Springs and Veolia Water Technologies, Inc.
Page 2 of 10
the purchase price. The purchase price includes six (6) on -site service visits to be
conducted every other month for the 12-month period following the First Payment.
In addition, the City agrees to pay fifty-two thousand, four hundred and sixteen dollars
and 00/100 ($52,416.00), not including freight or installation costs, for a complete set of
replacement panels for the filter. The City shall make the payment for the replacement
panels upon the Final Payment date, and the replacement panels shall be delivered to the
City within 60 days of payment.
Finally, the City agrees to purchase six (6) additional service visits from Seller, which shall
be conducted on an every -other month basis beginning the thirteenth month following the
First Payment for the disc filter through the twenty-fourth month following the First
Payment, for a purchase price of nineteen thousand, nine hundred eighty five dollars
00/100 ($19,985.00). Payment for each additional onsite service visit shall be due in
accordance with Florida's Local Government Prompt Payment Act in six equal
installments following receipt of an invoice from Seller after each service has been
performed. The service visits shall be conducted in accordance with the terms of the Rental
Agreement,
The Seller agrees failure to make timely payment for either the replacement panels or the
service visits shall not impact the timely transfer of ownership of the disc filter, provided
the disc filter payments have been timely paid.
4. Transfer of Disc Filter and Replacement Panels Ownership. Seller and City
previously entered into the Rental Agreement, which shall continue in full force and effect until
the Final Payment is made by the City. The Seller hereby agrees to sell the disc filter to the City
and to transfer ownership of the disc filter to the City upon receipt of the Final Payment as provided
herein. Seller and City agree that the transfer of ownership of the disc filter shall be complete once
the following events have occurred:
(a) six (6) months have passed from the date of execution of this Purchase Agreement by
Seller or the date of receipt by Seller of the initial buyout payment, whichever is the later
date;
(b) final rental payment has been received by Seller; and
(c) final buyout payment has been received by Seller.
The Seller further agrees to transfer ownership of the replacement panels to the City upon payment
for such panels.
5. Continuance of Onsite Service. Seller shall continue onsite service and shall conduct
repair and maintenance activities on the disc filter once every other month, or as otherwise needed
to ensure full operation of the disc filter, until such time when full ownership of the disc filter has
transferred from the Seller to the City in accordance with the Rental Agreement and shall continue
to do so for a total of twenty-four (24) months following First Payment. Seller may charge
additional cleaning, maintenance, or repair expenses to the City to the extent caused by the City's
Purchase Agreement for Disc Filter
City of Winter Springs and Veolia Water Technologies, Inc.
Page 3 of 10
operation of the disc filter contrary to the "Customer's Obligations" contained in the original
Rental Agreement when conducting the onsite service activities. However, in such event, the
Seller shall notify the City's Utility Director of the need to conduct additional cleaning,
maintenance, or repair services and the anticipated cost of such services and obtain his or her
consent prior to proceeding.
6. No Demobilization Fee. Seller agrees that the City will not be charged the fifteen
thousand two hundred- and fifty -dollar ($15,250) demobilization fee that is outlined in the Rental
Agreement.
City agrees that Seller's flatbed trailer which is currently on -site at the City of Winter Springs shall
remain the property of Seller. The Seller may remove the flatbed trailer at any time or store the
flatbed trailer at the site until the end of Seller's onsite services.
7. Time. Time is a critical component of this Agreement. Upon failure to deliver as
specified, the City may buy like goods or services elsewhere and charge the Seller with any
increased cost or other loss incurred thereon, pursuant to applicable law, unless defective shipment
of goods, or performance of defective services, as applicable, is agreed to by the City in writing.
Any failure by the City to exercise its option with respect to any shipment of goods or performance
of services shall not be deemed to constitute a waiver with respect to subsequent shipments of
goods or performance of services. This provision is not in lieu of, and the City does not waive any
remedies provided by law.
8. Warranty. With respect to services, Seller warrants unto the City that Seller has the
competence and abilities to complete the services set forth herein. Seller will perform the services
with due and reasonable diligence consistent with sound professional practices recognized in the
same geographic area as the site for projects of similar scope and magnitude.
Seller further agrees that it shall provide a four (4) months' warranty following the end of the rental
period on the disc filter and receipt of Final Payment. This additional four -month warranty shall
be for the disc filter equipment only (not including the filter panels) and for failures associated
with manufacturing defects. Following the expiration of the rental period, the Seller makes no
warranty based upon the City's improper operation of the disc filter equipment and/or exceeding
the design basis established in the Rental Agreement. Prior service report recommendations,
training, and O&M manual dictate proper operation. This additional four -month warranty shall not
include: travel or labor costs, replacement filter panels or performance (e.g. recovery rate or
effluent quality), or the HPC (high pressure cleaning) system. If the part in question is not already
onsite, Seller will in good faith replace such part according to the lead times available from
whichever vendor. Seller will not be penalized for any downtime. The Seller further warrants that
the disc filter is furnished hereunder free of any claims or liens of whatever nature whether rightful
or otherwise of any person, corporation, partnership, or association. The Seller warrants and the
City agrees that the disc filter is being sold "as -is," other than the warranty provided above.
With respect to the replacement panels, Seller warrants to City:
Purchase Agreement for Disc Filter
City of Winter Springs and Veolia Water Technologies, Inc.
Page 4 of 10
(a) that the goods shall be of the quality specified or of the test grade of their respective
kinds if no quality is specified; shall conform to the specifications, drawings, samples and
other descriptions contained herein, and
(b) that at the time the goods are accepted by ay the goods shall have been produced,
sold, delivered, and furnished in compliance with all applicable Federal and State laws,
including but not limited to the Consumer Product Safety Act, the Federal Occupational
Safety and Health Act, the Fair Employment Practices Act and the Equal Pay Act, and all
applicable municipal: ordinances, regulations, rules, labor agreements, and working
conditions to which the goods are subject; and
(c) that the goods furnished hereunder are free of any claims or liens of whatever nature
whether rightful or otherwise of any person, corporation, partnership, or association.
9. Modifications. This Agreement may be modified or rescinded only in a writing
signed by both parties.
10. Waiver. The failure of either party to enforce any provision of this Agreement or
exercise any right or privilege granted to either party hereunder shall not constitute or be construed
as a waiver of any such provision or right and the same shall continue in full force.
11. City Options. Omitted.
12. Indemnification. Seller agrees to indemnify City, its elected and appointed officials,
officers, attorneys, and employees, from and against all losses, costs and expenses and from and
against all claims, demands, suits and actions for damages, losses, costs, attorney fees, expenses
and from and against all liability awards, judgements, and decrees of whatsoever nature for any
third party claims for damages to property or for any and all injury to any person (including death)
but only to the extent of Seller's gross negligence, breach of this Purchase Agreement in the
performance of services or the manufacture of goods, from any defect in materials or
workmanship, from the failure of the goods to perform to its full capacity as specified in the
Purchase Agreement, specifications of other data, or from the breach of any express or implied
warranty. Seller shall not be required to indemnify any indemnified party for any loss, cost or
damage arising out of the acts or omissions of such indemnified party.
13. Attorney Fees. The parties irrevocably waive their right to a request trial by
jury. If any action at law or in equity is necessary to enforce the terms of this Agreement, each
party agrees to bear their own costs and attorney's fees, whether at settlement, trial or on appeal.
14. Patent Indemnification. Seller represents and warrants that it has the right to use any
and all intellectual property, either by licensure or ownership, that is supplied, indirectly or directly,
under this Purchase Agreement. Further, the Seller agrees that the City is relying on this
representation and warranty to issue this Purchase Agreement. Seller agrees to hold harmless and
Purchase Agreement for Disc Filter
City of Winter Springs and Veolia Water Technologies, Inc.
Page 5 0f 10
to defend City against any claims of patent or copyright infringement occasioned by the
manufacturer, sale or use of material supplied tinder this Purchase Agreement and to indemnify
City, and its elected and appointed officials, officers, attorneys, and employees, against any
damages occasioned by such claims whether justified or unjustified.
15. Inspection. City shall have a reasonable time after delivery or performance within
which to inspect the replacement panels or services. Replacement panels rejected will, at Seller's
expense, be returned to Seller or otherwise disposed of as Seller shall reasonably request. The cost
of inspection of goods or services rightfully rejected shall be charged to the Seller. If reasonable
inspection disclosed that part of the goods received or services performed are defective or
nonconforming, City shall have the right to cancel any shipped portion of the order or unperformed
portion of the services. Payment for the goods or services on this Purchase Agreement prior to
inspection shall not constitute acceptance thereof, and is without prejudice to any and all claims
that City may have against Seller. The making or failure to make any inspection of, or payment for
acceptance of, the goods or services, shall in no way impair City's right to reject nonconforming
goods or services, recover damages or exercise any other remedy to which City may been titled;
notwithstanding City's knowledge of the nonconformity, its substantiality or the ease of its
discovery.
16. Taxes. The City government is a non-profit operation and is not subject to tax.
17. Force Maieure. Under no circumstances shall either party have any liability for any
inability to perform hereunder as a result of floods, strikes or other labor disturbances, (with the
exception of Seller's own labor force), fires, accidents, wars, delays of carriers, inability to obtain
raw materials, failure of normal sources of supply, or restraints of government; provided that
prompt notice of such delay is given by such party to the other and each of the parties hereunto
shall be diligent in attempting to remove such cause or causes. If any circumstance of Force
Majeure remains in effect for sixty (60) days, either party may terminate this Agreement.
18. Price Protection. Seiler warranties that the prices) set forth herein are equal to the
lowest net price, and the terms and conditions of sale as favorable as the price(s), terms and
conditions afforded by the Seller to any other customer for goods or services of compatible grade
or quality during the terms hereof. Should City be able to purchase goods or services of the same
or comparable quality from another source at a lower delivered cost then in effect hereunder, and
City gives Seller written notice hereto, City may purchase such goods or services from such other
sources at such lower delivered cost unless within fifteen days of receipt by Seller of said notice,
Seller meets such lower delivered cost for such quantity of goods or services. Any quantity of
goods or services so purchased from another source by City shall be deducted from the total
quantity offered on this Agreement, but the Agreement shall otherwise remain unaffected.
19. Hazard. Seller shall notify City of any inherent hazard and applicable precautions
and protective measures and provide any additional relevant information, including but not limited
to Material Data Safety Sheets, for the goods being purchased herein.
Purchase Agreement for Disc Filter
City of Winter Springs and Veolia Water Technologies, Inc.
Page 6 of 10
20. Assignment. No right or interest in this Agreement shall be assigned by Seller without
the prior written permission of the City and no delegation of any obligation owed by either City or
Seller shall be made without the prior written permission of either party. Any attempted assignment
or delegation shall be wholly void and totally ineffective for all purposes.
21. Choice of Law; Venue. The validity, interpretation, and performance of this
Agreement shall be governed and construed in accordance with the laws of the State of Florida. In
the event of any dispute under this Purchase Agreement, venue shall be in Seminole County,
Florida for any state action and Orlando, Florida, for any federal action.
22. Public Records; Right to Audit Records. The City shall be entitled to audit the books
and records of the Seller to the extent that such books and records relate to the performance of this
Agreement. Such books and records shall be maintained by the Seller for a period of three (3)
years from the date of final payment under this Agreement unless a shorter period is otherwise
authorized in writing by the City.
Pursuant to Chapter 119, Florida Statutes, Seller agrees that any records, documents, transactions,
writings, papers, letters, computerized information and programs, maps, books, audio or video
tapes, films, photographs, data processing software, writings or other material(s), regardless of the
physical form, characteristics, or means of transmission, of Seller related, directly or indirectly, to
the services provided to the City under this Agreement and made or received pursuant to law or
ordinance or in connection with the transaction of official business by the City, may be deemed to
be a public record, whether in the possession or control of the City or the Seller. Said records,
documents, transactions, writings, papers, letters, computerized information and programs, maps,
books, audio or video tapes, films, photographs, data processing software, writings or other
material(s), regardless of the physical form, characteristics, or means of transmission of Seller are
subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the
specific written approval of the City's designated custodian of public records. Upon request by
the City, the Seller shall promptly supply copies of said Public Records to the City. All books,
cards, registers, receipts, documents, and other papers in connection with this Agreement shall at
any and all reasonable times during normal business hours of the Seller be open and freely
exhibited to the City for the purpose of examination and/or audit. Failure by Seller to grant such
access and comply with public records laws and/or requests shall be grounds for immediate
unilateral cancellation of this Agreement by the City upon delivery of a written notice of
cancellation. If the Seller fails to comply with this Section, and the City must enforce this Section,
or the City suffers a third -party award of attorney's fees and/or damages for violating Chapter 119,
Florida Statutes, due to Seller's failure to comply with this Section, the City shall collect from
Seller prevailing party attorney's fees and costs, and any damages incurred by the City, for
enforcing this Section against Seller. And, if applicable, the City shall also be entitled to
reimbursement of all attorneys' fees and damages which the City had to pay a third party because
of the Seller's failure to comply with this Section. The terms and conditions set forth in this Section
shall survive the termination of this Agreement.
Pw•chase Agreement for Disc Filter
City of Winter Springs and Veolia Water Technologies, Inc.
Page 7 of 10
IF THE SELLER HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119,
FLORIDA STATUTES, TO ITS DUTY TO PROVIDE PUBLIC RECORDS RELATING TO
THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: City Cleric,
City of Winter Springs, 1126 East State Road 434, Winter Springs, FL 32708 or City-Clerk-
Department@wintetspringsfl.org or (407) 327-6560.
23. Fiscal Year Funding Appropriation. (a) Specified Period. Unless otherwise
provided by law, a Purchase Agreement for supplies or services may be entered into for any period
of time deemed to be in the best interest of the City, provided the term of the Purchase Agreement
and conditions of renewal or extension, if any, are included in the solicitation and funds are
available for the initial fiscal period of the Purchase Agreement. Payment and performance
obligations for succeeding fiscal periods shall be subject to the annual appropriation by City
Council.
(b) Cancellation Due to Unavailability of Funds in Succeeding Fiscal Periods. When funds are not
appropriated or otherwise made available to support continuation of performance in a subsequent
I
scal year period, the Purchase Agreement shall be cancelled, and the contractor shall be entitled
to reimbursement for the reasonable value of any work performed to the date of cancellation.
24. Independent Contractor. The Seller shall perform the obligations of this Purchase
Agreement as an independent contractor and under no circumstances shall it be considered as agent
or employee of the City.
25. Security Interest. The City shall not grant the Seller a security interest in the disc filter
or any other equipment which falls under the ambit of this Agreement.
26. Sovereign Immunity. The City intends to avail itself of the benefits of Section
768.28, Florida Statutes and any other statutes and common law governing sovereign immunity to
the fullest extent possible. Neither this provision nor any other provision of this Agreement shall
be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida
Statutes, or other limitations imposed on the City's potential liability under state or federal law.
Contractor agrees that City shall not be liable under this Agreement for punitive damages or
interest for the period before judgment. Further, City shall not be liable for any claim or judgment,
or portion thereof, to any one person for over two hundred thousand dollars ($200,000.00), or any
claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid
by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds
three hundred thousand dollars ($300,000.00). Nothing in this Agreement is intended to inure to
the benefit of any third party for the purpose of allowing any claim which would otherwise be
barred under the doctrine of sovereign immunity or by operation of law. This paragraph shall
survive termination of this Agreement.
27. Insurance. During the term of this Agreement, Seller shall be responsible for providing
the types of insurance and limits of liability as set forth under the Rental Agreement.
Purchase Agreement for Disc Filter
City of Winter Springs and Veolia Water Technologies, Inc.
Page 8 of 10
28. E-Verify. Pursuant to section 448.095, Florida Statutes, beginning January 1, 2021,
Seller shall register with and use the U.S. Department of Homeland Security's E-Verify system,
https*He-verify.uscis.gov/emp, to verify the work authorization status of all employees hired on
and after January 1, 2021. Seller shall also require all subcontractors performing work under this
Agreement to use the E-Verify system for any employees they may hire during the term of this
Agreement. Seller shall obtain from all such subcontractors an affidavit stating the subcontractor
does not employ, contract with, or subcontract with an unauthorized alien, as defined in section
148.095, Florida Statutes. Seller shall provide a copy of all subcontractor affidavits to the City
upon receipt and shall maintain a copy for the duration of the Agreement. Seller must provide
evidence of compliance with section 448.095, Florida Statutes. Evidence shall consist of an
affidavit from the Seller stating all employees hired on and after January 1, 2021 have had their
work authorization status verified through the &Verify system and a copy of their proof of
registration in the E-Verify system. Failure to comply with this provision is a material breach of
this Agreement, and shall result in the immediate termination of the Agreement without penalty to
the City. Seller shall be liable for all costs incurred by the City securing a replacement Agreement,
including but not limited to, any increased costs for the same services, any costs due to delay, and
rebidding costs, if applicable.
29. Limitation of Damages &Liability. Notwithstanding anything to the contrary contained
in this Agreement, neither party shall be liable for any consequential, incidental, indirect, special,
exemplary or punitive damages, loss by reason of shutdown or non -operation; loss of use,
regardless of whether any such claim arises out of breach of contract, guarantee, tort, or any other
legal theory.
Notwithstanding anything to the contrary contained in this Agreement, in no event shall Seller be
liable to City for any damages, claims, demands, suits, causes of action, losses, costs, expenses
and/or liabilities in excess of an amount equal to the sum of this Agreement regardless of whether
such liability arises out of breach of contract, guarantee, tort, or any other legal theory.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date.
SELLER: CITYBUYER:
Veolia Water Technologies, Inc.
Dayton, Ohio USA
Date: 4/25/2024
City of Winter Springs
By:
Title:
Date:
Purchase Agreement for Disc Filter
City of Winter Springs and Veolia Water Technologies, Inc.
Page 9 of 10
Purchase Agreement for Disc Filter
City of Winter Springs and Veolia Water Technologies, Inc.
Page 10 of 10