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HomeMy WebLinkAboutCurry Controls Company Lease Purchase Agreement -2000 11 28 . , LEASE PURCHASE AGREEMENT THIS LEASE PURCHASE AGREEMENT ("Agreement") is made and entered into on this 25f:. day of ./izr;6u~, 2000, by and between the CITY OF WINTER SPRINGS, a Florida Municipal Corporation ("CITY"), and CURRY CONTROLS COMPANY, INe., a Florida Corporation ("CURRY"). WIT N E SSE T H: WHEREAS, City desires to lease purchase certain equipment for its utility system from Curry under the terms and conditions of this Agreement; and WHEREAS, Curry desires to lease and sell such equipment to City under the terms and conditions of this Agreement; and WHEREAS, it is the intent and purpose of this Agreement that upon the expiration of this Agreement, and the City's full payment of the lease amounts hereunder, the title to the equipment will fully vest in the City and the City's obligations to make any further payments for the equipment shall cease. NOW THEREFORE, in conSideration of the provisions contained in this Agreement, and other good and valuable consideration in which the parties acknowledge has been received, the parties agree as follows: 1.0 Incorpora tion of Recitals : The foregoing recitals are true and correct and by this reference are:fiilly incorporated into this Agreement. 2,0 Rental of Equipment; Term. City agrees to lease from Curry the equipment (and all substitutions, repairs, modifications, and replacements thereof) listed in Exhibit "A" (''Equipment''). Exhibit "A" is attached hereto an.d fully incorporated herein by this reference, The term of the lease shall be four (4) years commencing on the date the Equipment is installed at the locations set forth in Section 3.0 of this Agreement and a substantial completion certification is issued by the City, Any add-on equipment installed by Curry at City's request during the Term of this Agreement shall be deemed a modification of this Agreement with respect to the Equipment description set forth in Exhibit "A" and the monthly lease amount; however, in all other respects, the add-ons shall be subject to the remaining provisions of this Agreement. 3,0 Location.' Curry agrees'to install the Equipment in accordance with that certain Construction Contract by and between City and Curry, dated 11/"Z8 . , 2000 ("Construction 1 . , Contract"), and at the following locations, unless otherwise provided by the City in writing: Wastewater Reclamation Facility (two sites) Water Treatment Plants (three sites) Public Works Facility (Flamingo Road One site) Wastewater Lift Stations (Thllty' F our sites) . 4,0 Lease Amounts. Upon execution of this Agreement, City agrees to pay a prepaid lease amount equal to $74,606.80 which shall be applied to the total cost of Equipment provided by Curry under this Agreement. The remaining principal balance of the Equipment due under this Agreement shall be Two Hundred Ninety-Eight Thousand, Four Hundred Twenty-Seven and 00/100 Dollars ($298,427.00). Upon the installation of the Equipment and the issuance ofa substantial completion certificate by City, City shall commence making consecutive quarterly lease payments in accordance with the Amortization Schedule attached hereto as Exhibit "B" and hereby fully incorporated herein by this reference, Each payment thereafter shall be on the same day of each quarter or such later day as Curry may designate in writing. Said payments shall be for sixteen (16) consecutive quarters and each quarterly payment shall be equal to $22,491.75 inclusive of all principal and interest. All payments shall be made payable to Cuny at such address as Curry directs in writing, No other payments shall be required by City under this Agreement, unless otherwise mutually agreed to by the parties in writing, The City shall have the right to prepay all or part of the principal balance at any time and without penalty. 5,0 No Obligation to Budget and Appropriate; Remedy. Under no circumstances shall this Agreement be construed as obligating the City to extend its credit o,r taxing power to secure payment and performance of the terms of this Agreement. The City will exercise good faith in taking appropriate actions that are reasonably necessary under the laws of Florida to plan and budget for receipt of sufficient appropriation of funds to discharge its obligation to make all payments required under this Agreement when due. However, the City's obligation to pay the lease amounts under this Agreement shall be contingent upon an annual budget appropriation by the City Commission of Winter Springs, which shall be at the sole and absolute discretion of the City Commission. Curry agrees that should the City Commission fail to make such an appropriation, this Agreement shall automatically terminate and Curry' s sole remedy shall be an action for actual damages resulting from the termination of this Agreement and limited to the remaining principal balance of the Equipment due under this Agreement. In the event of said termination, Cuny hereby expressly waives any and all other rights available at law or equity with respect to the City's failure to' appropriate sufficient funds to continue making the contractually required payments under this Agreement. Cuny shall not have the right to comp~l the exercise of the ad valorem taxing power of the City or the right to lien the Equipment or any other real or personal property of the City, 6,0 Ownership and Title to Equipment. During the term of this Agreement, title to the Equipment shall remain vested in Curry. Upon tender by the City of the last quarterly payment required by Section 4.0 of this Agreement or tender of the current principal balance, title to the Equipment shall immediately fully vest in the City without further .action of the parties. 2 . Notwithstanding, upon tender of final payment and request by the City, Curry shall execute an appropriate legal instrument conveying to City all rights and title to the Equipment. 7.0 Installation; Maintenalll.ce and Limited Warranty. Upon execution of this Agreement by both parties, Curry shall install the Equipment as required hereunder and in accordance with the Construction Contract between the parties for said purpose. Upon installation of the Equipment and issuance of a substantial Compl~:tion Certificate by the City, the City shall maintain the Equipment at the locations identified in this Agreement. Curry warrants that the Equipment shall be delivered ina good and workmanlike manner and be free from defects in workmanship for a period offorty- eight (48) months after delivery to the City, except that the personal computers and printers shall be warranted for a period of twenty-four (24) months. In the event that the Equipment is defective or fails to perform properly dUring the forty-eight (48) month warranty period (or twenty-four month warranty period in respect to the: personal computers and printers), Curry shall replace or repair the defective or non-performing Equipment at no cost to the City. The foregoing obligations, rights and warranties are in lieu of all other warranties, expressed or implied, including, but not limited to the warranties offitness for a particular purpose or use and merchantability. City agrees, at its own cost and expense, to keep the Equipment in good repair, condition, and working order. The amounts paid by City under this Agreement, in part, are consideration for the warranty provided by this section. 8.0 Use and Location of Equipment. City shall not abuse the Equipment or permit it to be repaired by anyone other than Curry. City shall use the Equipment only in a manner contemplated by the manufacturer and in accordance with law, City is responsible for maintaining equipment in its as delivered condition, ordinary wear and tear excepted. 9.0 Risk of Loss; Insurance. Upon installation of the Equipment and issuance of a substantial Completion Certificate by the City, the City shall bear all risks of direct physicalloss of or damage to the Equipment except as provided under this Agreement. In the event of a covered loss or damage to the Equipment, Curry's sole obligation will be to repair or replace the damaged or lost Equipment. Curry shall not be liable for any loss resulting from the acts and omissions of the City and its employees and agents or from acts beyond Curry's control (e.g., wars, riots, unauthorized tampering of Equipment, neglect or abandonment of the Equipment). In the event ofa loss caused by the City and its employees and agents or by acts beyond Curry's control, City shaU incur the expense to repair or replace the damaged or lost Equipment. City agrees to maintain adequate public liability insurance for the Equipment. The City shall provide Curry with a certificate of insurance upon request. The occurrence of any loss of or damage to the equipment shall not however relieve or reduce any other covenant, condition or provision contained in this Agreement. 10.0 Miscellaneous: 10.1 Non-Business Day. In the' event that any period of time asset forth in this Agreement expires or any date herein occurs on a Saturday, Sunday, holiday or other non-business day, then such date shall automatically extend to 5:00 p,m. on the next subsequent business day. 3 . 10.2 Assignment. This Agreement shall not be assigned or transferred by City, in whole or in part, unless said assignment or transfer is approved in writing by Curry. This Agreement may be assigned to a third party by Cuny. Such assignment shall not, however, release Cuny from its obligations hereunder or limit the City's right to look solely to Curry for performance of its obligations under this Agreement or seek any claim,' action, or proceeding arising from said a ssigninent , Notwithstanding any assignment by Cuny, City shall enjoy quiet use of the Equipment under this Agreement provided City is not in default hereunder. 10.3 Third Party Rights. This Agreement is not a third party beneficiary contract and shall not in any respect whatsoever create any rights on behalf of any party not expressly a party to this Agreement. 10.4 Further Assurances. From and after the execution of this Agreement, each of the parties hereto shall fully cooperate with each other and perform any further act( s) and execute and deliver any further documents which may be necessary or desirable in order to carry out the purposes and intentions of this Agreement. 10.5 Severability. If any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions shall nevertheless remain in full force and effect, unless the absence of the invalid, void or unenforceable provision or provisions causes this Agreement to fail in its essential purposes. 10.6 Governing Law and Venue. This Agreement shall be construed and enforced in accordance with 1he laws of the State of Florida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the trial courts located in Seminole County, Florida, any objections as to jurisdiction or venue in such courts being expressly waived. 10.7 Attorney's Fees. .ll the event any litigation or controversy arises out of or in connection with this Agreement between the parties hereto, the prevailing party in such litigation or controversy shall be entitled to recover from the other party or parties all reasonable attorney's fees and paralegal fees, expenses and suit costs, including those associated' with any appellate or post-judgment collection proceedings. 10,8 Non-Waiver. N9 delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall' constitute a waiver of that or any other right, unless otherwise expressly provided herein. 4 . 10.9 Notices. Any notice required under this Agreement shall be sent to the following persons and address: For City: Kip LockcuH: UtilitieslPublic Works Director City of Winter Springs 1126 East SR 434 Winter Springs, Florida 32708 (407) 327-5988; Fax: (407) 327~6695 For Curry: Scott W. Cyphert Curry Controls Company 1019 Pipkin Road Lakeland, Florida 33811 (863) 646-5781; Fax: (863) 646-3899 The name and addresses stated herein may be changed by either party by providing the other party written notice of the change. r 10.10 Public Record. It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other writing of the CwTy related, directly or indirectly, to this Agreement may be deemed to be a Public Record whether in the possession or control of the City or Curry. If said record, document, computerized information and program, audio or video tape, photograph, or other writing is a public record, it shall be subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City. Upon request by the City, Curry 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 during normal business hours of Curry and freely exhibited to the City for the purpose of examination and/or audit. 10.11 Interpretation. The City and Curry have participated in the drafting of all parts of this Agreement. As.a result, it is the intent of the parties that no portion of this Agreement shall.be interpreted more harshly against either of the parties as the drafter. 10.12 Independent Sulbccmtractor. Curry shall be considered an independent contractor under this Agreement. 5 . 11.0 Entire Agreement. This Agreement represents the entire and integrated Lease Purchase Agreement between the parties for the lease purchase' of the Equipment and supersedes all prior negotiations, representations, or agreements, either oral or written, for the lease purchase. of the Equipment, and all such matters shall be deemed merged into this Agreement. The parties acknowledge that there is a separate Construction Contract between them for the installation of the Equipment. . 12.0 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereiguimmunityunder Section 768.28, Florida Statutes, or other limitations - imposed on the City's potential liability under state or federal law. 13.0 Indemnification and Hold Harmless. To the fullest extent permitted by law, Curry agrees to indemnify and hold harmless the City and its employees, officers, and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including - reasonable attorney's fees through any and all administrative, trial, post judgment and appellate proceedings), directly or indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from Curry's performance of the activities and obligations required by this Agreement and failure .to comply with any term of this Agreement. This indemnification shall swvive the termination of this Agreement until. any applicable statute of limitation has expired. 14.0 Standard of Care. In performing hereunder, Curry shall use that degree of care and skill ordinarily exercised, under similar circUmstances by reputable members of their profession practicing in the same or similar locality. 15.0 Curry's Signatory. The person executing this Agreement on behalf of Curry hereby represents and warrants that hel she has the full authority to sign the Agreement on behalf of the Curry and to fully bind Curry to the terms and conditions set forth in this Agreement. 16.0 Construction Contract. Curry and City acknowledge that the parties have executed a separate Construction Contract for the purpose of installing the Equipment. Curry and City agree that in the event there exists a conflict between the provisions of this Agreement and the provisions of the Construction Contract, the provisions of this Agreement shall govern and prevail. In addition, there is hereby a cross-default covenant between this Agreement and the Construction Contract in that any default ,under this Agreement shall constitute a default under the Construction Contract and VIce versa. 17.0 Default. The following provisions shall govern defaults by _ either party under this Agreement: 17.1 By City. An event -of default on the part of City shall occur hereunder if City: (A) fails to pay when due any quarterly or other payment required hereunder that has been annually appropriated and budgeted by the City Commission; or (B) fails to perform or observe any covenant, 6 . . condition or provision of this Agreement and said failure continues uncured after delivery of written notice by Curry of said default for a period often business days or other additional and reasonable cure period agreed to in writing by the parties; or (C) abandons or attempts to abandon, remove, sell, transfer, encumber, or sublet any item of the Equipment without Curry's prior written consent; or (D) commits any act of bankruptcy or makes an assignment for the benefit of creditors or consent to the appointment of a trustee or receiver for bankruptcy or receivership purposes; or (E) shall be in default under the Construction Contract with Curry. 17.2 By Curry. An event of default on the part of Curry shall occur hereunder if Curry: (A) fails to repair or replace defective or nonperforming Equipment during the Warranty Period set forth in Paragraph 7.0 of this Agreement; or (B) fails to perform or observe any covenant, condition or provision of this Agreement and said failure continues uncured after written notice by City of said default for a period often business days or other additional and reasonable cure period agreed to in writing by the parties; or (C) ceases doing business as a going concern; or (D) commits any act of bankruptcy or makes an assignment for the benefit of creditors or consent to the appointment of a trustee or receiver for bankruptcy or receivership purposes; or (E) shall be in default under the Construction Contract with City. 17.3 Curry's Remedies for Default. Upon the occurrence of the event of default by City as described in Section 17.1 of this Agreement, Curry may, ill its reasonable discretion, do one or more of the following: (A) demand that all sums appropriated and budgeted by the City Commission for payment hereunder for the City's fiscal year in which the default occurs become immediately due - and payable; (B) demand that City return the Equipment to Curry as soon as practicable; (C) upon prior approval of the City, enter the Locations and deactivate and remove all or portion of the Equipment; or (D) exercise any other right or remedy available at law or in equity, subject to the limitations contained in Section 5.0 of this Agreement. 17.4 City's Remedies for Default. Upon the occurrence of the event of default by Curry as described in Section 17.2 of this Agreement, City may, in its reasonable discretion, do one or more of the following: (A) immediately terminate this Agreement and redeliver the Equipment to Curry or its successor in interest as soon as practicable; (B) with respect to Curry's failure to repair or replace defective or nonperforming Equipment during the Warranty Period set forth in Paragraph 7.0 of this Agreement, repair ot replace such Equipment and credit the next quarterly payment due hereunder for the actual cost of such repair or replacement by City; or (C) exercise any other right or remedy available at law or in equity. 7 , . IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. CITY : CUJRRY: CITY OF WINTER SPRINGS CURRYCONTROLSCOMWANY By:~~M~ . Ron McLemore, City Manager Date: /1 /78/1/0 Date: /iJft'1'~ 0 . , // 8