HomeMy WebLinkAboutOrdinance 3972ORDINANCE NO. 3 9 7 2
AN ORDINANCE WAIVING THE REQUIREMENTS OF
FORMAL COMPETITIVE BIDDING FOR THE RENTAL OF
A MILLING MACHINE TO BE UTILIZED BY THE STREET
MAINTENANCE DIVISION.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. The City Council hereby waives the requirements of formal competitive
bidding for the rental of a milling machine to be utilized in the Street Maintenance Division.
Said requirements would prevent rental of a unit as manufacturers do not find it practical to
hold such units for the time necessary to comply with formal bid requirements. Therefore, it
would not be feasible or practical to take and award a formal competitive bid.
Section 2. The total number of units to be rented shall not exceed 1 unit.
Section 3. The City Council hereby authorizes representatives of the Street
Maintenance Division to evaluate, compare, and finalize a recommendation to the Mayor for
the rental of an appropriate unit at a cost not to exceed $67,500.
Section 4. The City Council hereby authorizes the Mayor to review the
recommendations of the representatives of the Street Maintenance Division and approve the
rental of such equipment.
PASSED AND APPROVED this 21st day of May 1996.
APPROVED:
By: /14�-
red Hanna, Mayor
ATTEST
By:
Traci,Raul, City Clerk
FctEltFN',
M
AGENDA REQUEST
xx CONTRACT REVIEW
GRANT REVIEW
For the
FROM:
• Orel. 3 9 7.2
• Sf r � e_'l .r
Le,4rt
STAFF REVIEW FORM
TnI.
7-a9-9L
retteville City Council meeting of
Randy Allen Street _Public Works
Name Division Department
ACTION REQUIRED:Approval of lease agreement for a milling machine.
COST TO CITY:
$70,688.00
Cost of this Request
4470-9470-5809-00
Account Number
96025
Project Number
S 761,000
Category/Project Budget
S 619,990
Funds Used To Date
S 141,010
Remaining Balance
In -House Street Improvements
Category/Project Name
Program Name
Y Budgeted Item Budget Adjustment Attached
ve Services Director
CONTRACT/GRANT/LEASE REVIEW: GRANTING AGENCY:
Accou in an r Date I rnal Audit r Date
Ci y Attorney Date Coordinator Date
T-11-9(o
Purchasing Officer Date
STAFF RECOMMENDATION:
Approval Qf lease agreement. btpfA � EC 3911 pkbsc� M� 1 u� �49G
1
department Director
Adminigtrative Sery ces Direc
Date
�iJvLa�
Date
tore
% � �1
Date
-2112- ti/y-4
Cd373!z- 33,E
New Item: Yes No
Prev Ord/Res #:
Orig Contract Date:
FAYETTEVItLE •
THE CITY OF FAYETTEVIEEE, ARKANSAS
DEPARTMENTAL CORRESPONDENCE
TO: Review committee
FROM: Randy Allen, Street Superintendent
DATE: July 18, 1996
SUBJECT: Lease Agreement with Wirtgen America, Inc.
Item #1 for Accounting Manager -- sentence deleted and initialed.
Item #2 for Accounting Manager -- I will monitor usage.
Item #1 for Internal Auditor -- principal amount of lease will not
be exceeded. Use tax will be paid as an applicable tax in addition
to principal amount. Wirtgen America, Inc. said no sales tax is to
be paid to them.
A/O oI'�yiI79/ 4f�q, IA6/�.
• Per
MIRTGEN AMERICA, INC. • �U� ^ n S
204 RIVER HILLS DRIVE IJl l� U
NASHVILLE, TM 37210
TEL: GIs-891-owoJUL it 2 3 W'!
E Q U I P M E N T L E A S E A G R E R N E TI--
WIRTGEN AMERICA, INC., hereinafter called "LESSOR" does hereby lease
to r r f Fad rr i I I
nn hereinafter called
"LESSEE," subject to the terms and conditions hereinafter set forth, the equipment
described below and/or in Schedule "A" attached hereto and incorporated herein,
hereinafter called "EQUIPMENT:"
(1) I900DC Wirtaan Milling Machine equipped per attached quote
for the term of 3 months, commencing App rnx. ,iniyt AV. 1 ghat a monthly
rental of S 22, 500.00 plus applicable taxes. The first installment is
payable on or bel rAadelivery of the EQUIPMENT. The second installment is
due 31� t��W. i • 6andcssubsequuennt Installments due on the same date monthly.
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IT IS FURTHER AGREED BETWEEN THE PARTIES:
1. GENERAL AGREEMENT: LESSOR will furnish the EQUIPMENT as hereinabove described
and LESSEE shall lease the EQUIPMENT for the the term herein set forth at the rental
herein provided. It is the express understanding of the parties that this Is a
contract of leasing only and that LESSEE has by these presents acquired no right,
title or interest in or to the equipment.
2. LOCATION: LESSEE shall keep the equipment within the State of.Ar%an5a s
and shall not remove all or any part of the equipment therefrom without written
permission of LESSOR. This is for UCC-1 filing purposes.
3. INSURANCE: From the time the equipment is delivered to the LESSEE until it
is returned to LESSOR. LESSEE shall use and preserve the equipment in a careful and
proper manner, and shall be responsible for loss or damage thereto from any cause,
and will, at LESSEE's own expense maintain for its full insurable value
of Ii89.190 contractor's equipment all-risk insurance coverage, with
loss payable to LESSEE and LESSOR as their respective interests may appear. In the
event that the LESSEE does not furnish such insurance, the LESSOR may, but shall not
be obligated to insure such property at the expense of the LESSEE. LESSEE shall
furnish policies or certificates of insurance evidencing such coverage to LESSOR.
Each policy shall provide for at least Ten (10) days written notice to LESSOR of the
cancellation or material modification thereof.
4. REPAIR AND MAINTENANCE OF EQUIPMENT: The LESSEE shall effect and bear the
expense of all repairs, maintenance, operation and replacements, maintaining and
keeping the equipment in good repair, in good appearance and operating condition,
and LESSEE shall return the equipment to LESSOR in the same condition as it was when
received by LESSEE, in good appearance, ordinary wear and tear excepted. The engine,
transmission, and other mechanical components shall be in good operable condition
upon return to LESSOR, and the body shall be clean and undamaged. The LESSEE shall
not incur for LESSOR's account or liability and expense therefore without LESSOR's
prior written consent.
LESSEE shall inspect the equipment within forty-eight hours after its receipt.
and unless within such time LESSEE notifies LESSOR of the details of any defects,
the LESSEE shall be presumed to have accepted the equipment in its then condition.
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. S. WIRTOBN SERVICE ARSTANCE: 'Any request by any e0oyee of the LESSEE for
service assistance shall be considered as authorized by the LESSEE unless the LESSEE
Nis advised LESSOR In writing, designating those persons authorized to request
service. Request for service will be directed to the Field Service Department at
LESSOR In Nashville, Tennessee. Upon request LESSOR will provide Service Engineers
for making repairs to the equipment as quickly as its schedules and requirements
permit. LESSOR does not and cannot warrant that a Service Engineer will be
available, within a specified period of time. All service performed by LESSOR at the
request of the LESSEE will be paid for by the LESSEE at the then current LESSOR
rates for service and travel.
Any request by LESSEE for LESSOR to furnish an Instructor for any period of time
will be charged to the LESSEE at the current LESSOR service and travel rates.
S. REPLACEMENTS: LESSOR shall not be obligated to make any repairs or
replacements but LESSOR may, at its option, and upon the termination of this
agreement or the return of the equipment to LESSOR, make such repairs or
replacements on the equipment as LESSOR shall deem necessary to put the equipment in
the same condition as It was when received by LESSEE, ordinary wear and tear
excepted. Such repairs or replacements by the LESSOR shall be at the expense of the
LESSEE In addition to any rental or other expense provided hereunder.
7. TAXES AND FEES: LESSEE shall comply with and conform to all laws, ordinances,
and regulations relating to the possession, use or maintenance of the equipment and
shall pay all taxes, Including sales taxes, use taxes, excise taxes, assessment and
all other governmental charges, fees, fines, or penalties, whatsoever, whether
payable by LESSOR or the LESSEE, or others, on or relating to the rental of the
equipment or the use, registration, rental, shipment, transportation, delivery or
operation thereof. Upon demand, the LESSEE shall reimburse LESSOR for any taxes,
assessments, charges, fines or penalties which LESSOR may be compelled to pay In
connection with the equipment.
B. OPERATION OF EQUIPMENT: LESSEE shall cause the equipment to be operated by
competent employees only, and shall pay all expense of operation.
9. INSPECTION: LESSEE shall, whenever requested, advise LESSOR of the exact
location and condition of the equipment and shall give LESSOR immediate notice of
any attachment or any other judicial process affecting the equipment. The LESSOR
shall be permitted to inspect the equipment herein leased at all reasonable times.
10. INDEMNITY: LESSEE agrees to and does hereby indemnify LESSOR and hold
LESSOR, its agents and employees harmless of and from any and all losses, damages,
claims, demands or liability of any kind or nature whatsoever, including legal
expenses, arising from the use, condition (including without limitation latent and
other defects and whether or not discoverable by LESSOR) or operation of the
equipment, and by whomsoever used or operated, during the term hereof. No word,
sentence, or phrase contained herein shall be interpreted to waive
that tort immunity as set forth under Arkansas law.
11, WARRANTY: LESSOR warrants when delivered the equipment is free from
defective material and workmanship.
12. DISCLAIMER OF SPECIFIED WARRANTIES: The warranty expressed above Is in lieu
of and exclusive of all other warranties. There are no other warranties expressed or
Implied except as stated herein. LESSOR MARES NO WARRANTY AS TO MERCHANTABILITY OR
FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE.
13. LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES WILL LESSOR BE RESPONSIBLE
FOR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT BY WAY OF LIMITATION, LOSS OF PROFITS,
LOSS OF USE OF OTHER EQUIPMENT, IMPROPER PERFORMANCE OF WORK, PENALTIES OF ANY KIND,
LOSS OF SERVICES OF PERSONNEL, OR ANY OTHER LOSSES WHICH MAY BE EXPERIENCED BY
LESSEE.
LESSOR's liability hereunder for damages to LESSEE, regardless of the form of
legal action, shall not exceed the rental paid to LESSOR by LESSEE hereunder.
14. PERSOMAL PROPERTY: The equipment shall at all time remain the personal
property of LESSOR regardless of the degree of Its annexation to real property and
the equipment shall not be reason of any annexation to other personal property
become a part thereof.
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IS. TRANSFER AND ASSIGNMENT: LESSOR may aaslgn or otherwise transfer their
lease and the rent due or to become due thereunder and when so assigned or
transferred, assignees's rights shall be free of any cause of action, counter -claim,
offset, defense or cross complaint. The LESSEE, on receiving notice of any such
assignment, shall abide thereby and make payment as may be directed therein.
LESSEE's rights hereunder shall not be assignable or the equipment Included herein
be subleased by LESSEE, except with LESSOR's prior written consent, and the
conditions hereof shall bind any permitted successors and assigns of LESSEE.
16. POSSESSION: LESSOR covenants and warrants that It Is the lawful owner of
the equipment, free from all encumbrances and that conditions upon LESSEE's
performing the conditions hereof, LESSEE shall peaceably and quietly hold, possess
and use the equipment during such term without hindrance.
17. NON -WAIVER: Time Is the essence of this agreement. LESSOR's failure at any
time to require strict performance by LESSEE of any of its provisions shall not
waive or diminish LESSOR's right thereafter to demand strict compliance therewith or
with any other provision. Waiver of any default shall not waive any other default.
LESSOR's rights hereunder are cumulative and not alternative.
18. DEFAULT: In the event LESSEE becomes insolvent, ceases to do business as a
going concern, makes an assignment for the benefit of creditors, or If a petition
for receiver or In bankruptcy is filed, by or against LESSEE, or in the event LESSEE
fails to pay rent as the same becomes due hereunder or otherwise breaches the
provisions of the lease. LESSOR may, at its option, declare LESSEE to be in default.
19. REMEDIES: If LESSOR declares LESSEE to be in default, then LESSOR at its
sole option, without prejudice to any other remedy, may terminate this lease and/or
enter upon LESSEE's premises or upon other premises where the equipment Is located,
or LESSOR believes the equipment to be located, without any court order or other
process of law, and may repossess or remove such property either with or without
notice to LESSEE. In addition, LESSOR has the right at its sole option, to exercise
any one or more of the following remedies, 1). to declare the total amount of rent
hereunder immediately due and payable, as to any or all items of equipment, without
notice or demand to LESSEE; 2). to terminate this lease and retain as damages any
and all rentals paid or security deposited by LESSEE; 3). to pursue any other remedy
at law or in equity.
LESSOR may sell the equipment or may release the equipment for a term and a
rental which may be equal to, greater than, or less than the rental of term herein
provided. Any proceeds of sale, received within sixty days after repossession, or
any rental payments received under a new lease made within such sixty days, for the
period prior to the expiration of this lease, less LESSOR's expenses of taking
possession, storage, reconditioning and sale or releasing, shall be applied on the
LESSEE's obligations hereunder, and LESSEE shall remain liable for the balance of
the unpaid aggregate rental set forth above. LESSEE's liability shall not be reduced
by reason of any failure of LESSOR to sell or relet within such sixty days.
Should any legal proceeding be instituted by LESSOR to recover any monies due or
to become due hereunder, or for possession of the equipment, LESSEE shall pay a
reasonable sum as attorney's fees.
20. MISCELLANEOUS: This lease is irrevocable for the full term hereof and for
the aggregate rental herein reserved, and the rent shall not abate by reason of
termination of LESSEE's right of possession and/or the taking of possession by
LESSOR or for any other reason,, and delinquent installments of rental shall bear
interest at the highest lawful contract rate.
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22. NOTICES: Notices provided for under this agreement shall be by registered
mall, postage prepaid, to the LESSOR or LESSEE at their last known address.
23. APPLICABLE LAW: This agreement shall be interpreted and construed in
accordance with the Laws of the United States of America.
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24. PARTIES BOUND: The terms and provision hereof sh I bind and inure to the
benefit of LESSOR and LESSEE and their respective successors and assigns.
25, RENTAL RATES: (a) Monthly rental rates shall not be subject to any deduction
on account of any non -working time in the month, but the amount of rent payable for
any fraction of a month at the beginning or end of the rental period shall be the
monthly rental rate, prorated according to the number of calendar days in such
fraction. (b) Daily rental rates shall not be subject to deductions for non -working
time In the day and shall be paid for each calendar day in the month except Sunday
and legal holidays upon which the equipment is not operated. (c) Daily and monthly
rates stipulated in the list of equipment contemplate an operating day of 8 hours,
an operating week of 40 hours, and an operating month of 176 hours. Operating time
for each calendar day in excess of 8 hours, each calendar week in excess of 40
hours, and each calendar month In excess of 176 hours shall be paid, pro rats, with
1/8 of the daily rate for each overtime hour on a daily basis ; 1/40 of the weekly
rate for each overtime hour on a weekly basis; or 1/17e of the monthly rate for each
overtime hour on a monthly basis.
26. SECURITY INTEREST: The parties hereto intend this lease to be a true lease
and not a sale with financing. LESSEE shall have no ownership interest in the
equipment. If for any reason it is determined through a court of law or through any
other proceeding that LESSEE is entitled to some ownership interest in the
equipment: then the parties intend that the obligations of LESSEE hereunder shall be
secured by any such ownership interest of LESSEE in the equipment. Therefore,
LESSEE grants to LESSOR a security interest in the equipment together with any or
all substitutions, additions or accessions, and in any and all proceeds therefrom,
to secure payment, of all amounts due hereunder and LESSOR shall have all rights of
a secured party under the Uniform Commercial Code or other applicable law.
Furthermore, LESSEE agrees to sign a UCC-1 Financing Statement or other applicable
instruments to evidence LESSOR's security interest. The parties hereby agree that,
where permitted by applicable law, a carbon or photographic copy, or other
reproduction of this Agreement or of financing statement(s) executed by the parties
hereto may be filed to evidence the security interest granted herein.
27. INTEGRATIOR CLAUSE: All prior conversations agreements or representations
related hereto and/or to said equipment are integrated herein, no modification
hereof shall be binding unless in writing signed by LESSOR.
IN WITNESS WHEREOF, this lease has been executed by the parties hereto as of
the 11i4A day of J*cr LX 19-.g.
If LESSEE is a corporation, this Lease is executed by authority of its Board of
Directors.
This agreement is not effective until accepted by the LESSOR in Nashville,
Tennessee.
L1
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A p 81
T
9
LESSEE:
�e
By
Title MG t/Or,
Owner. Partner, Officer
Date
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W
INCS Productivity
Dependability
Quality
ATTACgXENT B
MISCELLANEOUS PARTS AND REPAIR PARTS DISCLAIMER
City of FdXr.�jle 4R LESSEE of Wirtgen Model 1900nC SIN
agree to return said unit with all miscellaneous parts
as follows:
Working Lights
All tools supplied by Lessor
All parts and maintenance manuals
Cross slope control (If applicable)
Sensor boxes (If applicable)
Rotating Beacon
A new full set of cutting teeth
Items that can
fail during
lease due to inexperience or
negligence that
can add cost to
lessee:
(1) Upper and lower conveyor belts 'except splices.
(2) carrier rollers.with flat spots - rollers not clean.
(3) Belt flashing wear.
(4) Pulley bearings running in milling fines because of no/worn
flashing.
(5) Breakage of cutter drive belts.
(6) Cutter tooth holder breakage.
(7) Tungsten carbide cutting edge insert breakage.
(8) Excessive wear in tooth holders.
(9) Bent cutter end plates.
LESSEE — AT
204 RIVER HILLS DR.. NASHVILLE. TN 37210 USA
P.O. BOX 100821. NASHVILLE. TN 37224
(615)391-0600 FAX(615)391.0791
The Cutting Edge
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204 FIV,kR HILLS OFIVE, NASHVILLE, TN 37210 USA
OX 100821, NASHVILLE. TN 37224
MI 51391.0600 FAX (6151391.0791
LEASE PROFILE
1. LEASE Begins when machine ships, excluding transit time; ends when
PERIOD returned to WIRTGEN.
2. "k*%RJ(XXXXxW�wt "RX**jl"ftX
*9i3P?FR9[9C= NX
3. JOB Rates are quoted for normal job conditions unless otherwise
CONDITIONS specified.
4. RENTAL RATE Based on Single Shift Operation - 176 HOURS PER MONTH MAXIMUM
6. TERMS Rental due each month in advance, with late charge assessed
for payment not received when due.
6. MAINTENANCE Normal maintenance, oil level, coolant, grease. oil samples,
etc. to be performed by Lessee in accordance with
manufacturer's recommendations.
7. REPAIRS Lessee shall perform such repairs as necessary to maintain the
unit in as good functional operating condition as when
received. Normal wear 6 tear excepted.
NOTE: Customer receiving a new machine.
8. OPERATICN Lessee to furnish competent employee operator, and shall pay
OF EQUIP. all expenses of operation.
9. SERVICE Unless otherwise provided for, field service will be charged
ASSISTANCE to Lessee at the then current rate for service and travel.
Startup assistance included in rental rate.
10, LOCATION Leased for use at one specific location or locations & not
to be removed without authorization.
11. INSURANCE Lessee must furnish proof of coverage prior to delivery.
12. DAMAGE Beyond normal wear tear to be responsibility of Lessee.
Downtime caused by damage or abuse will be charged rental
as if machine is being used.
NOTE: THIS DOES NOT REPLACE OR SUPERSEDE FORMAL LEASE
DOCUMENTS, BUT IS AN INTEGRAL PART OF SAID LEASE
AGREEMENT.
LESSEE: +1
BY:
TITLE: MG)unr%
DATE: %— 1,9 - #
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ORDINANCE NO. 3972
Yf
AN ORDINANCE WAIVING THE REQUIREMENTS OF
FORMAL COMPETITIVE BIDDING FOR THE RENTAL OF
A MILLING MACHINE TO BE UTILIZED BY THE STREET
MAINTENANCE DIVISION.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. The City Council hereby waives the requirements of formal competitive
bidding for the rental of a milling machine to be utilized in the Street Maintenance Division.
Said requirements would prevent rental of a unit as manufacturers do not find it practical to
hold such units for the time necessary to comply with formal bid requirements. Therefore, it
would not be feasible or practical to take and award a formal competitive bid.
Section 2. The total number of units to be rented shall not exceed 1 unit.
Section 3. The City Council hereby authorizes representatives of the Street
Maintenance Division to evaluate, compare, and finalize a recommendation to the Mayor for
the rental of an appropriate unit at a cost not to exceed $67,500.
Section 4. The City Council hereby authorizes the Mayor to review the
recommendations of the representatives of the Street Maintenance Division and approve the
rental of such equipment.
PASSED AND APPROVED this 21st day of May , 1996. \
APPROVED:
By: Xe�z /�'/L/ty�—
red Hanna, Mayor
ATTEST -
By:
Traci..Paul, City Clerk
1
• MIRTGEN AMERICA, INC. .
204 RIVER HILLS DRIVE
NASHVILLE, TH 37210
TEL: 615-391-0600
EQUIPMENT LEASE AGREEMENT
WIRTGEN AMERICA. INC., hereinafter called "LESSOR" does hereby lease
t0 rih nP Fa},otI lla, AP hereinafter called
"LESSEE," subject to the terms and conditions hereinafter set forth, the equipment
described below and/or in Schedule "A" attached hereto and incorporated herein,
hereinafter called "EQUIPMENT:"
(1.) 190ODC Wirtgen Milling Machine equipped per attached quote
z9-0I a,'
for the term of 3 months, commencing ARnrox_ ,Tuty jX, 1996at a monthly
rental of S 22,500.00 plus applicable taxes. The first installment is
payable on or bed r,tdelivery of the EQUIPMENT. The second installment is
due All _t 1946and subsequent installments due on the same date monthly.
1. GENERAL AGREE14ENT: LESSOR will furnish the EQUIPMENT as hereinabove described
and LESSEE shall lease the EQUIPMENT for the the term herein set forth at the rental
herein provided. It is the express understanding of the parties that this is a
contract of leasing only and that LESSEE has by these presents acquired no right.
title or interest in or to the equipment.
2. LOCATION: LESSEE shall keep the equipment within the State ofAr'<.ansa s
and shall not remove all or any part of the equipment therefrom without written
permission of LESSOR. This is for UCC-1 filing purposes.
3. INSURANCE: From the time the equipment is delivered to the LESSEE until it
is returned to LESSOR. LESSEE shall use and preserve the equipment in a careful and
proper manner, and shall be responsible for loss or damage thereto from any cause,
and will, at LESSEE's own expense maintain for its full insurable value
of �'RS.1S0 , contractor's equipment all-risk insurance coverage, with
loss payable to LESSEE and LESSOR as their respective interests may appear. In the
event that the LESSEE does not furnish such insurance, the LESSOR may, but shall not
be obligated to insure such property at the expense of the LESSEE. LESSEE shall
furnish policies or certificates of insurance evidencing such coverage to LESSOR.
Each policy shall provide for at least Ten (10) days written notice to LESSOR of the
cancellation or material modification thereof.
a. REPAIR AND MAINTENANCE OF EQUIPMENT: The LESSEE shall effect and bear the
expense of all repairs, maintenance, operation and replacements, maintaining and
keeping the equipment in good repair, in good appearance and operating condition,
and LESSEE shall return the equipment to LESSOR in the same condition as it was when
received by LESSEE, in good appearance, ordinary wear and tear excepted. The engine,
transmission, and other mechanical components shall be in good operable condition
upon return to LESSOR, and the body shall be clean and undamaged. The LESSEE shall
not incur for LESSOR's account or liability and expense therefore without LESSOR's
prior written consent.
LESSEE shall inspect the equipment within forty-eight hours after its receipt,
and unless within such time LESSEE notifies LESSOR of the details of any defects,
the LESSEE shall be presumed to have accepted the equipment in its then condition.
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S. WIRTGEN SERVICE AMSTANCE: 'Any request by any e4oyee of the LESSEE for
service assistance shall be considered as authorized by t e LESSEE unless the LESSEE
has advised LESSOR in writing, designating those persons authorized to request
service. Request for service will be directed to the Field Service Department at
LESSOR in Nashville, Tennessee. Upon request LESSOR will provide Service Engineers
for making repairs to the equipment as quickly as its schedules and requirements
permit. LESSOR does not and cannot warrant that a Service Engineer will be
available, within a specified period of time. All service performed by LESSOR at the
request of the LESSEE will be paid for by the LESSEE at the then current LESSOR
rates for service and travel.
Any request by LESSEE for LESSOR to furnish an instructor for any period of time
will be charged to the LESSEE at the current LESSOR service and travel rates.
6. REPLACEMENTS: LESSOR shall not be obligated to make any repairs or
replacements but LESSOR may, at its option, and upon the termination of this
agreement or the return of the equipment to LESSOR, make such repairs or
replacements on the equipment as LESSOR shall deem necessary to put the equipment in
the same condition as It was when received by LESSEE, ordinary wear and tear
excepted. Such repairs or replacements by the LESSOR shall be at the expense of the
LESSEE in addition to any rental or other expense provided hereunder.
7. TAXES AND FEES: LESSEE shall comply with and conform to all laws, ordinances,
and regulations relating to the possession, use or maintenance of the equipment and
shall pay all taxes, Including sales taxes, use taxes, excise taxes, assessment and
all other governmental charges, fees, fines, or penalties, whatsoever, whether
payable by LESSOR or the LESSEE, or others, on or relating to the rental of the
equipment or the use, registration, rental, shipment, transportation, delivery or
operation thereof. Upon demand, the LESSEE shall reimburse LESSOR for any taxes,
assessments, charges, fines or penalties which LESSOR may be compelled to pay In
connection with the equipment.
8. OPERATION OF EQUIPMENT: LESSEE shall cause the equipment to be operated by
competent employees only, and shall pay all expense of operation.
9. INSPECTION: LESSEE shall, whenever requested, advise LESSOR of the exact
location and condition of the equipment and shall give LESSOR immediate notice of
any attachment or any other Judicial process affecting the equipment. The LESSOR
shall be permitted to inspect the equipment herein leased at all reasonable times.
10. INDEMIiITY: LESSEE agrees to and does hereby indemnify LESSOR and hold
LESSOR, its agents and employees harmless of and from any and all losses, damages,
claims, demands or liability of any kind or nature whatsoever, Including legal
expenses, arising from the use, condition (including without limitation latent and
other defects and whether or not discoverable by LESSOR) or operation of the
equipment, and by whomsoever used or operated, during the term hereof. No word,
sentence, or phrase contained herein shall be interpreted to waive
that tort i:.imunity as set forth under Arkansas law.
11. WARRANTY: LESSOR warrants when delivered the equipment is free from
defective material and workmanship.
12. DISCLAIMER OF SPECIFIED WARRANTIES: The warranty expressed above is In lieu
of and exclusive of all other warranties. There are no other warranties expressed or
implied except as stated herein. LESSOR MAKES NO WARRANTY AS TO MERCHANTABILITY OR
FITNESS OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE.
13. LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES WILL LESSOR BE RESPONSIBLE
FOR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT BY WAY OF LIMITATION. LOSS OF PROFITS,
LOSS OF USE OF OTHER EQUIPMENT, IMPROPER PERFORMANCE OF WORK, PENALTIES OF ANY KIND,
LOSS OF SERVICES OF PERSONNEL, OR ANY OTHER LOSSES WHICH MAY BE EXPERIENCED BY
LESSEE.
LESSOR's liability hereunder for damages to LESSEE. regardless of the form of
legal action, shall not exceed the rental paid to LESSOR by LESSEE hereunder.
14. PERSONAL PROPERTY: The equipment shall at all time remain the personal
property of LESSOR regardless of the degree of Its annexation to real property and
the equipment shall not be reason of any annexation to other personal property
become a part thereof.
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15. TRANSFER AND ASSIGNMENT: LESSOR may assign or ofirwise transfer their
lease and the rent due or to become due thereunder and when so assigned or
transferred, assignees's rights shall be free of any cause of action, counter -claim,
offset, defense or cross complaint. The LESSEE, on receiving notice of any such
assignment, shall abide thereby and make payment as may be directed therein.
LESSEE's rights hereunder shall not be assignable or the equipment included herein
be subleased by LESSEE, except with LESSOR's prior written consent, and the
conditions hereof shall bind any permitted successors and assigns of LESSEE.
16. POSSESSION: LESSOR covenants and warrants that it is the lawful owner of
the equipment, free from all encumbrances and that conditions upon LESSEE's
performing the conditions hereof, LESSEE shall peaceably and quietly hold, possess
and use the equipment during such term without hindrance.
17. NON -WAIVER: Time is the essence of this agreement. LESSOR's failure at any
time to require strict performance by LESSEE of any of its provisions shall not
waive or diminish LESSOR's right thereafter to demand strict compliance therewith or
with any other provision. Waiver of any default shall not waive any other default.
LESSOR's rights hereunder are cumulative and not alternative.
18. DEFAULT: In the event LESSEE becomes insolvent, ceases to do business as a
going concern. makes an assignment for the benefit of creditors, or if a petition
for receiver or in bankruptcy is filed, by or against LESSEE, or In the event LESSEE
fails to pay rent as the same becomes due hereunder or otherwise breaches the
provisions of the lease. LESSOR may, at its option, declare LESSEE to be in default.
19. REMEDIES: If LESSOR declares LESSEE to be in default, then LESSOR at its
sole option, without prejudice to any other remedy, may terminate this lease and/or
enter upon LESSEE's premises or upon other premises where the equipment is located,
or LESSOR believes the equipment to be located, without any court order or other
process of law, and may repossess or remove such property either with or without
notice to LESSEE. In addition. LESSOR has the right at its sole option, to exercise
any one or more of the following remedies, 1). to declare the total amount of rent
hereunder Immediately due and payable, as to any or all items of equipment, without
notice or demand to LESSEE: 2). to terminate this lease and retain as damages any
and all rentals paid or security deposited by LESSEE; 3). to pursue any other remedy
at law or in equity.
LESSOR may sell the equipment or may release the equipment for a term and a
rental which may be equal to, greater than, or less than the rental of term herein
provided. Any proceeds of sale, received within sixty days after repossession, or
any rental payments received under a new lease made within such sixty days, for the
period prior to the expiration of this lease, less LESSOR's expenses of taking
possession, storage, reconditioning and sale or releasing, shall be applied on the
LESSEE's obligations hereunder. and LESSEE shall remain liable for the balance of
the unpaid aggregate rental set forth above. LESSEE's liability shall not be reduced
by reason of any failure of LESSOR to sell or relet within such sixty days.
Should any legal proceeding be instituted by LESSOR to recover any monies due or
to become due hereunder, or for possession of the equipment, LESSEE shall pay a
reasonable sum as attorney's fees.
20. MISCELLANEOUS: This lease is irrevocable for the full term hereof and for
the aggregate rental herein reserved, and the rent shall not abate by reason of
termination of LESSEE's right of possession and/or the taking of possession by
LESSOR or for any other reason,, and delinquent installments of rental shall bear
Interest at the highest lawful contract rate.
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22. NOTICES: Notices provided for under this agreement shall be by registered
mail, postage prepaid, to the LESSOR or LESSEE at their last known address.
23. APPLICABLE LAM: This agreement shall be interpreted and construed in
accordance with the Laws of the United States of America.
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24. PARTIES BOUND: The terms and provision hereof loll bind and inure to the
benefit of LESSOR and LESSEE and their respective successors and assigns.
25. RENTAL RATES: (a) Monthly rental rates shall not be subject to any deduction
on account of any non -working time in the month, but the amount of rent payable for
any fraction of a month at the beginning or end of the rental period shall be the
monthly rental rate, prorated according to the number of calendar days in such
fraction. (b) Daily rental rates shall not be subject to deductions for non -working
time in the day and shall be paid for each calendar day in the month except Sunday
and legal holidays upon which the equipment is not operated. (c) Daily and monthly
rates stipulated in the list of equipment contemplate an operating day of 8 hours,
an operating week of 40 hours, and an operating month of 176 hours. Operating time
for each calendar day in excess of 8 hours, each calendar week in excess of 40
hours, and each calendar month in excess of 176 hours shall be paid, pro rats, with
1/8 of the daily rate for each overtime hour on a daily basis 1/40 of the weekly
rate for each overtime hour on a weekly basis: or 1/178 of the monthly rate for each
overtime hour on a monthly basis.
26. SECURITY INTEREST: The parties hereto intend this lease to be a true lease
and not a sale with financing. LESSEE shall have no ownership interest in the
equipment. If for any reason It is determined through a court of law or through any
other proceeding that LESSEE is entitled to some ownership interest in the
equipment: then the parties intend that the obligations of LESSEE hereunder shall be
secured by any such ownership interest of LESSEE in the equipment. Therefore,
LESSEE grants to LESSOR a security interest in the equipment together with any or
all substitutions, additions or accessions, and in any and all proceeds therefrom,
to secure payment, of all amounts due hereunder and LESSOR shall have all rights of
a secured party under the Uniform Commercial Code or other applicable law.
Furthermore. LESSEE agrees to sign a UCC-1 Financing Statement or other applicable
instruments to evidence LESSOR's security interest. The parties hereby agree that,
where permitted by applicable law, a carbon or photographic copy, or other
reproduction of this Agreement or of financing statement(s) executed by the parties
hereto may be filed to evidence the security interest granted herein.
27. INTEGRATION CLAUSE: All prior conversations agreements or representations
related hereto and/or to said equipment are integrated herein, no modification
hereof shall be binding unless in writing signed by LESSOR.
IN WITNESS WHEREOF, this lease has been executed by the parties hereto as of
the /91�A day of Jcf LX 19/.
If LESSEE is a corporation, this Lease is executed by authority of its Board of
Directors.
This agreement is not effective until accepted by the LESSOR in Nashville,
Tennessee.
LESSOR:
wIRTGEN AMERICA, INC.
P By
Title
Date
LESSEE:
By��/
Titlet/Di
Owner. Partner, Officer
Date % "/49 94
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w ° INC. Productivity
Dependability
Quality
ATTACHMENT B
MISCELLANEOUS PARTS AND REPAIR PARTS DISCLAIMER
City of Fayetteville 4R LESSEE of Wirtgen Model 190ODC SIN
agree to return said unit with all miscellaneous parts
as follows:
Working Lights
All tools supplied by Lessor
All parts and maintenance manuals
Cross slope control (If applicable)
Sensor boxes (If applicable)
Rotating Beacon
A new full set of cutting teeth
=terns that can fail during lease due to inexperience or negligence that
can add cost to lessee:
(1) Upper and lower conveyor belts except splices.
(2) Carrier rollers with flat spots - rollers not clean.
(3) Belt flashing wear.
(4) Pulley bearings running in milling fines because of ne/worn
flashing.
(5) Breakage of cutter drive belts.
(6) Cutter tooth holder breakage.
(7) Tungsten carbide cutting edge insert breakage.
(8) Excessive wear in tooth holders.
(9) Bent cutter and plates.
LESSEE bATt
204 RIVER HILLS OR.. NASHVILLE. TN 37210 USA
P.O. BOX 100821, NASHVILLE. TN 37224
1615)391.0600 FAXJ615)391.0791
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The Cutting Edge
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204 RIVER HILLS DRIVE, NASHVILLE, TN 37210 USA
BOX 100821, NASHVILLE. TN 37224
5) 391.0600 FAX (615) 391.0791
LEASE PROFILE
1. LEASE Begins when machine ships, excluding transit time; ends when
PERIOD returned to WIRTGEN.
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$9sP 3?RvNx
3. JOB Rates are quoted for normal job conditions unless otherwise
CONDITIONS specified.
4. RENTAL RATE Based on Single Shift Operation - 176 HOURS PER MONTH MAXIMUM
5. T.£R.NS Rental due each month in advance, with late charge assessed
for payment not received when due.
6. MAINTENANCE Normal maintenance, oil level, coolant, grease. oil samples,
etc. to be performed by Lessee in accordance with
manufacturer's recommendations.
7. REPAIRS Lessee shall perform such repairs as necessary to maintain the
unit in as good functional operating condition as when
received. Normal wear & tear excepted.
NOTE: Customer receiving a new machine.
8. OPERATICN Lessee to furnish competent employee operator, and shall pay
OF EQUIP. all expenses of operation.
9. SERVICE Unless otherwise provided for, field service will be charged
ASSISTANCE to Lessee at the then current rate for service and travel.
Startup assistance included in rental rate.
10. LOCATION Leased for use at one specific location or locations & not
to be removed without authorization.
11. INSURANCE Lessee must furnish proof of coverage prior to delivery.
12. DAMAGE Beyond normal wear & tear to be responsibility of Lessee.
Downtime caused by damage or abuse will be charged rental
as if machine is being used.
NOTE: THIS DOES NOT REPLACE OR SUPERSEDE FORMAL LEASE
DOCUMENTS, BUT IS AN INTEGRAL PART OF SAID LEASE
AGREEMENT.
LESSEE:
BY: /1i/ ✓L�
TITLE:
DATE:
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WIRTGEN AMERICA INC.
204 RIVER HILLS DRIVE, NASHVILLE, TN 37210 USA
P.O. BOX 100821, NASHVILLE, TN 37224
(615) 391-0600 FAX (615) 391-0791
TELEFAX
FROM: Sandy Draper
TO:' City of Fayetteville
ATTN : Randy Allen/Peggy Bates
DATE : 7/17/96
PAGE: -1- OF -8-
RE Revised Lease
Please sign and fax back ASAP.
If you have any questions call me.
Sincerely,
C
Sandy Draper
Sales Coordinator
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