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HomeMy WebLinkAbout1989-05-01-R RESOLUTION NO.-'09--'5 — A O._$9_-5 —A RESOLUTION AUTHORIZING THE MAYOR OF THE CITY OF BATESVILLE TO SIGN AN EQUIPMENT LEASE AGREEMENT AND USED BEVERAGED CONTAINER PURCHASE AGREEMENT AND FOR OTHER PURPOSES . WHEREAS, the City of Batesville has expressed an interest in disposing of used aluminum beverage containers and providing a. uniform method of disposing of same, or; and, WHEREAS , the Batesville City Council has indicated its approval of an Equipment Lease and Used Beverage Container Purchase Agreement proposed by Container Recovery Corporation of Ohio; and, WHEREAS, the City desires to enter into the Equipment Lease Agreement and UBC Purchase Agreement; NOW, THEREFORE, BE IT RESOLVED, that the mayor of the City of Batesville is hereby authorized to enter into an Equipment Lease Agreement and Used Beverage Container Purchase Agreement with Container. Recovery Corporation of Ohio for the purpose of providing a Uniform or Used Beverage Container Disposal System and to execute any other documents ertine thereto. . � . . . . . . . . . . . RABLE JIN�SHERRILL, MAYOR TY OF BE?TESVILLE LARRY WILLIAMS CITY CLERK WContract # 4248A EQUIPMENT LEASE THIS LEASE AGREEMENT ( "Lease" ) is made this let day of May, 1989 by and between CONTAINER RECOVERY CORPORATION, an Ohio corporation with its principal place of business in St. Louis, Missouri ( "Lessor" ) and CITY OF BATESVILLE with its principal place of business in Batesville, Arkansas ( "Lessee" ) . 1. Lease: Lessor hereby leases to Lessee and Lessee hereby hires and takes from Lessor, the personal property described on the attached Exhibit A ( "Equipment" ) . The Equipment shall be located at Lessee's collection facility and will not be removed by Lessee from such location without Lessor's prior written consent. 2. Term: This Lease is for a term of three (3) years starting on the date first written above; provided, however, that (i ) either party may terminate this Lease at any time by giving the other party at least thirty (30) days prior written notice of termination; and (ii) this Lease shall automatically terminate upon expiration or termination of the agreement between Lessor and Lessee dated May 1, 1989 (the "UBC Purchase Agreement Agreement" ) . Each May let to April 30th period during the term hereof shall be referred to herein as a "Contract Year. " 4W 3, Rentals: Lessee agrees to pay to Lessor as rental the sum of One Dollar ($1. 00) for each item of equipment listed on Exhibit A, such payments to be made on or before the first day of each calendar month during the term hereof. All payments shall be made without notice or demand at the address of Lessor set forth in Paragraph 16 below. 4. Loss and Damage: Lessee hereby assumes and shall bear the entire risk of loss and damage to the Equipment from any and every cause whatsoever. (a) In the event of total or substantial damage to the Equipment, Lessee shall, at Lessor's option: ( i ) Promptly place the Equipment in good repair, condition and working order or replace the same with like Equipment in good repair, condition and working order, in which event the Lease shall continue in full force and effect; or ( ii ) Promptly pay to Lessor the fair market value of such Equipment immediately prior to its destruction or damage, in which event this Lease shall terminate as to such Equipment and title thereto shall vest in Lessee. (b) If there is any loss or damage to the Equipment which is neither total nor substantial, Lessee shall promptly place the Equipment in good repair, condition and working order, and the Lease shall continue in full force and effect. L 5. Repairs: Lessee shall at its expense, keep the Equipment in good repair, condition and working order at all times. r 6. Ownership of Lessor: The Equipment shall at all times be and remain the exclusive property of Lessor. Possession of the Equipment by Lessee shall not vest any right, title or interest in the Equipment to Lessee except the right to use the Equipment under the provisions of this Lease. Lessee will at all times protect and defend, at its expense, the ownership of Lessor against all claims, liens and legal processes of Lessee's creditors, and keep the Equipment free and clear from all such claims, liens and processes. Lessee shall, at its expense, affix and keep in a prominent place on the Equipment, markings showing Lessor as the owner of the Equipment. Upon the expiration or termination of this Lease, Lessee at its expense shall return the Equipment unencumbered to Lessor in the same condition as when received by Lessee, reasonable wear and tear resulting from authorized use excepted. 7. Possession and Use of Equipment : Subject to the provisions of Paragraph 2 above, so long as Lessee is not in default under this Lease, Lessee may possess and use the Equipment in accordance with this Lease. Lessee shall not, without the prior written consent of Lessor, make any alterations, additions or improvements to the Equipment. Lessee shall use the Equipment in a careful, proper and lawful manner. Lessor shall have the right from time to time during regular business hours to enter upon Lessee's premises or elsewhere to confirm the existence, :ondition and proper maintenance of the Equipment. 8. Lessee' s Warranties: Lessee represents, warrants and covenants to Lessor as follows: ( a) It has the full right and legal authority to enter into and fully perform this Agreement in accordance with its terms. ( b) This Lease when executed and delivered by Lessee, will be its legal, valid and binding obligation enforceable against it in accordance with its terms. (c) The execution, delivery and performance by Lessee of this Lease, do not and will not violate or cause a breach of any agreement, indenture, mortgage, lease, note or other obligation or instrument to which it is a party or by which it is bound or affected. 9. Liability: Lessee assumes liability for, and hereby agrees to indemnify, defend and hold harmless Lessor, its agents, employees, officers, directors, successors and assigns from and against any and all liabilities, obligations, losses, damages, claims, demands, actions, costs and expenses, including attorney's fees, arising out of ( i) the use, condition (including, but not limited to, latent and other defects and whether or not discoverable by Lessee or Lessor), operation, delivery or return of any item of the Equipment, regardless of where, how and by whom operated, ( ii ) any breach by essee of any warranty made by it herein, or ( iii) any failure of Lessee to perform or comply with any provisions of this Lease. 2 10. Insurance• Lessee shall keep the Equipment insured against ALL RISKS FOR LOSS OR DAMAGE FROM EVERY CAUSE WHATSOEVER FOR NOT LESS THAN THE BULL REPLACEMENT COST OF THE EQUIPMENT. All such insurance shall be in such form and shall be placed with such companies as are satisfactory to Lessor. All insurance for loss or damage to or resulting from the Equipment shall provide that Lessor's interest shall be fully protected, and LESSOR SHALL BE NAMED AS AN ADDITIONAL INSURED PARTY UNDER LESSEE'S POLICIES. Lessee shall pay the premiums therefor and deliver to Lessor the policies of insurance or duplicates or certificates thereof, and other evidence, satisfactory to Lessor, of such insurance coverage. Each insurer shall agree, by endorsement upon the policy or policies issued by it or by independent instrument furnished to Lessor, that it will give Lessor at least 30 days' prior written notice of the effective date of any amendment or cancellation of any policy. If Lessee fails to procure or maintain such insurance or to comply with any other provision of this Lease, Lessor shall have the right, but shall not be obligated, to obtain such insurance or effect compliance on behalf of Lessee. In that event, all amounts spent by Lessor in effecting such insurance or compliance shall be deemed to be additional rent, and shall be paid by Lessee to Lessor upon demand. 11. Taxes• Lessee shall promptly pay when due, all fees, assessments, charges and taxes (excluding, however, any taxes payable in respect of Lessor's income) , which may now or hereafter be imposed upon the ownership, possession, operation, control or use of the Equipment. 12. Receipt and Condition of Equipment: LESSEE ACKNOWLEDGES RECEIPT OF ALL OF THE EQUIPMENT AND THAT THE EQUIPMENT IS ACCEPTABLE TO IT IN ITS PRESENT CONDITION, AS IS. LESSOR HAS MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE EQUIPMENT, AND LESSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Lessor shall not be liable to Lessee for any loss, cost, damages or expense of any kind or nature caused directly or indirectly by any Equipment, including, but not limited to, loss of anticipatory profits or any other indirect, special or consequential damages. NO DEFECT OR UNFITNESS OF THE EQUIPMENT SHALL RELIEVE LESSEE OR ANY OBLIGATION TO LESSOR UNDER THIS LEASE. 13. Assignment : This Lease and all rights of Lessor hereunder shall be assignable by Lessor without Lessee's consent, but Lessee shall not be obligated to any assignee of Lessor except after written notice of such assignment is sent to Lessee. Without the prior written consent of Lessor, Lessee shall not assign this Lease or its interests hereunder or enter into any sublease with respect to any of the Equipment. 4 3 14. Default : This Lease shall be breached if Lessee shall default in the performance of any covenant herein or in the UBC Purchase Agreement and such default shall continue for ten ( 10) days after written notice thereof by Lessor to Lessee. In the event of a breach of this Lease by Lessee, Lessor may: ( a) Declare the entire unpaid balance of the rent to be due and payable, whereupon the same shall become immediately due and payable. Upon payment thereof, the Lease shall terminate. ( b) Without demand or legal process, enter upon the premises where the Equipment may be found and take possession of and remove the same, whereupon the Lease and all rights of the Lessee in the Equipment shall terminate. (c) Pursue any other remedy available to Lessor at law or in equity. 15. Filing: Lessee hereby authorizes Lessor to file anywhere this Lease or any short form memorandum thereof, any financing statements or security agreements with respect to the Equipment or any collateral provided by Lessee to Lessor prior to or following Lessor' s acceptance of this Lease. Lessee shall execute such supplemental instruments and financial statements if Lessor deems such to be necessary or advisable and shall otherwise cooperate to defend the title of Lessor by filing or otherwise. 16. Notices: All notices required or permitted hereunder shall be in ,writing and deemed duly given upon receipt if either personally delivered or sent by certified mail, return receipt requested, addressed to the parties as follows: If to Lessor: If to Lessee: CONTAINER RECOVERY CORPORATION CITY OF BATESVILLE 10733 Sunset Office Drive 170 South 4th Street Suite 400 Batesville, AR 72501 St. Louis, MO 63127 Attn: Mr. Jim Sherrill Attn: William I. Solomon or to such other address as either party shall provide to the other in accordance herewith. 17. Governing Law: This Lease is made and entered into in the state of Missouri, and its interpretation, validity, and performance shall be governed by the laws of that state, without regard to its principles of conflicts of laws. The parties agree that any legal action or proceeding with respect to this Lease shall be brought in the United States District Court for the Eastern District of Missouri, or if such court does not have jurisdiction, in any court of general jurisdiction in the state of Missouri. 18. Remedies: All remedies of Lessor are cumulative, and may, to the extent permitted by law, be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed to be an election 4W of such remedy or to preclude the exercise of any other remedy. No 4 delay or failure by Lessor to exercise any right or remedy shall operate as a waiver thereof unless specifically waived by Lessor in writing; nor shall any single or partial exercise by Lessor of any right or remedy preclude any other or future exercise of any other +Wright or remedy. 19. Survival : All agreements, indemnities, assumptions of liability, representation, warranties and covenants of Lessee made herein and remedies of Lessor shall survive the expiration or earlier termination of this Lease. 20. Severability: If any provision hereof or any remedy herein provided for be invalid under any applicable law, such provision shall be inapplicable and deemed omitted but the remaining provisions hereof, including the remaining default remedies, shall be given effect in accordance with the manifest intent hereof. 21. Entire Agreement : This Lease constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior agreements in regard thereto. This Lease cannot be altered or modified except by a written agreement signed by both parties and specifically referring to this Lease. IH WITNESS WHEREOF, the parties have executed this Equipment Lease as of the date first above written. CONTAINER RECOVERY CORPORATION By Title Executive Vice President & C. O. O. Date CITY OF BATESVILLE By Title Date 4248/81 L 5 EXHIBIT A (Equipment) Contract # 4248A L CITY OF BATESVILLE 170 South 4th Street Batesville, AR 72501 CP200 Can Flattener 1 - 40' Trailer L L 6 Contract # 4248 UBC PURCHASE AGREEMENT THIS AGREEMENT is made this 1st day of May, 1989, by and between CITY OF BATESVILLE ( "Seller" ) , and CONTAINER RECOVERY CORPORATION ( "CRC" ) , an Ohio corporation. WITNESSETH: WHEREAS, CRC desires to purchase used aluminum beverage containers ( "UBC" ) from Seller; and WHEREAS, Seller desires to sell UBC to CRC; NOW, THEREFORE, the parties agree as follows: 1. Term This Agreement shall be for a term of three (3) years starting May 1, 1989 and, unless sooner terminated as herein provided, ending on April 30, 1992 . 2. Purchase and Sale: ( a) CRC will purchase from Seller, and Seller will sell to CRC, one hundred Percent ( 100%) of the UBC acquired by seller during (W the term of this Agreement. ( b) Seller shall notify CRC upon its accumulation of full trailer load of UBC. Following an order from CRC, Seller shall promptly load UBC into a carrier designated by CRC and ship as soon as practicable in accordance with CRC's shipping instructions. Seller shall process and ship all UBC in accordance with the processing and shipping requirements set forth in the attached Schedule A. 3. Price• The UBC price shall be an amount equal to the generally prevailing price paid by primary aluminum companies in the United States minus CRC's Margin. For purposes hereof, "CRC's Margin" shall mean nine cents (S. 09) . The weights and grading of the primary aluminum company to which the UBC is shipped shall govern. Payment shall be issued ten ( 10) days following date of shipment (F. O. B. shipping point) . Seller shall promptly send to CRC, the invoice and the primary aluminum company's weight ticket for such shipment to initiate payment process. 4. Warranty: Seller re Bents, warrants and covets to CRC as follows: (a) It has the full right and legal authority to enter into and fully perform this Agreement in accordance with its terms. (b) This Agreement when executed and delivered by Seller, will be its legal, valid and binding obligation enforceable against it in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally. (c) The execution and delivery of this Agreement has been duly authorized by Seller, and such execution and delivery and the performance by Seller of its obligations hereunder, do not and will not violate or cause a breach of any agreement, indenture, mortgage, lease, note or other obligation or instrument to which it is a party or by which it is bound or affected. (d) The UBC purchased and sold hereunder is not and does not contain a hazardous substance as defined in any statute, ordinance or regulation of any governmental entity. 5. Failure to Object Not a Waiver: The failure of either party to object to or take affirmative action with respect to any conduct of the other party which is in violation of the terms hereof shall not be construed as a waiver thereof, nor of any future breach or subsequent wrongful conduct. G. Independent Contractor: The parties shall be and act as independent contractors, and under no circumstances shall this Agreement be construed as one of agency, partnership, joint venture or employment between the parties. 7. Termination: Either party shall have the right at any time to terminate this Agreement without prejudice to any other legal rights to which such terminating party may be entitled, upon: ( i) a default by the other party in performance of any of the provisions of this Agreement, which default is not cured within ten ( 10) days following written notice of such default to the defaulting party; or (ii ) thirty (30) days prior written notice of termination to the other party. Termination of this Agreement hereunder shall not relieve either party from its obligation to perform this Agreement up to the effective date of such termination or to perform such obligations as may survive termination. 2 8. Indemnity• ( a) Sell will indemnify, protea, defend and hold harmless CRC, its parent, subsidiary and affiliated corporations, and its and their respective directors, officers, employees and agents, from and against any and all liabilities, losses, damages, injuries, claims, demands, actions, causes of action, suits, proceedings, judgments and expenses, including, without limitation, attorneys' fees, court costs and other legal expenses, arising from or connected with any alleged or actual : ( i) breach of any provision of this Agreement or the inaccuracy of any representation or warranty made by Seller herein, and (ii ) act or omission to act of Seller, its directors, officers, employees and agents. CRC shall give Seller prompt notice of any claim or suit coming within the purview of these indemnities. Upon CRC's written request, Seller will assume the defense of any claim, demand or action against CRC and will permit CRC, at its expense, to participate in the defense thereof. Settlement by CRC without Seller's prior written consent shall release Seller from the indemnity as to the claim, demand or action so settled. Termination of this Agreement shall not affect the continuing obligations of Seller as an indemnitor hereunder. 9. Notices• All notices required or permitted hereunder shall be in writing and shall be deemed duly given upon receipt if either personally delivered or sent by certified mail, return receipt requested, addressed to the parties as follows: If to CRC: If to Seller: CONTAINER RECOVERY CORPORATION CITY OF BATESVILLE 10733 Sunset Office Drive 170 South 4th Street Suite 400 Batesville, AR 72501 St. Louis, MO 63127 Attn: Mr. Jim Sherrill Attn: William I. Solomon or to such other address as either party shall provide to the other in accordance herewith. 10. Remedies• The parties shall have all rights and remedies afforded each by the Missouri Uniform Commercial Code, and the exercise of any one right or remedy by either party shall not preclude or waive its exercise of any other rights or remedies. 3 11. Assignments: Neither pCpy shall assign its r ', is or delegate its obligations under this Agreement without the prior written approval of the other party and any attempted assignment or delegation without such approval shall be void; provided, however, that CRC may assign such rights and/or delegate such obligations to any of its affiliates or subsidiaries without Seller's approval. This Agreement and all of the terms and provisions hereof will be binding upon, and will inure to the benefit of, the parties hereto and their respective successors and assigns. 12. General • Each of the individuals executing this Agreement certifies that he or she is duly authorized to do so. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements in regard thereto. This Agreement cannot be altered or modified except by an agreement in writing signed by authorized representatives of both parties and specifically referring to this Agreement. The paragraph headings set forth herein are for convenience only and do not constitute a substantive part of the Agreement. This Agreement is entered into in the state of Missouri and will be governed by and construed under the laws of such state, without regard to its principles of conflicts of laws. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CONTAINER RECOVERY CORPORATION By Title Executive Vice President & C. O. O. Date CITY OF BATESVILLE By Title Date 4248/81 4 SCHEDULE A WHOLE FLATTENED CANS Material must not have been stored outside. It must be free of moisture and magnetically separated. Scrap must be free of dirt, steel, foil, lead, plastic, glass, wood, grease, all and other foreign substances. Any aluminum items (i. e. , foil, pie-plates, litho, bottle caps, lids) other than UBC are also unacceptable. 'a3