Invitation to Bid
Feld Entertainment, Inc. (“FEI”), seller of the Rail Assets as defined herein, is pleased to invite
you to submit a competitive bid for the purchase of up to seventy-five (75) Coach Cars and forty-three (43) Flat Cars (the Coach Cars and Flat Cars sometimes collectively referred to herein as “Rail Cars”), railroad parts, and non-motorized equipment ( collectively with the Rail Cars “Rail Assets”) as further described in the link to the Smart Sheet, which link is included on Attachment A hereto.
THE DESCRIPTIONS OF THE RAIL ASSETS SET FORTH BELOW ARE FOR INFORMATIONAL PURPOSES ONLY AND FELD MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND, WHETHER WRITTEN, ORAL OR IMPLIED AS TO THE CONDITION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
With respect to any Rail Assets that are movable on own wheels, such Rail Assets are offered, “as is-where is”. As described in the Terms and Conditions attached hereto on Attachment B, upon closing under the Sales Agreement, buyer assumes title to the Rail Assets purchased and the buyer is responsible for all freight charges. The buyer also assumes all risks of transportation, and therefore is responsible for filing claims with the carrier in the case of loss or damage.
Further with respect to any Rail Assets that are movable on own wheels, unless the buyer has a current account in good standing with the railroads involved in the move, you must use a Railroad approved 3rd party logistics company for transport. FEI can provide 3 preferred vendors to assist with this process. No Bids will be considered final until the buyer has provided railroad-approved arrangements at final rail destination. Please furnish desired final rail destination along with your bid.
With respect to any Rail Assets that are not movable on own wheels, such Rail Assets are also offered, “as is-where is” and upon closing buyer is responsible for transporting the Rail Assets from their current location to buyer’s location of choice, at buyer’s expense. The buyer also assumes all risks of transportation, and therefore is responsible for filing claims with the carrier in the case of loss or damage.
Rail Assets will be available for inspection upon request with prior arrangement as part of the bid process. All potential bidders must be qualified prior to scheduling an inspection. In order to become qualified, you must submit an initial bid on the Initial Bid Submission form attached as Attachment C hereto and, if a non-railroad owner buyer, may be required to provide a non-refundable good faith deposit in the amount of 10% of the bid or a minimum of $3000. Submission of the initial bid does not authorize you to visit the train. All visits must be pre-approved and scheduled with FEI at least 1 week in advance. Please note any and all unannounced, unscheduled on-site requests for inspection will be denied.
In consideration of the opportunity to bid on the purchase of Rail Assets and evidenced by any such potential bidder/buyer requesting the opportunity to inspect one or more Rail Assets: In performing any inspections, it is agreed that all persons inspecting the Rail Assets shall assume all liability risk, including personal injury, loss and/or damage of personal property and FEI (including its shareholders, directors, officers, employees, agents, affiliates, assigns and successors) shall be automatically released from any liability, loss or damage in connection therewith. The potential Buyer making such request to inspect shall defend, indemnify and hold harmless FEI, its subsidiaries, related and affiliated companies, together with the officers, directors, agents, employees, representatives and assigns of each, from and against any and all claims, demands, suits, judgments, losses, costs or expenses, including, but not limited to, court costs and attorney’s fees, of any nature whatsoever arising directly or indirectly from the inspection of the Rail Assets by such requesting party or by its agents or consultants making such inspection. It is understood by buyer that access to a site that is not controlled by FEI may require permission of the owner of the site (with which FEI will assist) and that such owner may require, as a condition of access, that buyer sign a waiver of liability or other release. The provisions of this paragraph shall survive the failure to make a bid, a rejection of a bid, termination of the bid process, expiration of any Sales Agreement and/or Closing thereunder.
Bids will be considered on a unit basis and the sale of such Rail Assets shall be subject to the “Terms and Conditions” set forth on Attachment B, which are incorporated herein by reference. Your bid submission document should include the price per rail asset “as-is” and is further subject to execution of a Sales Agreement as described on Attachment B.
Initial bids are to be submitted using the Bid Submission form set forth in ATTACHMENT C via the web submission form below, no later than 5:00pm, March 10, 2017. Sales Orders must be signed and returned to FEI within 48hrs of inspection or by June 2, 2017 whichever comes first. All Bids to remain firm for (90) ninety days after bid close.
FEI RESERVES THE RIGHT TO REVIEW, ACCEPT OR REJECT ANY AND ALL BIDS, IN WHOLE OR IN PART, TO NEGOTIATE WITH ANY PARTY, EXTEND BID DEADLINES OR REJECT ALL BIDS AND TERMINATE THIS PROCESS.
Thank you for your participation.
Director of Domestic Transportation
Attachment A - Description of Rail Assets
TO VIEW THE RAIL CAR & PARTS DETAILS CLICK:
TO VIEW THE NON-MOTORIZED ASSET DETAILS CLICK:
Attachment B - Summary Terms and Conditions
In addition to the terms set forth in the text of the Invitation to Bid, the potential sale of the Rail Assets(s)to a bidder (“Buyer”) shall be subject to the following terms and conditions (“Terms and Conditions”) that will be formalized in a Sales Agreement prescribed by FEI and including appropriate additional provisions (“Sales Agreement”):
1. Acceptance; Documentation. If FEI issues Buyer a Sales Order for Rail Assets, then the Sales Order, together with these Terms and Conditions and Invitation to Bid (the terms of each shall be deemed incorporated into such Sales Order), shall be incorporated into a Sales Agreement with expanded terms related to the sale and purchase, which Sales Agreement shall be entered into between FEI and Buyer within ten (10) days after issuance of the Sales Order. It is intended that FEI and Buyer shall cooperate with one another to finalize the sale as soon as practicable after the issuance of the Sales Order and execution of the Sales Agreement, but no later than the date that is thirty (30) days after the execution of the Sales Agreement. Consummation of the sale shall be in accordance with the terms of the Sales Agreement, including but not necessarily limited to, Buyer’s payment of the sales price and expenses due at closing and Buyer’s delivery to FEI of evidence of acceptable arrangements to remove the Rail Assets from existing location.
2. Sale of Rail Assets. All Rail Assets are offered “as-is” without any representation or warranty from, or recourse to, FEI, other than FEI represents and warrants that title to the Rail Assets will be transferred free and clear of all liens and encumbrances. Buyer acknowledges and agrees that it is solely responsible for the compliance of all rules of the Association of American Railroads’ Rules of Interchange in the event Buyer puts the Railcar into interchange service.
3. Disclaimer of Warranties. Except as otherwise expressly provided in Clause 2 above, THE RAIL ASSETS ARE SOLD “AS IS” AND FEI HEREBY DISCLAIMS AND BUYER HEREBY WAIVES ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, DEALING OR USAGE OF TRADE, AND ALL OBLIGATION AND LIABILITY IN TORT, NEGLIGENCE AND STRICT LIABILITY, AS TO CONDITION, DESIGN OR OPERATION OF THE RAIL ASSETS OR ANY PART THEREOF AND BUYER HEREBY WAIVES, RELEASES AND DISCLAIMS EXPECTATION OF OR RELIANCE UPON ANY SUCH WARRANTY, OBLIGATION OR LIABILITY. BUYER AFFIRMS THAT (i) BUYER HAS NOT RELIED UPON FEI’s SKILL OR JUDGMENT TO SELECT OR FURNISH THE RAIL ASSETS FOR ANY PARTICULAR PURPOSE, (ii) BUYER HAS RELIED UPON ITS OWN INVESTIGATION AND INSPECTION OF THE RAIL ASSETS IN MAKING THE DETERMINATION TO PURCHASE THE RAIL ASSETS AND (iii) THIS WAIVER IS PART OF THE CONSIDERATION FOR THE PURCHASE AND SALE OF THE RAIL ASSETS.
Expenses. Buyer shall be responsible for all of its fees and expenses in connection with the purchase of the Rail Assets, including, without limitation, fees and expenses related to the inspections, transfer of title and registration, freight costs to final destination.
5. Branding. The names “FEI Entertainment, Inc.” Ringling Bros. Barnum & Bailey” and any other names used by FEI (or its affiliates), together with art work and logos associated therewith, are the sole property of FEI and buyer shall not, by virtue of this agreement or otherwise, acquire any right to use any such names, artwork and logos unless otherwise specifically approved by FEI in advance and in writing, at FEI’s sole discretion. Further, buyer shall acquire no rights or permissions under the Sales Agreement to use and shall not use or refer to the name FEI Entertainment, Inc. and/or Ringling Bros. and Barnum & Bailey or that of any officer, director, employee, agent or representatives thereof, to express or imply that buyer holds any endorsement by or affiliation with FEI Entertainment or its services. FEI and Buyer acknowledge that a breach of this Paragraph 5 will cause irreparable harm to FEI that cannot be adequately compensated by money damages, and, accordingly, in the event of a breach, FEI shall be entitled to injunctive relief and attorney’s fees in addition to all other remedies that may be available in law or at equity. The provisions of this Paragraph 5 shall survive closing thereunder.
6. Removal of Names and Logos. Promptly after closing of the transaction and Buyer’s removal of the Rail Assets from the location at the time of sale, Buyer shall remove or cause to be removed from the interior and exterior of the Rail Car(s) and other Rail Assets any RBBX reporting marks, car number, AEI Tags and all names, artwork and logos referenced in Paragraph 5 above, unless otherwise specifically approved by FEI in advance and in writing, at FEI’s sole discretion. Upon removal, but no later than the earlier of (a) thirty (30) days after closing on the sale, and (b) the date Buyer displays or puts the Rail Assets into service, Buyer shall provide an affidavit (signed by Buyer or an authorized agent of Buyer) in form and content acceptable to FEI confirming that all such names, artwork and logos have been removed from the Rail Assets. Such affidavit shall include reference to attached photos confirming such removal. FEI and Buyer acknowledge that a breach of this Paragraph 6 will cause irreparable harm to FEI that cannot be adequately compensated by money damages, and, accordingly, in the event of a breach, FEI shall be entitled to injunctive relief and attorney’s fees in addition to all other remedies that may be available in law or at equity. The provisions of this Paragraph 6 shall survive closing thereunder.
7. Confidentiality. The terms of the Sales Order, these Terms and Conditions and the Sale Agreement and all documentation executed pursuant thereto, are confidential and shall not be released in whole or in part to any third party or disclosed to any publication, including, but not limited to, books, newspapers and magazines, blogs or other social media, such as Facebook, YouTube, Instagram, SnapChat, Twitter and like, television and radio news or programs or other public medium or in any other fashion whatsoever without the express, prior written approval of the parties hereto in their sole discretion, except that any party hereto shall have the right to make such disclosures as required by applicable law or court order or on a “need to know” basis within their respective authorized agents. FEI and Buyer acknowledge that a breach of this Paragraph 7 will cause irreparable harm to FEI that cannot be adequately compensated by money damages, and, accordingly, in the event of a breach, FEI shall be entitled to injunctive relief and attorney’s fees in addition to all other remedies that may be available in law or at equity. The provisions of this Paragraph 7 shall survive the rejection of a bid, termination of the bid process, expiration of any Sales Agreement and Closing thereunder.
8. Indemnification. Buyer shall defend, indemnify and hold harmless FEI, its subsidiaries, related and affiliated companies, together with the officers, directors, agents, employees, representatives and assigns of each, from and against any and all claims, demands, suits, judgments, losses, costs or expenses, including, but not limited to, court costs and attorney’s fees, of any nature whatsoever arising directly or indirectly from the sale of the Rail Assets from FEI to Buyer or out of any act or omission of FEI and agents of FEI not otherwise addressed in the Invitation to Bid, Sales Order, these Terms and Conditions and the Sale Agreement. The provisions of this Paragraph 8 shall survive the rejection of a bid, termination of the bid process, expiration of any Sales Agreement and Closing thereunder.
9. Applicable Law; Venue. The Invitation to Bid, Sales Order, these Terms and Conditions and the Sale Agreement and all documentation executed pursuant thereto shall be governed by and construed in accordance with the laws of the State of Florida regardless of its choice of law provisions. Any dispute arising out of this Agreement shall be adjudicated solely in the applicable federal or state courts under the jurisdiction and venue of Manatee County, Florida. The parties each agree to submit themselves to the personal jurisdiction of the same and each waives the right to challenge the personal jurisdiction of those courts.
INITIAL BID SUBMISSION FORM
Buyer Last Name
Buyer First Name
Equipment of Interest
Car or other asset # of interest
Initial Bid $ per car or other asset (If interested in Parts, indicate details here)
Final Rail Location
What is the final rail destination of your selected car(s) or other assets (if by rail)
Intended use of cars or other assets
By checking this box the buyer recognizes that they are responsible for any costs related to moving the car/other assets and/or storage beyond the pre-determined move date. These costs are over and above the cost of the car and are payable to the 3rd party logistics company based on their terms.
By checking this box you understand that you may be required to provide a deposit prior to any inspections of the cars or other assets. All site visits must be pre-arranged and approved by the Director of Domestic Transportation @ Feld Entertainment.
By checking this box buyer acknowledges that it will be required to execute a formal Sales Agreement in the event FEI issues a Sale Order to buyer as a result of buyer's bid.
We highly recommend sending a copy of this form to yourself for your records.
The confirmation email will also include 3rd Party logistics companies that can help you with the transport of your rail car.
Send me a copy of my responses
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