HomeMy WebLinkAboutSpecial Purchase - Sentinol Emergency Solutions - Used Fire Truck1316 COUNTY -CITY BUILDING
227 W.JEFFERSON BOULEVARD
SOIJTH BFND_ INDIANA 46601-1 830
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CITY OF ! BEND PETE BUTTIGIEG, MAYI
BPUBLIC
November 27, 2018
Bill Franz
Sentinel Emergency Solutions
23 Grandview Park Drive
Arnold, MO 63010
RE: Special Purchase
Dear Mr. Franz:
PHONE 574/235-9251
FAx 574/235-9171
The Board of Public Works, at its meeting held on November 27, 2018, approved the above
referenced special purchase of a used fire truck in the amount of $68,000.
Enclosed please find a copy of the agreement for your records.
If you have any further questions regarding this matter, please call this office at (574) 235-
9251.
Sincerely,
Linda M. Martin, Clerk
Enclosure
GARY A. GILOT SUZANNA M. FRITZBERG ELIZABETH A. MARADIK JAMES A. MUELLER THERESE J. DORAU
1222 S. MICHIGAN STREET
SOUTH BEND,INDIANA 466ol-282I
CITY OF SOurH BEND PETS BUTTIGIEG, MAYOR
November 20, 2018 SOUTH BEND FIRE DEPARTMENT
STEPHEN E Cox
Board of Public Works FIRE CHIEF
227 W. Jefferson Blvd.
South Bend, IN 46601
Dear Board Members,
PHONE 574/ 2.35-9255
FAX 5741235-9305
The South Bend Fire Department requests your consideration for the purchase of a used fire apparatus for
immediate addition to the city's fleet. The Department maintains a fleet of reserve vehicles to be available for
front lines apparatus down for service and to maintain compliance with our ISO ratings. We keep 3 reserve
pumper trucks, per ISO recommendations, and we suffered a blown engine on one of our reserves. The loss of
this vehicle makes it difficult to service front line trucks while providing coverage for all 11 fire districts.
In consultation with our Legal department the view is that both Ind. Code §§ 5-22-10-5 and -9 provide statutory
authorization under which a special purchase may be made for the used Pierce 1998 Saber Rescue Pumper.
Recently, the Equipment Services Division entered into a short-term agreement to rent a fire pumper at a daily
rate from Sentinel Emergency Solutions to facilitate warranty work on our two newest pumper trucks. Sentinel
is also the dealer performing the warranty work on the Rosenbauer apparatus. These two trucks would be going
out of state and were each expected to be gone 1 to 2 weeks. This maintenance would have had a substantial
negative operational impact on our department and would have left us very vulnerable to a loss of services
should we suffer any other need to remove a front line apparatus from service. During this period, Equipment
Services has had the ability to inspect the rented apparatus, and our crews have had the opportunity to work
out of it. We feel that it would be a positive addition to the fleet and ask that the Board execute the purchase of
the apparatus. The original intent for the short-term rental of this truck was to fill the gap left by the warranty
service of two front line trucks, but an opportunity has been presented to purchase this apparatus and incur no
rental fees. We have provided comparable similarly aged and equipped apparatus for evaluation. The ability to
spend more than an afternoon evaluating a prospective used apparatus for purchase is a rare luxury.
If the lease and purchase are viewed as a single, protracted transaction, by securing the short-term lease and
rolling that expense into a purchase option for the replacement vehicle in order to round out the fleet, a
reasonable argument can be made that City personnel both (1) ensured that public safety services would not
be seriously impaired by the temporary reduction in available service vehicles, and (2) secured a substantial
savings of several thousand dollars from the combined cost of the lease and purchase. Therefore, this
transaction should be authorized pursuant to Ind. Code §§ 5-22-10-5, -9.
Regards,
4Todtkwaircan
Assistant Chief/Services
MICHAEL J. DAMIANo TODD L. SKWARCAN ANDRF.W J. MYER JOHN CORTHIE.R FEDERICo RODRIGUEZ, JR
ASST. CHIEF OPERATIONS ASST. CHIEF SERVICES ASST. CHIEF EMS ASST. CHIEF TRAINING FIRF. MARSHAL
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement") is entered into on November 27, 2018 (the
"Effective Date"), by and between the City of South Bend, acting by and through its Board of
Public Works (the "City"), and Sentinel Emergency Solutions, LLC, a Missouri corporation, with
its Principal place of business located at 23 Grandview Park, Arnold, MO 63010 (the "Provider")
(each a "Party" and collectively the "Parties").
For and in consideration of the mutual covenants and promises contained herein, the Parties
agree as follows:
1. Goods and Services. The Provider will provide to the City the goods and services
("Goods and Services") set forth in the Provider's proposal attached hereto as Exhibit A (the
"Proposal"), which Proposal is incorporated herein. In the event of any conflict between the terms
of this Agreement and the terms of the Proposal, the terms of this Agreement will prevail.
2. C w „,atim. In exchange for the Goods and Services, and subject to the terms
and conditions of this Agreement, the City will pay the Provider Sixty -Eight Thousand Dollars
($68,000) as stated in the Proposal (the "Contract Amount"). The City will pay the Contract
Amount in a single lump sum upon invoicing by the Provider as set forth in the Proposal (each a
"Contract Installment").
3. Waiver of Lease Ptry_trrents. Provider and City entered into that certain Emergency
Solutions Equipment Lease, dated October 2, 2018 ("Lease Agreement"). The Parties agree that
upon execution of this Agreement, any amounts paid under Lease Agreement are waived.
4. IlLerin., Termination, Unless earlier terminated in accordance with its terms, this
Agreement will commence on the Effective Date and end upon the Provider's satisfaction of all
its obligations hereunder and the City's final payment therefor. In addition, in accordance with
Ind. Code 6-1.1-18-4, payments are subject to annual appropriation by the City. If the City makes
a written determination that funds are not appropriated or are otherwise unavailable to support the
continuation of this Agreement, it shall be cancelled. A determination by the City that funds are
not appropriated or are otherwise unavailable to support the continuation of performance shall be
final and conclusive. The City will not be required to pay any Contract Installment or be otherwise
liable for any cost associated with the Provider's performance of any Services after the effective
date of termination.
5. Remedies for Breach ofCoi tract. Failure to provide the Goods in accordance with
this Agreement will be considered a material breach. In the event of such breach, the City may
suspend all payments to the Provider and may pursue any and all remedies available at law or in
equity. The Provider shall repay to the City any portion of the Contract Amount expended for
matters not within the scope of the Services.
6. Point of Contact. The City employee identified in Section 9 below will serve as the
City's principal point of contact for purposes of this Agreement.
1
7. Relationslaa. The Provider shall at all times be an independent contractor for all
services performed and goods supplied rather than an employee of the City, and no act or omission
to act by the Provider shall in any way bind or obligate the City. This Agreement is strictly for the
benefit of the Parties and not for any third party or person. This Agreement was negotiated by the
Parties at arm's length and each of the parties hereto has reviewed the Agreement after the
opportunity to consult with independent legal counsel. Neither party shall maintain that the
language in the Agreement shall be construed against any signatory hereto. The City and the
Provider hereby renounce the existence of any form of agency relationship, joint venture, or
partnership between the Provider and the City and agree that nothing contained herein or in any
document executed in connection herewith shall be construed as creating any such relationship
between the City and the Provider.
8. idemiiilicatioia of City. The Provider hereby agrees to defend, indemnify, and
hold harmless the City, its officials, employees, and agents from any and all claims of any nature
which arise from the performance by the Provider under this Agreement and from all costs and
attorney fees in connection therewith, excepting for claims arising out of the negligence of the
City, its officials, directors, employees, and agents. The obligations of the Provider under this
section shall survive the termination of this Agreement.
9. Assiaiinient. The Provider shall not assign or subcontract the whole or any part of
this Agreement or its obligations hereunder without the prior written consent of the City.
10. Notices. Any notice required or permitted to be delivered hereunder shall be
deemed to be delivered, whether or not actually received, when deposited in the United States
Postal Service, postage prepaid, registered or certified mail, return receipt requested, addressed to
the City or the Provider, as the case may be, at the address set forth below.
Provider: City:
Sentinel Emergency Solutions, LLC City of South Bend
23 Grandview Park 1045 W. Sample Street
Arnold, MO 63010 South Bend, IN 46619
Attn: Attn:
11. Eclual Oimortti onmm Discrimir atiow Co► pl.,iarlce. The Provider shall comply
with all applicable laws and regulations in its hiring and employment practices and policies for
any activity covered by this Agreement. The Provider shall comply with all state, federal, and
municipal laws, regulations, and standards applicable to its activities pursuant to this Agreement
including, but not limited to, the requirements imposed by Ind. Code 22-9-1-10 (non-
discrimination), the provisions of Ind. Code 5-22-16.5 (disqualification for dealings with the
government of Iran), and the provisions of Ind. Code 22-5-1.7 (requiring E-Verify for new
employees and prohibiting employment of unauthorized aliens). Each of the foregoing provisions
is incorporated herein as if set forth in full, and the Provider certifies that it is in compliance with
each such provision and shall remain in compliance through the term of this Agreement.
12. Dru g l -ce Work lace. The Provider hereby agrees to make a good faith effort to
provide and maintain a drug -free workplace. The Provider will give written notice to the City
2
within ten (10) days after receiving actual notice that the Provider or an employee of the Provider
within the State of Indiana has been convicted of a criminal drug violation occurring in the
workplace.
13. Entire A gr•ecri eri1,_Anienciraier t° AT12lJca.b1 Law. This Agreement sets forth the
entire agreement and understanding between the parties as to the subject matter hereof, and merges
and supersedes all prior discussions, agreements, and understanding of any and every nature
between them. This Agreement may be amended only by separate writing, signed by authorized
representatives of both the Provider and the City. This Agreement will be construed and
interpreted according to the laws of the State of Indiana, and any dispute arising out of this
Agreement or otherwise concerning the Provider's rendering of the Services will be resolved in
the courts located in St. Joseph County, Indiana, unless the Parties mutually agree to a different
method of dispute resolution.
14. Sever�abi li . All provisions of this Agreement shall be considered as separate terms
and conditions, and in the event any one shall be held illegal, invalid or unenforceable, all the other
provisions hereof shall remain in full force and effect as if the illegal, invalid, or unenforceable
provision were not a part hereof, unless the provision held illegal, invalid or unenforceable is a
material provision of this Agreement, in which case the Provider and the City agree to amend this
Agreement with replacement provisions containing mutually acceptable terms and conditions.
15. Force Maieur . The Provider shall not be responsible for any failure or delay in the
performance of any obligation hereunder, if such failure or delay is due to a cause beyond the
Provider's reasonable control, including, but not limited to acts of God, flood, fire, volcano, war,
third -party suppliers, labor disputes or governmental acts.
16. Ca�.rrrtert. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
[Signature page follows.]
3
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be effective
as of the Effective Date stated above.
;SENTINEL EMERGENCY
SOLLI LIONS, LLC
Signature
Bill Franz, President
Printed Name and Title
23 Grandview Park Drive
Street Address
Arnold, Missouri 63010
IW l ale %lp
_636-464-5580 636-464-5720
Telephone Fax
CITY OF SOUTH BEND, INDIANA
�B ,M .D OF PUBLIC 'W IDS
Gary A. Gilot, President
� Uza. 1U r 7.1 rg /17nber
....
Therese J. i. onus, ember
t
__ ._ ..... .
lizabetIl A. aradik, Member
James A. Mueller, Member
4
EXHIBIT A
Proposal
[See attached]
City of South Bend Fire Department
1222 S Michigan St
South Bend IN 46601
One (1) Pierce 1998 Saber Rescue Pumper
VIN: 4P1CT02U3XA000927
Equipment and accessories currently installed on truck will remain on the truck. No equipment will
be returned or added.
Price: $68,000.00
If you decide to purchase the apparatus please send us a Purchase Order and we
will send an invoice for the amount listed above. There will be NO daily rental
charge sense you are purchasing the truck.
Thank you for the opportunity to provide a great used apparatus to your
department. If you have any questions, please feel free to contact us.
Brian Franz
Apparatus Sales
Sentinel Emergency Solutions
Contact Us
Office: 256.776.7786
Email : sales@#iretruckmall.com
Website: www.firetruckmall.com
15410 US Highway 231,
Union Grove, AL 35175Stock#: 11359
Price: $95,000
2001 Pierce Enforcer Pumper
O 2001 Pierce Enforcer Pumper O Pierce Enforcer Chassis
O Cummins ISL 370 HP Diesel Engine O Allison 3066P Automatic Transmission
O 1000 Gallon Polypropylene Tank O Husky Foam System
O Date of Last Pump Certification: 08/2018 O
O Engine Hours: 1,828 O Mileage: 21,000
O Length: 32' O Height: 10' 9"
O Wheelbase: 202"
O Seating for 6; 5 SCBA seats
O Waterous CSU 1500 GPM Side -Mount
Pump
O (2) Foam Cell
O 6KW Hydraulic Generator
O Additional equipment not included with
purchase.
O GVRW: 45,740
Brindlee Mountain Fire Apparatus is one of the world's largest used fire truck sales and service companies. Based
just outside of Huntsville, Alabama, the company has forty-five full-time personnel occupying over 12.000 square
feet. Our mechanics, all of whom are EVT certified, perform pump tests, general repairs, preventative maintenance,
and body, collision, and paint work on over 500 used fire trucks every year. Visit us online at www,flretruckmall.com
Contact Us
Office: 256.776.7786
Email: sales@flretruckmall.com
Website: www.flretruckmall.com
15410 US Highway 231,
Union Grove, AL 35175Stock#: 10733
Price: $95,000
1999 Spartan Quality Pumper
O 1999 Spartan Quality Pumper O Spartan Gladiator Chassis O Seating for 6: 5 SCBA seats
O Quality Fire Body O Cummins 350 HP Diesel Engine o Allison HD4060 Automatic Transmission
Contact Us
Office: 256.776.7786
Email: sales@firetruckmall.com
Website: www.firetruckmall.com
15410 US Highway 231,
Union Grove, AL 35175Stock#: 10003
Price: $79,000
2001 Pierce Rescue Pumper
O 2001 Pierce Rescue Pumper
O Pierce Chassis
O Allison HD4060P Automatic Transmission
O Hale QFLO125-23X 1250 GPM Pump
O Akron 95GPM Foam System
O Driver's Side Discharges: 2 - 2.5"
O Officers Side Discharge: 1 - 2.5" & 1 - 3"
O Front Discharges: 1 -1.5"
O Rear Discharges: 1 - 3" in Hose Bed
O Rear Suction: 1 - 2.5"
O Ground Ladders: 1 -24' Extension & 1 -
O Pump Hours: 640
14' Roof Ground Ladders
O Additional equipment not Included with
purchase.
O Cummins ISM 425 HP Diesel Engine
O 750 Gallon Polypropylene Tank
O Driver's Side Suction: 1 - 2.5"
O Front Suction: 1
O Crosslays/Speedlays: 2 -1.5" Speedlays
O Mileage: 90,000
Brindlee Mountain Fire Apparatus is one of the world's largest used fire truck sales and service companies. Based
just outside of Huntsville, Alabama, the company has forty-five full-time personnel occupying over 12,000 square
feet. Our mechanics, all of whom are EVT certified, perform pump tests, general repairs, preventative maintenance,
and body, collision, and paint work on over 600 used fire trucks every year. Visit us online at www.firetruckmall.com
1997 Spartan S&S Pumper
O 1997 Spartan S&S Pumper
O S & S Fire Body
O Hale 1500 GPM Side -Mount Pump
O 30 Gallon Foam Cell
O Driver's Side Suction: (1) 6", (1) 21/2"
O Front Discharges: (1)1 1/5"
O Rear Suction: (1) 2 1/2"
O Onan 7.5KW Diesel Generator
O Hydraulic Ladder Rack
Contact Us
Office: 256.776.7786
Email: sales@firetruckmall.com
Website: www.firetruckmall.com
16410 US Highway 231,
Union Grove, AL 35175Stook#: 10034
Price: $70,000
O Spartan Gladiator Chassis
O Detroit 350 HP Diesel Engine
O 750 Gallon Polypropylene Tank
O Date of Last Pump Certification: 10/2017
O Officer's Side Discharge: (2) 2112"
O Front Suction: (1) 6"
O Booster Reel
O Electric Reels
O Federal Q Siren
O Seating for 6; 5 SCBA seats
O Allison Automatic Transmission
O Feecon AP4-1-5 Foam System
O Driver's Side Discharges: (2) 21/2"
O Officer's Side Suction: (1) 6", (1) 21/2"
O Rear Discharges: (2) 2112"
O Crosslays/Speedlays: Crosslays: (2)
O Air Conditioning
O Ground Ladders: Ground Ladder: 24', 16',
19
O Additional equipment not included with
purchase.
O GVRW: 44,000
O Wheelbase: 187" O Pike Poles: (2) 10% (1) 6% (1) 4'
(2) 6" x 10' Sections of Hard Suction
O Engine Hours: 5,455
O Mileage: 56,640
O Length: 30' 6" O Height: 9' 6"
Brindlee Mountain Fire Apparatus is one of the world's largest used fire truck sales and service companies. Based
just outside of Huntsville, Alabama, the company has forty-five full-time personnel occupying over 12,000 square
feet. Our mechanics, all of whom are EVT certified, perform pump tests, general repairs, preventative maintenance,
and body, collision, and paint work on over 500 used fire trucks every year, Visit us online at www.firetruckmall.com
EXHIBIT B
Contractor Affidavit
[See attached]
SENTINEL EMERGENCY SOLUTIONS EQUIPMENT LEASE
This EQUIPMENT` LEASE ("Agreement') is made as of thlsZ� day of
SENTINEL EMERGENCY SOLUTIONS, LLC, a Missouri, LLC ("Lessor"),' and 20Sand is between
1. LEASE AND EQUIPMENT.
-0111"r QU—T(LQLN-D,[6LQIANA"I-essee").
-This Agrfferilehti§i666'hilderatio-n- 6-f-the mutual covenants, terms and conditions contained
herein,
b. Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, each item of equipment
accepted by or on behalf Of Lessee from Lessor under. this Agreement (each such item of
equipment, together with allreplacement parts, additions and accessories, identified on a
Schedule (defined below), being hereinafter individually referred to as an "Item" and all such
Items are collectively referred to herein as the lqulpmentll). The acceptance by Lessee of an
Item under this Agreement shall be evidenced by tile, execution and delivery by Lessor a d Lessee
Of'a lease schedule with respect to such Item (each such i ryn
lease schedule being herein referred to
as a "Schedule"), Lessee will have the Opportunity to Perforril a joint inspection of the machine
with Lessor, The date upon which such acceptance shall occur with respect to any Item is the
acceptance date (the "Acceptance Date") for such Item. It is the intent of the parties to this
Agreement that this Agreement be a true lease,
C, Each schedule shall incorporate all of the terms and conditions of this Agreement and shall
contain such other terms and conditions as the parties shall agree upon. Each Schedule shall set
forth a description Of tile Items covered thereby, Including such facts as the number of Items of
each type, the reporting mark/serial or other Identifying number of each Item covered thereby
and such other information as may be desired by botfl parties. Each Schedule shall constitute an
agreement separate and distinct from this Agreement and all other Schedules. In the event of a
conflict between the provisions of this Agreement and the provisions of a Schedule, tile Provisions
of the Schedule shall control. Each party reserves the right to accept or reject any proposed
Schedule and any particular Item included in any such Schedule and the acceptance by either
party of any one or more Items or Schedules shall in no way obligate the other party to accept
additional Items or Schedules, Upon receipt of written notice, by certified mailfrom party
to the other party, the addition and incorporation of Schedules to this Agreement, shallcease.either
The terms and conditions of this Agreement and any Schedule which has been accepted by bot
Parties as of the date of such notice of cessation shall' cce h
remain enforceable, shall continue in effect
and shall be binding on both parties until all obligations of the Parties with respect thereto are
completely fulfilled, Hereinafter, unless otherwise specified, this Agreement together with any
Schedule executed in accordance herewith shall be individuaily referred to and construed as the
"Lease" and, collectively, the "Leases,"
d. Lessor and Lessee shall mutually agree as to the time and place of delivery of each! Item to Lessee
and Lessee shall. at Its own expense and responsibfIlty, transport the Equipment to Lessee work-
site(s), Lessor wlII provide the equipment in good running order, with all oil and lubricant
reservoirs filled to specifications established by the manufacturer of the Equipment/in good
repair and working order, ordinary wear and tear excepted. Upon delivery, Lessee will have theright to each (terry. Lessee retains the right to reject any Item and will notify Lessor, in
writing, within three (3), business days after delivery, of Lessee's rejection of any such Item and
the specific reason for such rejection, Failure to notify Lessor, as to the rejection of an Item within
such three business day period or the execution of a Schedule by Lessee for such Item will
constitute acceptance of such Item by Lessee. Lessee, at its expense, shall furnish all fuel, oil,
iubricants and supplies necessary forth proper operation of the Equipment while in Lessee's
Possession. If requested by Lessee, Lessor shall advise Lessee of applicable operating and
maintenance specifications and practices recommended by the manufacturer of the Equipment.
e. THE LEASE CANNOT BE CANCELLED EXCEPT AS EXPRESSLY PROVIDED HEREIN OR, WITH RESPECT
TO ANY PARTICULAR ITEM, AS EXPRESSLY PROVIDED IN -rHE SCHEDULE APPLICABLE THERETO,
.The term_of the Lease with respect to any Item (the "Lease Term'') as hereinafter used, shall
commence on the Acceptance Date for such Item and shall expire at 11:59 p.m., St. Louis, MO
time, on the last day of the last month of the earlier of (i) the Expiration Date (as defined in the
applicable Schedule), (ii) the date such Lease earlier terminates in accordance with its terms, or
(iii) the date on which all of the Equipment is returned to and accepted by Lessor as set forth in
such applicable Schedule.
g. The base term of the Lease (the "Base Term") for an Item shall be the number of full months as
specified in the Schedule applicable to such Item. If the Acceptance Date for any Item shall fall on
any day other than the first day of a calendar month, the Base Term for such Item shall
commence on the first day of the following calendar month and Lessee shall pay to Lessor, in
addition to the Lease Payments payable during the Base Term, an amount equal to one -thirtieth
of the Lease Payment for such Item, multiplied by the number of days from and including the
Acceptance Date for such Item, to and including the day before the Base Term for such Item
begins. If the Acceptance Date for an Item is the first day of a month, the Acceptance Date and
the commencement of the Base Term shall be deemed to occur on the same day and no proration
of lease Payments shall occur prior to the commencement of the Base Term for such Item.
i. A Schedule may be terminated as of the last day of the last month of its Base Term or any renewal
term, by written notice to be received by Lessor or Lessee not less than thirty (30) days prior to
such termination date designated in such notice. If the Schedule is not so terminated at the end
of the Base Term or any renewal term, as applicable, the Lease and the Lease Payments shall
continue to be due and payable by Lessee until the Schedule is so terminated by giving the
requisite thirty (30) day notice. Any notice of termination may not be revoked without the
written consent of the other party.
2. LEASE PAYMENT AND TAXES.
Lessee shall pay Lessor rent (each payment a "Lease Payment," and collectively, the "Lease
Payments") for each Item at such time as indicated in the applicable Schedule for such Item (the
"Payment Date'"). Lease Payments shall be payable in advance unless otherwise indicated In the
applicable Schedule. Lease Payments shall be made to Lessor at Lessor's address herein, or as
otherwise directed to Lessee in writing by Lessor, without notice or demand. Lessee's agreement
to pay all amounts due under the Lease, including but not limited to Lease Payments, is absolute
and unconditional and such agreement is for the benefit of Lessor, its successors and assigns.
LESSEE'S OBLIGATIONS SHALL NOT BE SUBJECT TO ANY ABATEMENT, DEFERMENT, REDUCTION,
SETOFF, DEFENSE, COUNTERCLAIM, OR RECOUPMENT FOR ANY REASON WHATSOEVER, Except
as may be otherwise expressly provided in the Lease, the Lease and/or any Schedule shall not
terminate, nor shall the obligations of Lessee be affected, by reason of any defect In or damage
to, or any loss, destruction of, or obsolescence of, the Equipment or any portion thereof from any
cause whatsoever, or the Interference with Its use by any private person, corporation or
governmental authority, or as a result of any war, riot, or Act of God. It is the express intention of
Lessor and Lessee that all Lease Payments and other sums payable by Lessee under the Lease
shall be, arid continue to be, payable in all events throughout the term of the Lease. The Lease
shall be binding capon Lessee and its successors and assigns and shall inure to the benefit of Lessor
and its successors and assignees. Nothing in this Section 2(a) shall be construed as (x) a warranty
by Lessee of (i) the value of Lessor's interest in ;any Item open termination of a Lease Term or
(ii) the useful life of any Item or° (y) a prohibition of or restriction against an assertion of any claim
or cause of action by Lessee with respect to any Person in an independent action, Whenever any
Payment gate shall not be a business day, then such payment need not be made on such
scheduled date but may be made on the next business day with the same force and effect as if
made on such scheduled date and (provided such payment is made on such next business day) no
interest shall accrue on the amount of such payment from and after such scheduled date to such
next business day.
Except as provided below, Lessee shall reimburse Lessor, or, an after-tax basis, for ('or pay directly,
but only if instructed in writing by Lessor) all taxes, fees, Imposts or other government charges,
together with any penalties, additions to tax and interest thereon (collectively, "Taxes" and,
Individually, a'"Tax"') than May be imposed by any state or local government or non-federal taxing
authority in the united states or by any foreign government on the Equiprtrent, their ownership,
delivery, possession, operation, rental or return to Lessor, provided, however, that Lessee shall
not be liable for any such Taxes:
1. included in the cost of the Equipment;
2. based on, or measured by, or imposed with respect to, Lessor's netor gross income, net
or gross receipts, minimum tax or items of tax preference, franchise or privilege of doing
business, capital or net worth or value added to the extent such value added taxes are in
lieu of a tax based on, or measured by, or imposed with respect to, net or gross income,
net or gross receipts, minimum tax or items of tax preference, franchise or privilege of
doing business, or capital or net worth;
3. which are being contested during the pendency of such contest;
4• resulting from Lessor's gross negligence or willful misconduct;
5• arising from any act, event or omission occurring after termination of the Lease or the
return of the Equipment;
6. imposed by a governmental authority as a result of Lessor's activities within the
jurisdiction of such authority unrelated to the Lease;.
7. incurred by reason of any transfer by Lessor of the Equipment or any part thereof or any
interest arising under the Lease (including any deemed transfer under section 338 of the
Internal Revenue Code of 1986, as amended);
8• to the extent of the excess of such Taxes over the amount of such Taxes that would have
been imposed had there not been a transfer by Lessor of an interest arising under the
Lease; or
9• to the extent such Taxes are in substitution for any of the Taxes described in the
preceding clauses (1) through (8).
C. If the Equipment Is subject to personal property taxes, Lessee shall, during the term of the Lease,.
report and remit such personal property tax due directly to the applicable taxing authorities. if
Lessor receives an Invoice directly from the taxing authorities for personal property taxes due
with respect to the Equipment, Lessor shall immediately forward such invoice to Lessee for
Lessee's investigation and remittance to the appropriate taxing authorities, if applicable.
d. If Lessee is required by law or administrative practice to Make any report or return with respect to
such Taxes, Lessee shall promptly advise Lessor thereof In writing and shall cooperate with Lessor
to ensure that such reports are properly filed and accurately reflect Lessor's interest in the
Equipment,.
e. If so requested by Lessee, Lessor shall, at Lessee's sole expense, cooperate fully with Lessee in
contesting any claim for Taxes, provided that Lessor shall have received an indemnity satisfactory
to Lessor for any liability, expense or loss arising Out of or relating to such contest, Lessee shall
not be obligated to pay any Tax which it is required to indemnify hereunder so long as the contest
is pending unless payment is a precondition to such or is necessary to protect Lessor's interest in
the Equipment in which event Lessee shall advance the amount of such Tax to Lessor as an
interest -free loan until such contest is resolved. If Lessor shall obtain a repayment of any Tax
indemnified by, Lessee hereunder; Lessor shall promptly 06Y to Le's"sieethe amount of such
repayment together with any interest received by Lessor thereon plus the benefit of any tax
savings resulting from such repayment to Lessee.
If: Lessor receives notice of a clairn for any Taxes from any taxing authority, that could result In an
indemnity hereunder, Lessor shall promptly give Lessee notice In writing of such clairn and shall
furnish Lessee with a copy of the claim received from the taxing authority, Failure of Lessor to
provide Lessee With Prompt notice shall release Lessee from liability relating to said claim to the
extent Lessee suffers any irreparable harm which Lessee could have avoided had Lessee received
timely notice.
3. OWNERSHIP, MAINTENANCE AND USE.
a. Lessor is the sole and exclusive owner of the Equipment. Lessee hereby transfers to Lessor any
and all right, title and interest, including any and all Ownership interest, Which Lessee may have In
or to the Equipment other than Lessee's leasehold interest under this Agreement and each
applicable Schedule with respect to the Equipment. Lessee represents and warrants that it has
the legal right to make such transfer and that such transfer does not constitute a transfer of all or, substantially all of the assets of Lessee, and that such transfer does not constitute all or a portion
Of a "bulk transfer" under. the Uniform Commercial Code, it is agreed' between the partles hereto
that Lessor $11,111 be the owner of and hold title to, the, Equipment for all purposes,
The Lease is a net lease, It being, the Intention of the parties drat all costs, expenses and liabilities
associated With tile possession and/or use Of Equipment shall be borne by Lessee, unless
expressly agreed otherwise by the parties In writing, Lessee shall be entitled to the possession of
each Item and to the use of each Item by It or any affiliate in the general operation of Lessee's or
any such affiliate's business. So long as no Event of Default shall have occurred and be continuing
under this Agreement, Lessee will be entitled to tile possession, use and quiet enjoyment of the
Equipment in accordance with the terms of this Agreement.
C. During the period that the Equipment is in Lessee's POssesslon, Lessee, at its expense, shall
maintain the Equipment and make all repairs to tire Equipment that Lessee reasonably deems
necessary; P11OVIDED, HOWEVER, that Lessee shall not be required! to pay for (I) any repairs to the
Equipment growing out of, or arising from or In connection with any defect in or malfunction of
the Equipment not caused' by Lessee. Lessor, at Its own expense, agrees to repair or replace and
install any part or parts of the Equipment (except for expendable Items such as wear Items,
antifreeze, belts, filters or other normal wear and tear) as a result ofarisingfrom : or in
connection with any defect in or malfunction of the Equipment u , or
not caused by Lessee a nd Lessor,
at its, own expense, agrees promptly to cause to be made to each Item any alteration,
modification or replacement required to comply with applicable law,
d. Lessee shall not create, cause, or permit any kind of claim, levy, lien or legal Process on the
Equipment other than Permitted Liens (as defined below), and shall forthwith satisfy, remove and
procure the release thereof; Provided that Lessee shall not be required to pay, or discharge any
such clairn so long as the validity thereof shall be contested in good faith and by appropriate legal
proceedings in any reasonable manner and the nonpayment thereof does not adversely -affect the
title, property or rights of Lessor, The Equipment is and always shall remain personal property,
Lessee shall not cause or permit the Equipment to be used, installed or located in such a manner
that it might be deemed a fixture. Lessee agrees, at Lessor's expense, to promptly execute and
deliver or cause to be executed arid de1vered to Lessor and Liessior is hereby authorized to record
or file, any statement and/or Instrument reasonably requested and provided by Lessor for the
purpose of showing Lessor's interest in the EquiPMent, including without limitation, financing, -
statements, security- agreeme tits, and waivers with respect to rights in theEquipment frorn any
owners or mortgagees of any real estate where the Equipment may be located, In the event that
Lessee fails or refuses to execute Uniforfln CorlimercialCode financing statements or other
instruments or recordings which Lessor` or its assignee reasonably deems necessary to Perfect or
maintain perfection of Lessor's or its assignee's interests hereunder, Lessee hereby appoints
Lessor as Lessee's limited attorney -in -fact to execute and record al do ume t necessary to perfect or maintain the Perfection of Lessor' I C � 11 S ss ry
sinterestshereunder. Lessor shall pay for any costs
and fees incurred hereunder relating to any filings hereunder including, but not limited to, lien
searches, document preparation, documentary stamps, Privilege Paxes and reasonable attorneys'
fees, and promptly provide Lessee with copies of any filings hereunder. For purposes of this
Agreement, "Permitted Liens" means, with respect to the Equipment and each Item thereof
under a Lease (a) the rights and interests of Lessee Linder such Lease, including subleases of an
interchange agreements Involving any Item In accordance with the terms of such Lease, (b) Liens
for taxes either not yet due or being contested by Lessee in good faith by appropriate
proceedings, diligently prosecuted or appealed and which do not Involve a non -de minimis risk of
a sale., forfeiture or loss of an Item and (c) undetermined or inchoate materialmen's, mechanics',
worker's, repairer's or employees' Liens or other like Liens arising in the ordinary course of
business and securing obligations which are not delinquent or which shall have been bonded or
tile enforcement of which shall have been Suspended and which do not involve a non -de mirlimis
risk of sale, forfeiture or loss of an Item and which are being contested.
e. Lessee shall affix and maintain, at its expense, in a Prominent and visible location on the
Equipment, all reasonable ownership notices supplied by Lessor. Lessee shall permit Lessor to
mark the Equipment in a manner sufficient to identify the Equipment as Lessor's Equipment.
4. GENERAL INDEMNIFICATION, CASUALTY AND INSURANCE.
a, LESSEE AGREES TO DEFEND, INDEMNIFY AND HOLD LESSOR AND ITS AFFILIATES, AND THEIR
RESPECTIVE AUTHORIZED REPRESENTATIVES, DIRECTORS, OFFICERS, EMPLOYEES, SUCCESSORS
AND ASSIGNS ("INDEMNIFIED PERSONS-), HARMLESS FROM AND AGAINST ANY CLAIM, EXPENSE,
LOSS OR DAMAGE OF WHATSOEVER NATURE (A "CLAIM") AND REGARDLESS OF THE CAUSE
THEREOF ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH OR RESULTING FROM THE
DELIVERY, POSSESSION, LEASING, CONDITION, USE, LOSS OF USE, MAINTENANCE, RETURN OR
OPERATION OF THE EQUIPMENT DURING THE LEASE TERM OR ARISING OUT OF AN EVENT OF
DEFAULT HEREUNDER EXCEPT TO THE EXTENT SUCH CLAIM IS ATTRIBUTABLE TO THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF LESSOR, ITS AGENTS OR EMPLOYEES. THE
INDEMNITIES SET FORTH IN THIS SECTION 4 SHALL SURVIVE THE EXPIRATION OR OTHER
TERMINATION OF THIS AGREEMENT. LESSOR AGREES TO GIVE LESSEE PROMPT WRITTEN NOTICE
OF ANY CLAIM OR LIABILITY FOR WHICH LESSOR MAY SEEK INDEMNIFICATION FROM LESSEE
HEREUNDER.
b. Lessor shall indemnify Lessee and hold Lessee harmless from and against any and all demands,
claims, causes of action, damages, losses and expenses (including the reasonable cost of
attorneys, accountants and expert witnesses) arising out of or resulting from any action by a third
party against Lessee that Is based on any claim that the Equipment, or any part thereof, infringes
a patent, copyright or trade secret of ally person or entity. In the event an injunction or order
shall be obtained against Lessee's use of the Equiprarent based upon infringement of patent,
copyright or trade secret of any person or entity, or if in Lessee's opinion the Equipment is likely
to become the subject of claim of Infringenaerat or Violation of floe copyright, trade secret or
other proprietary right of the third party, Lessor shall, at its expense: (1) procure for Lessee the
right to continue using the allegedly Infringing Item; (if) replace or modify the allegedly Infringing
Item so that it becomes iron -infringing, but only If the Modification or replacement does not
-adversely affect Lessee; -or (iii) if neither (l) or (ii) above Is practical, terminate Lessee's right to
such use and refund a pro rata arnount of any charges or fees paid by Lessee In advance therefor.
Thereafter, Lessee and Lessor shall be released from any further obligation to the other under this
Agreement as to such Item, except for obligations relating to the treatment by either party of the
proprietary information of the other party,
C. Lessee shall timely notify Lessor of any claim of Infringement by any person or entity and Lessor
shall assist and cooperate in Lessee's defense of any such claim.
d• Lessor shall have no liability to Lessee if any patent or copyright infringernent or claim thereof is
based upon the use of the Equipment (i) in connection or in combination with equipment, devices
or software not supplied by Lessor, (ii) in a manner not authorized by this Agreement, or (iii) in a
manner for which it was not designed.
e. In the event that any Item shall be or becorne lost, stolen, Orin Lessee's good faith opinion, worn
out, contaminated or destroyed (any such occurrence or determination being hereinafter called a
"Casualty"), Lessee Mil notify lessor and Lessor shall provide Lessee with a substitute unit for
damaged equipment.
{i} Lessee shall, promptly after a responsible officer of Lessee has knowledge of such
Casualty, notify Lessor in regard thereto.
Following the occurrence of a Casualty with respect to any Item, Lessor shall promptly
provide a substitute Item to Lessee to replace the Item that was subject to the Casualty.
4 Lessee, will, at all times, while each tease is in effect and at its own expense, cause to be carried
and maintained in full force and effect in such arnounts and with such terms (including
coinsurance, deductibles, limits of liability and loss payment provisions) (at a minimum of two (2)
million dollars U D liability coverage per incident) as are set forth In hll�L2' attached hereto
and incorporated herein as if fully set forth,
INSPECTION AND REPORTS.
Authorized representatives of Lessor and Lessee shall jointly inspect the Equipment to determine
its condition both at the time it is delivered to Lessee and when it is returned to Lessor. Lessee
shall have the right to reject Equipment at the time of Its delivery on Lessee's sole,, but reasonably
exercised determination that the Equipment is not in satisfactory operating condition.
Lessor shall have the right, at any reasonable time upon adequate prior written notification and
during normal business hours, to enter on Lessee's premises or elsewhere and inspect the
Equipment or observe its use, provided that Lessor is accompanied by an employee of Lessee and
Lessor shall adhere to Lessee's safety practices and policies. Upon Lessor's request, but in no
event later than thirty (30) days after such request, Lessee will deliver all information requested
by Lessor,, which Lessor reasonably deems necessary to determine Lessee's compliance with the
terms and conditions hereof. Lessee shall give Lessor prompt notice and copies of all tax notices,
reports, or inquiries, and of all notices of seizure, attachment or judicial process affecting or
relating to the use, maintenance, operation or possession of the Equipment. BTE equipment shall
not be moved or used outside of the United States of America.
6. DISCLAIMER OF WARRANTIES.
LESSOR LEASES THE EQUIPMENT "AS IS", AND BEING NEITHER THE MANUFACTURER OF THE
EQUIPMENT -NOR THE AGENT OF THE VENDOR, DEALER, SUPPLIER, MANUFACTURER OR
SELLER OF THE EQUIPMENT (COLLECTIVELY REFERRED TO AS "SELLER"), LESSOR DISCLAIMS ANY
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED WITH RESPECT OR RELATED
TO THE EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, THE CONDITION OR PERFORMANCE OF
THE EQUIPMENT, ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LESSOR
SHALL HAVE NO LIABILITY TO LESSEE FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND OR
NATURE WHATSOEVER INCLUDING, BUT NOT LIMITED TO, THE ACTIVE OR PASSIVE NEGLIGENCE
OR STRICT LIABILITY OF LESSOR, NOR SHALL THERE BE ANY ABATEMENT OF LEASE PAYMENTS FOR
ANY REASON, INCLUDING, BUT NOT LIMITED TO, CLAIMS ARISING OUT OF OR IN CONNECTION
WITH (i) THE DEFICIENCY OR INADEQUACY OF THE EQUIPMENT FOR ANY PURPOSE, WHETHER OR
NOT KNOWN OR DISCLOSED TO LESSOR, (ii) ANY DEFICIENCY OR DEFECT INTHE EQUIPMENT
ITSELF, (iii) THE USE OR PERFORMANCE OF THE EQUIPMENT, OR (IV) ANY LOSS OF BUSINESS OR
OTHER CONSEQUENTIAL LOSS OR DAMAGE, WHETHER OR NOT RESULTING FROM ANY OF THE
FOREGOING.
b. For the full Lease Term, Lessee may have the benefit of any and all assignable Seller's warranties,
service agreements and patent indemnities, if any, with respect to the Equipment, provided,
however, that Lessee's sole remedy for the breach of any, such warranty, indemnification or
service agreement shall be against the Lessor, nor shall any such breach have any effect
whatsoever on the rights jrnd obligations of Lessor or Lessee with respect to the Lease. For so
long as no Event of Default has occurred and is continuing, Lessor constitutes Lessee as the agent
and attorney -in -fact of Lessor for the purpose of exercising and enforcing, and with full right,
Power and authority to exercise and to enforce, to the exclusion of Lessor and all Persons claiming
through or under Lessor, all of the right, title and Interest of Lessor in, underand to all
manufacturer's warranties in respect of the Equipment, Lessor shall, at Lessee's request, execute
and deliver any instruments and tale such other action as may be reasonably requested by Lessee
to enable Lessee to enforce such rights.
7. ASSIGNMENT,
a. LESSEE ,SHALL NOT ASSIGN THE I'..EASE OR ANY OF ITS RIGHTS UNDER THE LEASE OR SUBLEASE
ANY OF THE EQUIPMENT WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. No permitted
assignment or sublease shall relieve Lessee of any of its obligations under the Lease and Lessee
agrees to pay all costs and expenses Lessor may incur in connection with such sublease or
assignment.
b Lessee acknowledges and understands Lessor may assign to a successor, lender or purchaser
("Assignee"), all or any part of Lessor's right, title and interest in and to the Lease and the
Equipment arid Lessee consents to such assignment. In the event Lessor transfers or assigns, or
retran.fers or reassigns, to an Assignee all or part of Lessor's interest in the Lease, the Equipment
or any sums payable under the Lease, whether as collateral security for loans or advances made
or to be made to Lessor by such Assignee or otherwise, Lessee shall consent to and acknowledge
In writing, upon receipt of notice of assignment, such assignment of the Lease by Lesson
provided, that any such consent and/or acknowledgement shall not in any manner increase or
change the rights, obligations, duties or legal position of lessee. Lessor warrants that any
Assignee shall agree to all the terms and conditions of the Lease. Each Assignee shall warrant that
any subsequent Assignee shall agree to all terms and conditions of the Lease.
C. Lessor shall not make all assignment or transfer to any Assignee who shall not agree that, so long
as no Event of Default shall have occurred and be continuing under the Lease, such Assignee shall
take no action to interfere with Lessee's quiet enjoyment and use of Equipment In accordance
with the terms of tile Lease. No such assignment or conveyance shall relieve Lessor of its,
Obligations under the Lease and lessee agrees it shall not look to any Assignee to perform any of
Lessor's obligations under the Lease,
8, RETURN OF EQUIPMENT.
a, On the expiration or termination of the Lease Term for any Item, Lessee shall, at its Sole risk and
expense, assemble, prepare for delivery, and deliver, such Item to a location specified in writing by
Lessor (and reasonably acceptable to Lessee) within the continental United States of America
(excluding Alaska), The Equipment shall be re -delivered to Lessor unencumbered and free of any
liens, cha:rges, or other obligations (including delivery expense and sales or use taxes, if ally,
arising from such delivery) and shall be in the conditioll required by Suction 3(c) hereof, Un't'il the
return of an Item to Lessor, Lessee shall continue to be obligated to Pay the Lease Payments with
respect to such Item and all other sums due under the Lease with respect thereto,
b. Except, as otherwise provided in any Schedule, Lessee shall Provide Lessor thirty (30) days prior
written notice of Its intention to return any Item 'uPOrl expiration of the Lease Teats for such Item.
If Lessee falls for any reason to provide such notice orto re -deliver such Item to Lessor In
accordance with the terms set forth above, Lessee shall pay to Lessor, at Lessor's option, all
amount equal to one hundred fifty percent (150%) Of tile highest monthly Lease Payment for such
Item set forth in the respective Schedule or, the highest monthly rate permitted by law, whichever
is less, for the period from and after the date that Is ten (10) days after the expiration of the Lease
Term for such Item until' Lessee properly notifies Lessor hereunder and so returns such Itern to
Lessor. In lieu of re -delivery, Lessor may, at its Option, direct Lessee in writing not lessthan thirty
(30) days prior to the expiration of the, Lease Term for any Item to dispose of such Item in a
proper and lawful manner at a recognized and MUtuailly agreed -upon disposal site at Lessee's sole
cost and responsibility,
QUIET ENJOYMENT.
Lessor Covenants that, so long as no Event of Default shall have occurred and be continuing under
the Lease or any Schedule(s), neither Lessor nor any third Party exercising any right derived by,
from, or through Lessor will take any action which would impair Lessee's quiet enjoyment of the
Equipment subject to and in accordance with the provisions of the Lease and Schedule(s),
10. FORCE MAJEURE.
a, The parties agree that if performance by either, including, without limitation Lessee's use of the
strikes, shutdowns, riots, civil disobedience, wars, or any other cause
authority, fire, flood, . Abecause of acts of God, acts of, or by government
Equipment in its operations, Is prevented 0
beyond the control of either party, such affected party shall be temporarily excused from such
performance or payment of the rent during Such period and this Agreement shall be extended for
a period of firne equal to such interruption or stoppage.
11. DEFAULT AND REMEDIES.
The fallowing shall each be deemed an "Event of Default" under the Lease-(!) Lessee fails to pay
any installation fee, Lease Payment or other charge or payment due on any Lease or Schedule
that Lessee may have with Lessor within 10 days Of the date such payment Is due; (ii) except as
expressly permitted in the Lease, Lessee attempts to remove, sell, encumber, assign or sublease
or falls to insure any Olithe Equipment, or falls to deliver any CIOCUrrients required of Lessee under
tile Lease;, (ill) any material representation or warranty made by Lessee in the Lease or any
document supplied in connection with the Lease or any Schedule hereto is determined by Lessor
to be untrue or incorrect in any material respect as of the date of Issuance or making thereof and
such untruth or incorrectness Shall continue to be material and unremedied for a Period of thirty
(30) days after Lessee's first knowledge thereof/receipt of written notice thereof fron, Lessor;
(IV) Lessee fails to observe or Perform any of the other obligations required tobe observed or
Performed by Lessee under the Lease or any SichEdude within thirty (30) days of Lessee's first
knowledge/receipt of written notice from Lessor ,)f such failure, Or, if more than thirty (30) days
are reasonably required to cure such failure, Lessee falls to commence and to continue to
diligently perform such obligation within such thirty (30) days; (v) Lessee ceases doing business as
a going concern, makes an assignment for the benefit of creditors, admits in writing Its inability to
Pay its debts as they become due, files a Voluntary petition, in bankruptcy, Is adjudicated a
bankrupt or an insolvent, files a Petition seeking for itself any bankruptcy, reorganization,
arrangement, composition, readjustment, liquidation, dissolution or slinilar arrangement under
any present or future statute, law or regulation or files a answer admitting or fails to deny the
material allegations of a Petition filed against it in any such proceeding consents to or acquiesces
in the appointment of a trustee, receiver, or liquidator for its or of all or any substantial part of its
assets or Properties, or if it or its trustee, receiver, liquidator or shareholders shall take any action
to effect its dissolution or liquidation, or, If within thirty (30) days after the commenceent
proceedings against Lessee seeking reorganization, arrangement, Composition, readjustmment,of any
liquidation, dissolution or similar relief under any present or future statute, law or regulation,
such Proceedings shall 'lot have been dismissed, or if within thirty (30) days after the
appointment of any trustee, receiver or IIQILtidator of it or of all or any Substantial part of its
respective assets and properties, such appointment shall not be vacated; or (YI) files a termination
statement for any financing statement filed by Lessor while any obil ations are owed by Lessee
under a Lease, 9
b. Upon the occurrence of an Event of Defitilt("Default Date") under a Lease asset forth herein and
at any time thereafter while such Event of Default is continuing, Lessor (nay do any one or more
of the following: (a) cancel aridterminate all or any ortion of such I -ease; (b) enter any premises
where the Equipment under such Lease may be and ipmmediately take possession and remove the
Equipment or without removal of the Equipment, render the Equipment unusable or require
Lessee to assemble the Equipment and make it available to Lessor as a Place designated by
Lessor, and/or dispose of the Equipment by sale or otherwise (all Of which determinations may be
made by Lessor in its sole and absolute discretion) without any duty to account for such action or
Inaction or for any Proceeds or profits with respect thereto; (c) With or without canceling such
Lease, recover fl-Oni Lessee as liquidated damages and not as a penalty an arnOsint equal to the
sum Of: (I) all unpaid Lease Payments and other amounts that became due and Payable on, or
prior to, the Default Date oil such Lease, (11) the present Value Of all future Lease Payments and
Other amounts described In such Lease not included in (1) above, discounted using the rate factor
Lessor utilized in calculating the Lease Payment (which discount factor, Lessee agrees is a
Commercially reasonable rate), (ill) all commercially reasonable costs and expenses Incurred by
Lessor in enforcing Lessor's rights tinder such Lease, Including, but not limited to, costs of
repossession, recovery, storage, repair, sale, re -lease and reasonable attorneys" fees and costs,
(IV) Lessor's anticipated residual value of the Equipment subject to such Lease as of the expiration
of such Lease, (V) any Indemnity or other amount payable to Lessor under such Lease, and
NO interest on all of the foregoing from the Default Date until the date payment is received by
Lessor at 11/2% per month, or the highest rate Permitted by law, whichever is higher. Lessor
reserves the right, in its sole and absolute discretion, to re -lease or sell any or all of the
Equipment subject to such Lease at a public auction or in: a private sale, at such time, on such
terms and with such notice as Lessor shall In its sole and absolute discretion deem, reasonable. In
such event, without ally cluty ontessor's part to effect any such re -lease or sale of the Eq-uip—ment-
Subject to such Lease, Lessor will credit any Proceeds from such Sale or re -lease actually received
(net of any and all costs or expenses) to the amounts due to Lessor from Lessee under the
Provisions of (c), above, Lessor may also exercise any other right or remedy which may be
available to Lessor hereunder, under the Uniform Commercial Code or any other applicable law or
in equity, The cancellation of a tease after an Event of Default thereunder shall occur only upon
notice by Lessor and only as to such Lease and the Equipment thereunder as Lessor specifically
elects to cancel and such Lease shall continue in full force and effect as to the remaining
Equipment, if any. If a Lease and/or any Schedule Is deemed at any time to be one intended as
security, Lessee agrees that the Equipment subject to such Lease shall secure, in addition to the
indebtedness set forth herein, any other indebtedness at any time owing by Lessee to Lessor. No
remedy referred to in this Section Is intended to be exclusive, but shaill be cumulative and in
addition to any other remedy referred to above or otherwise available to Lessor at law or in
equity. No express or implied waiver by Lessor of any Event of Default shall constitute a waiver of
such Event of Default by Lessee or waiver of any of Lessor's rights, Lessor's failure to exercise or
delay In exercising any right, power or remedy available to Lessor shall not constitute a waiver or
otherwise affect or impair its rights to the future exercise of any such right, power or remedy.
12. GENERAL.
a. This Agreement and any Schedules shall be governed, construed, and enforced in accordance with
the laws Of theState of Missouri, The arbitration mechanisrn set forth in this Agreement, shall be
instituted and maintained only In St, Louis, Missouri and the Parties consent to their Participation
In such arbitration procedures Ijj that forum.
b, This Agreement and any Schedules, and any associated written documents signed by the Parties,
constitute the entire and only agreements between Lessee and Lessor with respect to the
Equipment. The covenants, conditions, terms and provisions thereof may not be waived or
modified orally and shall supersede all previous proposals, both oral and written, negotiations,
representations, commitments, writings Or agreements or any other coin on u nication between the
parties. Neither this Agreement nor any Schedules may be amended or discharged except by a
subsequent written agreement entered into by duly authorized representatives of Lessor and Lessee,
C. Ali notices, covenants or requests desired or required to be given under the Lease shall be in
writing and shall be delivered in, person or sent by certified mail, return receipt requested, or by
courier service to the address of the other party set forth below or to such other address as such
party shall have designated by proper notice.
1f—t0—Lessor:
Sentinel Emergency Solutions, LLC
Attn: Bill Franz
23 Grandview Park
Arnold, MO 63010
L) iYkfr�o —m@ gaq rLeie
800-851-1928
FAX 636-464-5720
Lf LO �Le 5 —Sqt:
--__Company Name
Company Contact
—.--.Address
--.--.Phone
cl, This Agreement and any Schedule may be executed in one or 1110M counterparts, each of which
shall be deemed an original, but there shall be a single executed original of each which shall be
marked "Original"; all other counterparts shall be marked "Duplicate." To the extent, if any, that
a Lease, or any Schedule constitute'$ chattel paper (as such term is defined in the Uniform
Commercial Code) no security interest in the Lease or any Schedule may be created through the
transfer or possession of any counterpart other than the Original.
e. Section headings are for convenience only and shall not be construed as part of the Lease or
Schedule.
- ffective and shall not invalidate the remaining provisions
shall, at the sole option of Lessor, be ineffective ctio
Any provision of the Lea�s,e orany Schedule prohibited by any applicable laworany jurisdiction
thereof,
IN WITNESS WHEREOF, Lessor and Lessee have each caused this Agreement to be duly executed as of the
day and year first above written.
SENTINEL EMERGENCY SOLUTIONS, LLC
BY:
PH y ed Name:
_J°71/ ',-YL
Title: r4
COMPANY NAME
By:
Print d iief
N � A;Ice,
The undersigne, a duly authorized representative of C
does hereby certify thathe has caused to be inspected and, on the date set forth below, has acceptedCtfST on beh of the customer the following described Item(s), which Item(s) is (are) in good order, condition and repair andalf
conform in all material respects to twjje ("Agreement") between SENTINE
Missouri, LLC ("Vendor"), and C (A
-2018 EMERGENCY SOLUTIONS, LLC, a
dated as of
TM o te
,L 13 the Agreement. -
SCHEDULE "A"
K_qualt OL jp p 0 script,
1998 Pierce Saber Pumper Truck; VIN: 4PICT02U3XA000927
Vehicle is USED; Sold "As -is"; No warranty
Length of Rental/Lease Agreement: THIR-
�_DLLWLCA NDAj LC 3_QAya*
7
Price Terms of Agreement: ''0
*NOT Lircl
�a �rag
A_UMQ_R!ZFQ RLPKFI NTATIVE
By:
Title:
Date:
EXHIBIT 1 of
_LEASE
INSURANCE REQUIREMENTS FOR
FIRE APPARATUS RENTAL
Fire Department, (here after called Department), at its own expense, shall procure, carry and maintain on
all of its operations:
A. Workers' Compensation - Statutory for coverage
Employer's Liability Insurance covering all of Its employees with coverage "B" limits of
no less than $500,000 minimum, Policy should be endorsed granting a waiver of
subrogation in favor of Sentinel Emergency Solutions LLC.
Liability will, the following minimum limits
B. Commercial General Liability Insurance including Broad Form Property Damage and Contractual
• General Aggregate $2,000,00o
• Products/Completed Operations Aggregate $2,000,00o
• Each Occurrence $1,000,000
• Personal & Advertising Policy
• Medical Payments $1,000,000
$ 10,000
Policy should be endorsed granting a waiver of subrogation in favor of Sentinel Emergency
Solutions LLC,
C. Comprehensive Automobile Liability Insurance with a Combined Single Urnit of not less than
$1,000,000 each occurrence for bodily injury and property damage combined, This insurance shall
cover all owned, non -owned, and hired motor vehicles that are operated on behalf of Departments
Pursuant to Department's activities hereunder. Department agrees to insure the rented apparatus
physical darnage for all perils, with a stated amount of coverage for $60,000, Sentinel Emergency
Solutions LLC is named as loss payee for the rented apparatus (via ISO Form CA 99 44 10 14 or its
equivalent). Policy should be endorsed granting a waiver of subrogation in favor of Sentinel
Emergency Solutions LLC. Department is responsible for the payment of any deductible
D. Umbrella/Excess Liability on a following form basis with the following minimum limits:
a Each Occurrence/Annual Aggregate $5,000,000
E. All such insurance shall be issued by Companies licensed to do business In the States Of Missouri &
Illinois; having a Best's rating of not less than A-Vill, and otherwise satisfactory t ell I
Emergency Solutions LLC, Ali of such policies shall be on an "occurrenceto tnel
Emergency Solutions LLC shall be named as additional insureds under basis" with Sentinel,
Department's General
Liability, Automobile Liability and Excess (Umbrella) Liability insurance policies. Where possible, the
naming of Sentinel Emergency Solutions LLC additional Insured shall be on a dmaw
contributor excess form Is not acceptableSimultaneously with, Department's execution of
this Agreement and prior to expiration of such insurance similar updated certificates shall be
delivered by Department to Sentinel Emergency Solutions LLC evidencing the renewal of such
Insurance, together with evidence satisfactory to Sentinel Emergency Solutions LLC of the
payment of the prerniurn. All certificates of insurance must contain a definite provision that if the
Policies of Insurance evidenced by such certificates are canceled or changed during the period of
coverage as stated therein, In such a manner as to effect the coverage afforded by such policies,
written notice will be mailed to Sentinel Emergency Solutions LLC by certified mail and returned
receipt requested at least thirty (30) days prior to such cancellation or change,
Safety & Risk Department
731 S. Lafayette Blvd.
South Bend, Indiana 46601
Phone 574/ 245-6400
Fax 574/ 245-6404
TDD 574/ 235-5567
City of South Bend Pete Buttigieg, Mayor
Department of Safety and Risk Management
Robert Yeary, Safety & Risk Director
Please be advised that the City of South Bend is a municipal corporation organized under the laws of the
State of Indiana, and is self -insured under provisions of Indiana statutes and local ordinance. Specifically, the
City of South Bend maintains blanket insurance coverage over real and personal property, and is covered by a
non -reverting insurance premium and liability reserve fund created by the City of South Bend, Ordinance #6657-
79, pursuant to Indiana Code 34-13-3-4, as amended from time to time. Under said statute, the City's liability is
limited to:
(a) Three Hundred Thousand Dollars ($300,000) for a cause of action that accrues before January 1, 2006;
(b) Five Hundred Thousand Dollars ($500,000) for a cause of action that accrues on or after January 1,
2006, and before January 1, 2008; or
(c) Seven Hundred Thousand Dollars ($700,000) for a cause of action that accrues on or after January 1,
2008: and
(d) for injury to or death of all persons in that occurrence, Five Million Dollars ($5,000,000); and
(e) A governmental entity or an employee of a governmental entity acting within the scope of employment
is not liable for punitive damages.
Date January 2018
9C.Rob Cary
Jeff Hudak
From: Nick Gowen
Sent: Monday, October 15, 2018 9:35 AM
To: Todd Skwarcan; Jeff Hudak
Subject: FW: Lease Agreement
Nick Gowen- 109
South Bend Fire Department
1222 S Michigan Street
South Bend, Indiana 46601
574-235-7517
From: Jeff Stigall [mailto:jeffstigall@sentineles.com]
Sent: Monday, October 15, 2018 9:33 AM
To: Nick Gowen <ngowen@southbendin.gov>
Subject: RE: Lease Agreement
Nick,
Per my boss we will split the $350.00 per day, if the City purchases the rig with in 30 days he will waive the lease fee all
together. Our Legal said to leave it as standard agreement and adjust with billing discount. Best I got buddy.
Jeff
From: Nick Gowen <nP;awtN�ra;�W l�lcL!9iurc:>
Sent: Monday, October 15, 2018 7:56 AM
To: Jeff Stigall <j l 9�g�'ll e�tiPM„� I«>s,,(: >qj>
Subject: RE: Lease Agreement
I just read through most of the agreement and I remember it being $150.00 per day?
Nick Gowen- 109
South Bend Fire Department
1222 S Michigan Street
South Bend, Indiana 46601
574-235-7517
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BOARD OF PUBLIC WORKS 3�
AGENDA ITEM REVIEW REQUEST FORT
Date 11/19/2018 Department Fire
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BPW Date 11/27/2018 Phone 9255
Name Todd Skwarcan„ A/C Services
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Other: Special
Attorney Name Elliot Anderson, Clara McDaniels
Controller review is required for all Contracts $5,000.00 or more
and greater than one year in length per the City Purchasing
Policy
Michael Schmidt
)r9prate Item Type required for All Submissions
Contract ( Proposal Addendum
Bid Award
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