R2024-70 Resolution Accepting the Cummins Midstate Power Inc. Quote for the Rebuild of the Engine for Fire Truck #366

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These Terms and Conditions,together with the estimate/quote(the"Quote")and/or invoice("Invoice")attached to these Terms and Conditions,are hereinafter collectively referred to as this"Agreement'and shall wngtute the entire agreement between the customer("Customer')idenfified on the Quote and/or Invoice and Cummins Inc.("Cummins")and supersede any previous agreement or understanding(oral or written)between the parties with respect to the subject matter of this Agreement.Customer shall be deemed to have made an unqualified acceptance of these Terms and Conditions and A shall become a binding agreement between the parties on the earliest of the following to occur.(i)Cummins receipt of Customers purchase order or purchase order number;(it)Customers signing or acknowledgment of this Agreement;(iii)Cummins'release of Products to production pursuant to Customer's oral or written instruction or direction;(tv)Customers payment of any amounts due to Cummins;or(v)any other event constituting acceptance under applicable law.No prior inconsistent course of dealing,course of performance,or usage of trade,if any,constitutes a waiver of,or serves to explain or Interpret,the Terms and Conditions set forth In tilts Agreement Electronic transactions between Customer and Cummins will be solely govemed by the Terms and Conditions of this Agreement,and any terms and conditions on Customers website or other Internet site will be null and void and of no legal affect on Cummins.In the event Customer delivers,references,incorporates by reference,or produces any purchase order or document,any terms and wrMitions related thereto:(1)shall be null and void and of no legal effect on Cummins,and(it)this Agreement shall remain the governing terns of the transaction. SCOPE OF SERVICES;PERFORMANCE OF SERVICES Cummins shall supply pad(s)and/or components)and/or engines)and/or generator set(s)("Goods')and/or perform the maintenance and/or repair("Services")on the equipment identified in the Quote and/of Invoice("Equipmenr),if applicable,in accordance with the specifications in the Quote and/or Invoice.No additional services or goods are included in this Agreement unless agreed upon y the parties in writing,or otherwise,as applicable. CUSTOMER OBLIGATIONS If necessary,Customer shall provide Cummins safe and free access to Customers site and arrange for all related services and utilities necessary for Cummins to safety and freely perform the Services.During the performance of the Services,Customer shall fully and completely secure ail or any part of any facility where the Equipment is located to meorove and mitigate any and all safety issues and risks,including but not limited to injury to facAily occupants, customers,Invitees,Or any third party and/or property,damage or work interruption arising out of the Services.It applicable,Customer shall make all necessary arrangements to address and mitigate the consequences of any electrical service interruption which might occur during the Services.Customer is responsible for operating and maintaining the Equipment in accordance with the Owners manual for the Equipment. INVOICING AND PAYMENT Unless otherwise agreed to by the parties in writing and subject to credit approval by Cummins,payments are due thirty(30)days from the date of Invoice.If Customer does not have approved aedit with Cummins,as solely determined by Cummins,payments are due In advance or at the time of supply of the Goods and/or Services.If payment is not recanted when due,In addition to any lights Cummins may have at law,Cummins may charge Customer eighteen percent(10%)interest annually on late payments,or the maximum amount allowed by Is .Customer agrees to pay all Cummins'costs and expenses(including all reasonable attorneys'fees)related to Cummins'enforcement and collection of unpaid invokes,or any other enforcemenl of this Agreement by Cummins. TAXES;EXEMPTIONS The Invoice includes all applicable local,state,or federal miss and/or use or similar taxes which Cummins is required by applicable laws to collect from Customer under this Agreement.Customer must provide a valid tax exemption certificate or direct payment certificate prior to shipment of the Goods or performance of the Services,or such taxes wiil be included in the Invoice. DELIVERY;TITLE AND RISK OF LOSS Unless otherwise:?read in writing by the parties,any Goods supplied under this Agreement shall be delivered FOB Origin,freight prepaid to the first destination.If agreed,any charges for third party freight are subject to adjustment to reflect any change In price at time of shipment.Unless otherwise agreed to,packaging method,shipping documents and manner,route and carder and delivery shall be as Cummins deem appropriate.All shipments are made within normal business hours,Monday through Friday.Unless otherwise agreed in writing by the parties,title and risk of loss for any Goods sold under this Agreement shall pass to Customer upon delivery of Goods by Cummins to freight carrier or to Customer at pickup at Cummins'facility. DELAYS Any delivery,shipping,installation,or performance dates indicated in this Agreement are estimated and not guaranteed.Further,delivery time is subject to confirmabon at bme of order.Cummins shall not be liable to Customer or any third party for any loss,damage,or expense suffered by Customer w third party due to any delay in delivery,shipping,installation,or performance,however occasioned,including any delays In performance that result directly or indiri ch from ads of Customer Or causes beyond Cummins'control,including but not limited to ads of God,accidents,fire,explosions,flood,unusual weather conditions,acts of govemmenl authority,or labor disputes.AS A RESULT OF THE OUTBREAK OF THE DISEASE COVID-19 ARISING FROM THE NOVEL CORONAVIRUS,TEMPORARY DELAYS IN DELIVERY,LABOUR OR SERVICES FROM CUMMINS AND ITS SUB-SUPPLIERS OR SUBCONTRACTORS MAY OCCUR.AMONG OTHER FACTORS,CUMMINS'DELIVERY OBLIGATIONS ARE SUBJECT TO CORRECT AND PUNCTUAL SUPPLY FROM OUR SUB-SUPPLIERS OR SUBCONTRACTORS,AND CUMMINS RESERVES THE RIGHT TO MAKE PARTIAL DELIVERIES OR MODIFY ITS LABOUR OR SERVICE.WHILE CUMMINS SHALL MAKE EVERY COMMERCIALLY REASONABLE EFFORT TO MEET THE DELIVERY,SERVICE OR COMPLETION OBLIGATIONS SET FORTH HEREIN,SUCH DATES ARE SUBJECT TO CHANGE. LIMITED WARRANTIES New Goods:New Goods purchased or supplied under this Agreement are governed by the express written manufacturerswaranty.No other warranty for Goods supplied under this Agreement is provided under this Agreement Cummins Exchange Components,Other Exchange Components,and Recon:Cummins will administer the Cummins exchange component warranty and the warranties of other manufacturers exchange components or Recon Components which are sola by Cummins.In the event of defects In such Items.Only manufacturers warranties will apply. HHP Exchange Engine:HHP Exchange Engines remanufactured by Cummins under this Agreement are governed by the express Cummins'written warranty.No other warranty for HNP exchange Engines supplied under this Agreement is provided under this Agreement. General Service Work:All Services shall be free from defects in workmanship(i)for power generation equipment(Including engines in such equipment),for a period of ninety(90)days after completion of Services or 500 hours of operation,whichever occurs first,or(s)for engines,for a period of ninety(90)days after completion of Services,25,000 miles or 900 hours of operation,whichever occurs first.In the event of a warrantable defect in workmanship of Services supplied under this Agreement ('Warrantable Defect"),Cummins'obligation shall be solely limited to correcting the Warrantable Defect.Cummins shell coned the Warrantable Defeat where(i)such Warrantable Defect becomes apparent to Customer during the warranty period;(it) Cummins receives written notice of the Warrantable Defect within thirty(30)days following discovery by Customer;and(Iii)Cummins has determined that there is a Warrantable Defect.Warrantable Defects remedied under this provision shall be subject to the remaining warranty period of the original warranty of the Services.New Goods supplied doling the remedy of Warrantable Defects are warranted for the balance of the warranty period still available from the original warranty of such Goods. Used Goods:Used Goods are sold"as is,where is"unless exception is made in writing between Cummins and Customer.Costo ler agrees to inspect all used Goods before completing the purchase THE REMEDIES PROVIDED IN THE LIMITED WARRANTIES AND THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES PROVIDED BY CUMMINS TO THE CUSTOMER UNDER THIS AGREEMENT.EXCEPT AS SET OUT IN THE WARRANTY AND THIS AGREEMENT,AND TO THE EXTENT PERMITTED BY LAW,CUMMINS EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS,WARRANTIES,ENDORSEMENTS,AND CONDITIONS OF ANY KIND,EXPRESS OR IMPLIED,INCLUDING,WITHOUT LIMITATION,ANY STATUTORY OR COMMON LAW IMPLIED REPRESENTATIONS,WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE OR MERCHANTABILITY. INDEMNIFICATION Customer shall indemnity,defend and hold harmless Cummins from and against any and all claims,actions,costs,expenses,damages and liabilities,including reasonable attorneys'fees,brought against m incurred by Cummins rotated to or arising out of this Agreement or the Services and/or Goods supplied under this Agreement(collectively,the"calms"),where such Claims were caused Or contributed,in whole or in part,by the act,omissions,fault or negligence of the Customer.Customer shall present any Claims covered by this indemnity,including any tenders for defense and indemnity by Cummins to its insurance carrier unless Cummins directs that the defense will be handled by Cummins'legal counsel at Customers expense. LIMITATION OF LIABILITY NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT,IN NO EVENT SHALL CUMMINS,ITS OFFICERS,DIRECTORS,EMPLOYEES,OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT,INCIDENTAL,SPECIAL,PUNITIVE,OR CONSEQUENTIAL DAMAGES OF ANY KIND(INCLUDING WITHOUT LIMITATION DOWNTIME,LOSS OF PROFIT OR REVENUE,LOSS OF DATA,LOSS OF OPPORTUNITY,DAMAGE TO GOODWILL,ENHANCED DAMAGES,MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY,AND/OR DAMAGES CAUSED BY DELAY)IN ANY WAY RELATED TO OR ARISING FROM CUMMINS' SUPPLY OF GOODS OR SERVICES UNDER THIS AGREEMENT.IN NO EVENT SHALL CUMMINS'LIABILITY TO CUSTOMER OR ANY THIRD PARTY CLAIMING DIRECTLY THROUGH CUSTOMER OR ON CUSTOMER'S BEHALF UNDER THIS AGREEMENT EXCEED THE TOTAL COST OF GOODS AND SERVICES SUPPLIED BY CUMMINS UNDER THIS AGREEMENT GIVING RISE TO THE CLAIM.BY ACCEPTANCE OF THIS AGREEMENT,CUSTOMER ACKNOWLEDGES CUSTOMER'S SOLE REMEDY AGAINST CUMMINS FOR ANY LOSS SHALL BE THE REMEDY PROVIDED HEREIN EVEN IF THE EXCLUSIVE REMEDY IN SECTION 7I DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, GOVERNING LAW AND JURISDICTION This Agreement and all matters arising hereunder shall be governed by and construed in accordance with the laws of the State of Indiana without giving effect to any choice w conflict of law provision.The parties agree that the court of the State of Indiana shall have exclusive jurisdiction to settle any dispute or claim arising in connection with this Agreement. ASSIGNMENT This Agreement is binding on the parties and their successors and assigns.Customer shall not assign this Agreement without the poor written consent of Cummins. CANCELLATION.Orders placed with and accepted by Cummins may trot be cancelled except with Cummins'prior written consent.Cummins may charge Customer a cancellation charge in accordance with current Cummins policy which is available upon raagqteat in addition to the actual,non-recoverable costs incurred by Cummins. REFUNDS/CREDITS Goods ordered and delivered by Cummins under this Agreement are not returnable unless agreed to by Cummins.Cummins may,at its sole discretion,agree to accept Goods for return and provide credit where Goods are In naw, and saleable owdlibw and presented with a copy of the original invoice.Credits for returns will be subject to up to a 15%handling/restocking charge and are limited to eligible items purchased from Cummins. INTELLECTUAL PROPERTY Any intellectual property rights created by either party,whether independently or jointly,in the course of the performance of this Agreement or otherwise related to Cummins pre-existing intellectual property or su matter related thereto,shag be Cummins'property.Customer agrees to assign,and does hereby assign,all right,tilts,and interest to such Intellectual property to Cummins.Any Cummins pre-exisfing intellectual property shall remain Cummins? Property.Nothing in this Agreement shall be dimmed to have given Customer a licence or any other rights to use any of the intellectual property rights of Cummins. COMPLIANCE WITH LAWS Customer shall comply with all laws applicable to its activities under this Agreement including without limitation,all applicable national,provincial,and local export,anti-bribery,.environmental,health,and safety laws and regulations in effect.Customer acknowledges that the Goods,and any related technology that are sold or otherwise provided hereunder may be subject to export and other trade controls restricting the sale,export,re-export and/or transfer,directly or indirectly,of such Goods or technology to certain countries or parties,Including,but not limited to,licensing requirements under applicable laws and regulations of the United States,the United Kingdom and other jurisdictions.It is the intention of Cummins to comply with these laws,rules,and regulations.Any other pmvlsiw of this Agreement to the contrary notwithstanding,Customer shall comply with all such applicable laws relating to the cross-border movement of goods or technology,and all related Orders In effect from tirne to time,and equivalent measures.Customer shall accept full responsibility for any and all Chit or criminal liabilities and costs arising from any breaches of those laws and regulations and willdefend,indemnify,and hold Cummins harmless from and against any and all fines,penalties,claim,damages,liabilities,judgments,costs,fees,and expenses incurred by Cummins or its athltates as a result of Customer's breach. CONFIDENTIALITY Each party shall keep confidential any information recurved from the other that is not generally known to the public;and at the Uma of disclosure,would reasonably be understood by the receiving party to be proprietary or confidential,whether disclosed in oral,written,visual,electronic,w other form,and which the receiving party(or agents)learns in connection with this Agreement including,but not limited to:(a)business plans,atrategles,sales,projects and analyses; (b)financial information,pricing,and fee structures;(c)business processes.methods,and models;(d)employee and supplier information;(e)specifications;and(f)the terms and conditions of this Agreement.Each party shall take necessary steps to ensure compliance with this provision by its employees and agents. PRICING To the extent allowed by law,actual prices may vary from the price at the time of order placement,as the same will be based on prices prevailing on the date of shipment.Subject to local laws,Cummins reserves the right to adjust pricing on goods and services due to input and labor cost changes and other unforeseen circumstances beyond Cummins'wntrol. MISCELLANEOUS All notices under this Agreement shall be in writing and be delivered personally,mailed via first Case certified or registered mall,or sent by a nationally recognized express courier service to the addresses set forth in the Quote and/or Invoice.No amendment of this Agreement shall be valid unless it is writing and signed by the partes hereto.Failure of either parry to require performance by the other party of any provision hereof shall in no way affect the right to require such performance at any time thereafter w the enforceability of the Agreement generally,nor shall the waiver by a party of a breach of any of the provisions hereof constitute a waiver of any succeeding breach.Any provision of this Agreement that is Invalid or unenforceable shall not affect the validity or enforceability of the remaining terms hereof.These terms are exclusive and constitute entire agreement.Customer acknowledges that the provisions were freely negotiated and bargained for and Customer has agreed to purchase of the Goods and/or Services pursuant to these terms and conditions-Acceptance of this Agreement is expressly conditioned on Cl1SIpmAre assent to all such mmma and conditions.Neither party has relied ort any statement, representation,agreement,understanding,or promise made by the other except w expressly set out in this Agreement. To the extent applicable,this contractor and subcontractor shall abide by the requirements of 41 CFR§§60-1.4(s),60-300.5(a)and 60741.5(a).These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individwts based on their raw,color,religion,sex,sexual orientation,gender identity or national origin.Moreover,these regulations require that covered prime contractors and subcontractors take affirmable action to a oy a, advance advance in employment Individuals without regard to race,color,religion,sex,sexual orientation,gender identity,national origin,protected veteran status or disability.The employee notice requirements set forth in 29 CFR Pan 471, ppand5 A to Subpart A,are hereby incorporated by reference into this contract.