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HomeMy WebLinkAbout14- Ladder One Bailment Agreement THIS BAILMENT AGREEMENT is made and entered into this 00'--day of O -%VgC�, 2014, by and between the CITY OF BOZEMAN,MONTANA, a self governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as the "City or the "Bailor," and Sutphen Corporation, hereinafter referred to as "Sutphen" or the "Bailee"with an address of 64560 Eiterman Road, Dublin,OH,43017. In consideration of the mutual covenants and agreements herein contained, which shall include the City's permission to allow Sutphen to correct deficiencies with the Equipment, the receipt and sufficiency whereof being hereby acknowledged,the parties hereto agree as follows: 1. General. a. The City owns an aerial platform, described as SPH100, and manufactured by Sutphen under its project number HS-5376 and delivered to the City on May 7, 2014 (hereinafter referred to as the Equipment). b. Sutphen has notified the City of its recall of the Equipment that requires Sutphen to repair the Equipment to address concerns regarding the aerial platform and to do so at its sole cost and expense. c. Sutphen acknowledges the Equipment has been out of service for an extended period of time and in conducting the repairs shall do so with all reasonable and necessary care and all deliberate speed to return the Equipment to the City as soon as possible. d. In doing so, Sutphen desires to make repairs to the Equipment pursuant to its warranty and recall obligations and in doing so take possession of the Equipment, becoming the bailee to the City, keeping the Equipment within its custody and control at all times and bear all costs of repair and all risks of loss while in custody and control of the Equipment, and, upon completion of repairs called for under warranty and recall, return the Equipment to the City, as bailor to Sutphen, in the same condition as it took the Equipment. e. Sutphen desires to take possession of the Equipment from the City through its employee David Daniel on November l-,2014 and to transport the Equipment to its repair facility in Tacoma, Washington pursuant t e tenps of this agreement. 3 2. Bailment. Prior to Sutphen taking possession of the Equipment, its driver shall sign this Agreement. Such signature shall evidence Sutphen's custody and control of the Equipment. 3. Term. The tern of this bailment shall commence on the date and upon the moment Sutphen takes possession of the Equipment and shall terminate on the date Sutphen returns the Equipment to the City and City accepts the same from Sutphen.City may demand immediate redelivery of the Equipment at any time prior to the date Sutphen plans to return the City of Bozeman,Montana Bailment Agreement with Sutphen Corporation for Aerial Platform Recall Page 1 of 6 Equipment to the City upon written notice given by the City to Sutphen of City's intention to withdraw the Equipment, and, if so, this agreement shall terminate when the Equipment has been redelivered to City and City has accepted the Equipment. 4. Title. The Equipment is, and will remain, and at all times shall be deemed to be, the sole and exclusive property of the City as bailor, and Sutphen as bailee has no right of ownership in the Equipment. The Equipment shall not be transferred or delivered to any other person or corporation without prior written consent or instruction of the City, and neither this agreement nor the bailment may be assigned by Sutphen, either by Sutphen's own act or by operation of law. 5. Payment. Sutphen shall be responsible for all costs related to the recall and for all costs related to transportation of the Equipment from Bozeman, Montana to its repair center in Tacoma, Washington and for its return to Bozeman,Montana. 6. Conditions of Bailment. Sutphen shall keep and maintain the Equipment with proper care so that it shall not be injured, and assumes all liability for damage or loss from all causes of any kind whatsoever. The parties agree that the consideration established for this bailment reflects in part Sutphen's expense of insuring the Equipment against damage or loss from all causes of any kind whatsoever and, as required by Section 7, below, and that Sutphen shall secure and maintain such insurance throughout the term of this bailment. 7. Indemnification/Insurance. Sutphen agrees to release, defend, indemnify, and hold harmless the City, its agents,representatives, employees, and officers(collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney's fees and the costs and fees of and expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to the acts or omissions, or the performance of Sutphen, or any of Sutphen's agents, during its performance under this Agreement or related in any way to the custody and control of the Equipment by Sutphen or any of its agents Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s)which would otherwise exist as to such indemnitee(s). Sutphen's indemnity under this Section shall be without regard to and without any right to City of Bozeman,Montana Bailment Agreement with Sutphen Corporation for Aerial Platform Recall Page 2 of 6 contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against Sutphen to assert its right to defense or indemnification under this Agreement or under Sutphen's applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Sutphen was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against City resulting from the City's performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Sutphen also waives any and all claims and recourse against the City or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except "responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent" as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Sutphen shall insure the Equipment for all losses for the value stated in Section 6, above, for the time period commencing the moment Sutphen takes custody and control of the Equipment, throughout Sutphen's bailment, and until the Equipment is returned and accepted by the City. Such insurance shall be in-a the form of Garage Keepers Legal Liability for no less than the amount stated in Section 6 and shall be on a direct primary basis in a form acceptable to the City. In addition, Sutphen shall also obtain business automobile insurance naming the City of Bozeman, its officers and employees as additional insured on a primary non-contributory basis in an amount acceptable to the City. Sutphen shall also carry commercial general liability insurance naming the City of Bozeman, its officers and employees, as an additional insured on a primary non- contributory basis in an amount acceptable to the City. Sutphen agrees all insurance required under this Agreement shall be primary and require no contribution from any other insurance the City may have. All insurance shall be from an insurance provider licensed to conduct business in the State of Montana and shall require a minimum of 30 day notice of cancellation to the City. 8. Transportation. Sutphen shall transport the Equipment to and from its repair facility in City of Bozeman,Montana Bailment Agreement with Sutphen Corporation for Aerial Platform Recall Page 3 of Tacoma, Washington by a driver duly licensed and insured to operate the Equipment. 9. Warranty. Upon redelivery of the Equipment and the acceptance by the City of the Equipment, all original warranties provided by Sutphen pursuant to Section 8 of the Purchase Agreement entered into by the parties dated May 6, 2013, shall begin anew and shall thus run for the period called for in the City's bid specifications from the date the City accepts return of the Equipment. In addition, Sutphen warranties that all repairs to the Equipment made by Sutphen under the recall shall be free from defects in workmanship and shall enable the Equipment to be placed into unrestricted service. In consideration for additional wear and tear on the Equipment from driving it to Tacoma and back to Bozeman, Sutphen shall provide the City with two additional annual service inspections at no cost to the City. These inspections shall occur in the two years immediately following the annual service inspection that was included in the original purchase of the Equipment and shall be of a scope as provided for in the original purchase. 10. Waiver of Claims. Sutphen waives all claims of any nature against the City regarding the recall or this Agreement. 11. Representatives: a. City's Representative: The City's Representative for the purpose of this Agreement shall be Jason Shrauger, Fire Chief. Whenever approval or authorization from or communication or submission to City is required by this Agreement,such communication or submission shall be directed to Jason Shrauger as the City's Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City's Representative is not available, Sutphen may direct its communication or submission to Deputy Fire Chief Greg Megaard. b. Sut hen's Representative: Sutphen's Representative for the purpose of this Agreement shall be 6.) CV_EE3>r3 or such other individual as Sutphen shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Sutphen's Representative; provided, however, that in exigent circumstances when Sutphen's Representative is not available, City may direct its direction or communication to other designated Sutphen personnel or agents. 12. Nondiscrimination: Sutphen will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and City of Bozeman,Montana Bailment Agreement with Sutphen Corporation for Aerial Platform Recall Page 4 of 6 contracts. Sutphen will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. 13. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor's rights, including the right to compensation or duties arising hereunder, without the prior written consent of City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 14. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 15. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 16. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 17. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 18. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 19. Integration: This Agreement attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the City of Bozeman,Montana Bailment Agreement with Sutphen Corporation for Aerial Platform Recall Page 5 of 6 date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. **** END OF AGREEMENT EXCEPT FOR SIGNATURES**** IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN,MONTANA SUTPHEN CORPORATION B By Chris Kukulski,City Manager Print Name: Print Title: bwc r"brC Equipment taken into Sutphen's custody and control by David Daniel of Sutphen Corporation on Novemberr 2014 at l David Daniel City of Bozeman,Montana Bailment Agreement with Sutphen Corporation for Aerial Platform Recall Page 6 of 6 SUTPHEN-01 VEMA ,4coRo CERTIFICATE OF LIABILITY INSURANCE DATD/YYYY) 11/312/3/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). CNTAPRODUCER (215)567-6300 NAME: Richard Ogle The Graham Company PHONE FAX The Graham Building (a No, Ext:215-701-5377 A/c No); 215-525-0242 1 Penn Square West ADDRESS:rogle@grahameo.com Philadelphia,PA 19102 INSURER(S)AFFORDING COVERAGE NAIC# _ INSURER A:Travelers Indemnity Company of America �25674 INSURED Sutphen Corporation INSURER B:Travelers Indemnity Company 25658 6450 Eiterman Road INSURER C:Allied World Assurance Company,Ltd.(DOMICILED IN BERMUDA) Dublin, OH 43016 INSURER D:Travelers Indemnity Co. of CT 25682 INSURER E:Starr Surplus Lines Insurance Company 13604 INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INSR TYPE OF INSURANCE ADDL SSUBR POLICY EFF POLICY EXP LIMITS I R I WVD POLICY NUMBER MM/DDIYYYY MMIDD/YYYY GENERAL LIABILITY EACH OCCURRENCE $ $1,000,00 A X j COMMERCIAL GENERAL LIABILITY 630-5073A295-TIL-14 I 2/1/2014 2/1/2015 PREMISES Ea occurrence $ $1,000,00 CLAIMS-MADE OCCUR MED EXP(Any one person) $ $600 PERSONAL&ADV INJURY $ $1,000,00 GENERAL AGGREGATE $ $2,000,00 MIPOLICY L AGGREGATE LIMIT APPLIES PER PRODUCTS-COMPIOP AGG $ $2,000,00 PRO LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT 1 000 00 Ea accident $ $ + + B X ANY AUTO 810 5073A295 IND 14 2/1/2014 2/112011 BODILY INJURY(Per person) $ X ALL OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS AUTOS NON-OWNED PROPERTY DAMAGE $ X HIRED AUTOS AUTOS PERACCIDENT Is X UMBRELLA LIAB X OCCUR EACH OCCURRENCE Is $15,000,00 C EXCESS LIAB CLAIMS-MADE 0305-2883 211/2014 2/1/2015 AGGREGATE $ $15,000,00 DIED I I RETENTION$ $ WORKERS COMPENSATION X WC STATTS OT AND EMPLOYERS'LIABILITY D ANY PROPRIETORIPARTNER/EXECUTIVE Ya UB 3320C26-9-14 2/1/2014 2/112015 f E L.EACH ACCIDENT $ $500,00 OFFICER/MEMBER EXCLUDED? N NIA (Mandatory in NH) E.L.DISEASE-EA EMPLOYE $ $500,00 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT I$ $500,00 E Excess Liability Coverage 105580425 2/1/2014 2 I12015 �110M Excess$15M Occ/Agg I DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (Attach ACORD 101,Additional Remarks Schedule,if more space is required) Garagekeepers Legal Liability Coverage is included in the above Automobile Policy subject to a$4,000,000 limit. Bozeman Fire Department is an Additional Insured on the above General Liability Coverage if required by written contract. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Bozeman Fire Department THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Bozeman, Montana ACCORDANCE WITH THE POLICY PROVISIONS. 34 North Rouse Avenue-PO Box 1230 AUTHORIZED REPRESENTATIVE Bozeman, MT 59771-1230 ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25(2010105) The ACORD name and logo are registered marks of ACORD