HomeMy WebLinkAbout1993-455
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RESOLUTION NO. 93-455
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
FIRE CHIEF TO EXECUTE A CONTRACT WITH AM GENERAL CORPORATION FOR
THE PURPOSE OF EVALUATING A FIREFIGHTING VEHICLE.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Fire Chief is hereby authorized to execute
7 a contract, attached hereto as Exhibit A, with AM General
8 Corporation for the purpose of evaluating a firefighting vehicle.
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SECTION 2.
The authorization to execute the above-
referenced agreement is rescinded if the parties to the agreement
fail to execute it within sixty (60) days of the passage of this
resolution.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of
San Bernardino at a regular meeting thereof, held on the
20th day of December 1993, by the following vote, to wit:
Council Members: AYES NAYS ABSTAIN ABSENT
NEGRETE ----L-
CURLIN X
HERNANDEZ X
OBERHELMAN X
DEVLIN ----X--
POPE-LUDLAM ----X--
MILLER -X--
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Cit Clerk
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III
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93-455
1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
FIRE CHIEF TO EXECUTE A CONTRACT WITH AM GENERAL CORPORATION FOR
2 THE PURPOSE OF EVALUATING A FIREFIGHTING VEHICLE.
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The foregoing resolution is hereby approved this '~\St: day
of December
, 1993.
/1~)1~
Tom Mino~ Mayor
City of San Bernardino
Approved as to
form and legal content:
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JAMES F. PENMAN,
City Attorney
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93-:-"15
'R~s C'J3,YsS
BAILMENT AGREEMENT
This Agreement by and between AM General Corporation, a Delaware
corporation, having its principal office at 105 N. Niles Avenue,
South Bend, Indiana 46617-7025 (hereinafter called "Bailor"), and
San Bernardino City Fire Department
, having its principal office
E. Third St., San Bernardino, California
at
200
(hereinafter called "Bailee").
WITNESSETH:
WHEREAS, Bailor is the manufacturer of the Commercial HUMMER
Vehicle; and
WHEREAS, Bailee wishes to borrow a HUMMER(s) in order to
evaluate and test the HUMMER as a potential vehicle candidate for its
fleet and/or use; and
WHEREAS, Bailor is willing to lend one HUMMER Vehicle, as fully
described by serial number in Exhibit A (the "Vehicle") to Bailee for
this purpose.
NOW, THEREFORE, in consideration of the mutual covenants and
promises hereinafter set forth, the parties agree as follows:
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1. BAILMENT. Bailor hereby loans and bails to Bailee and its
agents, and Bailee and its agents hereby takes from Bailor, the
Vehicle more fully described in Exhibit "A" hereto for the
purpose of evaluating and testing the HUMMER as a potential
vehicle candidate for its fleet and/or use. Bailee and its
agents agree to use the Vehicle for the described purpose, and
no other, during the term of this Agreement, unless otherwise
approved in writing by the Bailor. Bailee and its agents at its
own cost and expense, may paint and decal the bailed HUMMER
Vehicle and when Vehicle is returned to Bailor, the Vehicle will
be in the same condition as when received by Bailee. Bailee and
its agents shall not make any alterations, additions or
improvements to the Vehicle other than those currently and
specifically approved by Bailor in relation to the Bailment
purpose unless agreed in advance in writing by Bailor.
Bailor and its agents agree to provide replacement parts as
necessary during the Bailment. Bailee and its agents agree that
no third parties shall participate in the Bailment purpose
unless approved in writing in advance by Bailor and until such
third parties have entered into a written agreement with Bailor
regarding such participation.
~o..i..\.u.
BuileF agrees to maintain a daily log book, provided by
Bailor, which will document the daily mileage, consumption of
fuel and lubricants, operator(s) name(s), repair of vehicle, to
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include parts description and costs, and all other data as
required by the log book.
Bailee agrees to provide to Bailor during the term of this
bailment, on a monthly basis, an evaluation and test report and
at the conclusion of the term a detailed final report. Both
report forms will be provided to Bailee by Bailor. All reports
will be considered confidential and Bailee agrees not to
disclose any report information to any third party without the
expressed written consent of Bailor.
Bailee agrees to allow Bailor reasonable access, without
restriction, to the vehicle during the term of this Agreement
for the purpose of photographing, filming and/or video taping
the HUMMER Vehicle while Bailee is using the Vehicle in its
day-to-day operations. Bailor shall have the right to use the
photographs/film/video for any purpose they deem necessary.
Bailor shall have the right to use any endorsement, appraisal
and/or evaluation Bailee makes about the HUMMER Vehicle without
any additional compensation.
Bailor agrees to provide at no cost to Bailee, Vehicle
operator and maintenance training on-site at Bailee's work site.
2. TERM. The term of this Bailment shall commence on the date when
the Vehicle is delivered to Bailee in accordance with paragraph
4 hereof and shall terminate on January 31, 1994 At the
time of Agreement termination, the HUMMER Vehicle identified in
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"Exhibit A" will be in at least as good as the condition as when
it was delivered to Bailee, normal wear and tear excepted. Upon
termination, Bailee shall have the option to purchase this
vehicle from Bailor at a price to be negotiated or return the
vehicle to Bailor.
3. NO RENTAL CHARGE. It is understood and agreed that the Vehicle
is furnished at no rental charge to the Bailee or its agents.
However, in addition to its other obligations and liabilities
under this Agreement, Bailee agrees to pay all taxes, duties,
fines, license fees or charges, if any, imposed by any
government resulting from the transaction described in this
Agreement or in conjunction with Bailee's use or possession of
the Vehicle.
4. DELIVERY AND ACCEPTANCE. Bailor will deliver the Vehicle and
related equipment as set forth in Exhibit "A" to this Agreement,
to Bailee at Bailee's work site, whereupon Bailee will inspect
and accept said vehicle. Upon termination of this Agreement,
Bailor will arrange for the transportation of said Vehicle, if
necessary, to the next delivery point. The cost of shipping,
handling, packaging and other related expenses thereto during
the term of this Agreement other than delivery and termination
shall be borne solely by Bailee.
5. BAILEE'S INSPECTION. Unless Bailee within forty-eight (48)
hours of receipt gives written notice to Bailor, specifying any
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defect or other proper objection to the Vehicle, Bailee agrees
that it shall be conclusively presumed, as between Bailor and
Bailee, that Bailee has fully inspected and acknowledged that
the Vehicle is in good condition and repair and that Bailee is
satisfied with and has accepted the Vehicle in such good
condition and repair.
6. MAINTENANCE AND OPERATION. Bailee agrees, at its own cost and
expense, to maintain the Vehicle in good operating order and
condition in accordance with Bailor's recommended maintenance
practices as provided in Bailor's manuals, bulletins, and other
documents relating to the maintenance and repair of the Vehicle.
Bailee agrees that the Vehicle will be used by Bailee only in
accordance with the Manufacturer's operating procedures. All
warranty work will be taken care of by Bailor directly or where
available, by an authorized HUMMER dealer. All maintenance and
repairs outside of the warranty will be the responsibility of
the Bailee.
7. TITLE. Title to the Vehicle is and will remain in Bailor, and
at all times the Vehicle shall be deemed to be the sole and
exclusive property of Bailor. Bailee agrees not to lend, sell,
assign or mortgage the Vehicle or to permit it to be subject to
any legal process without Bailor's prior written consent.
Bailee shall give Bailor immediate notice of any attachment or
other judicial process affecting the Vehicle.
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8. PROPRIETARY INFORMATION. Bailee agrees that it will maintain in
confidence and secrecy all information and data of a proprietary
(including competitive sens~tive) nature disclosed by Bailor to
the Bailee in furtherance of this Agreement, whether such
information or data is received in written or recorded form
marked with a legend indicating its proprietary content,
received orally or visually from employees or representatives of
Bailor during a meeting or presentation at which the parties,
their employees or representatives are in attendance, or
received through inspection of the Vehicle and its components.
Notwithstanding any other provisions of this Agreement, the
rights and obligations of the parties under this clause shall
survive the cancellation, termination, expiration or completion
of this Agreement.
9. LIABILITY FOR VEHICLE. Bailee hereby assumes and shall bear the
entire risk of loss and damage to the Vehicle from any and every
cause whatsoever from the date of delivery until the Vehicle has
been returned to Bailor. In the event of loss or damage of any
kind whatever to the Vehicle or related equipment, Bailee shall
pay to Bailor the sum required to:
(al place the same in good repair, condition and working order;
or
(b) replace the same with like equipment in good repair,
condition and working order.
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(c) if same is determined by Bailor to be lost, stolen,
destroyed or damaged beyond repair, Bailee and/or Bailee's
insurance carrier company shall pay Bailor therefor in cash
$99,000 or actual replacement cost (whichever
the sum of is lower) which is the stipulated loss value
of the Vehicle for purposes of this Agreement.
10. INSURANCE. Bailee shall keep the Vehicle insured against all
risks of loss or damage from every cause whatsoever for not less
than the full replacement value stipulated by the parties in
paragraph g(c), and shall carry liability and property damage
insurance covering the Vehicle while it is in Bailee's
possession and shall name Bailor as an additional insured.~lor ~ete~ts
a.V\~ Q.c\::."'ou..>\e6.~ ~... "13o.,;,l~ l.<;' ll..,\....I.\'f c"cl ~ l.'^-bu....e.cl...
INDEMNITY. Bailee hereby expressly assumes any and all risk of
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loss, damage or injury of whatever cause or nature to any and
all persons and property, including without limitation, agents
or employees of Bailee or third parties, arising out of or in
connection with this Agreement or any use by Bailee or its
agents of the Vehicle. Bailee hereby agrees to and shall
indemnify, defend and hold harmless Bailor, its officers, agents
and employers from and against any and all claims, losses,
damages, causes of action, suits, and liability of every kind,
including all expenses of litigation, court costs, and attorney
fees, for injury to or death of any person except an employee of
Bailor, or for damage to any property, arising out of or in
connection with this Agreement or any use by Bailee of the
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Vehicle, whether such injury, death or damage is sustained by
Bailee, its agents or employees, Qr ey !our "'''L~_.. .\.h~I..s':'8ve!',
and- -l'!o.ry-arolailil sf "h~Ll.t::.L. sucn i-n-tl;U.Y I ~~th uE' aaluQ~-';:--.i~
ca~.q--3, in t:Rsll :r in p..e.:r"t, BY an) aaf..:...:.t3_i.. LH mu 1.. 1:- Illdu.illg
:g 12.-(,-<;3 N.i.'\ J.C.__.. E'tc:.eI"\-W.....f!JJI.f~"'-'''~v..<'(,~.......\-L,. o.j."".~,
of th~ .; I~. Ii I'). .6-'I? 5,13. t:tf;h,.t' i.. <.cuue..~I"''''''''''''''\e.."...':'... ~c....t-,b\.1 ct""'(
g ~ "c.l:~H~"..... ""c:..\~~,~\"'~ ~+~ ve..'I......\...
Notwithstanding any other provisions of this Agreement, the
rights and obligations of the parties under this indemnity
clause shall survive the cancellation, termination, expiration
or completion of this Agreement.
12. NO WARRANTY. THE BAILEE ACCEPTS THE VEHICLE "AS IS, WHERE IS"
AND WITHOUT ANY WARRANTIES EXCEPT THOSE WARRANTIES THAT COME
WITH THE VEHICLE. BAILOR DOES NOT WARRANTY THAT IT IS
MERCHANTABLE. THERE IS NO IMPLIED WARRANTY OF MERCHANTABILITY.
THERE IS NO IMPLIED WARRANTY OTHERWISE EXTENDING BEYOND THE
DESCRIPTION OF THE VEHICLES ON THE FACE OF THIS AGREEMENT. NO
EXPRESS WARRANTIES AND NO REPRESENTATIONS, PROMISES, OR
STATEMENTS HAVE BEEN MADE BY BAILOR WITH RESPECT TO THE VEHICLE.
IN NO EVENT SHALL BAILOR BE RESPONSIBLE FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
THIS AGREEMENT FURTHER DOES NOT GRANT ANY WARRANTY,
GUARANTEE, OR REPRESENTATION WITH RESPECT TO ANY INFORMATION OR
DATA FURNISHED BY BAILOR, OR ITS MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE OR FUNCTION, WHETHER EXPRESS OR IMPLIED.
IT IS UNDERSTOOD AND AGREED THAT BAILOR SHALL NOT BE LIABLE IN
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DAMAGES OF WHATEVER KIND, AS A RESULT OF BAILEE'S USE OR
DISCLOSURE OF, OR RELIANCE ON, ANY INFORMATION OR DATA FURNISHED
BY BAILOR HEREUNDER.
13. DEFAULT. If Bailee, with regard to the Vehicle, fails to
observe, keep or perform any provision of this Agreement
required to be observed, kept or performed by Bailee, Bailor
shall have the right to terminate this Agreement and to take
possession of the Vehicle and Bailor's accompanying components
and parts provided in conjunction with the Vehicle, without
demand or notice, wherever same may be located, without any
court order or other process of law. Bailee and its agents
hereby waives any and all damages occasioned by such taking of
possession.
14. ASSIGNMENT. Without the prior written consent of Bailor, Bailee
shall not: (a) assign, transfer, pledge or hypothecate this
Agreement, the Vehicle or any part thereof, or any interest
therein, or (b) bailor lend the Vehicle or any part thereof, or
permit the Vehicle or any part thereof to be used by anyone
other than Bailee or Bailee's employees or its agents. Consent
to any of the foregoing prohibitive acts applies only in the
given instance; and is not a consent to any subsequent like act
by Bailee or any other person.
15. NON-WAIVER. No covenant or condition of this Agreement can be
waived except by the written consent of Bailor. Forbearance or
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indulgence by Bailor in any regard whatsoever shall not
constitute a waiver of the covenant or condition to be performed
by Bailee to which the same may apply, and, until complete
performance by Bailee of said covenant or condition, Bailor
shall be entitled to invoke any remedy available to Bailor under
this Agreement or by law or in equity despite said forbearance
or indulgence.
16. NOTICE. Any notice required or permitted to be given hereunder
shall be given by certified air mail or personal delivery or
telefax or telex. Notices sent by certified air mail should be
deemed to have been delivered on the date of certification.
Notice given by telefax or telex should be deemed to have been
received twenty-four (24) hours after being transmitted. Until
changed by written notice, given by either party to the other,
addresses of the parties shall be as follows:
To Bailor:
AM General Corporation
Attn: J. M. Schultz
One Michiana Square, Suite 150
South Bend, Indiana 46601
Telephone: (219) 284-2902
Telefax: (219) 284-2802
To Bailee:
San Bernardino City Fire Department
Attn: Dan Dickerson, Deputy Fire Chief
200 E. Third Street
San Bernardino, CA 92410
Phone #: (909) 384-5286
Fax #: (909) 384-5470
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17. AGREEMENT PURPOSE. This Agreement shall not constitute, create,
give effect to, or otherwise imply a teaming agreement, joint
venture, pooling arrangement, partnership, or formal business
organization of any kind, nor does the disclosure or receipt of
any information or data hereunder constitute an offer,
acceptance, promise or obligation by either party to enter into
any additional contract, subcontract, amendment, agreement or
other business relationship with the other party.
18. NO THIRD PARTY TO BENEFIT. This Agreement is made for the sole
benefit of Bailee and Bailor and their respective successors,
and no other person or entity is intended to or shall have any
rights or benefits hereunder, whether as a third party
beneficiary or otherwise.
19. ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the parties and supersedes all prior
discussions, undertakings or agreements, written or oral,
related to the same subject matter. The Agreement may be
modified or changed only by a written amendment, signed by the
authorized representatives of each party.
20. GOVERNING LAW. This Agreement shall be deemed to have been made
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in the state of Inaiana, U.S.A., and in all respects shall be
interpreted in accordance with the laws of said State, with the
~xC'Qptiel& u[ Ll11; I",;vu.fl~\,.;L of lllw llil<:3 of ~u.iJ state. Each
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party agrees that the courts of said State or a~ the eleetieR ef
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Railer aft] fe.d6Ial CQ'lrt R3.viFl9 gSHl~Ct.CrrE jtlri3d.icti~11, shall
have jurisdiction of any case or controversy arising hereunder,
and that service of process..upon it by registered mail to the
address set forth in the first paragraph of this Agreement shall
constitute valid service for the purpose of any such litigation.
21. COMING INTO FORCE. This Agreement shall enter into force upon
the date of signature by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year set forth below.
AM GENERAL CORPORATION
CITY OF SAN BERNARDINO FIRE DEPARTMENT
By:
!l#~~(!L;u ?'-
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By: {Idl-t (/Jf-
Name:
P. R. Schuchman
Name: William Wright
Title:
Executive Vice President
& Chief Financial Officer
Title: Fire Chief
Date:
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Date: December 20, 1993
ATTEST:
Rfi~
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City Clerk
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93-455
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City of San Bernardino
City AdministrationlRi&k Management Division
300 N. "0" Street
San Bernardino. CA 92410
Victor F. Lorch
Director, Risk Management
Shauna Clark
City Administrator
CERTIFICATE OF INSURANCE
OR SELF.INSURANCE
In the event of cancellation of the self~insur8nce programs or policies designated below, it is the intent of the
City of San Bernardino to mail 30 days' prior notice thereof to:
A M GENERAL/HUNTINGTON JEEP/EAGLE AND HUMMER
16751 Beach Blvd. Huntington Beach,California
The City of San Bernardino certitiesthat the following self.insurance prog fams or insurance policiss are in force:
All Risk Property Insurance including Physical Damage
RLI Insurance Company Policy #SFC 005975
Policy Period 4-30-93 through 4-30-94
Vehicle Covered 11-4-93 through 3-4-94
COMPANY AND POUCY UMITS OF UABIUTY
TYPE OF COVERAGE POUCY NO. PERIOD Bod ily Injury Property 0.""'11.
Comprehensive
Genera' Liability Se/Hnsured indefinite $1.000,000 Combined Single Limit.
incl. Auto LiabiJity
Excess Comprehensive
General liability
incl. Auto Liability
Workers
Compensation self-insured indefinite statutory no coverage
0
T
H Property In~ o RLI Insuranc 4-30-93 N/A $100,000,000
E SFC 005975 4-30-94
R
This certificate is not valid unless countersigned by an authorized representative of the City of San Bernardino, Risk Management Division.
cc:
Ed Brown,Fire Dept
//- t/-9-?
Oate
Victor F. Lorch
Director of Risk Management
City of San Bernardino
Authorized Representative
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For information regarding the above self-insurance policies, please contact Risk Management Division at (909) 384.6308
RISK-4.oa 11.13J