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HomeMy WebLinkAbout12- Fire CITY OF SAN BERK .RDINO - REQUEST l JR COUNCIL ACTION From: Dave Kreske , Captain Subject: Authorization to execute liability contract with Dept: Fire Huntington Beach Jeep/Eagle/ Hummer for the purpose of Date: December 10, 1993 evaluating a firefighting vehicle Synopsis of Previous Council action: None Recommended motion: That the Fire Chief be authorized and directed to execute a liability contract with Huntington Beach Jeep/Eagle/Hummer for the purpose of evaluating a firefighting vehicle, which will be housed at Station Five, for a period of one month. Signa re Contact person: Chief Will Wright Phone: 384-5286 Supporting data attached: Yes Ward: 5 FUNDING REQUIREMENTS: Amount: None Source: (Acct. No.) (Acct. Description) Finance: Council Notes: In CITE! OF SAN BERN "' RDINO - REQUEST FIR COUNCIL ACTION STAFF REPORT Fire Station No. 5 has been offered the opportunity to evaluate a new type of off-road firefighting vehicle until January 20, 1994 . Station No. 5 was chosen for this evaluation because of the terrain in the area it serves. The Department ' s current inventory of water tenders is 25 to 30 years old. Replacement of this equipment is imminent. The current market includes vehicles with new technology and proven military designs that could have major improvements for fire department applications. This vehicle appears to be very promising as a quick-attack firefighting vehicle with increased versatility for rescue/medical aid response, superior hill climbing performance and ability to negotiate the tight trails and roads in the foothill interface area. There are no direct costs or fees associated with the evaluation of this vehicle. The Fire Department will provide fuel and maintenance and the City will insure the vehicle, valued at approximately $80, 000. The Fire Department will lose the opportunity to evaluate this vehicle if action is not taken at the Council meeting of December 2011 1993 . The vehicle has been committed to be in Washington in January, 1994 . 75-0264 r I RESOLUTION NO. 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE FIRE CHIEF TO EXECUTE A CONTRACT WITH AM GENERAL CORPORATION FOR 3 THE PURPOSE OF EVALUATING A FIREFIGHTING VEHICLE. 4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS : 5 6 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. 9 SECTION 2. The authorization to execute the above- 10 referenced agreement is rescinded if the parties to the agreement 11 fail to execute it within sixty ( 60 ) days of the passage of this 12 resolution. 13 I HEREBY CERTIFY that the foregoing resolution was duly 14 adopted by the Mayor and Common Council of the City of 15 San Bernardino at a meeting thereof, held on the 16 day of 1993, by the following vote, to wit: 17 Council Members: AYES NAYS ABSTAIN ABSENT 18 NEGRETE 19 CURLIN 20 HERNANDEZ 21 OBERHELMAN 22 DEVLIN 23 POPE-LUDLAM 24 MILLER 25 26 City Clerk 27 28 1 wiz 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. 3 4 The foregoing reso' ution is hereby approved this day 5 of 1993. 6 7 Tom Minor, Mayor 8 City of San Bernardino 9 Approved as to form and legal content: 10 JAMES F. PENMAN, 11 City Attorney 12 By* 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 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 Citv Fire Department having its principal office at 200 E. Third St. , San Bernardino, California (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. I NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth, the parties agree as follows: Exhibiv 41q 0 C 0 -2- 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. U a=- 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 -3- 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 -4- "Exhibit All 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 . BAILEEIS INSPECTION. Unless Bailee within forty-eight (48) hours of receipt gives written notice to Bailor, specifying any e e -5- 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. i -6- 8 . PROPRIETARY INFORMATION. Bailee agrees that it will maintain in confidence and secrecy all information and data of a proprietary (including competitive sensitive) 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: (a) 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. -7- (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 9 (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. cate.p�s aVXca 8 O"' Ls- le-ci,"Ky 11 . INDEMNITY. Bailee hereby exp. essly assumes any and all risk of loss, damage or injury of whatever cause or nature to any and all persons and property, including w_thout 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 p -8- Vehicle, whether such injury, death or damage is sustained by Bailee, its agents or employees, and-regard—"48-�f--w eth suc in # ca,t J „ "1-e ox -ice pa rt-,--by--e113p �0.wa C..� po,.ct' 61\1 aLv� 9 d�tFGC�s Lh or �a\�vylc�PU•ti��� +1.t Vt��c�t 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 $SAS 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 5 -9- DAMAGES OF WHATEVER KIND, AS A RESULT OF BAILEEIS 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) bail or 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 .�y the written consent of Bailor. Forbearance or Q 0 -10- 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 -11- I 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 in the State of T-srcd±ftnir U. S .A. , and in all respects shall be interpreted in accordance with the laws of said State, *tee, Each w�� vL•ti�L �.�. party agrees that the courts of said State erg thle a eet e, --a-r } -12- C-0 L�-V%�Iy Rail-&r -any Fed 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: By: Name: P. R. Schuchman Name: Executive Vice President Title: & Chief Financial Officer Title: Date: Date: ATTEST : Rachel Clark, City Clerk 0224c 1 ' City of San Bernardino City Administration/Risk Management Divisio 300 N.•D'Street t 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-insurance 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 certifies that the following self-insurance programs or insurance policies 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 ;OUCY OMITS OF UABIUTY TYPE OF COVERAGE POLICY NO. PERIOD Bodily Injury Property Damspo Comprehensive General Liability Self-insured indefinite Incl.Auto Liability 51,000,000 Combined Single Limits Excess Comprehensive General Liability incl.Auto Liability Workers Compensation self-insured indefinite statutory no coverage 0 T H Property In oRLI Insurance 4-30-93 N/A $100 ,000 ,000 R SFC 005975 4-30-94 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 Victor F.Lorch Director of Risk Management City of San Bernardino 4Lj_Z Date Authorized Representative Signature For information regarding the above self-insurance policies,please contact Risk Management Division at(909)384.5308 RISK-4.e8 I11-9M