HomeMy WebLinkAboutPierce Quantum Pumper for Fire DepartmentPierce Manufacturing Inc.
AN OSHKOSH CORPORATION COMPANY • ISO 9001:2000 CERTIFIED
2600 AMERICAN DRIVE
POST OFFICE BOX 2017
APPLETON, WISCONSIN 54912-2017
920 - 832 -3000
www.piercemfg.com
June 8, 2009
Chief Tim Franz
OSHKOSH FIRE DEPARTMENT
101 Court Street
Oshkosh, WI 54901
Re: New Fire Apparatus — 22450TR
Dear Chief Franz:
�D E C E VV E
I I I
JUN 16 2009
Ci I Y CLERK'S OFFICE
We would like to thank you for your recent purchase of ONE (1) PIERCE QUANTUM PUMPER.
We are pleased to formally accept this order and have included a signed copy of our agreement for your files.
Also, pursuant to your request, please find enclosed an original copy of the Performance and Payment Bond in
the amount of Four Hundred Twenty Six Thousand Two Hundred Ten Dollars ($426,210.00).
The opportunity to place this PIERCE apparatus in your fire department is greatly appreciated. We are certain
it will fulfill your every requirement.
Pierce Manufacturing, Inc., and your authorized Pierce Representative, Fire Apparatus & Equipment, Inc.,
thank you for your business.
Yours very truly,
PI7ch NG, INC.
Je
Vice President — National Sales
JR/cls
Enclosure
cc: Fire Apparatus & Equipment, Inc., w /enclosure
Bond No.6 630368
PERFORMANCE AND PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS, THAT, Pierce Manufacturing Inc.
2600 American Drive PO Box 2017 Appleton WI 54913 -2017
(hereinafter called Principal), as Principal and Safeco Insurance Company of America; Safeco Plaza; Seattle, WA
98185, a corporation organized and existing under the laws of the State of Washington with its principal office in
the City of Seattle, (hereinafter called Surety) as Surety are held and firmly bound unto
City of Oshkosh
(hereinafter called the Owner) and to all persons who furnish labor or material directly to the Principal for use in
the prosecution of the work hereinafter named, in the just and full sum of Four Hundred Twenty Six Thousand
Two Hundred Ten Dollars and 00/100 Dollars ($ 426,210.00 )
to the payment of which sum well and truly to be made, the said Principal and Surety bind themselves, and their
respective heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents.
WHEREAS, the Prinicpal has entered into a certain written contract with the Owner, dated the 29th day of
May > 2009 , for One (1) Pierce Quantum .Pumper.
which contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length
herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall
fully indemnify the Owner from and against any failure on his/her part faithfully to perform the obligations
imposed upon him/her under the terms of said contract free and clear of all liens arising out of claims for labor and
material entering into the work, and if the said Principal shall pay all persons who shall have furnished labor or
material directly to the Principal for use in the prosecution of the aforesaid work, each of which said persons shall
have a direct right of action on this instrument in his/her own name and for his /her own benefit, subject, however,
to the Owner's priority, then this obligation to be void; otherwise to remain in full force and effect.
PROVIDED, HOWEVER, that no action, suit or proceeding shall be had or maintained against the Surety on this
instrument unless the same be brought or instituted and process served upon the Surety within two years after
completion of the work mentioned in said contract, whether such work be completed by the Principal, Surety or
Owner; but if there is any maintenance or warranty period provided in the contract for which said Surety is liable,
an action for such maintenance or warranty may be brought within two years from the expiration of said
maintenance or warranty period, but not afterwards.
IN WITNESS WHEREOF the said Principal and Surety have signed and sealed this instfuinent this 2nd
day of June 2009 Pierce Ma ufa turVg4 `
0 h 2 At —,,x
VV' itness:
fitness:
Principal
Safeco Insurance Company of America
/ _Surety
By.� .
Lucy A. Ha ntzsch Attorn -In -Fact
�t�oR9p�`0,
SEAL
a .1953 0�
\vf WAS
S- 7139/SA 01108 Safeco and the Safeco logo are registered trademarks of Safeco Corporation
XPDF
'OV b Saf insurance Company of America
General Insurance Company of America
�Li rt�r POWER 10014th Avenue
OF ATTORNEY Suite 1700
Seattle, WA 98154
KNOW ALf. BY THESE PRESENTS:
No. 70618
That SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA, each a
Washington corporation, does each hereby appoint
KATHLEEN A. CRARY, LUCY A. HANTZSCH; CATHY HUTSON; DANIEL J. KWIECINSKI,• TRACY K.
MATTI•iEWS; WENDY S. MILLER, DANIEL J. SAPIRO; LISA M. SLAKES; Milwaukee, Wisconsin
its true and lawful attomey(s )4n -fact, with full authority to execute on its behalf fidelity and surety bonds or undertakings and other
documents of a similar character issued in the course of its business, and to bind the respective company thereby.
IN WITNESS WHEREOF, SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF
AMERICA have each executed and attested these presents
this 21 st
day of March , 2009
DexterR. Logo, Secretary Timothv A. Mikolalewski, Nice President
CERTIFICATE
Extract from the By -Laws of SAFECO INSURANCE COMPANY OF AMERICA
and of GENERAL INSURANCE COMPANY OF AMERICA:
"Article V, Section 13. - FIDELITY AND SURETY BONDS ... the President, any Vice President, the Secretary, and any Assistant Vice
President appointed for that purpose by the officer in charge of surety operations, shall each have authority to appoint individuals as
attomeys4n -fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety bonds and
other documents of similar character issued by the company in the course of its business... On any instrument making or evidencing
such appointment, the signatures may be affixed by facsimile. On any instrument conferring such authority or on any bond or
undertaking of the company, the seal, or a facsimile thereof, may be impressed or affixed or in any other manner reproduced;
provided, however, that the seal shall not be necessary to the validity of any such instrument or undertaking
Extract from a Resolution of the Board of Directors of SAFECO INSURANCE COMPANY OF AMERICA
and of GENERAL INSURANCE COMPANY OF AMERICA adopted July 28,1970.
"On any certificate executed by the Secretary or an assistant secretary of the Company setting out,
( The provisions of Article V, Section 13 of the By -Laws, and
(ii) A copy ofthe power -of- attorney appointment, executed pursuant thereto, and
(iii) Certifying that said power -of sttomey appointment is in full force and effect,
the signature of the certifying officer may be by facsimile, and the seal of the Company may be a facsimile thereof."
I, Dexter R. Legg , Secretary of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY
OF AMERICA, do hereby certify that the foregoing extracts of the By -Laws and of a Resolution of the Board of Directors of these
corporations, and of a Power of Attorney issued pursuant thereto, are true and correct, and that both the By -Laws, the Resolution and the
Power of Attorney are still in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my h$nd and affixed the facsimile seal of said corporation
this ae /' 0 day of
S P tAAki l
1a�3
Dexter R. Legg, Secretary
S- 0974/DS 3/09 WEB PDF
IVay, 2'8. 2009 1 :41 PM City of Oshkosh No, 1464 P. 3
PCarawP LIKC NO OTMCR.
This Purchase Agreement (together with all attachments referenced herein, the "Agreement "), made and entered into by and
between Pierce Manufacturing Inc., a Wisconsin corporation ( "Pierce "), and Oshkosh Fire Departmcnt a muni department
( "CustomeC') is effective as of the date specified in Section 3 hereof,
Definitions
a. "Product" means the fire apparatus and any associated equipment manufactured or furnished for the Customer by
Pierce pursuant to the Specifications.
b. "Specifications" means the general specifications, technical specifications, training, and testing requirements for the
Product contained in the Pierce Proposal for the Product prepared in response to the Customer's request for proposal.
c. "Pierce Proposal" means the proposal provided by Pierce attached as Exhibit C prepared in response to the
Customer's request for proposal.
d. "Delivery" means the date Pierce is prepared to make physical possession of the Product available to the Customer.
e. "Acceptance" The Customer shall have fifteen (15) calendar days of Delivery to inspect the Product for substantial
conformance with the material Specifications; unless Pierce receives a Notice of Defect within fifteen (15) calendar
days of Delivery, the Product will be deemed to be in conformance with the Specifications and accepted by the
Customer.
2. Purpose This Agreement sets forth the terms and conditions of Pierce's sale of the Product to the Customer,
3. Term of Agreement This Agreement will become effective on the date it is signed and approved by Pierce's authorized
representative pursuant to Section 21 hereof ( " Effective Date ") and; unless earlier terminated pursuant to the terms of this
/agreement, it will terminate upon the Customer's Acceptance and payment in full of the Purchase Price.
4. Purchase and Payment The Customer agrees to purchase the Product specified on Exhibit A for the total purchase price of
$ 426210,00 ("Purchase Price "). Prices are in U.S, funds.
5. Future Chances Various state or federal regulatory agencies (e.g. NFPA, DOT, EPA) may require changes to the
Specifications and/or the Product and in any such event any resulting cost increases incurred to comply therewith will be added
to the Purchase Price to be paid by the Customer, In addition, any future drive train upgrades (engine, transmission, axles,
etc.), or any other specification changes have not been calculated into our annual increases and will be. provided at additional
cost. To the extent practicable, Pierce will document and itemize any such price increases for the Customer.
6, AU -ement Changes The Customer may request that Pierce incorporate a change to the Products or the Specifications for
the Products by delivering a change order to Pierce; provided, however, that any such change order must be in writing and
include a description of the proposed change sufficient to permit fierce to evaluate the feasibility of such change ('Change
Order"). Within [seven (7) business days] of receipt of a Change Order, Picrec will inform the Customer in writing of the
feasibility of the Change Order, the earliest possible implementation date for the Change Order, of any increase or decrease in
the Purchase Price resulting from such Change Order, and of any effect on production scheduling or Delivery resulting from
such Change Order. Pierce shall not be liable to the Customer for any delay in performance or Delivery arising from any such
Change Order: A Change Order is only effective when counter- signed by Pierces authorized representative.
7, Cancellation/Terminadon In the event this Agreement is cancelled or terminated by a party before completion, Pierce may
charge a cancellation fee. The following charge schedule based on costs incurred may be applied: (a) 10% of the Purchase
Price after order is accepted and entered by Pierce; (b) 20% of the Purchase Price after completion of approval drawings, and;
(c) 30% of the Purchase Price upon any material requisition. The cancellation foc will increase accordingly as costs are
incurred as the order progresses through engineering and into manufacturing_ Picrec endeavors to mitigate any such costs
through the sale of such Product to another purchaser; however Customer shall remain liable for the difference between the
Purchase Price and, if applicable, the sale price obtained by Pierce upon sale of the Product to another purchaser, plus any costs
incurred by Pierce to conduct any such sale.
8. Delivery. Cnspectics (a) Delivery Delivery of the Product is scheduled to be within 7 months of the
Effective Date of this Agreement, F.O.B. Pierce's plant, Appleton, Wisconsin. Risk of loss shall pass to Customer upon
Delivery. (b) Inspection and Acceptance Upon Delivery, Customer shall have fifteen (15) days within which to inspect the
Product for substantial conformance to the material Specifications, and in the event of substantial non - conformance to the
QSD 1398 1 Revised: 12/29/2008
May-28. 2009 1:41PM City of Oshkosh
No, 1464 P. 4
material Specifications to furnish Pierce with written notice sufficient to permit Pierce to evaluate such non - conformance
C'Notice of Defect"). Any Product not in substantial conformance to material Specifications shall be remedied by Pierce within
thirty (30) days from the Notice of Defect. In the event Pierce does not receive a Notice of Defect within fifteen (15) days of
Delivery, Product will be deemed to be in conformance. with Specifications and Accepted by Customer.
9. Notice Any required or permitted notices hereunder must be given in writing at the address of each party set forth below,
or to such other address as either party may substitute by written notice to the other in the manner contemplated herein, by one
of the following methods. hand delivery; registered, express, or certified snail, return receipt requested, postage prepaid; or
nationally- recognized private express courier:
Pierce Manufacturing, Inca
Customer
Director of Order Management
Oshkosh Fire Department
2600 American Drive
$1,000,000
Appleton WI 54912
101 Court S
Fax (920) 832 -3080
Oshkosh, WI 54901
Each Occurrence;
Attn: Chief Tim Franz
10. Standard Wa rranty . Any applicable Pierce warranties are attached hereto as Exhibit B and, made a part hereof. Any
additional warranties must be expressly approved in writing by Pierce's authorized representative.
a. Disclaimer OTHER TIIAN AS EXPRESSLY SET FORTH IN THiS AGREEMENT, NEITHER PIERCE, ITS
PARENT COMPANY, AFFILIATES, SUBSIDIARIES, LICENSORS OR SUPPLIERS, TIIIIIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, SHARIJHOLDERS, AGENTS OR REPRESENTATIVES, MAKE ANY EXPRESS OR
IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS PROVIDED HEREUNDER OR OTHERWISE
REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY.
WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY,
THE IMPLIED WARRANTY AGAINST INFRINGEMENT, AND THE IMPLIED WARRANTY OR CONDITION OE'
FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED, STATEMENTS MADE
BY SALES REPRESENTATIVES OR iN PROMOTIONAL MATF,RJALS DO NOT CONSTITUTE WARRANTIES-
b. Exclusions of Incide and Consequential Dama gus. In no event shall Pierce be liable for consequential,
incidental or punitive damages incurred by Customer or any third party in connection with any matter arising out of or relating
to this Agreement, or the breach thereof, regardless of whether such damages arise out of breach of warranty, tort, contract,
strict liability, statutory liability, indemnity, whether resulting from non - delivery or from Pierce's own negligence, or
otherwise.
11. Insurance Pierce maintains the following limits of insurance with a carrier(s) rated A- or better by A.M. Best
Commercial General Liability Insurance:
Products /Completed Operations Aggregate:
$1,000,000
Each Occurrence:
$1,000,000
UmbrefialExcesr Liability Insurance:
Aggregate:
$25,000,000
Each Occurrence;
$25,000,000
The Customer may request: (x) fierce to provide the Customer with a copy of a current Certificate of Insurance with the
coverages listed above; (y) to be included as an additional insured as Customer's interests may appear (subject to the terms
and conditions of the applicable Pierce insurance policy); and (r) request that, prior to cancellation or non - renewal of the
applicable Pierce insurance policy, that the issuing carrier endeavor to provide thirty (30) days advance notice to the
Customer of any such cancellation or non - renewal.
12_ Inde The Customer shall indemnify, defend and hold harmless Pierce, its 'officers, employees, dealers, agents or
subcontractors, from any and all claims, costs, judgments, liability, loss, damage, attorneys' fees or expenses of any kind or
nature whatsoever (including, but without limitation, personal injury and death) to all property and persons caused by, resulting
from, arising out of or occurring in connection with the Customer's purchase, installation or use of goods sold or supplied by
Pierce which arc not caused by the sole negligence of Pierce.
13. Force Majcur Pierce shall not be responsible nor deemed to be in default on account of delays in performance due to
causes which are beyond Pierce's control which make Pierce's performance impracticable, including but not limited to civil
wars, insurrections, strikes, riots, fires, storms; floods, other acts of nature, explosions, earthquakes, accidents, any act of
QSD 13 98 2 Revised: 12/29/2008
May. 18. 1009 1.41NM City of . Ushkosh
No. 1464 F. �
.government, delays in transportation, inability to obtain necessary labor supplies or manufacturing facilities, allocation
regulations or orders affecting materials, equipment, facilities or completed products, failure to obtain any required license or
certificates, acts of God or the public enemy or terrorism, failure of transportation, epidemics, quarantine restrictions, failure of
vendors (due. to causes similar to those within the scope of this clause) to perform their contracts or labor troubles causing
cessation, slowdown, or interruption of work_
14. Default The occurrence of one or more of the following shall constitute a default under this Agreement: (a) the Customer
fails to pay when due any amounts under this Agreement or to perform any of its obligations under this Agreement; (b) Pierce
fails to perform any of its obligations under this Agreement; (c) either parry becomes insolvent or become subject to a
bankruptcy or insolvency proceedings; (d) any representation made by either party to induce the other to enter into this
Agreement is false in any material respect; (c) the Customer dissolves, merges, consolidates or transfers a substantial portion of
its property to another entity; or (f) the Customer is in default or has breached any other contract or agreement with Pierce.
15. Manufacturer's Statement of OH21n it is agreed that the manufacturer's statement of origin ( "MSO ") for the Product
covered by this Agreement shall remain in the possession of Pierce until the entire Purchase Price has been paid. If more than
one Product is covered by this Agreement, then the MSO for each individual Product shall remain in the possession of Pierce
until the Purchase Price for that Product has been paid in full. In case of any default in payment, Pierce may take full
possession of the Product, and any payments that have been made shall be applied as payment for the use of the Product up to
the date of taking possession.
16_ Indcnendent Contractors The relation.4hip of the parties established under this Agreement is that of independent
contractors and neither party is a partner, employee, agent, or joint venturer of or with the other.
17. Assit,►nment Neither parry may assign its rights and obligations under this Agreement unless it has obtained the prior
written approval of the other party.
18_ Governing Law; Jurisdiction Without regard to any conflict of laws provisions, this Agreement is to be governed by and
under the laws of the state of Wisconsin.
19. Facsimile Signatures The delivery of sigmatures to this Agreement by facsimile transmission shall be binding as original
signatures.
20. Fntire Agreement This Agreement shall be the exclusive agreement between the parties for the Product_ Additional or
different terms proposed by the Customer shall not be applicable, unless accepted in writing by Pierces authorized
representative. No change in, modification of or revision of this Agreement shall be valid unless in writing and signed by
Pierce's authorized representative.
21. Conflict In the event of a conflict between the Customer Specifications and the Pierce Proposal, the Pierce Proposal shall
control. In the event there is a conflict between the Pierce Proposal and this Agreement, the Pierce Proposal shall control.
22. Signatures This Agreement is not effective unless and until it is approved, signed and dated by Pierce Manufacturing,
Inc.'s authorized representative.
Accepted and agreed to:
PIERCE
Name:
CUSTO ER; �1 6! t' �•�
Name:
I'itke;
Date:
QSD 1.398 1 Revised. 12/29/2008