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City of Oshkosh
Attn: Jim Collins
215 Church Avenue
PO Box 1130
Oshkosh, WI 54903
Dear Customer:
Agreement on Engine Fieid Test
of Cummins Engine(s
Date: August 25, 2015
This letter confirms the agreement ("Agreement") regarding field test of Cummins engine(s)
between Cummins, Inc. address of Box 3005, Columbus, Indiana ("Cummins"), and City of Oshkosh,
215 Church Avenue PO Box 1130, Oshkosh, WI 54903-1130 ("User").
Test Engines and Their Use
1.1 Cummins shall furnish Engine(s) described in Attachment A(hereinafter referred to as
"Engine(s)") to the User for testing in User's normal operations with respect to the User's
equipment identified in said Attachment A(hereinafter referred to as the "Equipment").
Subject to the terms and conditions hereof, the Engine(s) are being furnished to the User
without any charge for their use in the Equipment.
1.2 The Engine(s} and the Equipment shall be used oniy by the User itself or by operatives
directly employed by the User.
1.3 Except as specifically provided herein, Cummins shall bear all costs of maintaining the
Engine(s) including, but not limited to, cost of furnishing items such as, lubricating oil,
engine coolant, filters, belis, alternators and starters.
Agreement between Cummins
and City of Oshkosh
Page 2 of 7
2. Property Rights
2.1 The Engine(s) shall at ail times remain and be the sole and exclusive property of Cummins,
and the User shall have no right of property therein, but only the right to use the Engine(s)
upon terms and conditions specified herein. User shall not allow any liens, charges or
encumbrances on the Engine(s).
2.2 The User shall, at all times during the term of this Agreement and any extensions thereof,
use the Engine(s) in the Equipment that User owns. In this connection the User represents
that, during the term of this Agreement and any extensions thereof, it shall be the owner of
the Equipment in which the Engine(s) are installed.
2.3 During the term of this Agreement and extensions thereof, the Engine(s) and the
Equipment shall not be transferred, delivered, leased or sublet to any other person or
corporation and neither this Agreement nor any benefits under this Agreement may be
assigned by the User.
2.4 The User shall not make any changes or modifications to the Engine(s) or installation of
the Engine(s) in the Equipment unless prior written approval of Cummins is obtained.
Delivery and Installation
Cummins shall deliver the Engine(s) at Cummins' distributorship nearest to the user's addresss
stated hereinabove (hereinafter referred to as the "Distributorship") for installation in the
Equipment. All expenses of installation of the Engine(s) in the Equipment shall be borne by
Cummins. The Engine(s) shall be installed by Cummins in the Equipment under the supervision
of a representative from Cummins.
4. Maintenance and Repair
4.1 The User shall at all times keep the Engine(s) in good and efficient working conditions by
performing maintenance in accordance with Cummins' applicable Operation and
Maintenance Manual published by Cummins and a copy of which has been provided to the
User.
4.2 In the event of failure of any Engine(s) where the Engine(s) have been properly maintained
in accordance with provisions in Section 4.1 above, Cummins shall bear all expenses of
repairing such Engine(s).
4.3 In the event of failures of any Engine(s) where the Engine(s) have not been properly
maintained in accordance with provisions of Section 4.1 hereof, the User shall bear all
expenses of repairing such Engine(s).
Agreement between Cummins
and City of Oshkosh
Page 3 of 7
5. Test Evaluation
In order to ensure that test objectives are met and to permit speedy analysis of test results,
Cummins and the User agree as follows:
5.1 Cummins, its employees and agents shall have access to the Engine(s) at all reasonable
times and for the purpose of testing, inspecting, modifying, repairing or improving the
Engine(s). In exercising said right of access to the Engine(s), Cummins agrees to use its
best efforts in minimizing the Equipment downtime. Cummins shall notify the User and
arrange for a mutually acceptable time if and when it is necessary to have the Engine(s)
removed from the User's service.
5.2 The User shall permit Cummins to review its operations and maintenance records relating
to the Engine(s) at all reasonable times and the User shall permit Cummins to make copies
of such records for the purpose of conducting test analysis and evaluation. Such records
shall include information on fuel and oil consumption of the Engine(s) and miles or hours
logged by the Equipment.
5.3 In the event of any failure or malfunction of the Engine(s), the User shall endeavor to notify
Cummins of such failure or malfunction within eight (8) hours.
5.4 Upon the request of Cummins, the User shall remove oil samples at two week intervals,
forward them to an oil analyst selected by Cummins and whose name and address shall be
provided to the User by Cummins. Cummins shall bear all costs of the oil analyses,
obtaining oil sample containers and postage expenses in mailing oil samples to the
designated oil analyst.
5.5 The User shall also furnish, in such form as may be determined by Cummins, any further
information in relation to the Engine(s) to enable Cummins to fully evaluate the Engine(s).
6. Liability
6.1 The parties acknowledge that User is participating in the field test of Cummins
experimental Engine(s) without charge to Cummins and that Cummins is furnishing such
Engine(s) without charge to the User. Neither party shall be liable for any incidental or
consequential damages which for the purposes of this Agreement may include any
damages that were remote, speculative, or not reasonably foreseeable by the parties at the
time of entry into this Agreement.
6.2 Subject to any limitations contained in Secs. 893.80, 893.83, 345.05 of the Wisconsin
Statutes, User agrees to hold Cummins, its officers, officials, employees and agents
harmless from any and all liability, including claims, demands, losses, costs, damages, and
expenses of every kind and description (including death), or damages to person or
property arising out of the possession, use or operation of the Engine(s) or Equipment
where such liability is founded upon or grows out of the negligence or intentional acts or
omissions of any of User's officers, employees, volunteers or agents.
6.3 Cummins agrees to hold User, its officers, officials, employees and agents harmless from
any and all liability, including claims, demands, losses, costs, damages, and expenses of
every kind and description (including death), or damages to person or property arising out
of the possession, use or operation of the Engine(s) or Equipment where such liability is
founded upon or grows out of the negligence or intentional acts or omissions of any of
Cummins' officers, employees, volunteers or agents.
Agreement between Cummins
and City of Oshkosh
Page 4 of 7
6.4 Nothing contained within this Agreement is intended to be a waiver or estoppel of the
ability of the User or its insurer to rely upon the limitations, defenses, and immunities
contained within Wisconsin law, including those contained within Wisconsin Statues §§
893.80, 895.52, and 345.05 and that such damage limits, caps and immunities shall be
used to govern all disputes, contractual or otherwise, as they apply to the parties, their
agents, officers and employees.
6.5 It is the intention of the parties to this Agreement that each party shall be solely responsible
for its own actions and activities and the actions and activities of its own officers,
employees and agents while acting within the scope of their employment.
7. EPA Exemption
Where applicable, Cummins shall obtain for testing of the Engines, U.S. Environmental Protection
Agency exemptions from the applicability of the Clean Air Act. The User is aware of the U.S.
Environmental Protection Agency regulations on test exemptions applicable to the Engines and
agrees to assist Cummins in complying with the same.
8. Term
This Agreement shall be effective as of the date of acceptance by User and shall continue for
twenty-four (24) months of operation of the Equipment in which the Engine(s) is installed. The
term of this Agreement may be extended by mutual agreement of the parties.
9. Termination
9.1 Either party may terminate this Agreement during its term by serving upon the other party a
written notice given 60 days prior to the date of such termination.
9.2 In the event of the termination of this Agreement whether upon the expiration of its term or
its earlier termination, Cummins shall bear all expenses in connection with removal of the
Engine(s) from the Equipment. All Engine(s) so detivered by User to Cummins will be in
the same condition as when delivered to the User, reasonable wear and tear from use
thereof excepted.
9.3 Where the Engine(s) are removed from the Equipment, Cummins shall install at no charge
to the User Engine(s) furnished by the User provided said engines are like same Engine(s)
as removed.
9.4 In those instances where Cummins decides not to disassemble Engine(s) at the
termination of this Agreement, Cummins at its option may sell the Engine(s) to the User.
Where Cummins grants the User the option to purchase such Engine(s), the price of each
Engine(s) to the User shall be mutually negotiated.
9.5 Either party shall have the right to terminate this Agreement with immediate effect if the
other party is unable to pay its debts or shall have made a general assignment for the
benefit of creditors, or shall have been adjudicated bankrupt, or shall have filed a voluntary
petition of bankruptcy.
10. Confidentiality
_ - Agreement between Cummins
and City of Oshkosh
Page 5 of 7
. Any and all information obtained by the User pursuant to this Agreement shall be deemed strictly
confidential. The User agrees not to disclose or publish such information, in whole or part to any third
party, without prior written agreement of Cummins.
In the event that the disclosure of confidential information is required by law, prior to the User disclosing
such information, User shall give Cummins prompt notice of the required disclosure and all information
to be disclosed and take reasonable steps to preserve the confidentiality of such information.
Cummins, upon being provided notice of the required disclosure, may take any reasonable method and
action to protect its confidential information as long as such actions or methods do not interfere with
User compliance with such legally required disclosure.
11. Notices
Any notice to be given or any demand required to be given hereunder shall be sent to registered
mail and shall be deemed to be given when so mailed to the party to be notified at the address
set forth below, or at such addresses as the party to be notified shall have directed in writing.
12. Compliance with Laws.
The User shall comply with all applicable governmental laws, regulations and rules with respect to
the use, maintenance and operation of the Engine(s) and the Equipment. In this connection, the
User agrees to indemnify, defend and hold Cummins harmless from and against any liability
arising from a breach of the same and agrees to defend at its expense any action brought against
Cummins.
13. Severability of Provisions
Should any one or more provisions of this Agreement be determined in any jurisdiction to be
invalid or unenforceable in whole or in part by reason of any present or future law, rule or
regulation or any decision of or interpretation by any court, administration or government
authority, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability, without invalidating the remaining provisions thereof or affecting the validity of
enforceability of such provision in any other jurisdiction. The User agrees, as to such jurisdiction,
to replace, or cause to be replaced, any provision of this Agreement which is so determined to be
invalid or unenforceable by a valid provision which has as nearly as possible the same effect.
14. Non-Assignability
Neither party hereto shall, directly or indirectly, assign or purport to assign this Agreement or any
of its rights and obligations in whole or part to any third party without the prior written consent of
the other party.
15. Amendment
This Agreement shall not be amended, modified, or altered, except in writing duly accepted and
executed by both parties.
16. Governing Law
Agreement between Cummins
and City of Oshkosh
Page 6 of 7
This Agreement shall be governed by, and construed in accordance with, the laws of the State of
Delaware.
17. Entire Agreement
This Agreement constitutes the entire agreement and understanding of the parties hereto, and no
representations or promises have been made that are not fully set forth herein.
. Agreement between Cummins
and City of Oshkosh
" Page 7 of 7
. If you are in agreement with the foregoing, please indicate your agreement by signing the
acknowledgement copy of this letter at the space provided below and returning the same to us.
Sincerely,
CUMMINS INC.
By: ,
J Shoemaker
irector Service - Engineering
Accepted and agreed to this
lOthDay of Sept. , 2015
By: SEE ATTACHED PAGE
Jim Collins
Director of Transportation
If there are any questions relative to this agreement please direct them to:
Richard D DeLong
(812) 341-1269
�,
Quantity of
Engine(s) to be
made Available
1
Attachment A
Description and Identification of
Cummins Engine(s) and User's Equipment
Engine Serial User's Equipment
Model Number* Modei+
2017 Alpha ISL 73478106 New Flyer XD-35
and Aftertreatment
Page 1 of 1
Chassis
Number+
Bus #1305
Where information on any of the above items is not available at time of execution of the
Agreement to which this Attachment A is appended, information on items marked (*) shall be provided
to User by Cummins as soon as it becomes available, and information on items marked (+) shall be
provided to Cummins by User as soon as it becomes available.
.'
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
executed by their respective proper officers and affixed their corporate seals hereto as
of the day and year first above written.
CITY OF OSHKOSH
�---�,��
MAR A ROHLOFF
CITY MANAGER
, -,
.1 - � �,
PAMELA R. UBRIG �
CITY CLERK
APPROVED BY:
I hereby certify that the necessary
provisions have been made to pay
the liability which will accrue under
this contract.
� �
-L�FN . LO N TRENA SO
CITY ATTORNEY FINANCE DIRECTOR