HomeMy Public PortalAbout180-2022 - Fouts Bros., Inc. - FB94 Custom Pumper Fire Truck PURCHASE AGREEMENT
THIS AGREEMENT made and entered into this -Z�� day of/1/((/ ( ^ , 2022 ,and referred
to as Contract No. 180-2022, by and between the City of Richmond, Indiana, a municipal
corporation acting:by and through its Board of Public Works and Safety (hereinafter referred to.as the
"City") and Fouts Bros Inc., 138 Roberson Mill Road, Milledgeville, Georgia, 31061 (hereinafter
referred to as the"Contractor").
SECTION I. STATEMENT AND SUBJECT OF WORK
City hereby retains Contractor to furnish one (1) in-stock FB94 Custom Pumper Fire Truck (hereinafter
"Vehicle"or"Equipment")for the Richmond Fire Department as further described in Contractor's quote.
The City determined in accordance with Indiana Code 5-22-10-5 that it would be in the best interest
of the City and the Fire Department to make said in-stock purchase from Contractor because the
purchase of the Vehicle in accordance with IC 5-22-10-5 represents a substantial savings of time and
funds. Contractor's proposal,received November 8,2022,consisting of five(5)pages is attached hereto
and marked as Exhibit A. Contractor agrees to abide by the same.
Contractor shall not modify or alter any standard warranty from the manufacturer of the above described
Vehicle. Nothing contained herein shall prevent Contractor from providing any additional or
supplemental warranty in addition to that provided by the Manufacturer. Further, Contractor shall
provide City with copies of its warranty upon receiving a: written or verbal request to receive such
warranty.
Should any provisions, terms, or conditions contained in any of the documents attached hereto as
Exhibits,or in any of the documents incorporated by reference herein,conflict with any of the provisions,
terms, or conditions of this Agreement,this Agreement shall be controlling:
Contractor shall furnish all labor, material, equipment, and services necessary for the proper completion
of all work specified.
No performance of services shall commence until the following has been met:
1. The City is in receipt of any required certificates of insurance;
2. The City is in receipt of any required affidavit signed by Contractor in accordance
with Indiana Code 22-5-1.7-11(a)(2); and
3. A purchase order has been issued by the Purchasing Department.
SECTION II. STATUS OF CONTRACTOR
Contractor shall be deemed to be an independent contractor and is not an employee or agent of the City of
Richmond.. The Contractor shall provide,at its own expense,competent supervision of the work.
Contract No. 180-2022
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SECTION III. COMPENSATION
City shall pay Contractor a total amount not to exceed Four Hundred Thirty-five Thousand Dollars and
Zero Cents($435,000.00) for complete and satisfactory performance of this Agreement.
SECTION IV. TERM OF AGREEMENT
This Agreement shall become effective when signed by all parties and shall continue in effect until
satisfactory delivery and acceptance of the Vehicle.
Notwithstanding the term of this Agreement,City may terminate this Agreement in whole or in part, for
cause,at any time by giving at least five(5)working days written notice specifying the effective date and
the reasons for termination which shall include but not be limited to the following:
a. failure,for any reason of the Contractor to fulfill in a timely manner
its obligations under this Agreement;
b. submission of a report,other work product,or advice,whether oral or written,by the
Contractor to the City that is incorrect,incomplete,or does not meet reasonable.
professional standards in any material respect;
c. ineffective or improper use of funds provided under this Agreement;
d. suspension or termination of the grant funding to the City under which this Agreement
is made;or
e. unavailability of sufficient funds to make payment on this Agreement.
In the event of such termination,the City shall be required to make payment for all work performed prior
to the date this Agreement is terminated,but shall be relieved of any other responsibility herein.
This Agreement may also be terminated, in whole or in part, by mutual Agreement of the parties by
setting forth the reasons for such termination,the effective date,and in the case of partial termination,the
portion to be terminated.
This Agreement may also be terminated by the City if a force-majeure event occurs and the results or
aftereffects of said event causes the performance of this Agreement to become impossible or highly
impracticable. Said event or results or aftereffects of said event would include events or effects which the
parties to this Agreement could not have anticipated or controlled. Examples of a force-majeure event,or.
its results,would include,but would not be limited to,events such as an Act of God, an Act of Nature,an
Act of Law, or an Emergency Act of Executive Enforcement of the Federal government, the State of
Indiana,or local government.
SECTION V. INDEMNIFICATION AND INSURANCE
Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to person or
property or any other claims which may arise from the Contractor's conduct or performance of this
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Agreement, either intentionally or negligently; provided, however, that nothing contained in this
Agreement shall be construed as rendering the Contractor liable for acts of the City,its officers, agents,or
employees. Contractor shall as a prerequisite to this Agreement, purchase and thereafter maintain such
insurance as will protect it from the claims set forth below which may arise out of or result from the
Contractor's operations under this Agreement, whether such operations by the Contractor or by any sub-
contractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts the
Contractor may be held responsible.
Coverage Limits
A. Worker's Compensation & Statutory
Disability Requirements
B. Employer's Liability $100,000
C. Comprehensive General Liability
Section 1. Bodily Injury $1,000,000 each occutzence
$2,000,000 aggregate
Section 2. Property Damage $1,000,000 each occurrence
D. Comprehensive Auto Liability
Section 1. Bodily Injury $1,000,000 each person
$1,000,000 each occurrence.
Section 2. Property Damage $1,000,000 each occurrence
E. Comprehensive Umbrella Liability $1,000,000 each occurrence
$2,000,000 each aggregate
SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW
Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before
commencing work under this Agreement,provide the City a certificate of insurance,or a certificate from
the industrial board showing that the Contractor has complied with.Indiana Code Sections 22-3-2-5,22-3-
5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore subject to another state's
worker's compensation law, Contractor may choose to comply with all provisions of its home state's
worker's compensation law and provide the City proof of such compliance in lieu of complying with the
provisions of the Indiana Worker's Compensation Law.
SECTION VII. PROHIBITION AGAINST DISCRIMINATION
A. :. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub-contractor, or any person acting on
behalf of Contractor or any sub-contractor shall not discriminate against any employee or
applicant for employment to be employed in the performance of this Agreement,with respect to
hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly
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related to employment, because of race, religion, color, sex, disability, national origin, or
ancestry.
B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees:
1. That in the hiring of employees for the performance of work under this Agreement of any
subcontract hereunder, Contractor, any subcontractor, or any person acting on behalf of
Contractor or any sub-contractor, shall not discriminate by reason of race, religion, color,
sex,national origin or ancestry against any citizen of the State of Indiana who is qualified
and available to perform the work to which the employment relates;
2. That Contractor, any sub-contractor, or any person action on behalf of Contractor or any
sub-contractor shall in no manner discriminate against or intimidate any employee hued
for the performance of work under this Agreement on.account of race, religion, color,
sex,national origin or ancestry;
3. That there maybe deducted from the amount payable to Contractor by the City under this
Agreement, a penalty of five dollars($5.00) for each person for each calendar day during.
which such person was discriminated against or intimidated in violation of the provisions
of the Agreement;and
4: That this Agreement may be canceled or terminated by the City and all money due or to
become due hereunder may be forfeited, for a second or any subsequent violation of the
terms or conditions of this section of the Agreement.
C. Violation of the terms or conditions of this Agreement relating to discrimination or intimidation
shall be considered a material breach of this Agreement.
SECTION VIII. COMPLIANCE WITH INDIANA E-VERIFY PROGRAM REQUIREMENTS
Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work eligibility status
of all newly hired employees of the contractor through the Indiana E-Verify program. Contractor is not
required to verify the work eligibility status of all newly hired employees of the contractor through the
Indiana E-Verify program if the Indiana E-Verify program no longer exists. Prior to the performance;of
this Agreement, Contractor shall provide to the City its signed Affidavit affirming that Contractor does . .
not knowingly employ an unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event
Contractor violates IC 22-5-1.7 the Contractor shall be required to remedy the violation not later than
thirty (30) days after the City notifies the Contractor of the violation. If Contractor fails to remedy the
violation within the thirty(30)day period provided above, the City shall consider the Contractor to be in
breach of this Agreement and this Agreement will be terminated. If the City determines that terminating
this Agreement would be detrimental to the public interest or public property, the City may allow this
Agreement to remain in effect until the City procures a new contractor. If this Agreement is terminated.
under this section, then pursuant to IC 22-5-1.7-13:(c) the Contractor will remain liable to the City for
actual damages.
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SECTION IX. IRAN INVESTMENT ACTIVITIES
Pursuant to Indiana Code(IC)5-22-16.5,Contractor certifies that Contractor is not engaged in investment
activities in Iran. In the event City determines during the course of this Agreement that this certification
is no longer valid, City shall notify Contractor in writing of said determination and shall give contractor
ninety (90) days within which to respond to the written notice. In the event Contractor fails to
demonstrate to the City that the Contractor has ceased investment activities in Iran within ninety(90).days
after the written notice is given to the Contractor, the City may proceed with any remedies it may have
pursuant to IC 5-22-16.5. In the event the City determines during the course of this Agreement that this
certification is no longer valid and said determination is not refuted by Contractor in the manner set forth
in IC 5-22-16.5, the City reserves the right to consider the Contractor to be in breach of this Agreement
and terminate the agreement upon the expiration of the ninety(90)day period set forth above.
SECTION X.RELEASE OF LIABILITY
Contractor hereby agrees to release and hold harmless the City and all officers, employees, or agents of
the same from all liability for negligence which may arise in the course of Contractor's performance of its
obligations pursuant to this Agreement.
SECTION XI.MISCELLANEOUS
This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights
or obligations hereunder without the prior written consent of the other party. Any such delegation or
assignment, without the prior written consent of the other party, shall be null and void. This Agreement
shall be controlled by and interpreted according to Indiana law and shall be binding upon the parties,their
successors and assigns. This document constitutes the entire Agreement between the parties,although it
may be altered or amended in whole or in part at any time by filing with the Agreement a written
instrument setting forth such changes signed by both parties. By executing this Agreement the parties
agree that this document supersedes any previous discussion, negotiation, or conversation relating to the
subject matter contained herein.
This Agreement may be simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
The parties hereto submit to jurisdiction of the courts of Indiana, and any suit arising out of this Contract
must be filed in said courts. The parties specifically agree that no arbitration or mediation shall be
required prior to the commencement of legal proceedings in said Courts. By executing this Agreement,
Contractor is estopped from bringing suit or any other action in any alternative forum,venue, or in front
of any other tribunal, court, or administrative body other than the Circuit or Superior Courts of Indiana,
regardless of any right Contractor may have to bring such suit in front of other tribunals or in other
venues.
Any person executing this Contract in a representative capacity hereby warrants that he/she has been duly
authorized by his or her principal to execute this Contract.
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In the event of any breach of this Agreement by Contractor, and in addition to any other damages or
remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this Agreement,
including but not limited to, City's reasonable attorney's fees.
In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement arises,
this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
IN WITNESS WHEREOF,the parties have executed this Agreement at Richmond, Indiana, as of the day.
and year first written above,although signatures may be affixed on different dates.
"CITY" "CONTRACTOR"
THE CITY OF RICHMOND, FOUTS BROS INC.
INDIANA by and through its 138 Roberson Mill Road
Board of Public Works and Safety Milledgeville, GA 31061
By: /LC2 h/� By: hGia
Vicki Robinson, President
By: Printed: William Ingram
Emily Palmer,Member
By: 4/11 _ Title: Sales Agent
Matt Evans,Member
APPROVED: i% _ Date:
12/1/2022
M.441,0.yor
Date: (i
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CONTRACT SALES AGREEMENT
TOUTS BROS (Standard Agreement)
PARTIES.The parties to this Contract Sales Agreement are Fouts Bros. Inc.of Milledgeville, Georgia("Seller"),
and:
Richmond Fire Department 101 South 5th St Richmond, IN 47374
("Purchaser").
PRODUCT DESCRIPTION:
STOCK F894 Custom Pumper
(Enter a brief product description and quantity of the items purchased on this contract)
PURCHASE. Purchaser does hereby agree to purchase and accept delivery of the apparatus described in the
Fouts Bros. Inc, Proposal attached hereto,which is made a part hereof by this reference, upon the following terms
and conditions:
1. ACCEPTANCE. This Contract Sales Agreement shall become a contract and a binding obligation only
when accepted by the Seller as provided in paragraph 9 hereof.
2 COMPLETION. The Fouts Bros. Inc. supplied apparatus and equipment, excluding dealershi su lied
equipment, covered by this contract will be completed in by no later tha
days after chassis arrival,or as soon thereafter as is consistent with good workmanship and subject to any
and all delays resulting from causes beyond the control of Seller, and contingencies set out in paragraph 1.1
hereof. It is understood by both the Seller and. the Purchaser that Change Orders executed after contract
acceptance will delay delivery.
3. SPECIFICATIONS.The attached Fouts Bros. Inc:Proposal#10315-0062 dated 10/17/2022 shall
control the construction of the apparatus and be binding upon both Seller and Purchaser, notwithstanding any
other specifications or proposals whether written or oral heretofore supplied, considered or discussed. If there
is any conflict between Purchaser's specifications and the attached Proposal, the attached Proposal and
specifications will control and prevail.
4 WARRANTY.The attached warranty or warranties shall apply to this agreement:
See page 57-58 Specs
(Copies May Be Attached)
5. PERFORMANCE BOND..The following bonding provisions are applicable:
Performance Bond NOT Required.
Performance Bond required-Performance Bond(Surety Bond)will cover standard one
year warranty period
EXCEPT AS SPECIFICALLY PROVIDED ABOVE, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND WARRANTIES THAT ARISE BY OPERATION OF LAW, COURSE OF TRADE, COURSE
OF PERFORMANCE, OR USAGE OF TRADE.
6. LIMITATION OF REMEDIES. In no event shall Seller be liable for special, incidental, or consequential
damages or for any damages which exceed the purchase price of the apparatus.
7. PRICE. Purchaser agrees to pay for the apparatus described herein the total sum of
Four Hundred Thirty Five Thousand Dollars & Zero Cents
(Enter written dollar amount) Dollars
435,000.00
In the event of significant delay or price increase of material occurring during the performance of the contract
through no fault of the seller, the contract sum, time of performance and contract requirements shall be
equitably adjusted by change order in accordance with the procedures of the contract documents.
State and local sales taxes, if any,are not included in the purchase price. The purchase price herein is based
upon all applicable state and federal manufacturing law, regulations, orders, mandates and standards in effect
as of the date of this Agreement (hereinafter"Standards)such as, for example, the Standards mandated by
the National Fire Protection Association, tentative interim amendments to the National Fire Protection
Association Standard, and the Environmental Protection Agency. The purchase price shall be subject to
increase due to any state or federal Standards that are adopted, issued or mandated following the date of this
Agreement that require the apparatus(es) described above to be manufactured and/or delivered in
compliance with such Standard(s).
a PAYMENT.The purchase price shall be paid in the following manner:
The Apparatus shall be paid for in full upon final inspection and acceptance by the purchaser
All checks must be made payable to FOUTS BROS. INC., only and delivered to Seller at its offices in
Milledgeville, Georgia. Under no circumstances shall payment be made to a dealer or anyone else as Seller's
agent. FOUTS BROS. INC. is the only authorized payee. Any representation that payment is to be made to
any other.party is absolutely unauthorized.
The department plans to fund the truck via one of the following ways:
[ ] The department will issue a check from their own funds..
[ ] The department is financing the truck through a lender.
Lender Name
Lender Contact
Lender Phone
Lender Email
WIRE FRAUD ALERT. E-mail accounts are being targeted by hackers in an attempt to initiate fraudulent
wire requests. If you receive an e-mail from this office requesting that you wire or otherwise transfer funds,
you must confirm the request and any corresponding instructions by telephone with this office before you
initiate any transfer.
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9. SELLER'S REPRESENTATIONS. All representations made and/or actions taken by a dealer or agent
either before or after execution of this Agreement are not binding on the Seller.This Agreement in order to be
effective and binding upon Seller must be signed and accepted by an authorized officer of Seller. The
effective date of this Agreement will be the date it is signed and accepted by the Seller.
10. PURCHASER'S REPRESENTATIONS. Purchaser is Richmond Fire Department
(Fire Department,Fire District,Municipality,Borough,Etc.)
and has the power and authority to enter into this Agreement and perform its obligations hereunder; this
Agreement has been duly authorized, executed and delivered by Purchaser and is the valid, enforceable and
binding obligation of Purchaser; and Purchaser represents that there are no warranties, agreements or
understandings, written or oral, which in any manner alter, abridge or conflict with the terms of this
Agreement. Purchaser represents that the individuals listed below have authority to sign all documents
Including but not limited to, all change orders on behalf of Purchaser.
Richmond Fire Department
101 South 5th St
Richmond, IN 47374
Purchaser warrants the accuracy of the information in this Agreement (including, but not necessarily limited
to, Purchaser's name, Purchaser's location, Purchaser's assumed names, Purchaser's places of business,
and the location at which apparatus will be stationed).
11. DELAY ON PERFORMANCE. Seller's Performance under this Agreement is subject to delays
resulting from strike, insurrection, war, accidents, fires, floods, commandeering of plant or other
demands of governmental authority, delays in transportation, or materials, delays in receipt of
information when clarifications are requested, and all other causes beyond the control of Seller.
12. TESTING. In the event Purchaser wishes to test the apparatus, such test shall be made within ten (10)
days after arrival of the apparatus at its destination. A written report of any and all tests shall be promptly
forwarded to Seller. If Purchaser fails to test within this time limit and/or fails to forward test results to.Seller,
the apparatus shall be considered as fully complying with contract specifications as described in paragraph 3.
13. TITLE. All apparatus shall remain the property of Seller until the purchase price is paid in full. In the
event of default in payment, Seller may take full possession of all apparatus sold hereunder and any
payments that have been made shall be forfeited and/or considered as rental for the use of the apparatus up
to date of taking possession. Seller will furnish Purchaser a clear title or MSO 14 days or before, after
delivery.
Enter the legal name that should appear on the Title or MSO:
Richmond Fire Department
(Department Legal Name)
101 South 5th St
(Street Address)
Richmond, IN 47374
(City,State and Zip)
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14. DELIVERY.The following delivery provisions are applicable:
eDelivery of the unit IS NOT.Included.
®: Delivery of the unit IS included.
15. MISCELLANEOUS. The following miscellaneous provisions shall apply to this Sales Agreement:
15.1 Entire Agreement. This Contract Sales Agreement, the proposal, and all related documents,
including, but not necessarily limited to bid awards, specifications, purchase orders, change orders,
acknowledgments, and invoices attached hereto sets forth the entire agreement between the parties and
there are no promises,agreements, conditions or understandings,either oral or written between them that are
other than as herein set forth. Except as herein otherwise provided, no subject alteration, amendment,
change or addition to this Agreement shall be binding upon either Seller or Purchaser unless reduced to
writing and signed by them. "This Agreement" shall mean this Contract Sales Agreement and all related
documents.
15.2 . Governing Law and Venue. This Agreement shall be construed and enforced in accordance with
the laws of the State of Georgia and as if jointly drafted by the parties. Venue for all litigation between the
parties shall be Georgia. This provision shall survive termination of this Agreement.
15.3 Severabilitv..If any term, covenant or condition of this Agreement, or any application thereof to
any person or circumstance, shall, to any extent, be invalid or unenforceable, the remainder of this Agreement
or application of such term, covenant or condition to persons or circumstances other than those as to which it
is held as invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
15.4 Benefit.This Agreement shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns. Except with the written consent of the other party hereto, no person shall
take any action which will allow any right hereunder to be assigned or held by any other person.
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IN WITNESS WHEREOF, this Contract Sales Agreement has been duly executed by the parties hereto on the
date set forth opposite their name.
To be completed by Fouts Bros. Salesman
Mailing Address of Purchaser: Richmond Fire Department
101 South 5th St Richmond, IN 47374
Fire Chief or Primary Contact:
Printed Name: Title: Lc hie!
Business Telephone Number: '
Business Email Address:
Secondary Contact:
Printed Name:TIITl Brown Title: Battalion Chief!Interim Assistant Chief
Business Telephone Number: 765-220-0511
Business Email address: tbrown@richmondindiana.gov
To be completed by Purchasing Entity
Signature: i r " . �--:" —�'` Title:
Printed Name:I c
,+�'=' =`' i Date:
/\•T 4s.
Y Cam` r a.• �:
Signature: ;�� =' Title:
N.
Printed Name:, ~ `�= I Date:
,s. ;</�
Attests: <ti '\f \‘�Cary. Date:
To be completed by Fouts Bros. Inc.
Signature: Date of Acceptance:
Fouts Bros. Inc.
Fouts Bros Inc.
138 Roberson Mill Road
Milledgeville,Georgia 31061
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