HomeMy Public PortalAbout005-2024 - Sanitation - McCallister - Catapillar Bulldozer AGREEMENT
THIS AGREEMENT made and entered into this (." day of AVC/4-1 , 2024, by
and between the City of Richmond. Indiana, a municipal corporation acting by and through its
Board of Sanitary Commissioners (referred to as the "City''). and MacAllister Machinery
Company, 6300 Southeastern Avenue, Indiaiwolis, IN 46203 (hereinafter referred to as the
"Contractor-).
SiCIION I. STATFMENT AND SUBJEcr or WORK
City hereby agrees to retain Contractor to firrnish it with a working Caterpillar 1)5 13ulldozer on a
rental basis, for a period of one ( I) month from date of delivery.
The response of Contractor to City's Request for Quotes is attached hereto and incorporated by
reference herein as Exhibit -A'', and Contractor shall comply with the terms and conditions set
forth therein.
Should any proviskms, terms, or conditions contained in any of the documents attached hereto and
incorporated by reference herein as Exhibits, conflict with any of the provisions, terms, or
conditions of this Agreement, this Agreement shall be controlling.
The Ckintractor shall furnkh 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 net:
'Hoe City is in receipt of any required certificates of insurance and/or warranties;
2. The City is in receipt:of any required affidavit(s) signed by Contractor in accordance with
I.C. § 22-5-1.7-1 (a)(2): and
3. A purchase order has been issued by the Purchasing 1)epartment.
SE(..:TION II. 51 -Ft S (,)17 Cf.)Nd"RACTOR
Contractor shall be deemed to be an independent contractor and is not an employee or agent of the
City of Richmond. 'Elie Contractor shall provide,at its own expense, competent supervision of the
work.
Str:CTION Ill, COMPENSATION
City shall pay Contractor the sum of Ten Thousand Fight I lundred Dollars and 00/100($10,800.00)
for the rental of the above-described equipment for a period of one ( I) month ttom the date of
delivery, which sian includes compensation to the Contractor for delivery and retrieval of said
equipment by Contractor,
SEC:TION IV, TERM OF AGREEMI.rINT
This Agreement shall become effective when signed by all of the parties hereto and remain in full
force and effect for a period of one ( 1) month from the date of delivery of the equipment described
herein. Contractor shall use reasonable efforts to deliver the equipment to City as soon as possible
following execution of this agreement,
Notwithstanding the term of this Agreement, ("ity may terminate this Agreement in whole or in
part, for cause, at any time by giving at least thirty C30)days written notice specifying the effective
C'ontract No. 5-2424 1
date and the reasons for termination which shall include but are not he limited to the following:
a, failure,for any reason of the Contractor to fulfill in a timely manner
its obligations under this Agreement;
b, submiT3ion 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.
This Agreement may also be terminated by either the City or the Contractor, in whole or in part,
by mutual Agreement 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 either the City or the Contractor, without cause, by
giving at least thirty(30) days written notice to the other party.
In the event of tentnination of this Agreement, 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.
SECTION V. INDEMNIFICATION ANt) 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 Agreement, ther 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 occurrence
$2,000,000 aggregate
Section 2, Property Damage $1,000,000 each occurrence
D. Comprehensive Auto Liability
Section I. 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
$1,000,000 aggregate
F. Malpractice/Errors&Omissions Insurance $1,000,000 each occurrence
$2,000,000 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 2.2-3-2-5,22-3-5- 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. COINPLIANCEWTTEt"NEN ANN:EoiyRifrPROciRAM
REQUIREMENTS
Pursuant to Indiana Code 22-5-1.7, Contractor is required .t.o 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-I 1 (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.
SECTION 'VIII. IRAN INVESTMENT ACTIVITIES
Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is riot
engaged in investment activities in Iran. In the event Board determines during the course
of this Agreement that this certification is no longer valid, Board 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 Board that
3 I Pavia
the Contractor has ceased investment activities in Iran within ninety (90) days after the
written notice is given to the Contractor, the Board may proceed with any remedies it may
have pursuant to IC 5-22.-16.5. In the event the Board 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 Board 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 firth above.
SECTION IX, 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 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 wom k.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 hired for the performance of work under this Agreement on account of
race,religion,color, sex, national origin or ancestry;
3. That there may be deducted from the amount payable to Contractor by the City
under this Agreement, a penalty of five dollars (55.00) for each person for each
calendar day during which such person was discriminated against or intimidated
in violation of the provisions of the Agreement; arid
That this Agreement may be canceled or terminated by the City and all money due
or to become due hereunder may he 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 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 which may arise in the course of Contractor's performance of
its obligations pursuant to this Agreement.
SECTION XL 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
4 I Page
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 Wayne County, Indiana, and any suit
arising out of this Contract must be filed in said courts. The parties specifically agree that no
arbitration or mechation 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 thrum,venue,or in front of any other tribunal,court,or administrative body other
than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right Contractor
may have to bring such suit in front of other tribunals or in other venues.
Any person execMing this Contract in a representative capacity hereby warrants that he/she has
been duly authothied by has or her principal to execute this Contract.
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 FM 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 frst written above, although signatures may be affixed on different dates,
[Remainder of this Page Intentionally I efl Blank. Signatures to Follow on Page Six]
5 I Page
"CITY" "CONTRACTOR"
The City of Richmond, Indiana, by and MacAllister Machinery Company, Inc,
through its Board of Sanitary
Commission- s
By:
Sue iller, President (Printed):
Dated: 1 7,-/
Jizei_vTitle: / Z,F7/_-..0-7 /1/7
Aman Ba161.1—, Vice President Dated: _F41,74/
Dated: 1Z-1 1'7:3
_ .
ember
Dated: 12/ 1-2-i
APPROVED:
. , Mayor
frkp ie
Dated: I
6 P g e
111 11,11 I „„„„
CA
Scott A. Smith 12/07/23
10/1319/23
6300 Southeastern Ave
Indianapolis, IN 46203
317-803-2526
317-803-2527 tax
scoftsmithamacallister.com
Richmond Landfill
We are pleased to quote the following equipment. These rates are based on 5 workday week,and
4 week month for up to 160 hours per month,40 hours per week,and 8 hours per day. Over
hours will be pro-rated and billed accordingly. The customer is responsible for daily inspections,
any repairs resulting from abuse or negligence,and Insurance that covers total loss of machine
during this rental period listing MacAllister Machinery as loss payee and additional insured,
Machine Model Daily Weekly Monthly
CAT D5 Bulldo7esi $1100.00 $3200.00 $9,000.00
Freight approx...-$900.00 each way
*Rates include al PM services unless otherwise stated
*Equipment subject to availability
*Re-fueling upon return is an extra charge
*Quote does not include applicable taxes
Thank you,
Scott A. Smith
Heavy Rental Assistant Manager
MacAllister Machinery Co
Exhibit A
MASTER RENTAL AGREEMENT
TERMS AND PROVISIONS
MacAllister hereby agrees to lease to the named Lessee, meaning all lessees jointly and
severally, and Lessee hereby leases from MacAllister, under and subject to the terms and
provisions hereof until the end of the term specified (Term) the personal property describ(A as
"Equipment" rented together with all present and future attachments, replacement parts, repairs,
and additions and all proceeds thereof.
2. It is understood between the parties that MacAllister is not the manufacturer of the
equipment herein rented, nor the agent of the manufacturer of said equipment and that no
warranty against patent or latent defects in material, workmanship, or capacity is given,
nor that said equipment will meet the requirements of any law, rules, specifications or
contracts which provide for specific machinery or apparatus or special methods, other than
that of the original manufacturer of said equipment and as set forth in the manufacturer's
catalog and representations wherein said machinery and equipment is listed and described.
No representation or warranty is made as to the year of manufacture of any equipment.
MACALLISTER HEREBY DISCLAIMS ANY AND ALL WARRANTY, IMPLIED OR.
EXPRESSED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
3. MacAllister shall use reasonable care to see that the equipment is in proper working condition
before shipment to lessee, MacAllister will not operate or test the equipment unless such
operation or test is deemed necessary by MacAllister or unless Lessee shall request such
operation or test in writing, in which event the Lessee will be notified of the time and place of
such operation and test, and shall he permitted to be present during said operation and test. If
having requested it, Lessee hails to be present at the time of operation and test, Lessee agrees that
said equipment as turned out is in proper operating condition.
4. The Lessee agrees to maintain the machinery and equipment in the same condition as when
delivered to it by MacAllister, less normal wear and tear, and to pay all claims and damages to
the equipment during the life of this contract, and to return said property in as good condition as
when received by MacAllister, and to pay freight demurrage, storage, switching, drayage,
trackage, or other charges against said equipment from the time the same shall leave MacAllister
up to and including the time of its return to MacAllister. MacAllister reserves the right to charge
Lessee :for excessive undercarriage wear and tear.
5. For rubber tired equipment, L.essee acknowledges that repair and replacement of tires are not
included in the rental rate and agrees to pay for the repair or replacement (with an allowance for
reasonable depreciation) of any tires returned to MacAllister in a damaged condition regardless
of the cause of damage. Reasonable wear and tear is expected, however, it is agreed rubber
abrasions (gouges, tears, cuts, grooving, and removal of rubber in pieces) or damage to castings
is not reasonable wear and tear.
6. The receipt and acceptance by Lessee of said equipment will constitute acknowledgement that
said property has been accepted and found in good, safe and serviceable condition, and fit for
use, unless Lessee makes claim to the contrary to MacAllister by registered mail with return
receipt demanded, addressed to MacAllister's home office within three days after receipt of said
equipment. The complaint shall set forth specifically and in detail the complete nature and
condition of the property received.
7. Should any of the machinery, equipment, or appurtenances be received by Lessee born any
drayman, .railroad company or any other carrier transporting same in a damaged condition, or
with any of the machinery, equipment, parts or appurtenances missing, it shall be the duty of
Lessee to obtain from said drayman, railroad company or other carrier a written.
acknowledgement of the damage or shortage. The failure on the part of Lessee to obtain such
statement or acknowledgement upon its receipt and acceptance of said machinery, equipment,
parts and appurtenances shall be treated as an acceptance of said machinery, equipment, parts
and appurtenances in good, safe, serviceable condition and fit for use. Any damage or loss
which has occurred and is not covered by a written acknowledgement or statement as aforesaid,
or which occurs after acceptance of said property, shall be repaired and replaced at the expense
of Lessee. If the machinery, equipment, parts or appurtenances are damaged or lost in
transportation and the Lessee furnishes to MacAllister a written detailed acknowledgement and
statement from the carrier setting forth the character of damage and loss, MacAllister agrees to
use reasonable diligence in having said damage repaired and loss replaced within a reasonable
time, but the equipment. shall be deemed to have been delivered on the date of acceptance thereof
from the carrier.
8. In the event of notice to MacAllister by Lessee that the equipment is not in good, safe and.
serviceable condition and fit for use upon its arrival, MacAllister shall have the right to put said
equipment in good, safe and serviceable condition and fit for use, within a reasonable time, or
cancel this rental.
9. MacAllister shall not be liable in a.ny event to the Lessee for any loss, delay, or damage of
any kind of character resulting from defects in or deficiency of the equipment hereby rented or
accidental breakage thereof.
10. Lessee shall immediately notify MacAllister of any accident involving the equipment.
MacAllister may repair said machinery .for the Lessee, using reasonable diligence to make said
repairs upon demand. In the event any work is done outside of MacAllister's regular hours, by
reason of which MacAllister shall he required to pay double time or other overtime charges to its
employees, or to anyone doing the work for Lessee, all such charges will be paid by .Lessee to
MacAllister. In the event of accident or breakage of any part of the equipment, and upon.
receiving written approval from MacAllister, .1.....,essee may have the same repaired by any
competent person, firm or corporation at its own expense or, upon notice to MacAllister as to
such breakage or accident.
1. I. In the event L,essee accepts the machinery and equipment., as herein provided, and .thereafter
the said machinery proves defective or unlit for use, or if .for any reason Lessee desires to
discontinue the use of said machinery or equipment, the only remedy of Lessee shall be to return.
the machinery to MacAllister and terminate this contract as herein elsewhere provided, by paying
all rental charges and other charges herein provided for.
12. Lessee agrees to pay any and all charges for work or inspection by any labor union.
MacAllister may, at its option, refuse to do any repair work on the equipment in time of strike, or
any cause beyond its control, or in violation of any rule affecting the equipment. MacAllister
reserves the right to remove the equipment from the job at any time when, in its opinion, the
equipment is in danger because of strike, war, civil disobedience, or any other condition which
MacAllister determines may threaten the equipment.
1.3. Lessee agrees to comply with and conform to all municipal, state and federal laws relating to
the operation of said machinery and to pay all costs and expenses of every character occasioned
or involving the use or operation of the machinery or equipment, and to pay all legal.
assessments, taxes or public charges which may be levied upon said equipment while in the
possession of the Lessee.
14. Lessee agrees to pay MacAllister for all loss and damages occasioned by fire, theft, flood,
accident, explosion, wreck, and act of God or any other causes that may occur during the life of
this rental, and until such machinery has been returned to the possession of MacAllister and
accepted by it, lor the purpose of finding the valuation of said property in order to determine the
loss, damage or injury thereto, it. is agreed by the parties hereto that the value as herein before
stated shall be a true and last value forming a basis for such adjustment. When equipment leased
is deemed to be a total loss, Lessee agrees to pay MacAllister the manufacturer's suggested price
of the equipment. In making such adjustment. it is understood that no rentals theretofore paid or
due apply to the payment of such loss, and it is further understood that MacAllister shall solely
make the determination of whether the equipment is a total loss.
15. Lessee further agrees to hold harmless and indemnify MacAllister from and against any and
all loss, damage, expense, claim and/or penalty arising from any action on account of any injury
to person or property of any character whatsoever occasioned by the operation, handling or
transportation of any of the equipment during the rental period, and agrees to .indemnify
MacAllister from and against any and all such claims regardless of whether such loss was caused.
in part by the act, omission or negligence of'.MacAllister.
16. Lessee further agrees to insure all equipment rented from MacAllister with 111.11 insurance
coverage as required herein, insuring the equipment against loss or damage arising from any
cause whatsoever, including but riot limited to earthquake, flood or mudslide. MacAllister will.
provide Lessee at the commencement of the term of this Lease, and which shall be incorporated
herein by reference, a separate document entitled "Equipment Rental Insurance 'Requirements"
detailing the necessary coverages and terms thereof, but which terms shall at least contain, but
not by way of limitation, provision for: 1.) MacAllister as a 'loss payee' and 'additional insured'
as applicable; 2.) waiver of subrogation against MacAllister and its insurers on all claims; 3.)
Lessee's insurance iall be primary and non contributory; and, 4.) Providing said insurance to
cover any and all damage arising from any or all perils, including but not limited to damage
occasioned by fire, theft, flood, explosion, accident, vandalism, electrocution, act of God, or any
other damage that may occur without limitation as to cause during the life of this rental. Lessee
shall within one (1) day from the receipt of the equipment provide to MacAllister proof of
insurance relative to the equipment from a carrier and in amounts acceptable to MacAllister. The
proof of insurance shall contain at least (1) a certificate of insurance (2) naming MacAllister as
additional insured and loss payee, (3) clearly describing coverage for the equipment, and (4)
disclosing the name,address and phone number of the company providing the coverage.
17. The title to the property herein rented and to all replacements thereof or substitution thereof
is, and shall remain,„ with MacAllister, and said machinery and equipment shall not become a
part of any building by being placed therein or by being annexed thereto. Where the equipment
is annexed to any property the Lessee shall furnish MacAllister with a landlord's release, which
shall permit MacAllister to remove the equipment from said property at any time during the life
of or after expiration of this contract.
18. The Lessee vrees, whenever requested by MacAllister, to give MacAllister the exact
location of all of the machinery and equipment covered by this contract and further agrees to
give MacAllister immediate notice of any levy attempted upon said equipment, or if said
equipment from any cause becomes liable to seizure, and to indemnify MacAllister against all
loss and damages caused by any such action. MacAllister shall have the privilege at all times of
entering any job, building or location where the above property is being used for the purpose of
inspection and reserves the privilege of removing said machinery and equipment without notice
if it is being overloaded or taxed beyond its capacity or in any manner being abused or neglected.
Lessee warrants that it has the express permission of all land owners upon whose land the
equipment is used to so use the equipment. Lessee further warrants that it will not move the
equipment from one project to another without MacAllister's advance approval, which notice of
movement shall be in writing.
19. This agreement cannot be assigned without the written consent of MacAllister. The
equipment hereby rented shall not be sub-let without the written consent of MacAllister.
20. Should any of the provisions of this rental be violated by Lessee the rental for the entire
period herein specified shall become forthwith due and payable and MacAllister, or its agents,
may, without notice, enter the premises occupied by Lessee without being a trespasser thereon,
and take possession of and remove said equipment with or without process of law. In the event
of any action as hereinbefore set forth becomes necessary the Lessee agrees to pay, in addition to
other charges herein specified, all costs of removal of said machinery from the possession of the
Lessee and all freight, demurrage, storage, labor or other charge on or against said property
incurred during the removal, shipping and return to the possession of MacAllister at its home
office or equivalent point designated by MacAllister.
21. Lessee agrees to pay MacAllister all sums due hereunder when they become due.
22. Lessee agrees that if any of these provisions are breached and MacAllister demands the
return of the equipment this rental agreement shall constitute authority to the watchmen or other
persons responsible for the equipment to deliver all or any part of the equipment to MacAllister
or its agents.
23. In case any matter is written or typed into this printed contract other than such as is
necessary to fill in blanks provided herein, such matters shall be deemed an addition to the
contract and it is specifically understood and agreed that such added matter is not in any manner
whatsoever intended to alter the meaning or intention of the printed clauses of the contract and in
case of conflict and inconsistency between the printed portions and the written or typed
additions, the printed portions shall control any written or typed clause in conflict therewith and
the latter shall be treated as void.
24. Both MacAllister and Lessee agree that no .rnoditications of this agreement shall be binding
upon MacAllister unless such modification, cancellation, addition thereto or notation shall be in
writing duly signed by MacAllister and duly approved by an officer of MacAllister at the home
office of MacAllister.
25. This rental before becoming effective must be approved by an Officer or other authorized
representative of MacAllister.
26. MacAllister may execute, file and sign Lessee's name to a financing statement or file a
financing statement signed only by MacAllister covering equipment or goods delivered or to he
delivered to Lessee under this agreement for "information purposes" or otherwise and also
covering proceeds and future advances. This agreement constitutes a reservation of title or
Security Agreement with reference to such transactions.
27. This agreement and acceptance of this agreement is subject to corrections for arithmetic
errors in computation.
28. MacAllister reserves the right to replace a rental unit with a like rental unit.
29. Lessee agrees to maintain the rented equipment per factory recommended lubrication and.
maintenance intervals and keep scheduled oil sample records. MacAllister reserves the right to
ask for maintenance records for the rental period. Should said maintenance records not be
available and factory recommended service maintenance is required, MacAllister will perform
the appropriate service work at the Lessee's expense.
30. MacAllister's rental machines will be full of fuel when they leave MaeAllister's premises.
Lessee agrees to return said rental equipment full of fuel or be charged with appropriate fuel
backcharge.
31. RATES. Rates are based on one shift operation 8 hour/day, 5 day/week or 40 hour/week,
160 hour/4 week rental month. Unless quoted otherwise, hours used in excess of"one" shift(i.e.
in excess of 8 hours per day or 40 hours per week or 1.60 hours per month) will result in an.
additional shift rate being charged, and hours used in excess of a two shift operation (i.e. greater
than 1.6 hours/day. 80 hours/week or 320 hours/month) shall result in yet an additional one shift
rate being charged.
32. Aggregation Clause: The terms and conditions of this Master Rental Agreement. shall cover
all equipment, machinery and appurtenances leased by Lessee from MacAllister both presently
and in the future. It is the intent of MacAllister and Lessee that this Master Rental Agreement
shall be construed as, and shall be, the only rental agreement between the parties, even though.
.Lessee may hereafter execute additional Master Rental Agreements. For instance, if Lessee
leases one piece of equipment from MacAllister under this agreement in January, then another in
May, both pieces of equipment shall be construed as having been leased under one agreement:
this Master Rental Agreement.
33. Damage Waivel-: Lessee specifically acknowledges that the payment of a fire, theft, or
vandalism damage waiver with respect to any equipment leased from MacAllister does not
satisfy Lessee's obligation to insure the equipment nor absolve Lessee of damage to the
equipment caused by the negligence or carelessness of Lessee. The damage waiver does not
insure Lessee from damage to the equipment caused by .Lessee, its agents, or others acting under
I...essee's control or operation of the equipment with Lessee's active or constructive permission.
34. Jurisdiction: The parties agree that any disputes arising hereunder shall be resolved in the
courts of Marion County, Indiana, and Lessee specifically subjects itself to the jurisdiction.
thereof. Further, Lessee agrees that in the event MacAllister is required to employee an attorney.
.for the purpose of enforcing the terms and conditions hereof, or with respect to the collection of
any amount due hereunder, MacAllister shall be entitled to recover its attorneys fees, cost of
collection, and all other reasonable expenses associated with such proceeding.
35. Accidents: Without demand Lessee shall notify 'Lessor immediately (and in any event,
within twenty-four (24) hours thereafter) of each accident involving any equipment covered by
this Master Rental Agreement. Lessee shall include such information as is known, including, but
not. limited to the Mice, place, and nature of the accident or damage, the names and addresses of
parties involved in the accident(s), including but. not limited to persons injured, witnesses, and
owners of property damaged. Lessee shall promptly advise Lessor of all correspondence, papers,
notices, or doctunems whatsoever, received by Lessee in connection with any claim or demand
involving or relating to any equipment or its operation and, together with Lessee's employees aid
in the investigation aitid defense oh'all such claims and demands, and in the recovery of damages
from third parties liable therefore.
36. Rental Protection Plan: This paragraph is in force provided Lessee a) accepts the "Rental.
Protection Plan" through the proper indication thereof on the front of this contract, and pays at
the time of equipment rental, or any extension of said equipment rental, an additional sum equal.
to 12 percent of the gross equipment rental charges; b) Lessee takes reasonable precautions to
protect equipment and does not intentionally damage said equipment; c) Lessee does not cause
any loss or damage by negligence, including but not limited to negligent use or operation of the
equipment in a reckless or abusive manner. Notwithstanding the purchase of a .Rental Protection
1.'lan, Lessee shall nonetheless remain liable 1.:br a) 25 percent of the manufacturer's list price not
to exceed S25,000 for stolen equipment and b) 50 percent of the cost. of repairs of any damaged.
equipment. Nothing, herein to the contrary, the following risks are expressly assumed by .1.....,essee
as its exclusive responsibility: a) Damages caused by use or operation of the equipment in a.
manner inconsistent with the rnanufacturer's instructions, or contrary to this contract; b) Loss or
damage of accessory equipment such as welding leads, electric cords, hits, batteries, hoses, tires,
tubes or harnesses, etc.; c) Loss due to operation of the equipment by a person other than an.
authorized operator per the contract or any dishonest act by 1....essee or by person(s) entrusted by
Lessee with the equipment., including Lessee's employees, subcontractors or agents; d) Loss of
damage due to ..flood, storm, earthquake or other external causes; e) .I....oss or damage due to
exceeding rated capacity, misuse, abuse, negligence, or improper servicing of equipment; f)
Seizure or destruction of equipment by order of governmental authority; g) All loss or damage
caused by vandalism, malicious mischief, disappearance, thefi or wrongful conversion of
equipment not reported by Lessee promptly (within 24 hours) to the police and Lessor by filing a
formal written theft, vandalism or conversion report; h) All loss or damage to equipment
resulting from nuclear reaction or radiation, or radioactive contamination from any other cause;
i.) Loss or damage ..r.:, a result of the striking of overhead objects with equipment; j) Loss or
damage to equipment occurring during the loading, unloading or transportation by I....,essee; k)
Loss clue to the equipment being upset or rolling over; m) 1.....oss or damage to equipment due to
the exposure and cortamination from hazardous material. This rental protection plan will not be
effective unless at the time of such loss or damage the I...essee's account with Lessor is current.
In any event, accrued rental charges cannot be applied against the purchase, or the cost of repair,
of damaged, stolen or lost equipment. In the event of any loss, damage or destruction to
equipment, Lessor will he subrogated to any rights of Lessee to recover against any person, firm
or corporation. Lessee will execute and deliver to Lessor whatever instruments and papers are
required, and take all other necessary steps to secure in Lessor such rights. Lessee will cooperate
fully with Lessor and/or its insurer(s) in the prosecution of those rights and will neither take nor
permit nor suffer any action to preiudice Lessor's or its insurer's rights with respect thereto. The
rental protection plan is not insurance and does not protect L,essee from its negligence, nor from
liability to others arising out of possession, use or oration of emApment.