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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.