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HomeMy WebLinkAbout23-19 Resolution No. 23-19 RESOLUTION AUTHORIZING EXECUTION OF A SALES AGREEMENT FOR THE SALE OF A FIRE APPARATUS TO BRINDLEE MOUNTAIN FIRE APPARATUS, LLC BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Sales Agreement on behalf of the City of Elgin for the sale of a fire apparatus consisting of a 2012 Pierce Arrow XT 100 foot tower vehicle to Brindlee Mountain Fire Apparatus, LLC in the amount of$400,000, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 8, 2023 Adopted: February 8, 2023 Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk SALES AGREEMENT THIS AGREEMENT is hereby made and entered into this 8th day of February 2023, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City" or "Seller") and Brindlee Mountain Fire Apparatus, LLC, a Delaware limited liability company, (hereinafter referred to as "BMFA" or"Buyer"). NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. PURCHASE. BMFA shall purchase, and City shall sell the goods described by Attachment A("Apparatus"), attached hereto and made a part hereof. 2. TERMS. This Agreement shall be subject to the terms and conditions contained herein and as provided by Attachment A. 3. LAW/VENUE. This agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be the Circuit Court of Kane County, Illinois. BMFA hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter hereof; and BMFA agrees that service by first class U.S. mail to 15410 US-231, Union Grove, AL 35175 shall constitute effective service. Both parties hereto waive any rights to a jury. 4. NO MODIFICATION. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 5. MERGER. This agreement embodies the whole agreement of the parties. There are no promises, terms, conditions or obligations other than those contained herein,and this agreement shall supersede all previous communications, representations or agreements, either verbal, written or implied between the parties hereto. 6. SEVERABILITY. The terms of this agreement shall be severable. In the event any of the terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any reason,the remainder of this agreement shall remain in full force and effect. 7. EXECUTION. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this agreement shall be re-executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense. 8. CONFLICT. In the event of any conflict between the terms and provisions of this purchase agreement and Attachment A hereto, the terms and provisions of this purchase agreement shall supersede and control. 9. PAYMENT. BMFA shall pay the total sum of $400,000 prior to pickup of Apparatus. 10. DELIVERY. BMFA shall pickup the Apparatus at the City's designated location on or before April 30, 2023. The Apparatus and all attendant equipment associated therewith are sold "AS IS". 11. TRANSFER OF TITLE/RISK. Transfer of title, and risk of loss shall pass to BMFA upon delivery of the goods. 12. RELATIONSHIP BETWEEN THE PARTIES. This Agreement shall not be construed so as to create a joint venture, partnership, employment or other agency relationship between the parties hereto. 13. WAIVER. Neither party hereto shall be responsible for any consequential, indirect, punitive or incidental damages for any reason whatsoever.Any delay or failure to enforce any rights by either party arising out of or pursuant to this Agreement shall not constitute, and shall not be construed as,a waiver of any such rights. 14. LIMITATION OF ACTIONS. BMFA shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City of Elgin and/or its affiliates, officers, employees, agents, attorneys, boards and commissions of any nature whatsoever and in whatsoever forum after two(2)years from the date of this Agreement. 15. NO WAIVER OF IMMUNITIFS OR RIGHTS. This agreement is not intended and shall not be construed to alter, limit, or constitute a waiver of any of the civil immunities afforded the City and/or its officials, officers, employees and/or agents pursuant to the Local Governmental and Governmental Employees Tort Immunity Act at 745 ILCS 10/1-101, et seq., as amended, the Emergency Telephone System Act at 50 ILCS 750/0.01 et seq., as amended, and/or as otherwise provided by law, it being agreed that all the civil immunities as set forth in such Acts,as amended, and/or as otherwise provided by law shall fully apply to any claims asserted or which might be asserted against the City and/or its respective officials, officers, employees and/or agents as a result of this agreement or any actions of the Parties pursuant to this agreement. 16. NO SPECIAL OR OTHER DUTY. No special duties or obligations are intended and shall not be deemed or construed to be created by this agreement. Notwithstanding anything to the contrary in this agreement, it is agreed and understood that no third party beneficiaries are intended or shall be construed to be created by the provisions of this agreement and it is the intention of the parties hereto that no action may be commenced by any person or entity against the City and/or its respective officials, officers, employees, agents and/or other related persons or entities for monetary damages for any alleged breach or failure to provide services described in this 2 agreement. The provisions of this section shall survive any expiration and/or termination of this agreement. 17. TESTING VERIFICATION. Prior to pickup of the Apparatus by BMFA, City shall provide a pump test certificate for the Apparatus dated within 30 days prior to the date of pickup of the Apparatus by BMFA, which shall include proper operation of the pressure governor, relief valve, primer, and foam system if applicable. City shall also provide an aerial test certificate for the Apparatus dated within 30 days prior to pickup of the Apparatus by BMFA. In the event the results of the aforementioned tests do not meet with the reasonable approval of BMFA prior to BMFA's pickup of the Apparatus, BMFA may terminate this agreement without penalty at any time prior to BMFA's pickup of the apparatus. The person signing this Agreement certifies that s/he has been authorized by the Buyer to commit the Buyer contractually and has been authorized to execute this Agreement on its behalf. IN WITNESS WHEREOF, the parties have hereto set their hands the day and year first above written. BRINDLEE MOUTAIN FIRE CITY OF ELGIN APPARATUS, LLC William C. Claunch, Jr. Print Name Richard G. Kozal, City ana 15rr wikam G GQaur�c��r Attest: Signature VP - Sales Title City Clerk Legal DepMgreement\13rindlee Fire Apparatus-Sale Agr-1-30-23.docx 3 BRINDLEE V � MOUNTAIN � , 'F�"RE APPARA'""S ATTACHMENT A Reference: 2012 Pierce Arrow XT 1007ower from Elgin FD- IL(the"Apparatus") Date Quoted: 1/25/2023 Mike Rothecker, Thank you for allowing Brindlee Mountain Fire Apparatus, LLC ("BMFA") the opportunity to provide an offer to purchase the Apparatus. We are pleased to offer Elgin FD - IL ("Seller") $400,000 for the purchase of the Apparatus, subject to the terms and conditions set forth herein. The offer is valid for acceptance by Seller until 2/28/23. Seller shall release the Apparatus to BMFA on or before 4/30/2023. All ground ladders, discharge caps, intake plugs, generators (permanently mounted and portable), cascade systems and cascade bottles, and permanently mounted items such as light towers, shall remain with the Apparatus and shall be released to BMFA.; The apparatus tires shall not be older than 7 years, and shall have a minimum tread depth of 4/32 on steering axles, 2/32 on non-steering axles, and no punctures, cuts to the cord, bulges or sidewall separation. BMFA shall pay Seller the full purchase price via check or wire transfer prior to the release of the Apparatus. Prior to payment of the purchase price by BMFA, Seller shall provide BMFA with a copy of the title (or in the circumstance set forth below the manufacturer's statement of origin or certificate of origin ("MSO or MCO") of the Apparatus reflecting the Seller as the owner of the Apparatus. Seller represents and warrants that the Apparatus will be sold to BMFA free and clear of any liens or other encumbrances. Seller shall deliver the vehicle title for the Apparatus, free of all liens, to BMFA within ten (10) days after final payment by BMFA. An MSO or MCO is acceptable only from original vehicle manufacturer and is not considered as proof of ownership from the Seller except when the state in which the purchaser is located does not require registration or title on emergency vehicles and a copy of that state's current law or statute clearly stating the exemption is provided by Seller with the MSO or MCO. The Apparatus must be completely drained of water prior to shipment or being stored outside prior to shipment. To effectively drain the truck of water, remove all caps and plugs (store on the truck in a compartment), open all intake/discharge valves halfway, and open all drain valves to include the pump cooler and auxiliary cooler. Failure to drain all water from the truck prior to shipment could result in damage to the fire apparatus and corresponding repairs will be performed at the expense of the seller.