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HomeMy WebLinkAbout2562 Beryl Landing - Generator for Lift Station AgreementGRANT MALOY, SEMINOLE COUNTY CLERK OF CIRCUIT COURT & COMPTROLLER CFN# 2024045474 Bk: 10632 Pg:242-251(10P9s) This Instrument Prepared By REC: 05/22/2024 1:23:43 PM by csmith And Return (If Recorded)To• RECORDING FEES $86.50 Deborah Cole, P.E. Utilities Systems Engineer City of Sanford City of Sanford 300 North Park Avenue Sanford, Florida 32771 Tax Parcel Identification Number(s): 22-19-30-5WC-0000-OOJO DEVELOPER'S CASH PERFORMANCE BOND AND AGREEMENT/ GENERATOR FOR LIFT STATION RELATING TO BERYL LANDING KNOW ALL MEN BY THESE PRESENTS: THE UNDERSIGNED Christopher Gardner as PRINCIPAL, the developer of the below named project, whose address is 921 Pennsylvania Ave., Winter Park, FL 32789 is, effective on the last date set forth below under a signature, held and firmly bound unto the CITY OF SANFORD ("CITY"), a municipal corporation of the State of Florida, whose address is 300 North Park Avenue, Sanford, Florida 32771, in the cash penal sum of $112,554.69, which sum has been deposited in escrow with the CITY. THE PRINCIPAL and its respective heirs, personal representatives, successors and assigns are bound firmly by this Cash Performance Bond. THE PRINCIPAL caused the installation of a generator relating to the following named development project: Beryl Landing. THE CITY has issued authority to the PRINCIPAL to develop real property within the City Limits of the CITY which development includes the matter set forth herein (the "Development Approval") which is described as follows: Providing working utility facilities including, but not limited to, a generator to supply needed utility services to the lift station constructed on the subject property and which is an element of the overall development of the subject property. ; and THE PRINCIPAL requested that the CITY approve the development of the subject property by means of a development order as may be recorded in Official Records of Seminole County and which is in and part of the records of the CITY and hereby made a part of this Cash Performance Bond; and THE PRINCIPAL, as a condition to obtaining the Development Approval, is required in accordance with controlling City codes, ordinances and regulations to provide a performance bond in favor of the CITY in an amount that is 125% of the actual cost for permanent generator improvements and costs determined to be needed by the CITY as well as to install a temporary generator to the satisfaction of the CITY. 11Page NOW, THEREFORE, THE CONDITION OF THE OBLIGATION IS SUCH, that if the CITY shall, within 1 year of the date of lift station start up approval by the CITY or the date of the full execution of this Cash Performance Bond, whichever occurs first, install a permanent generator for the development in accordance with City codes, ordinances, rules and regulations all to the satisfaction of the CITY; then this Cash Performance Bond herein and hereby deposited with the CITY shall be returned, but, if not, then the CITY shall retain said Cash Performance Bond amount to address the failure of the PRINCIPAL to install a permanent generator in such manner as the CITY may, in its sole discretion, determine to be appropriate, but the CITY may exercise its rights as set forth in the following paragraph. THE PRINCIPAL understands that the CITY may elect to institute suit against the PRINCIPAL to address any and all costs relating to the installation of a permanent generator which exceed of the Cash Performance Bond herein provided (that is, the funds recovered thereby prove insufficient to complete the obligation required by the this Cash Performance Bond), and the PRINCIPAL shall be liable hereunder to pay the CITY, any sums required to complete the obligation hereunder including, but not limited to, legal and contingent costs, together with any and all damages, direct or consequential, which the CITY may sustain because of the PRINCIPAL's failure to comply with all of the requirements hereof. THE PRINCIPAL hereby waives notice of any and all modifications, omissions, additions, changes and in or about City ordinances, the CITY's technical specifications and design criteria for utility work and facilities and improvements and, further, agrees that the obligations undertaken by this Cas Performance Bond shall not be impaired in any manner by reason of any modifications, omissions, additions, changes, and advance payments or deferred payments. SIGNATURE BLOCKS ON NEXT PAGE: 21Page ATTE Signature Printed Name: Andrew Gardner Printed Title: Manager STATE OF FLORIDA COUNTY OF SEMINOLE PRINCIPAL �� , k ' Signatueg Printed Name: Christopher Gardner Printed Title: Manager ACKNOWLEDGEMENT HEREBY CERTIFY that on this day, before me, an officer duly authorized to administer oaths and take acknowledgments, personally appeared Christopher Gardner {X} who is personally known to me or { } who produced as identification and s/he acknowledged before me that s/he executed the same. Sworn and subscribed before me, by said person by means of {X} physical presence or { ) online notarization on the 6th day of May 2024, the said person did take an oath and was first duly sworn by me, on oath, said person, further, deposing and saying that s/he has read the foregoing and that the statements and allegations contained herein are true and correct. WITNESS my hand and official seal in the of May 2024. Notary Public State of Florida Denver M Marlow 1=101111hmMy Commission HH 392257 Expires 4/27/2027 ACCEPTED BY: ST.- � Traci Hourh�i, RMC, FCRM (0 C�ty Cle�re� I D C I�i1 c � G,+' P 0c. Approv d as to form and legal sufficiency William L. Colbert, Esquire City Attorney 3 1 P a g e Count and State last aforesaid this 6th day N tory Public; State of Florida (Affix Notarial Seal) Printed Name: Denver Marlow My Commission Expires: 04/27/27 CITY OF SANFORD- By: Eileen Hinson, AICP Director of Planning/Administrative Official (Under Delegated Authority) Sales and Service April 14, 2023 Prepared by Cameron Ploch (813)205-7806 cameron.ploch@cummins.com We are pleased to provide you this quotation based on your inquiry. Project: All Souls Lift Station- Sanford FL Quotation: Q-61114-20230414-1251- All Souls Lift Station Item I Description I Qty C50136C, Diesel Genset, 601-11z, 50kW U.S. EPA, Stationary Emergency Application C50D6C, Diesel Genset, 60Hz, 50kW Duty Rating -Standby Power (ESP) Emission Certification, EPA, Tier 3, NSPS Cl Stationary Emergency Listing -UL 2200 NFPA 110 Type 10 Level 1 Capable Exciter/Regulator-Permanent Magnet Generator, 3 Phase Sensor Voltage -120/240, 3 Phase, Delta, 4 Wire Alternator -601-1z, 12L, 240/120V, 105C, 40C Ambient, Increased Motor Starting (IMS) Alternator Heater, 120 Volt AC Aluminum Sound Attenuated Level 1 Enclosure, with Exhaust System Enclosure Color -Green, Aluminum Enclosure - Wind Load 180 MPH, ASCE7-10 Skidbase-Housing Ready UL142 Sub Base Dual Wall Basic, Diesel Fuel Tank, 48 Hour Minimum (389 Gallons) Fuel Water Separator Low Fuel Level Switch, 40% Mechanical Fuel Gauge Switch -Fuel Tank, Rupture Basin Control Mounting -Left Facing PowerCommand 2.3 Controller Gauge -Oil Pressure Analog Meters -AC Output Stop Switch -Emergency Relays -Auxiliary, Qty 2, 25A -15V DC/10A-30V DC Signals -Auxiliary, 8 Inputs/8 Outputs Control Display Language -English Load Connection -Single Circuit Breaker, Location A, 70A - 250A, 3P, LSI, 600 Volts AC, 100°/x, UL Circuit Breaker or Terminal Box Position B -None Circuit Breaker or Terminal Box Position C -None Engine Governor -Electronic, Isochronous Engine Starter -12 Volt DC Motor Engine Air Cleaner -Normal Duty Battery Charging Alternator Battery Charger -6 Amp, Regulated Engine Cooling -Radiator, High Ambient Air Temperature, Ship Fitted Shutdown -Low Coolant Level Extension -Coolant Drain Engine Coolant -50% Antifreeze, 50% Water Mixture Coolant Heater Engine Oil Genset Warranty -2 Years Base Literature -English Packing -Skid, Poly Bag Larger Battery Rack Extension -Oil Drain Pad Isolator 4x8x1 Rubber ( ACE ) 0 Quotation: Q-61114-20230414-1251- All Souls Lift Station Pant 'I of R Sales and Service Project: All Souls Lift Station- Sanford FL Quotation: Q-61114-20230414-1251- All Souls Lift Station 2 OTECB, OTEC Transfer Switch -Electronic Control: 225A 1 OTEC225, Transfer Switch, PowerCommand, 225 Amp Listing -UL 1008/CSA Certification Application -Utility to Genset Cabinet -Type 4x Stainless Poles -3 (Solid Neutral) Frequency -60 Hz System -3 Phase, 3 or 4 Wire Voltage -240 Volts AC Genset Starting Battery -12V DC PC40 Control Aux Relay -Emergency Position -12 Volts DC Aux Relay -Normal Position -12 Volts DC Interface -Communications Network, MODBUS RTU Module Transfer Switch Warranty -2 Year Comprehensive 3 Freight & other charges 1 4 Service - start up & testing 1 TOTAL: $ 90,043.75 NOTES: • Current Submittal Lead Time: 1-2 weeks • Current Production Lead Time (after receipt of approved submittal and accepted PO): • Transfer Switch(es): 14-16 weeks • Generator: 14-16 weeks • Price quoted is F.O.B. factory with freight allowed to the first U.S. destination. • Price does not include any applicable taxes unless listed above. • All ship loose items installed by others. • Unloading, installation, and fuel are not included and will be the responsibility of others. • Warranty: Cummins 2 -year warranty begins at the successful completion of startup and testing in lieu of acceptance or substantial completion. • Startup & Training: • Providing Cummins standard startup and the specific testing listed above only. All other testing including NETA testing is provided by others. • Our proposal includes trips during normal business hours to complete the onsite services listed above. If additional trips or after-hours trips are required, additional cost will be incurred. • Training for maintenance personnel will be concurrent at time of startup unless otherwise noted. • No videotaping is included with this quotation. All taping is supplied by others. • PMA: Generator Maintenance Agreement is not included and will be negotiated directly with the owner once equipment has been successfully started up and tested. • NOTICE. As a result of the outbreaks of the disease COVID-19 arising from the novel coronavirus, temporary delays in delivery, labor, or services from Cummins and its sub -suppliers or subcontractors may occur. Among other factors, Cummins' delivery is subject to correct and punctual supply from our sub -suppliers or subcontractors, and Cummins reserves the right to make partial deliveries or modify its labor or service. While Cummins shall make every commercially reasonable effort to meet the delivery, service, or completion described herein, such date(s) is(are) subject to change. Please feel free to contact me if you require any additional information; or if you have any further questions or concerns that I may be of assistance with. Thank you for choosing Cummins. Submitted by: Quotation: Q-61114-20230414-1251- All Souls Lift Station Pana 9 of A Sales and Service Cameron Ploch, Sales Executive, PG cameron.ploch(cDcummins.com (813) 205-7806 Project: All Souls Lift Station- Sanford FL Quotation: Q-61114-20230414-1251- All Souls Lift Station SUBMITTALS. An order for the equipment covered by this quotation will be accepted on a hold for release basis. Your order will not be released and scheduled for production until written approval to proceed is received in our office. Such submittal approval shall constitute acceptance of the terms and conditions of this quotation unless the parties otherwise agree in writing. THERE ARE ADDITIONAL CONTRACT TERMS AND CONDITIONS ATTACHED TO THIS QUOTATION, INCLUDING LIMITATIONS OF WARRANTIES AND LIABILITIES, WHICH ARE EXPRESSLY INCORPORATED HEREIN. BY ACCEPTING THIS QUOTATION, CUSTOMER ACKNOWLEDGES THAT THE CONTRACT TERMS AND CONDITIONS HAVE BEEN READ, FULLY UNDERSTOOD AND ACCEPTED. Authorized Signature Central Florida Liftstations Company Name Frederick Fisher Printed Name & Title Hold for approved submittals Purchase Order No <Rest of the page is intentionally left blank> 4/20 Date Quotation: Q-61114-20230414-1251- All Souls Lift Station Pana R of A Sales and Service Project: All Souls Lift Station- Sanford FL Quotation: Q-61114-20230414-1251- All Souls Lift Station TERMS AND CONDITIONS FOR SALE OF POWER GENERATION EQUIPMENT These Terms and Conditions for Sale of Power Generation Equipment, together with the Quote, Sates Order, and/or Credit Application on the front side or attached hereto, are hereinafter referred to as this "Agreement" and shall constitute the entire agreement between the customer identified in the quote ("Customer") and Cummins Inc. ("Cummins") and supersede any previous representation, statements, agreements or understanding (oral or written) between the parties with respect to the subject matter of this Agreement. Customer shall be deemed to have made an unqualified acceptance of these Terms and Conditions and it shall become a binding agreement between the parties on the earliest of the following to occur. (1) Cummins' receipt of Customer's purchase order or purchase order number, (ii) Customers signing or acknowledgment of this Agreement; (iii) Cummins' release of Products to production pursuant to Customers oral or written instruction or direction; (iv) Customer's payment of any amounts due to Cummins; or (v) any other event constituting acceptance under applicable law. No prior inconsistent course of dealing, course of performance, or usage of trade, if any, constitutes a waiver of, or serves to explain or interpret, the Terms and Conditions set forth in this Agreement. Electronic transactions between Customer and Cummins will be solely governed by the Terms and Conditions of this Agreement, and any terms and conditions on Customers website or other Internet site will be null and void and of no legal effect on Cummins. In the event Customer delivers, references, incorporates by reference, or produces any purchase order or document, any terms and conditions related thereto: (i) shall be null and void and of no legal effect on Cummins, and (ii) this Agreement shall remain the governing terms of the transaction. SCOPE Cummins shall supply power generation equipment and any related parts, materials and/or services expressly identified in this Agreement (collectively,"Equipment"). No additional services, parts or materials are included in this Agreement unless agreed upon by the parties in writing. A Sales Order for Equipment is accepted on hold for release basis. The Sales Order will not be released and scheduled for production until written approval to proceed is received. A Quote is limited to plans and specifications section set forth in the Quote. No other sections shall apply. Additional requirements for administrative items may require additional costs. The Quote does not include off unit wiring, off unit plumbing, offloading, rigging, installation, exhaust insulation or fuel, unless otherwise stated. SHIPPING; DELIVERY; DELAYS Unless otherwise agreed in writing by the parties, Equipment shall be delivered FOB origin, freight prepaid to first destination. For consumer and mobile products, freight will be charged to Customer. Unless otherwise agreed to in writing by the parties, packaging method, shipping documents and manner, route and carrier and delivery shall be as Cummins deems appropriate. Cummins may deliver in installments. A reasonable storage fee, as determined by Cummins, may be assessed if delivery of the Equipment is delayed, deferred, or refused by Customer. Offloading, handling, and placement of Equipment and crane services are the responsibility of Customer and not included unless otherwise stated. All shipments are made within normal business hours, Monday through Friday. Any delivery, shipping, installation, or performance dates indicated in this Agreement are estimated and notguaranteed. Further, delivery time is subject to confirmation at time oforder and will be in effect after engineering drawings have been approved for production. Cummins shall use best efforts to meet estimated dates, but shall not be liable to customer or any third party for any delay in delivery, shipping, installation, or performance, however occasioned, including any delays in performance that result directly or indirectly from acts of Customer or any unforeseen event, circumstance, or condition beyond Cummins' reasonable control including, but not limited to, acts of God, actions by any government authority, civil strife, fires, floods, windstorms, explosions, riots, natural disasters, embargos, wars, strikes or other labor disturbances, civil commotion, terrorism, sabotage, late delivery by Cummins' suppliers, fuel or other energy shortages, or an inability to obtain necessary labor, materials, supplies, equipment or manufacturing facilities. AS A RESULT OF THE OUTBREAK OF THE DISEASE COVID-19 ARISING FROM THE NOVEL CORONAVIRUS, TEMPORARY DELAYSINDELIVERY, LABOUR OR SERVICESFROMCUMMINSANDITS SUB -SUPPLIERS OR SUBCONTRACTORS MAY OCCUR. AMONG OTHER FACTORS, CUMMINS' DELIVERY OBLIGATIONS ARE SUBJECT TO CORRECT AND PUNCTUAL SUPPLY FROM OUR SUB -SUPPLIERS OR SUBCONTRACTORS, AND CUMMINS RESERVES THE RIGHT TO MAKE PARTIAL DELIVERIES OR MODIFYITS LABOUR OR SERVICE. WHILE CUMMINS SHALL MAKE EVERY COMMERCL4LLYREASONABLE EFFORT TO MEET THE DELIVERY, SERVICE OR COMPLETION OBLIGATIONS SET FORTH HEREIN, SUCH DATES ARE SUBJECT TO CHANGE. PAYMENT TERMS; CREDIT; RETAINAGE Unless otherwise agreed to by the parties in writing and subject to credit approval by Cummins, payments are due thirty (30) days from the date of the invoice. If Customer does not have approved credit with Cummins, as solely determined by Cummins, payments are due in advance or at the time of supply of the Equipment. If payment is not received when due, in addition to any rights Cummins may have at law, Cummins may charge Customer eighteen percent (18%) interest annually on late payments, or the maximum amount allowed by law. Customer agrees to pay Cummins' costs and expenses (including reasonable attorneys' fees) related to Cummins' enforcement and collection of unpaid invoices, or any other enforcement of this Agreement by Cummins. Retainage is not acceptable nor binding, unless required by statute or accepted and confirmed in writing by Cummins prior to shipment. TAXES; EXEMPTIONS Unless otherwise staled, the Quote excludes all applicable local, stale and federal sales and/or use taxes, permits and licensing. Customer must provide a valid resale or exemption certificate prior to shipment of Equipment or applicable taxes will be added to the invoice. TITLE; RISK OF LOSS Unless otherwise agreed in writing by the parties, title and risk of loss for the Equipment shall pass to Customer upon delivery of the Equipment by Cummins to freight carrier or to Customer at pickup at Cummins' facility. INSPECTION AND ACCEPTANCE Customer shall inspect the Equipment upon delivery, before offloading, for damage, defects, and shortage. Any and all claims which could have been discovered by such inspection shall be deemed absolutely and unconditionally waived unless noted by Customer on the bill of lading. Where Equipment is alleged to be non -conforming or defective, written notice of defect must be given to Cummins within three (3) days from date of delivery after which time Equipment shall be deemed accepted. Cummins shall have a commercially reasonable period of time in which to correct such non -conformity or defect. If non -conformity or defect is not eliminated to Customers satisfaction, Customer may reject the Equipment (but shall protect the Equipment until returned to Cummins) or allow Cummins another opportunity to undertake corrective action. In the event startup of the Equipment Is Included in the services, acceptance shall be deemed to have occurred upon successful startup. LIEN; SECURITY AGREEMENT Customer agrees that Cummins retains all statutory lien rights. To secure payment, Customer grants Cummins a Purchase Money Security Interest in the Equipment. If any portion of the balance is due to be paid following delivery, Customer agrees to execute and deliver such security agreement, financing statements, deed of trust and such other documents as Cummins may request from time to time in order to permit Cummins to obtain and maintain a perfected security interest in the Equipment; or in the alternative, Customer grants Cummins a power of attorney to execute and file all financing statements and other documents needed to perfect this security interest. Cummins may record this Agreement, bearing Customers signature, or copy of this Agreement in lieu of a UCC -1, provided that it shall not constitute an admission by Cummins of the applicability or non -applicability of the UCC nor shall the failure to file this form or a UCC -1 in any way affect, alter, or invalidate any term, provision, obligation or liability under this Agreement. The security interest shall be superseded if Customer and Cummins enter into a separate security agreement for the Equipment. Prior to full payment of the balance due, Equipment will be kept at Customers location noted in this Agreement, will not be moved without prior notice to Cummins, and is subject to inspection by Cummins at all reasonable times. CANCELLATION; CHARGES Orders placed with and accepted by Cummins may not be cancelled except with Cummins' prior written consent. If Customer seeks to cancel all or a portion of an order placed pursuant to this Agreement, and Cummins accepts such cancellation in whole or in part, Customer shall be assessed cancellation charges as follows: (i) 10% of total order price if cancellation is received in Cummins' office after Cummins has provided submittals and prior to releasing equipment to be manufactured; (ii) 25% of total order price if cancellation is received in Cummins' office after receipt of submittal release to order, receipt of a purchase order for a generator already on order with the factory, or is asked to make any hardware changes to the equipment already on order with the factory; (iii) 50% of total order price if cancellation is received in Cummins' office 60 or fewer days before the scheduled shipping date on the order; or (iv)100 % of total order price if cancellation is received in Cummins' office after the equipment has shipped from the manufacturing plant. MANUALS Unless otherwise stated, electronic submittals and electronic operation and maintenance manuals will be provided, and print copies may be available upon Customers request at an additional cost. TRAINING; START UP SERVICES; INSTALLATION Startup services, load bank testing, and owner training are not provided unless otherwise stated. Site startup will be subject to the account being current and will be performed during regular Cummins business hours, Monday to Friday. Additional charges may be added for work requested to be done outside standard business hours, on weekends, or holidays. One visit is allowed unless specified otherwise in the Quote. A minimum of two-week prior notice is required to schedule site startups and will be subject to prior commitments and equipment and travel availability. A signed site check sheet confirming readiness will be required, and Cummins personnel may perform an installation audit prior to the startup being completed. Any issues identified by the installation audit shall be corrected at the Customers expense prior to the start-up. Portable load banks for site test (if offered in the Quote) are equipped with only 100 feet of cable. Additional lengths may be arranged at an extra cost. Cummins is not responsible for any labor or materials charged by others associated with start-up and installation of Equipment, unless previously agreed upon in writing. Supply of fuel for start-up and/or testing, fill -up of tank after start up, or change of oil is not included unless specified in the Quote. All installation/execution work at the site including, but not limited to: civil, mechanical, electrical, supply of wall thimbles, exhaust extension pipe, elbows, hangers, expansion joints, insulation and cladding materials, fuel/oil/cooling system piping, air ducts, and louvers/dampers is not included unless specified in the Quote. When an enclosure or sub -base fuel tank (or both) are supplied, the openings provided for power cable and fuel piping entries, commonly referred to as "stub -ups", must be sealed at the site by others before commissioning. All applications, inspections and/or approvals by authorities are to be arranged by Customer. MANUFACTURER'S WARRANTY Equipment purchased hereunder is accompanied by an express written manufacturers warranty ("Warranty") and, except as expressly provided in this Agreement, is the only warranty offered on the Equipment. A copy of the Warranty is available upon request. While this Agreement and the Warranty are intended to be read and applied In conjunction, where this Agreement and the Warranty conflict, the terms of the Warranty shall prevail. Quotation: Q-61114-20230414-1251- All Souls Lift Station Pane 4 of 6 Sales and Service Project: All Souls Lift Station- Sanford FL Quotation: Q-61114-20230414-1251 -All Souls Lift Station WARRANTY PROCEDURE Prior to the expiration of the Warranty, Customer must give notice of a warrantable failure to Cummins and deliver the defective Equipment to a Cummins location or other location authorized and designated by Cummins to make the repairs during regular business hours. Cummins shall not be liable for towing charges, maintenance items such as oil filters, bells, hoses, etc., communication expenses, meals, lodging, and incidental expenses incurred by Customer or employees of Customer, "downtime" expenses, overtime expenses, cargo damages and any business costs and losses of revenue resulting from a warrantable failure. LIMITATIONS ON WARRANTIES THE REMEDIES PROVIDED IN THE WARRANTY AND THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES PROVIDED BY CUMMINS TO THE CUSTOMER UNDER THIS AGREEMENT. EXCEPT AS SET OUT IN THE WARRANTY AND THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, CUMMINS EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY STATUTORY OR COMMON LAW IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE OR MERCHANTABILITY. The limited warranty does not cover Equipment failures resulting from: (a) inappropriate use relative to designated power rating; (b) inappropriate use relative to application guidelines; (c) inappropriate use of an EPA -SE application generator set relative to EPA's standards; (d) normal wear and tear; (e) improper and/or unauthorized installation; (f) negligence, accidents, or misuse; (g) lack of maintenance or unauthorized or improper repair; (h) noncompliance with any Cummins published guideline or policy; (1) use of improper or contaminated fuels, coolants, or lubricants; 0) improper storage before and after commissioning; (k) owner's delay in making Equipment available after notification of potential Equipment problem; (1) replacement parts and accessories not authorized by Cummins; (m) use of battle short mode; (n) owner or operator abuse or neglect such as: operation without adequate coolant, fuel, or lubricants; over fueling; over speeding; lack of maintenance to lubricating, fueling, cooling, or air intake systems; late servicing and maintenance; improper storage, starting, warm-up, running, or shutdown practices, or for progressive damage resulting from a defective shutdown orwanning device; or (o) damage to parts, fixtures, housings, attachments and accessory items that are not part of the generating set. INDEMNITY Customer shall indemnify, defend and hold harmless Cummins from and against any and all claims, actions, costs, expenses, damages and liabilities, including reasonable attorneys' fees, brought against or incurred by Cummins related to or arising out of this Agreement or the Equipment supplied under this Agreement (collectively, the "Claims"). where such Claims were caused or contributed to by, in whole or in part, the acts, omissions, fault or negligence of the Customer. Customer shall present any Claims covered by this indemnity to its insurance carrier unless Cummins directs that the defense will be handled by Cummins' legal counsel at Customer's expense. LIMITATION OF LIABILITY NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT, IN NO EVENT SHALL CUMMINS, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DOWNTIME, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, LOSS OF OPPORTUNITY, DAMAGE TO GOODWILL, ENHANCED DAMAGES, MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY, AND/OR DAMAGES CAUSED BY DELAY) IN ANY WAY RELATED TO OR ARISING FROM CUMMINS' SUPPLY OF EQUIPMENT UNDER THIS AGREEMENT OR THE USE OR PERFORMANCE OF EQUIPMENT SUPPLIED UNDER THIS AGREEMENT. IN NO EVENT SHALL CUMMINS' LIABILITY TO CUSTOMER OR ANY THIRD PARTY CLAIMING DIRECTLY THROUGH CUSTOMER OR ON CUSTOMER'S BEHALF UNDER THIS AGREEMENT EXCEED THE TOTAL COST OF EQUIPMENT SUPPLIED BY CUMMINS UNDER THIS AGREEMENT GIVING RISE TO THE CLAIM. BY ACCEPTANCE OF THIS AGREEMENT, CUSTOMER ACKNOWLEDGES CUSTOMER'S SOLE REMEDY AGAINST CUMMINS FOR ANY LOSS SHALL BE THE REMEDY PROVIDED HEREIN EVEN IF THE EXCLUSIVE REMEDY UNDER THE WARRANTY IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. DEFAULT; REMEDIES . Customer shall be in breach and default if: (a) any of the payments or amounts due under this Agreement are not paid; (b) Customer fails to comply, perform, or makes any misrepresentation relating to any of the Customer's obligations or covenants under this Agreement; or (c) prior to full payment of the balance due, Customer ceases to do business, becomes insolvent, makes an assignment for the benefit of its creditors, appoints a receiver, commences an action for dissolution or liquidation, or becomes subject to bankruptcy proceedings, or the Equipment is attached, levied upon, seized under legal process, is subjected to a lien or encumbrance, or transferred by operation of law or otherwise to anyone other than Cummins. Upon the occurrence of any event of Customer's default, Cummins, at its sole option and without notice, shall have the right to exercise concurrently or separately any one or all of the following remedies, which shall be cumulative and not alternative: (a) to declare all sums due, and to become due, under this Agreement immediately due and payable; (b) to commence legal proceedings, including collection actions and specific performance proceedings, to enforce performance by Customer of any and all provisions of this Agreement, and to be awarded damages or injunctive relief for the Customer's breach; (c) to require the Customer to deliver the Equipment to Cummins' branch specified on the face of this Agreement; (d) to exercise one or more of the rights and remedies available to a secured party under applicable law; and (e) to enter, without notice or liability or legal process, onto any premises where the Equipment may be located, using force permitted by law, and there to disconnect, remove and repossess the Equipment, the Customer having waived further right to possession after default. A waiver of any event of default by Cummins shall not be a waiver as to any other or subsequent default. CUSTOMER REPRESENTATIONS; RELIANCE Customer is responsible for obtaining, at its cost, permits, import licenses, and other consents in relation to the Equipment, and if requested by Cummins, Customer shall make these permits, licenses, and consents available to Cummins prior to shipment. Customer represents that it is familiar with the Equipment and understands operating instructions and agrees to perform routine maintenance services. Until the balance is paid in full, Customer shall care for the Equipment properly, maintain it in good operating condition, repair and appearance; and Customer shall use it safely and within its rated capacity and only for purpose it was designed. Even if Customer's purchase of Equipment from Cummins under this Agreement is based, in whole or in part, on specifications, technical information, drawings, or written or verbal advice of any type from third parties, Customer has sole responsibility for the accuracy, correctness and completeness of such specifications, technical information, drawings, or advice. Cummins make no warranties or representations respecting the accuracy, correctness and completeness of any specifications, technical information, drawings, advice or other information provided by Cummins. Cummins makes no warranties or representations respecting the suitability, fitness for intended use, compatibility, integration or installation of any Equipment supplied under this Agreement. Customer has sole responsibility for intended use, for installation and design and performance where it is part of a power, propulsion, or other system. Limitation ofwarranties and remedies and all disclaimers apply to all such technical information, drawings, or advice. Customer acknowledges and agrees by accepting delivery of the Equipment that the Equipment purchased is of the size, design, capacity and manufacture selected by the Customer, and that Customer has relied solely on its own judgment in selecting the Equipment CONFIDENTIALITY Each party shall keep confidential any information received from the other that is not generally known to the public and at the time of disclosure, would reasonably be understood by the receiving party to be proprietary or confidential, whether disclosed in oral, written, visual, electronic, or other form, and which the receiving party (or agents) learns in connection with this Agreement including, but not limited to: (a) business plans, strategies, sales, projects and analyses; (b) financial information, pricing, and fee structures; (c) business processes, methods, and models; (d) employee and supplier information; (e) specifications; and (f) the terms and conditions of this Agreement. Each party shall take necessary steps to ensure compliance with this provision by its employees and agents. GOVERNING LAW AND JURISDICTION This Agreement and all matters arising hereunder shall be governed by and construed in accordance with the laws of the State of Indiana without giving effect to any choice or conflict of law provision. The parties agree that the courts of the State of Indiana shall have exclusive jurisdiction to settle any dispute or claim arising in connection with this Agreement. INSURANCE Upon Customer's request, Cummins will provide to Customer a Certificate of Insurance evidencing Cummins' relevant insurance coverage. ASSIGNMENT This Agreement shall be binding on the parties and their successors and assigns. Customer shall not assign this Agreement without the prior written consent of Cummins. INTELLECTUAL PROPERTY Any intellectual property rights created by either party, whether independently or jointly, in the course of the performance of this Agreement or otherwise related to Cummins pre-existing intellectual property or subject matter related thereto, shall be Cummins' property. Customer agrees to assign, and does hereby assign, all right, title, and interest to such intellectual property to Cummins. Any Cummins pre- existing intellectual property shall remain Cummins' property. Nothing in this Agreement shall be deemed to have given Customer a license or any other rights to use any of the intellectual property rights of Cummins. PRICING To the extent allowed by law, actual prices may vary from the price at the time of order placement, as the same will be based on prices prevailing on the date of shipment. Subject to local laws. Cummins reserves the right to adjust pricing on goods and services due to input and labor cost changes and other unforeseen circumstances beyond Cummins' control. Quotation: Q-61114-20230414-1251- All Souls Lift Station Panp S of R Sales and Service MISCELLANEOUS Project: All Souls Lift Station- Sanford FL Quotation: Q-61114-20230414-1251- All Souls Lift Station Cummins shall be an independent contractor under this Agreement.All notices under this Agreement shall be in writing and be delivered personally, mailed via first class certified or registered mail, or sent by a nationally recognized express courier service to the addresses set forth in this Agreement. No amendment of this Agreement shall be valid unless it is writing and signed by the parties hereto. Failure of either party to require performance by the other party of any provision hereof shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver by a party of a breach of any of the provisions hereof constitute a waiver of any succeeding breach.Any provision of this Agreement that is invalid or unenforceable shall not affect the validity or enforceability of the remaining terms hereof.These terms are exclusive and constitute entire agreement. Customer acknowledges that the provisions were freely negotiated and bargained for and Customer has agreed to purchase of the Equipment pursuant to these terms and conditions. Acceptance of this Agreement is expressly conditioned on Customer's assent to all such terms and conditions. Neither party has relied on any statement, representation, agreement, understanding, or promise made by the other except as expressly set out in this Agreement. In the event of a conflict in the terms of this Agreement with any Customer terms or conditions or agreement (whether referenced in an order submitted by Customer as the terms that govern the purchase of the Equipment or otherwise) or any terms set forth in any other documentation of Customer with respect to the Equipment, the terms of this Agreement shall govem.Cummins may incur additional charges which will be passed on to the Customer, as applicable. COMPLIANCE Customer shall comply with all laws applicable to its activities under this Agreement, including, without limitation, any and all applicable federal, state, and local anti -bribery, environmental, health, and safety laws and regulations then in effect. Customer acknowledges that the Equipment, and any related technology that are sold or otherwise provided hereunder may be subject to export and other trade controls restricting the sale, export, re-export and/or transfer, directly or indirectly, of such Equipment or technology to certain countries or parties, including, but not limited to, licensing requirements under applicable laws and regulations of the United States, the United Kingdom and other jurisdictions. It is the intention of Cummins to comply with these laws, rules, and regulations. Any other provision of this Agreement to the contrary notwithstanding, Customer shall comply with all such applicable all laws relating to the cross-border movement of goods or technology, and all related orders in effect from time to time, and equivalent measures. Customer shall act as the importer of record with respect to the Equipment and shall not resell, export, re-export, distribute, transfer, or dispose of the Equipment or related technology, directly or indirectly, without first obtaining all necessary written permits, consents, and authorizations and completing such formalities as may be required under such laws, rules, and regulations. In addition, Cummins has in place policies not to distribute its products for use in certain countries based on applicable laws and regulations including but not limited to UN, U.S., UK, and European Union regulations. Customer undertakes to perform its obligations under this Agreement with due regard to these policies. Strict compliance with this provision and all laws of the territory pertaining to the importation, distribution, sales, promotion and marketing of the Equipment is a material consideration for Cummins entering into this Agreement with Customer and continuing this Agreement for its term. Customer represents and warrants that it has not and shall not, directly or through any intermediary, pay, give, promise to give or offer to give anything of value to a government official or representative, a political party official, a candidate for political office, an officer or employee of a public international organization or any other person, individual or entity at the suggestion, request or direction or for the benefit of any of the above-described persons and entities for the purposes of inducing such person to use his influence to assist Cummins in obtaining or retaining business or to benefit Cummins or any other person in any way, and will not otherwise breach any applicable laws relating to anti -bribery. Any failure by Customer to comply with these provisions will constitute a default giving Cummins the right to immediate termination of this Agreement and/or the right to elect not to recognize the warranties associated with the Equipment. Customer shall accept full responsibility for any and all civil or criminal liabilities and costs arising from any breaches of those laws and regulations and will defend, indemnify, and hold Cummins harmless from and against any and all fines, penalties, claim, damages, liabilities, judgments, costs, fees, and expenses incurred by Cummins or its affiliates as a result of Customer's breach. To the extent applicable, this contractor and subcontractor shall abide by the requirements of 41 CFR H 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. The employee notice requirements set forth in 29 CFR Part 471, Appendix A to Subpart A, are hereby incorporated by reference into this contract. o Check if this Agreement pertains to government work or facilities Quotation: Q-61114-20230414-1251- All Souls Lift Station Pan,- A of F LTI_ "I 1 4 ` MOORHEAD &STOKES, LLC May 8, 204 City of Sanford Attn: Deborah Cole, P.E. 300 N. Park Ave. Sanford, FL 32771 RE: All Souls SDP22-000018 Dear Deborah: The items listed below are excerpted from the contracted total for the above -referenced project: SANITARYSEWER SYSTEM LIFT STATION GENERATOR 1 EA $ 90,043.75 $ 90,043.75 TOTAL: $90,043.75 Public Utilities Performance Bond 125% $ 112,554.69 If you have any quesg0ii ' e4'4%1ej free to contact our office. M� eF Sincerely, e ` •' \GEN ' e' : \, Sic' S, No. 79452 . -P = .fl : STATE OF �frr , SJR/ � u � � `♦ Benjamin S. Be ckham;� <<.r9#�34F5���� Senior Project Manager H:\Data\20030\Construction Admin\Cost Certificates\Cost Certification -City of Sanford - 5.8.24 431 E. Horatio Avenue I Suite 260 1 Maitland, FL 32751 1407-629-8330