ORD NO 18-2021 CITY OF VAN BUREN,ARKANSAS
ORDINANCE NO. /$ -2021
BE IT ENACTED BY THE CITY COUNCIL, FOR THE CITY OF VAN BUREN,ARKANSAS
AN ORDINANCE TO BE ENTITLED:
AN AMENDMENT TO ORDINANCE 17-2021 AUTHORIZING A
CONTRACT FOR, AND PURCHASE OF A PIERCE FIRE
APPARATUS ON A SABER FR CUSTOM CHASSIS AND
FIREFIGHTING EQUIPMENT FROM G&W
DIESEL/EMERGENCY VEHICLE SPECIALISTS,INC.
WHEREAS, the Van Buren City Council approved Ordinance 17-2021, which incorrectly authorized
the purchase of a Pierce Fire Apparatus on a Saber FR Custom Chassis and firefighting
equipment from Pierce Manufacturing; and
WHEREAS, the fire apparatus and equipment mentioned above will be purchased from G&W
Diesel/Emergency Vehicle Specialists, Inc.
NOW,THEREFORE,BE IT ORDAINED AND ENACTED BY THE CITY COUNCIL OF
THE CITY OF VAN BUREN,ARKANSAS,THAT:
SECTION 1: The Mayor and City Clerk are hereby authorized by the City Council for the City of Van
Buren to purchase and execute all documents,contracts, and agreements for a Pierce Fire
Apparatus on a Saber FR Custom Chassis, and associated firefighting equipment,from
G&W Diesel/Emergency Vehicle Specialists, Inc.,for the sum of$550,000.00,per the
attached contract.
IN WITNESS WHEREOF,the City of Van Buren,Arkansas,by its City Council,did pass,
approve, and adopt,by a vote of & for and V against,the foregoing Ordinance at its regular meeting
held on the 27'day of December 2021.
e h P. HuFst
Mayor
ATTESTED: APPROVED AS TO FORM:
Phyl Thomas well
City Clerk/Treasurer City Attorney
ON vs
Diesel Services, Inc.
EMERGENCY VEHICLE SPECIALISTS
I This Purchase Agreement(together with all attachments referenced herein, the "Agreement"), made and entered into by and
between G&W Diesel/Emergency Vehicle Specialists Inc.,a Tennessee corporation("EVS"),and City of Van Buren,Ar
A Municipality("Customer")is effective as of the date specified in Section 3 hereof.
1.Definitions.
a. "Product"means the fire apparatus and any associated equipment manufactured or furnished for the Customer by EVS
pursuant to the Specifications.
b. "Specifications"means the general specifications, technical specifications,training, and testing requirements for the
Product contained in the EVS Proposal for the Product prepared in response to the Customer's request for proposal.
c. "EVS Proposal"means the proposal provided by EVS attached as Exhibit C prepared in response to the Customer's
request for proposal.
d. "Delivery"means the date EVS is prepared to make physical possession of the Product available to the Customer.
e. "Acceptance"The Customer shall have fifteen(15) calendar days of Delivery to inspect the Product for substantial
conformance with the material Specifications;unless EVS receives a Notice of Defect within fifteen(15)calendar days
of Delivery,the Product will be deemed to be in conformance with the Specifications and accepted by the Customer.
2.Purpose. This Agreement sets forth the terms and conditions of EVS's sale of the Product to the Customer.
3. Term of Agreement. This Agreement will become effective on the date it is signed and approved by EVS's authorized
representative pursuant to Section 21 hereof(`'Effective Date") and, unless earlier terminated pursuant to the terms of this
Agreement,it will terminate upon the Customer's Acceptance and payment in full of the Purchase Price. {
4. Purchase and Payment. The Customer agrees to purchase the Product specified on Exhibit A for the total purchase price of
$564,177.00("Purchase Price").Prices are in U.S.funds,F.O.B.at the customer's location.
5.Future Changes.Various state or federal regulatory agencies(e.g.NFPA,DOT,EPA)may require changes to the Specifications
and/or the Product and in any such event any resulting cost increases incurred to comply therewith will be added to the Purchase
Price to be paid by the Customer. In addition,any future drive train upgrades(engine, transmission,axles,etc.), or any other
specification changes have not been calculated into our annual increases and will be provided at additional cost. To the extent
practicable,EVS will document and itemize any such price increases for the Customer.
6.Agreement Changes. The Customer may request that EVS incorporate a change to the Products or the Specifications for the
Products by delivering a change order to EVS;provided,however,that any such change order must be in writing and include a
description of the proposed change sufficient to permit EVS to evaluate the feasibility of such change("Change Order").Within
[seven(7)business days]of receipt of a Change Order,EVS will inform the Customer in writing of the feasibility of the Change
Order,the earliest possible implementation date for the Change Order,of any increase or decrease in the Purchase Price resulting
from such Change Order,and of any effect on production scheduling or Delivery resulting from such Change Order. EVS shall
not be liable to the Customer for any delay in performance or Delivery arising from any such Change Order. A Change Order is
only effective when counter-signed by EVS's authorized representative.
7. CancellationTermination. In the event this Agreement is cancelled or terminated by a party before completion, EVS may
charge a cancellation fee. The following charge schedule based on costs incurred may be applied:(a) 10%of the Purchase Price
after order is accepted and entered by EVS;(b)20%of the Purchase Price after completion of approval drawings,and;(c)30%
of the Purchase Price upon any material requisition.The cancellation fee will increase accordingly as costs are incurred as the
order progresses through engineering and into manufacturing.EVS endeavors to mitigate any such costs through the sale of such
Product to another purchaser; however Customer shall remain liable for the difference between the Purchase Price and, if
applicable, the sale price obtained by EVS upon sale of the Product to another purchaser,plus any costs incurred by EVS to
conduct any such sale.
8.Delivery,Inspection and Acceptance. (a)Delivery. Delivery of the Product is scheduled to be within14.5—16.5 months of
he Effective Date of this Agreement,F.O.B. the customer's location. Risk of loss shall pass to Customer upon Delivery. Title
shall pass upon Customer's complete fulfillment of its obligations arising under Section 4 hereof.(b)Inspection and Acceptance.
,EVS Apparatus Contract Effective: 10/01/2017
Upon Delivery, Customer shall have fifteen (15) days within which to inspect the Product for substantial conformance to the
material Specifications, and in the event of substantial non-conformance to the material Specifications to furnish EVS with
written notice sufficient to pennit EVS to evaluate such non-conformance("Notice of Defect"). Any Product not in substantial
conformance to material Specifications shall be remedied by EVS within thirty(30)days from the Notice of Defect. In the event
EVS does not receive a Notice of Defect within fifteen(15)days of Delivery,Product will be deemed to be in conformance with
Specifications and Accepted by Customer.
9.Notice. Any required or permitted notices hereunder must be given in writing at the address of each party set forth below,or
to such other address as either party may substitute by written notice to the other in the manner contemplated herein,by one of
the following methods: hand delivery; registered, express, or certified mail, return receipt requested, postage prepaid; or
nationally-recognized private express courier:
Emergency Vehicle Specialists Customer
Vice President of Apparatus Sales City of Van Buren,Ar
892 Kansas Street
Memphis TN 38106 2009 Pevehouse Rd
901-948-1625 Van Buren,Ar 72956
a
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10.Standard Warranty.Any applicable EVS warranties are attached hereto as Exhibit B and made a part hereof. Any additional j
warranties must be expressly approved in writing by EVS's authorized representative.
a.Disclaimer.OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT,NEITHER EVS,ITS PARENT
COMPANY, AFFILIATES, SUBSIDIARIES, LICENSORS OR SUPPLIERS, THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES, MAKE ANY EXPRESS OR
IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS PROVIDED HEREUNDER OR OTHERWISE a
REGARDING THIS AGREEMENT,WHETHER ORAL OR WRITTEN,EXPRESS,IMPLIED OR STATUTORY.WITHOUT
LIMITING THE FOREGOING,ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY,THE IMPLIED
WARRANTY AGAINST INFRINGEMENT, AND THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A
PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED. STATEMENTS MADE BY SALES
REPRESENTATIVES OR IN PROMOTIONAL MATERIALS DO NOT CONSTITUTE WARRANTIES.
b. Exclusions of Incidental and Consequential Damages. In no event shall EVS be liable for consequential,incidental
or punitive damages incurred by Customer or any third party in connection with any matter arising out of or relating to this
Agreement, or the breach thereof, regardless of whether such damages arise out of breach of warranty, tort, contract, strict
liability,statutory liability,indemnity,whether resulting from non-delivery or from EVS's own negligence,or otherwise.
11. Insurance. EVS maintains the following limits of insurance with a carrier(s)rated A-or better by A.M.Best:
Commercial General Liabilib,Insurance:
Products/Completed Operations Aggregate: $1,000,000
Each Occurrence: $1,000,000
U_mbrella/Excess Liability Ltsttrance:
Aggregate: $5,000,000
Each Occurrence: $5,000,000
The Customer may request: (x) EVS to provide the Customer with a copy of a current Certificate of Insurance with the
coverages listed above;(y)to be included as an additional insured as Customer's interests may appear(subject to the terms
and conditions of the applicable EVS insurance policy); and (z) request that, prior to cancellation or non-renewal of the
applicable EVS insurance policy,that the issuing carrier endeavor to provide thirty(30)days advance notice to the Customer
of any such cancellation or non-renewal.
12. Indemnity. The Customer shall indemnify, defend and hold harmless EVS, its officers, employees, dealers, agents or
subcontractors, from any and all claims, costs,judgments, liability, loss, damage, attorneys' fees or expenses of any kind or
nature whatsoever(including, but without limitation,personal injury and death)to all property and persons caused by,resulting
from, arising out of or occurring in connection with the Customer's purchase, installation or use of goods sold or supplied by
EVS which are not caused by the sole negligence of EVS.
13.Force Majeure. EVS shall not be responsible nor deemed to be in default on account of delays in performance due to causes
which are beyond EVS's control which make EVS's performance impracticable, including but not limited to civil wars,
IEVS Apparatus Contract 2 Effective: 10/01/2017
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insurrections,strikes,riots,fires,storms,floods,other acts of nature,explosions,earthquakes,accidents,any act of government,
delays in transportation, inability to obtain necessary labor supplies or manufacturing facilities,allocation regulations or orders
affecting materials,equipment,facilities or completed products,failure to obtain any required license or certificates,acts of God
or the public enemy or terrorism,failure of transportation,epidemics, quarantine restrictions,failure of vendors(due to causes
similar to those within the scope of this clause) to perform their contracts or labor troubles causing cessation, slowdown, or j
interruption of work.
14. Default. The occurrence of one or more of the following shall constitute a default under this Agreement: (a)the Customer
fails to pay when due any amounts under this Agreement or to perform any of its obligations under this Agreement;(b)EVS fails
to perform any of its obligations under this Agreement;(c)either party becomes insolvent or become subject to a bankruptcy or
insolvency proceedings; (d)any representation made by either party to induce the other to enter into this Agreement is false in
any material respect;(e)the Customer dissolves,merges,consolidates or transfers a substantial portion of its property to another
entity;or(f)the Customer is in default or has breached any other contract or agreement with EVS,
15.Manufacturer's Statement of Origin. It is agreed that the manufacturer's statement of origin("MSO")for the Product covered
by this Agreement shall remain in the possession of EVS until the entire Purchase Price has been paid.If more than one Product
is covered by this Agreement,then the MSO for each individual Product shall remain in the possession of EVS until the Purchase
Price for that Product has been paid in full,In case of any default in payment,EVS may take full possession of the Product,and
any payments that have been made shall be applied as payment for the use of the Product up to the date of taking possession.
16.Independent Contractors. The relationship of the patties established under this Agreement is that of independent contractors
and neither party is a partner,employee,agent,or joint venturer of or with the other.
17.Assignment.Neither party may assign its rights and obligations under this Agreement unless it has obtained the prior written
approval of the other party.
18. Governing Law;Jurisdiction. Without regard to any conflict of laws provisions, this Agreement is to be governed by and
under the laws of the state of Tennessee.
19. Facsimile Signatures. The delivery of signatures to this Agreement by facsimile transmission shall be binding as original
signatures.
20. Entire Agreement. This Agreement shall be the exclusive agreement between the parties for the Product. Additional or
different terms proposed by the Customer shall not be applicable,unless accepted in writing by EVS's authorized representative.
No change in, modification of, or revision of this Agreement shall be valid unless in writing and signed by EVS's authorized
representative.
21. Conflict. In the event of a conflict between the Customer Specifications and the EVS Proposal, the EVS Proposal shall
control. In the event there is a conflict between the EVS Proposal and this Agreement,the EVS Proposal shall control.
22. Signatures. This Agreement is not effective unless and until it is approved, signed and dated by EVS's authorized
representative.
(Accepted and agreed to:
G&W Diesel/Emergency Vehicle Specialists CUSTOMER:City of Van Buren,AR
Name: Narne:
iTitle: Title:
(Date: Date:
VS Apparatus Contract 3 Effective: 10/01/2017
EXHIBIT A
PURCHASE DETAIL FORM
Emergency Vehicle Specialists
Vice-President of Apparatus Sales
992 Kansas Street
Memphis TN 38106
901-948-1625
Date:
Customer Name:
Quantity Chassis Type Body Type Price per Unit
1 Saber FR Med Pumper 500 Gal $564,177.00
Top Mount and Loose $
Equipment $
$
***A pre pay discount of$-14,177.00 if check is received at time of order,Pay this amount$550,000.00. A performance
bond will be issued. This price includes$51 000.00 in loose equipment per quote dated 11-18-21
Warranty Period:Per Proposal
Training Requirements:Per Proposal
Other Matters:A 100% Performance Bond Will be issued within 2 weeks of order
This contract is available for inter-local and other municipal corporations to utilize with the option of adding or deleting ally EVS
available options,including chassis models. Any addition or deletion may affect the unit price.
Payment Terms: Payment is due at time of contract Signing ro receive prepay discount, pricing per Sourcewell
[MOTE:If deferred payment arrangements are required,the Customer must make such financial arrangements through a financial institution acceptable to EVS.]
All taxes,excises and levies that EVS may be required to pay or collect by reason orany present or future law or by any governmental authority based upon the
sale,purchase,delivery,storage,processing,use,consumption,or transportation of the Product sold by EVS to the Customer shall be for the account of the
Customer and shall be added to the Purchase Price. All delivery prices or prices with freight allowance are based upon prevailing freight rates and,in the event
of any increase or decrease in such rates,the prices on all unshipped Product will be increased or decreased accordingly.Delinquent payments shall be subject
to a carrying charge of 1.5 percent per month or such lesser amount permitted by law.EVS will not be required to accept payment other than as set forth in this
Agreement. However,to avoid a late charge assessment in the event of a dispute caused by a substantial nonconformance with material Specifications(other
than freight),the Customer may withhold up to five percent(5%)of the Purchase Price until such time that EVS substantially remedies the nonconformance with
material Specifications,but no longer than sixty(60)days after Delivery. If the disputed amount is the freight charge,the Customer may withhold only the
amount of the freight charge until the dispute is settled,but no longer than sixty(60)days after Delivery.EVS shall have and retain a purchase money security
interest in all goods and products now or hereafter sold to the Customer by EVS or any of its affiliated companies to secure payment of the Purchase Price for all
such goods and products. In the event of nonpayment by the Customer of any debt,obligation or liability now or hereafter incurred or owing by the Customer
to EVS,EVS shall have and may exercise all rights and remedies of a secured party under Article 9 of the Uniform Commercial Code(UCC)as adopted by the
stale of Tennessee.
I
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THIS PURCHASE DETAIL FORM IS EXPRESSLY SUBJECT TO THE PURCHASE AGREEMENT TERMS AND
CONDITIONS DATED AS OF BETWEEN EVS AND City of Van Buren,Ar•WHICH TERMS AND CONDITIONS
ARE HEREBY INCORPORATED IN, AND MADE PART OF, THIS PURCHASE DETAIL FORM AS THOUGH EACH
PROVISION WERE SEPARATELY SET FORTH HEREIN, EXCEPT TO THE EXTENT OTHERWISE STATED OR
SUPPLEMENTED BY EVS HEREIN,
EVS Apparatus Contract a Effective: 10/01/2017
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EXHIBIT B
WARRANTY
PER SCOTT JONES PER PIERCE PROPOSAL 1114 DATED 9-29-21
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�VS Apparatus Contract 5 Effective: 10/01/2017
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EXHIBIT C
I
EVS PROPOSAL
PER SCOTT JONES PER PIERCE PROPOSAL 1114 DATED 9-29-21
I
EQUIPMENT LIST DATED 11-18-21 j
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)EVS Apparatus Contract 6 Effective: 10/01/2017
Teresa Tankersley
From: Phyllis Thomas
Sent Monday, December 27, 2021 6:21 PM
To: Teresa Tankersley
Cc: Connie Hyatt
Subject: FW: Firetruck
Teresa,
Please attach a copy of this email to the ordinance regarding the firetruck. Thank you.
Phyllis Thomas
City Clerk-Treasurer
CITY OF VAN BUREN,ARKANSAS
479-474-8936
FrorO:Jacob Howell <jacob@howelllawfirmar.com>
Sent:,Monday, December 27, 20215:28 PM
To: Phyllis Thomas<pthomas@VanBurenCity.org>
Subject: Firetruck
Phyllis -
After a review of the amended ordinance it is my opinion that you may still issue a check immediately
upon passage, because the original ordinance had the emergency clause and the amendment did not
repeal it.
Thanks.
Jacob
Jacob R. L. Howell
Howell Law Firm, P.A.
P.O. IBox 767
Van Buren, AR 72957
JacoD(d)HoweIILawFirmAR.com
CONFIDENTIALITY NOTE: The contents of this email, including all attachments, may be privileged by the Attorney-Client privilege,the
Electronic Communications Privacy Act, 18 USC 2510-2521, and other applicable statutes and regulations. In the event that
you received this email in error or are not the intended recipient, please delete the email and all attachments immediately and notify the
sender at the email address specified above. Thank you.
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