HomeMy WebLinkAboutresolution.council.153-23RESOLUTION # 153
(Series of 2023)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND MHC KENWORTH GRAND JUNCTION AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF
ASPEN, COLORADO,
WHEREAS, there has been submitted to the City Council a contract for, (1)
T880 Tandem Axle Dump Truck between the City of Aspen and MHC Kenworth
Grand Junction, a true and accurate copy of which is attached hereto as Exhibit
<A,,.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
for, (1) T880 Tandem Axle Dump Truck between the City of Aspen and MHC
Kenworth Grand Junction a copy of which is annexed hereto and incorporated
herein, and does hereby authorize the City Manager to execute said agreement on
behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 30th day of October, 2023.
Torre, Mayor
I, Nicole Henning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council
of the City of Aspen, Colorado, at a meeting held October 30"i, 2023.
Nicole Henning, City berk
DocuSign Envelope to: B5564C31-C688-4893-964B-9D12B2698FAE
CITY OF ASPEN STANDARD FORM OF AGREEMENT
SUPPLY PROCUREMENT
CITY OF ASPEN
City of Aspen Project No.: 2023-271
AGREEMENT made as of 2"� day of October, in the year 2023.
BETWEEN the City:
The City of Aspen
c/o Sara Ott
427 Rio Grande Place
Aspen, Colorado 81611
Phone: (970)920-5055
And the Vendor:
MHC Kenworth Grand Junction
c/o Jordan Bogue
752 23 %2 Road
Grand Junction, Colorado 81505
970-242-2338
Jordan.boguena mhc.com
Summary Description of Items to be Pm•chased:
Contract Amount:
Total: $1959254978
If this Agreement requires the City to pay
an amount of money in excess of
$50,000.00 it shall not be deemed valid
until it has been approved by the City
Council of the City of Aspen.
Citv Council Aooroval:
Date: 10/30/2023
Resolution No.: 2023-153
One (1) 2024 T880 Dump Truck per State bid Sourcewell Conhact #060920-KTC, with delivery
o Aspen, CO.
Exhibits appended and made a part of this Agreement:
Exhibit A: List of supplies, equipment, or materials to be purchased.
Exhibit B: Source Well Price Agreement,
The City and Vendor agree as set forth below.
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1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A
appended hereto and by this reference incorporated herein as if fully set forth here for the sum
set forth hereinabove.
2. Delivery. (FOB 1080 Power Plant Rd, Aspen, CO 8161)
[Delivery Address]
3, Contract Documents. This Agreement shall include all Contract Documents as the
same are listed in the Invitation to Bid and said Contract Document are hereby made a part of
this Agreement as if fully set out at length herein.
4. Warranties. Base warranty 12 months or 100,000 miles
5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure
to the benefit of and be binding upon the City and the Vendor respectively and their agents,
representatives, employee, successors, assigns and legal representatives. Neither the City nor the
Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder
without the written consent of the other party.
6. Third Parties, This Agreement does not and shall not be deemed or construed to
confer upon or grant to any third party or parties, except to parties to whom Vendor or City may
assign this Agreement in accordance with the specific written permission, any right to claim
damages or to bring any suit, action or other proceeding against either the City or Vendor
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained.
7.
Waivers.
No waiver of default
by either
party
of any
of the terms,
covenants
or
conditions
hereof to
be performed,
kept and
observed
by
the other
party shall be
construed,
or
operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein
contained, to be performed, kept and observed by the other party.
8. Agreement Made in Colorado. The parties agree that this Agreement was made in
accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to
be exclusively in the courts of Pitkin County, Colorado.
9. Attorney's Fees, In the event that legal action is necessary to enforce any of the
provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable
attorney's fees.
10. Waiver of Presumption. This Agreement was negotiated and reviewed through the
mutual efforts of the parties hereto and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of the
parties in the negotiation, review or drafting of the Agreement.
11, Certification Regarding Debarment, Suspension, hreli2ibility, and VOluntarV
Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is
DocuSign Envelope ID: B5564C31-C688-4893-964B-9D12B2698FAE
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded fi-om participation in any transaction with a Federal or State department or agency. It
further certifies that prior to submitting its Bid that it did include this clause without modification
in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event
that Vendor or any lower tier participant was unable to certify to the statement, an explanation
was attached to the Bid and was determined by the City to be satisfactory to the City.
12. Warranties Against Contin>?ent Fees, Gratuities, Kickbacks and Conflicts of Interest,
(A) Vendor warrants that no person or selling agency has been employed or retained to solicit
or secure this Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Vendor for the purpose of
securing business.
(B) Vendor agrees not to give any employee of the City a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation,
preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application, request for
ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement, or to any solicitation or proposal therefore.
(C) Vendor represents that no official, officer, employee or representative of the City during
the term of this Agreement has or one (1) year thereafter shall have any interest, direct or
indirect, in this Agreement or the proceeds thereof, except those that may have been
disclosed at the time City Council approved the execution of this Agreement.
(D)In addition to other remedies it may have for breach of the prohibitions against contingent
fees, gratuities, kickbacks and conflict of interest, the City shall have the right to:
1. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a vendor, contractor or
subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Vendor; and
4. Recover such value from the offending parties.
13. Termination for Default or for Convenience of City. The sale contemplated by this
Agreement may be canceled by die City prior to acceptance by the City whenever for any reason
and in its sole discretion the City shall determine that such cancellation is in its best interests and
convenience.
14. Fund Availability. Financial obligations of the City payable after the current fiscal
year are contingent upon funds for that purpose being appropriated, budgeted and otherwise
made available. If this Agreement contemplates the City using state or federal funds to meet its
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obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement.
15, City Council Approval. If this Agreement requires the City to pay an amount of
money in excess of $50,000.00 it shall not be deemed valid until it has been approved by the City
Council of the City of Aspen.
16, Non -Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap,
or religion shall be made in the employment of persons to perform under this Agreement.
Vendor agrees to meet all of the requirements of City's municipal code, section 13-98, pertaining
to nondiscrimination in employment. Vendor further agrees to comply with the letter and the
spirit of the Colorado Antidiscrimination Act of 1957, as amended and other applicable state and
federal laws respecting discrimination and unfair employment practices.
Any business that enters into a contract for goods or services with the City of Aspen or any of its
boards, agencies, or departments shall:
(a) Implement an employment nondiscrimination policy prohibiting discrimination in
hiring, discharging, promoting or demoting, matters of compensation, or any other
employment -related decision or benefit on account of actual or perceived race,
color, religion, national origin, gender, physical or mental disability, age, military
status, sexual orientation, gender identity, gender expression, or marital or
familial status.
(b) Not discriminate in the performance of the contract on account of actual or
perceived race, color, religion, national origin, gender, physical or mental
disability, age, military status, sexual orientation, gender identity, gender
expression, or marital or familial status.
(c) Incorporate the foregoing provisions in all subcontracts hereunder.
17. luteeration and Modification. This written Agreement along with all Contract
Documents shall constitute the contract between the parties and supersedes or incorporates any
prior written and oral agreements of the parties. In addition, vendor understands that no City
official or employee, other than the Mayor and City Council acting as a body at a council
meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on
behalf of the City. Any such Agreement or modification to this Agreement must be in writing
and be executed by the parties hereto.
l8. Authorized Representative. The undersigned representative of Vendor, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Vendor for the purposes of executing this Agreement and that he/she has full
and complete authority to enter into this Agreement for the terms and conditions specified
herein.
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19, Electronic Signatures and Electronic Records This Agreement and any
amendments hereto may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one agreement binding on the Parties,
notwithstanding the possible event that all Parties may not have signed the same counterpart.
Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope
of Work, and any other documents requiring a signature hereunder, may be signed electronically
in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or
enforceability of the Agreement solely because it is in electronic form or because an electronic
record was used in its formation. The Parties agree not to object to the admissibility of the
Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a
paper copy of a document hearing an electronic signature, on the ground that it is all electronic
record or electronic signature or that it is not in its original form or is not an original.
DocuSign Envelope ID: B5564C31-C688-4893-964B-9D12B2698FAE
[N WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement
to be duly executed the day and year first herein, of which, to all intents and purposes, shall be
considered as the original.
FOR THG CITY OF ASPEN:
By: CDaeusionea by:
ara G, Off
Aspen City Manager
11/1/2023 � 7;25;44 PM PDT
Date
Approved as to form:
DoeuSignea by;
3w s K. 'fiat,
VdaD
City Attorney's Office
SUPPLIIJR:
Doo�sgoea ay:
By:
Luke tole
Branch Manager
Title
10/3/2023 � 3:35:15 PM PDT
Date
�i.A He
COLORADO KENWORTH, LLC ("Dealer")
doing business as: MHC KENWORTH - GRAND JUNCTION
NEW TRUCK ORDER GRAND JUNCTION, CO 81505
752 - 23 112 ROAD
1-970-242-2338
PURCHASER
ADDRESS
Cit of Aspen
130 S Galena St
BUSINESS PHONE
OTHER PHONE
CITY
STATE
ZIP CODE
COUNTY
DATE
970-920-5130
970-000-0000
Aspen
CC)
81611-1902
Pitkin
10/31/2023
QUANTITY
YEAR
MAKE
MODEL
BODY TYPE
SALESPERSON
1
2024
KW
T880
TRUCK/DUMP
JQRDANBQGUE
STOCK NUMBER
COLOR
TO BE DELIVERED ON OR ABOUT
FINANCIAL SOURCE
0552430
WHITE
11/30/2023
Cash
SERIAL NUMBERS 1NKZLPDX6RJ321468
PRICE OF VEHICLE(s) INCLUDING FET
$224,959.78
Price includes a 16' dump bed with high lift gate and electric tarp.
TRADE TERMS AGREEMENT APPLICABLE 0 YES
NOTE: If vehicle(s) are not funded within 15 days of truck receipt date at the dealer, customer will be charged a per diem amount per unit until
units are fully funded. Customer has 60 days from delivery date of the truck to return and have any add-ons listed on the sales order completed.
DESCRIPTION OF TRADE-IN OR TRADE ATTACHMENT
YEAR
MAKE
MODEL
SUBTOTAL $224,959.78
2013
Navistar
7600
BUSINESS TAX
SERIAL NUMBER
MILEAGE
SALES TAX
1-HTGSS}iRDDJ360539
84 271
LOCAL TAX
BALANCE OWED TO
TRADE DIFFERENCE
DOCUMENTATION FEE $295.00
$195254.78
REGISTRATION FEES
TOTAL DELIVERED PRICE $225 254.78
LESS: TRADE-IN ALLOWANCE $30,000.00
LESS: BALANCE OWED ON TRADE-IN
TRADE-IN EQUITY $30000.00
LESS: CASH DEPOSIT SUBMITTED WITH ORDER
CASH DUE ON DELIVERY (Includes above Taxes,
PURCHASER'S CERTIFICATION
but may not be inclusive of all Applicable Taxes)
Purchaser and the person signing this Order on behalf of Purchaser hereby certify that:
UNPAID BALANCE (Amount to be Separately
Financed by Purchaser) Due in Cash on Delivery $195,254.78
1 Purchaser and the person signing this Order on behalf of Purchaser have carefully
reviewed the terms and conditions printed on the front and reverse side hereof, and agree
READ ALL PAGES OF THIS ORDER
to be bound thereby. The terms and conditions printed on the front and reverse side hereof
THE TERMS AND CONDITIONS ON PAGE 2 HEREOF ARE PART OF THIS
represent the entire and integrated agreement between the parties relating to the purchase
ORDER.
and sale of the Vehicle and cancels and supersedes prior negotiations, representations or
agreements, either written or oral.
THIS ORDER IS NOT VALID UNLESS SIGNED BY AND ACCEPTED BY AN
AUTHORIZED MANAGER OF DEALER.
2. Purchaser and the person signing this Order on behalf of Purchaser have Carefully
THE PRICE OF THIS VEHICLE DOES NOT INCLUDE ANY APPLICABLE
reviewed this Order and fully understand that the Vehicle listed above will be equipped only
TAXES, WHICH ARE THE RESPONSIBILITY OF PURCHASER AS SET
with the optional equipment specifically listed on the face of this Order plus all standard
FORTH ON ALL PAGES HEREOF.
equipment as designated by the manufacturer at the time of delivery.
ANY TAXES DISPLAYED ON THIS TRUCK ORDER ARE ESTIMATED.
3, The person signing this Order on behalf of Purchaser is of legal age to execute binding
ACTUAL TAXES, AS APPLICABLE, WILL BE INVOICED TO THE
contracts in this State. The person signing this Order on behalf of Purchaser has the
PURCHASER AT THE PREVAILING TAX RATES AVAILABLE AT TIME OF
authority and has been duly authorized to sign this Order on behalf of the Purchaser.
VEHICLE INVOICE.
ANY DELIVERY DATES INDICATED ON THIS ORDER ARE ESTIMATES AND
SUBJECT TO THE MANUFACTURERS' PRODUCTION SCHEDULE AND
FINAL APPROVAL.
THIS ORDER CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES
TERMS AND CONDITIONS ON PAGE 2 HEREOF ARE PART OF THIS AGREEMENT
SIGNED (AUTHORIZED REPRESENTATIVE OF PURCHASER): DATE ACCEPTED BY DEALER DATE
(34-252477-394573)
Customer Initials
TRCK-SALE-WI-4,3-02-A (REV 05/13)
MHCUD1795000
CONTINUATION OF TERMS AND CONDITIONS CONSTITUTING A PART OF TRUCK ORDER
This Truck Order ("Order"), including the front of [his Order and these terms and conditions, constitutes a
contract for the purchase of the vehicle(s) or chassis ("Vehicle") fisted and described on the front side
hereof, between dealer identified on the front side hereof ("Dealer"), and the purchaser identified on the front
side hereof ("Purchaser"). This Order is binding upon Dealer and Purchaser upon each party's execution on
[he front side hereof.
1. PRICE REVISION: The manufacturer of any new Vehicle ordered hereunder by Purchaser may change
the price to dealer of such Vehicle after the date of this Order. In the even[ of any such price change, prior to
the delivery of any new vehicle to Purchaser, the Dealer shall have [he right to change (he price of [he
Vehicle described on the Iron[ side hereof by providing notice of such change to Purchaser, If Purchaser
does not agree to pay the changed price of the Vehicle, Purchaser shall cancel this Order by providing
Dealer with written notice of such cancellation within Eve (2) days of notice from Dealer of the change in the
price of the Vehicle- If Purchaser fails to timely provide Dealer with such written notice, Purchaser shall be
bound to pay the changed cash price of the Vehicle. In the event Purchaser cancels this Order pursuant to
this Paragraph 1 and has traded a used vehicle as part of [he consideration for a new Vehicle purchased by
Purchaser, such Iraded-in vehicle shall be returned to Purchaser upon payment of a reasonable charge for
storage and repairs (if any) or, if such traded -in vehicle has been previously sold by Dealer the amount
received therefore less a selling commission of 15%, and any expense for storing, insuring, conditioning, or
advertising such vehicle for sale shall be returned to Purchaser,
2. DEALER NOT AGENT OF MANUFACTURER: It is understood that there is no relationship of principal
and agent between the Dealer and the manufacturer or the Vehicle and that the Dealer is riot authorized to
act, or attempt to act, or represent itself, directly of by implication, as agent of the manufac(urei, of in any
manner assume or create, or attempt to assume or create, any obligation on behalf of or in the name of [he
manufacturer. II is further understood [hat neither Dealer nor anyone acting on its behalf has made, or
adopted from the manufacturer, any guaranlee, representation or warranty regarding the residual, trade-in,
repurchase or buyback value or the Vehicle (a "Repurchase Obligation"), and that any Repurchase Obliga-
tion is the sole and excusive responsibility or [he manufacturer. Purchaser hereby acknoWledges, agrees,
represents and warrants [hat Purchaser shall look solely to the manufacturer to perform of satisfy any
Repurchase Obligation,
3. DISCLAIMER OF WARRANTY: General: References to a "new Vehicle" herein shall mean a motor
vehicle [hat has not been previously registered in any state of the United Stales of America- References to a
"used Vehicle" herein shall mean a motor vehicle which has been previously registered or which should have
been registered in a stale of the United Slates of America. PURCHASER HEREBY ACKNOWLEDGES
THAT DEALER NOR ANYONE ACTING ON ITS BEHALF HAS MADE ANY AFFIRMATION OF FACT,
REPRESENTATION OR PROMISE RELATING TO THE VEHICLE THAT HAS BECOME A BASIS OF
THIS TRANSACTION OR WHICH CREATES AN EXPRESS WARRANTY. NO SAMPLE OR MODEL HAS
BECOME A BASIS OF THIS TRANSACTION OR WHICH CREATES AN EXPRESS WARRANTY. TO THE
FULLEST EXTENT PERMITTED BY LAW, DEALER DISCLAIMS ANY IMPLIED WARRANTY OF MER-
CHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT, AND THOSE ARISING
OUT OF COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE OR ANY OTHER IMPLIED
WARRANTY WITH RESPECT TO THE VEHICLE.
New Vehicles: There are NO WARRANTIES, express or implied, made by Dealer or the manufacturer, on
any new vehicle described on the front of this Order, except for the manufacturer's warranty applicable to
such new Vehicle contained in the separate manufacturer's warranty which will be fumished to Purchaser
upon delivery of the new vehicle. Such separate manufacturer's warranty shall be expressly IN LIEU OF any
other express or implied warranty, condition or guarantee on the new Vehicle or any part thereof, Purchaser
hereby acknowledges and agrees that Dealer has not in any manner adopted the manufacturer's warranty
as a warranty of the Dealer and Purchaser acknowledges, agrees, represents and warrants that Purchaser
shall look solely to the manufacturer to perform or satisfy any obligation under the manufacturer's warranty.
Used Vehicles: Dealer sells any used vehicle AS IS with all faults and defects, and the Dealer disclaims all
warranties with respect to the Dealer in connection with the sale of any used Vehicle. If the Purchaser is
assigned the remaining term of any manufacturer's warranty, Purchaser hereby acknowledges, agrees,
represents and warrants [hat Dealer has not in any manner adopted the manufacturer's warranty as a
warranty of Dealer, and Purchaser acknowledges, agrees, represents and warrants that Purchaser shall look
solely to the manufacturer to perform or satisfy any obligation under the manufacturer's warranty- As be-
tween Purchaser and Dealer, the entire risk as to the quality and performance of any used Vehicle is as-
sumed by Purchaser- As between Purchaser and Dealer, [he Purchaser assumes the entire cost of service
and repair and loss with respect to any used Vehicle found to be defective.
4. LIMITATION OF LIABILITY: DEALER WILL NOT BE LIABLE TO PURCHASER OR ANY OTHER
PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAM-
AGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST USE, LOST PROFITS, LOST SAV-
INGS OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF DEALER HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE OR FOR CLAIMS MADE BY A
THIRD PARTY. IN NO EVENT SHALL DEALER'S TOTAL AGGREGATE LIABILITY TO PURCHASER OR
ANY OTHER PARTY RELATING TO OR RESULTING FROM THE SALE, LICENSE OR USE OF A VEHI-
CLE SUBJECT TO THIS ORDER OR THESE TERMS AND CONDITIONS EXCEED THE PURCHASE
PRICE PAID FOR SUCH VEHICLE. THESE LIMITATIONS APPLY WHETHER THE LIABILITY IS BASED
ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY AND WHETHER THE ALLEGED
BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM, OR A FUNDA-
MENTAL BREACH. THESE LIMITATIONS APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
5. TRADE-IN VEHICLE: If a vehicle has been traded in as a part of the consideration for the Vehicle ordered
by Purchaser hereunder and such traded in vehicle is not delivered to Dealer until delivery to Purchaser of
[he Vehicle, such trade-in vehicle shall be reappraised as directed by Dealer and such reappraisal value
shall determine the allowance made for such vehicle. If such reappraised value is lower than the original
allowance therefore shown on the face of [his Order, Purchaser may, cancel [his Order by providing Dealer
with written notice of such cancellation within two (2) days after the reappraisal or prior to delivery of the
Vehicle ordered hereunder to Purchaser whichever is earlier. If Purchaser (ails to timely provide said written
notice of such cancellation, Purchaser shall be bound to the amount of [he reappraisal and shall pay the
changed cash portion of the price of the Vehicle. The condition of any trade-in vehicle shall strictly comply
with and Purchaser shall strictly comply with any Trade/Purchase Terms and Conditions Agreement signed
by Purchaser ("Trade Terms Agreement"), If the condition of any trade-in vehicle is not strictly in compliance
with, or if Purchaser has no[ strictly complied with the Trade Terms Agreement, Dealer shall not be obligated
to accept [he trade-in vehicle and the allowance shown on the front side hereof shall be deleted and Pur-
chaser shall not be entitled to such allowance and Purchaser shall pay the amount of the deleted allowance
to Dealer in cash upon delivery of the Vehicle.
6. PURCHASER'S REPRESENTATIONS AND WARRANTIES: Purchaser hereby represents and warrants
that: (a) the trade-in vehicle shall be delivered free and clear from any security interest or other fen or
encumbrance of any third person (except as olhervise noted on the title and agreed to in v;rifng by Dealer a[
the time of the execution of this Order): (b) Purchaser shall promptly deliver to Dealer a valid certificate of
title to the trade-in vehicle: (c) Purchaser has full power, righl and lawful authority to dispose of the trade-in
vehicle: (d) (he trade-in vehicle does not have a cracked or defective head, block power train, or Irame
(including supportive portion of the anybody); (e) [he engine and transmission have not been changed from
[he manufacturer's original equipment specifications; and (f) while owned by Purchaser, the odometer of the
trade-in vehicle has not been replaced, tampered with or otherwise altered in any way and Purchaser has no
reason to believe the trade-in vehicle's current odometer reading, as represented on [he front side hereof,
does riot reflect its actual mileage, Purchaser further represents and warrants that Purchaser will use the
Vehicle exclusively for a commercial use.
7, FAILURE OR REFUSAL TO ACCEPT DELIVERY: Except as provided in Paragraphs 1 and 5 of this
Order, Purchaser may riot cancel this Order. In [he event that Purchaser fails or refuses to complete [he
purchase of the Vehicle, Purchaser shall pay Dealer, as liquidated damages and not as a penally, [he
greater of the following: (a) twenty -rive percent (25%) of the Total Delivered Price of the Vehicle, or (b) the
cash deposit set forth on the front o1 [his Order ("Liquidated Damages'), Dealer may apply any cash deposit
made by Purchaser towards the Liquidated Damages, Further, in the event Purchaser has delivered to
Dealer a trade- in vehicle as part of [he consideration for the Vehicle, Dealer is authorized to sell such trade-
in vehicle and Dealer may retain the proceeds thereof to satisfy the Liquidated Damages. Purchaser
acknowledges that the Liquidated Damages are reasonable in light of the anticipated or actual harm caused
by Purchaser's failure to complete the purchase. Purchaser further acknowledges that the Liquidated Dam-
ages do not constitute a penally, but instead represent [he parties' best eslimale of the resulting damages
given [hat the precise damages of Dealer are difficult to calculate.
B. TAXES: Unless otherwise agreed to in a writing signed by Purchaser and Dealer, Purchaser shall be
solely responsible for the payment of all sales, use, consumer and other taxes arising out of this Order
mandated by any applicable federal, state and local laws, codes, ordinances, rules and regulations, whether
currently in effect, scheduled to go in effect, or subsequently enacted, including but no[ limited to, any
increases in such taxes taking effect after the date of this Order. Purchaser shall be solely responsible for
the cost and fees for all licenses, registrations and titles associated with [he sale of the Vehicle.
9. FAILURE OR DELAY OF DELIVERY; FORCE MAJEURE: Dealer shall not be liable for failure to deliver
or delay in delivery of [he Vehicle where such failure to deliver or delay is due, in whole or in part, to any
cause other than the gross negligence of Dealer, Further, Dealer will not have any liability for any breach
caused by extreme weather or other act of God, strike or other labor shortage or disturbance, fife, accident,
war, terrorist act or civil disturbance, delay of carriers, failure of normal sources of supply, act of government
or any other cause beyond the reasonable control of Dealer,
10. NOTICES: It shall be a condition precedent to any liability of Dealer, whether in contract, tort or other-
wise, arising out of this Order or any other dealings between the parties that Purchaser provide written notice
to Dealer of any claim, controversy, or alleged breach of this Order within len (10) days of the event or
occurrence giving rise to such claim, controversy or alleged breach and that Purchaser provide Dealer within
a reasonable opportunity to cure the problems or issues giving rise to such claim, controversy or alleged
breach of this Order. Notwithstanding the foregoing. Purchaser must provide Dealer with notice of any claim,
controversy, or alleged breach of this Order and demand for arbitration within twelve months of discovery or
accrual of the same, whichever occurs first. II is understood and agreed by [he parties that the foregoing
provision is both a condition precedent to the right to take such action, and a contractual modification to the
statute of limitations for all actions, whether in contract, tor[ or otherwise, and failure to comply with this
condition precedent and contractual statute of limitations shall be an absolute bar to recovery for any prob-
lems, issues, rights, claims or causes of action not specifically pled within the twelve month period. Whenev-
er this Order requires that notice be provided to the other party, notice shall be deemed to have been validly
given (i) if delivered in person to the party entitled to receive such notice, (if) two (2) days after being sent by
registered or certified mail, postage prepaid to the address indicated on [he front side of [his Order, or (iii)
one (1) day after being sent via overnight mail through a respectable overnight delivery company.
11. ARBITRATION: Any controversy or claim arising out of or relating to [his Order shall be decided by
arbitration administered by the American Arbitration Association in accordance with its Commercial Arbi[ra-
tion Rules, subject to the limitations and restrictions set forth in this Paragraph 11. A demand for arbitration
shall be made within a reasonable time after a controversy or claim has arisen and in no event shall be
made after the dale when institution of legal or equitable proceedings based upon such claim or controversy
would be barred by the applicable statute of limitations, subject to the restriction set forth in Paragraph 10;
The arbilralor(s) shall have no authority to award punitive or other damages not measured by the prevailing
party's actual damages. The parties acknowledge and agree that this Order evidences a transaction involv-
ing interstate commerce. Accordingly, the United States Arbitration Act (Title 9 of the United States Code)
shall govern the interpretation, enforcement and proceedings pursuant to the arbitration provisions of this
Order. The place of arbitration shall be the American Arbitration Association's office closest to the location of
Dealer designated on the front side hereof. The parties shall be entitled to discover all documents and
information reasonably necessary for a full understanding of any relevant issue raised in the arbitration.
Regardless of any term or provision herein to the contrary, claims for contribution or indemnity filed by a
party in any lawsuit or action filed or asserted by a third party on account of personal injury or death of any
person or damage to property shall not be subject to [he terms and provisions of this Paragraph 11, The
award rendered by the arbitra[or(s) shall be final, and judgment may be entered upon it in accordance with
applicable law in any court having jurisdiction thereof.
12. EXPENSES AND COSTS: Should Dealer be required to institute any action, including any arbitration
proceeding, to enforce any of its rights set forth in Ihis Order, then Dealer shall be entitled to reimbursement
from Purchaser for all expenses, including but no[ limited to, reasonable attorneys' and experts' fees, and
costs incurred by Dealer in connection with such action. In the event Purchaser institutes any action, includ-
ing any arbitration proceeding, against Dealer and in the further event Dealer prevails in such action, Pur-
chaser shall pay Dealer the amount of all expenses, including but not limited to reasonable attorneys' and
experts' fees, and costs incurred by Dealer in connection with such action.
13. MISCELLANEOUS: This order may not be changed, altered or amended in any way except in writing
signed by a corporate officer or authorized manager of Dealer and an agent of Purchaser. Purchaser
acknowledges and agrees that Purchaser has had an adequate opportunity to review and revise [his Order
and the Order shall not be construed against or in favor of Purchaser or Dealer. No waiver by either party of
a breach or default hereunder will be deemed a waiver by such party of a subsequent breach or default of a
like or similar nature. -No waiver of any of these terms and condilions or any of the terms and conditions will
be effeclive against Dealer unless it is in writing signed by a corporate officer or authorized manager of
Dealer- No course of dealing or performance, usage of trade or failure to enforce any lerm or condition will
be used to modify this Order, If any of these terms or conditions is unenforceable, such term or condition will
he limited only to the extent necessary to make it enforceable, and all other terms and conditions will remain
in full force and effect, This Order is deemed to have been entered into in the state of the location of Dealer
designated on the front side hereof and will governed by the laws of the slate of the location of Dealer
designated on the front side hereof, without giving effect to the choice of laws provisions thereof. The reme-
dies expressly provided for in these conditions will be in addition to any other remedies [hat Dealer may have
under the Uniform Commercial Code or other applicable law. Purchaser may not assign [his Order without
the prior written consent of Dealer. These terms and conditions are for the exclusive benefit of Dealer and
Purchaser and no other person will have rights hereunder -
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