CITY OF BOISE. Finance and Administration and Aviation Departments

Transcription

1 CITY OF BOISE TO: FROM: Mayor and Council Finance and Administration and Aviation Departments RESOLUTION NUMBER: R DATE: October 28, 2010 SUBJECT: CP ; Authorization to procure snow removal equipment with broom and plow attachments off the Friedman Memorial Airport Authority contract AIP , Wausau Equipment Company, not to exceed $563,230. ACTION REQUIRED: Contract approval by resolution. RECOMMENDATION: Finance and Administration and Public Works Departments recommend CP be awarded to the Wausau Equipment Company in a total amount not to exceed $563,230. TITLE JOINT PURCHASING AGREEMENTS NOT-FOR-PROFIT ASSOCIATIONS. Political subdivisions may enter into joint purchasing agreements with the State of Idaho or other political subdivisions and may participate in joint purchasing agreements through a joint purchase program established by any not-for-profit association of political subdivisions. Personal property procured pursuant to such joint purchase agreements shall be acquired in accordance with the provisions of this chapter, provided such authority does not preclude or limit political subdivisions from entering into purchase agreements as otherwise provided by statute. FISCAL IMPACT: Financial Services has confirmed sufficient funding is available for this obligation. This procurement is being funded through a grant from the Federal Aviation Administration. BACKGROUND: This federally funded procurement is for snow removal equipment used for clearing airfield pavements at the Boise Airport. The Airport had previously held two formally bids for a snow broom, but recommended that all bids be rejected, because they were non-responsive. The Friedman Memorial Airport Authority had successfully awarded a contract for a primary snow removal equipment with broom and plow attachments. This recommendation is for cooperative purchase off the Friedman Memorial Airport Authority s contract AIP , for one airport primary snow removal equipment with broom and plow attachments. ATTACHMENTS: Resolution, Contract, Bid Proposal and Bid Specifications.

2 RESOLUTION NO. BY THE COUNCIL: BISTERFELDT, CLEGG, EBERLE, JORDAN, SHEALY AND THOMSON A RESOLUTION APPROVING AN AGREEMENT FOR CP , NEW, UNUSED SNOW BROOM AND PLOW ATTACHMENTS BETWEEN THE CITY OF BOISE CITY (AVIATION DEPARTMENT) AND WAUSAU EQUIPMENT COMPANY; AUTHORIZING THE MAYOR AND CITY CLERK TO RESPECTIVELY EXECUTE AND ATTEST SAID AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Finance and Administration and the Aviation Departments staff recommend award of CP , New, Unused Snow Broom and Plow Attachments, to the lowest, responsible bidder, Wausau Equipment Company; and, WHEREAS, during their meeting of, the City Council followed staff recommendation and awarded Resolution No., to Wausau Equipment Company. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF BOISE CITY, IDAHO: Section 1. That the Agreement for CP , New, Unused Snow Broom and Plow Attachments by and between the City of Boise and Wausau Equipment Company, attached hereto and incorporated herein by reference, be, and the same is hereby, approved as to both form and content. Section 2. That the Mayor and City Clerk be, and they hereby are, authorized to respectively execute and attest said Agreement for and on behalf of the City of Boise City. Section 3. That this Resolution shall be in full force and effect immediately upon its adoption and approval. ADOPTED by the Council of the City of Boise, Idaho, this day of, APPROVED by the Mayor of the City of Boise, Idaho this day of, APPROVED: ATTEST: David H. Bieter MAYOR CITY CLERK R

3 CITY OF BOISE CONTRACT AGREEMENT Project: Contractor: Owner: CP , One (1) New/Unused Primary Snow Removal Equipment Per Friedman Memorial Airport Authority s contract AIP Wausau Equipment Company City of Boise, Ada County, Idaho, a municipal corporation. THIS AGREEMENT, made this day of, 2010, by and between the City of Boise, a municipal corporation organized under the laws of the State of Idaho, hereinafter referred to as "Owner", and Wausau Equipment Company, hereinafter referred to Contractor, a corporation organized under the laws of the State of Maryland. Statement of Work: Contractor will furnish the labor, material and equipment for and perform the work desired herein for the consideration stipulated, and in compliance with Vendors Proposal, Exhibit B. Contract documents consist of the following together with any amendments that may be agreed to in writing by both parties: Contract Agreement Contract AIP Exhibit A Wausau Proposal Exhibit B Warranties Exhibit C Labor and Payment Bond Performance Bond Liability Insurance Workers Compensation Insurance Delivery Time: Delivery time is within 330 days after receipt of order. Guarantee: Contractor will guarantee their product will meet or exceed the minimum specifications set forth in their Proposal, Exhibit B. If the City finds that the product delivered does not conform to these specifications, the vendor will be required, at their expense, to make all corrections necessary to bring the unit into compliance. Contractor will provide repair parts and labor at no charge during the guarantee period. A service checklist showing all dealer prep operations that have been completed is to be provided with the unit at the time of delivery. Price Guarantee: The price in Exhibit B will remain in effect for the length of the contract. Warranty: Contractor will warranty each piece of new snow removal equipment sold to the City of Boise, regardless of make and manufacture, to be free from defects in materials or workmanship under normal use and service. Warranties are attached hereto in Exhibit B and Exhibit C. Quality and Workmanship: The design of the apparatus will embody the latest approved automotive engineering practices. The workmanship will be of the highest quality in its respective field. Special consideration will be given to the following points: Accessibility of the various units, which require periodic maintenance and ease of operations. Construction will be rugged and ample safety factors will be provided to carry the loads specified and to meet both on and off road requirements and speed conditions as set forth under "Performance Tests and Requirements. Welding will not be employed in the assembly of the apparatus in a manner that will prevent the ready removal of any component part for service or repair. All steel welding will follow American Welding Society D recommendations for structural steel welding. All aluminum welding will be done to American Welding Society and ANSI D requirements for structural welding of aluminum. Flux core arc welding will use alloy rods, type 7000, American Welding Society standard A5.20- E70T1.

4 General Construction: The apparatus will be designed with due consideration to distribution of load between the front and rear axles. Information Required: Contractor will supply at time of delivery; complete operation and maintenance manuals covering the completed apparatus as delivered. A permanent plate will be mounted in the driver's compartment which specifies the quantity and type of fluids required including engine oil, engine coolant, transmission, pump transmission lubrication, pump primer, and drive axle. Liability: Contractor will defend any and all suits and assume all liability for the use of any patented process including any device or article forming a part of the apparatus or any appliance furnished under the contract. Product Liability Insurance: Contractor will, during the performance of the contract and for (1) year following acceptance of the product, keep in force at least the following minimum limits of product liability insurance: Products/Completed Operations Personal and Advertising injury $1,000, in Aggregate $1,000, for Each Occurrence Coverage will be written on either a Commercial or Comprehensive General Liability form. The policy will be written on an occurrence form and will include Contractual Liability coverage. The policy will include the City of Boise as an additional insured. The required limits can be provided by one or more policies provided all other insurance requirements are met. Coverage will be provided by a carrier(s) rated "Excellent" by A.M. Bests. Indemnification and Insurance: Contractor will indemnify and save and hold harmless City from and for any and all losses, claims, actions, judgments for damages, or injury to persons or property and losses and expenses caused or incurred by Contractor, its servants, agents employees, guests, and business invitees, and not caused by or arising out of the tortuous conduct of Owner or its employees. In addition, Contractor, Inc. will maintain, and specifically agrees that it will maintain, throughout the term of this Agreement, liability insurance, in which Owner will be named an additional insured in the minimum amount as specified in the Idaho Tort Claims Act set forth in Title 6, Chapter 9 of the Idaho Code. The limits of insurance will not be deemed a limitation of the covenants to indemnify and save and hold harmless Owner; and if Owner becomes liable for an amount in excess of the insurance limits, herein provided, Contractor covenants and agrees to indemnify and save and hold harmless Owner from and for all such losses, claims, actions, or judgments for damages or liability to persons or property. Contractor will provide Owner with a Certificate of Insurance, or other proof of insurance evidencing Contractor's compliance with the requirements of this paragraph and file such proof of insurance with the Owner. In the event the insurance minimums are changed, Contractor will immediately submit proof of compliance with the changed limits. Evidence of all insurance will be submitted to Boise City Purchasing, P.O. Box 500, Boise, ID., Independent Contractor: In all matters pertaining to this agreement, Contractor will be acting as an independent Contractor, and neither Contractor, nor any officer, employee or agent, of Contractor will be deemed an employee of Owner. The selection and designation of the personnel of Owner in the performance of this agreement will be made by Owner. Inspection: There will be one (1) inspection trip for one (1) Boise Fleet Services Division representative to the factory. This trip will include travel, food and lodging at Owner s expense.

5 Compensation: For performing the services specified in Section 1 herein, Owner agrees to reimburse Contractor according to the billing schedule in Exhibit B. Payment will not include any sub-contract or other personal services pay except as may be agreed to in writing in advance by the parties. Change Orders may be issued, subject to Council approval. Method of Payment: Contractor will invoice the Boise Airport, 3201 Airport Way Boise, Idaho directly for all current amounts earned under this Agreement according to the Billing Schedule. Owner will pay all invoices within forty five (45) days after receipt. Notices: Any and all notices required to be given by either of the parties hereto, unless otherwise stated in this agreement, will be in writing and be deemed communicated when mailed in the United States mail, certified, return receipt requested, addressed as follows: City of Boise Airport Attn: Matt Petaja 3201 Airport Way Boise, Idaho Wausau Equipment Company 1905 S. Moorland Road New Berlin, WI Either party may change their address for the purpose of this paragraph by giving written notice of such change to the other in the manner herein provided. Attorney Fees: Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party will be entitled, in addition to any other relief as may be granted, to court costs and reasonable attorneys' fees as determined by a Court of competent jurisdiction. This provision will be deemed to be a separate contract between the parties and will survive any default, termination or forfeiture of this Agreement. Time is of the Essence: The parties hereto acknowledge and agree that time is strictly of the essence with respect to each and every term, condition and provision hereof, and that the failure to timely perform any of the obligations hereunder will constitute a breach of, and a default under, this Agreement by the party so failing to perform. Force Majeure: Any delays in or failure of performance by Contractor shall not constitute a breach or default hereunder if and to the extent such delays or failures of performance are caused by occurrences beyond the reasonable control of Contractor, including but not limited to, acts of God or the public enemy; compliance with any order or request of any governmental authority; fires, floods, explosion, accidents; riots, strikes or other concerted acts of workmen, whether direct or indirect; or any causes, whether or not of the same class or kind as those specifically named above, which are not within the reasonable control of Contractor. In the event that any event of force majeure as herein defined occurs, Contractor shall be entitled to a reasonable extension of time for performance of its Services under this Agreement. Assignment: It is expressly agreed and understood by the parties hereto, that Contractor will not have the right to assign, transfer, hypothecate or sell any of its rights under this Agreement except upon the prior express written consent of Owner.

6 Discrimination Prohibited: In performing the Services required herein, Contractor will not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age or disability. Reports and Information: At such times and in such forms as Owner may require, there will be furnished to Owner such statements, records, reports, data and information as Owner may request pertaining to matters covered by this Agreement. Compliance with Laws: In performing the scope of work required hereunder, Contractor will comply with all applicable laws, ordinances, and codes of Federal, State, and local governments. Changes: Owner may, from time to time, request changes in the Statement of Work to be performed hereunder. Such changes, including any increase or decrease in the amount of Contractor's compensation, which are mutually agreed upon by and between Owner and Contractor, will be incorporated in written amendments to this Agreement. Change orders must be authorized by Owner in writing prior to beginning the additional work. For changes which increase the Contract Price, singularly or cumulatively, by amounts in excess of those outlined in the City of Boise Municipal Code Section , "Owner" shall mean the Boise City Council. Termination for Cause: If, through any cause, Contractor will fail to fulfill in a timely and proper manner its obligations under this Agreement, or if Contractor will violate any of the covenants, agreements, or stipulations of this Agreement, Owner will thereupon have the right to terminate this Agreement by giving written notice to Contractor of such termination and specifying the effective date thereof at least fifteen (15) days before the effective date of such termination. In such event, all finished or unfinished documents, data, maps, studies, surveys, drawings, models, photographs and reports prepared by Contractor under this Agreement will, at the option of Owner, become its property, and Contractor will be entitled to receive just and equitable compensation for any work satisfactorily complete hereunder. Notwithstanding the above, Contractor will not be relieved of liability to Owner for damages sustained by Owner by virtue of any breach of this Agreement by Contractor, and Owner may withhold any payments to Contractor for the purposes of set-off until such time as the exact amount of damages due Owner from Contractor is determined. This provision will survive the termination of this agreement and will not relieve Contractor of its liability to Owner for damages. Termination for Convenience of City: Owner may terminate this Agreement at any time by giving at least fifteen (15) days notice in writing to the Contractor. If the Agreement is terminated by Owner as provided herein, Contractor will be paid an amount which bears the same ratio to the total compensation as the work actually performed bear to the total services of Contractor covered by this Agreement, less payments of compensation previously made. If this Agreement is terminated due to the fault of Contractor, Termination for Cause section hereof relative to termination will apply. Construction and Severability: If any part of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. Entire Agreement: This Agreement, along with the documents listed in Clause 1, contains the entire agreement of the parties and supersedes any and all other agreements or understandings, oral of written, whether previous to the execution hereof or contemporaneous herewith. Applicable Law: This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Idaho, and the ordinances of the City of Boise. Term: This agreement will not be valid for more than fourteen (14) months from the date of approval by Owner.

7 Approval Required: This Agreement will not become effective or binding until approved by Owner. Performance and Labor and Payment Bond: The City requires a Performance and Labor and Payment Bond covering 100% of the total annual or project price. The awarded Contractor will provide said bonds prior to proceeding with the contracted service. The bonding company must have authority to do business in Idaho and provide that information in a form acceptable to the City of Boise. The Bonds should be in the form of a Surety, Cashiers Check or Cash. The performance bond will cover the Wausau Equipment Company One Year Warranty. The performance bond will not cover any other warranties included in the proposal. Report to State Tax Commission: The City will inform the Idaho State Tax Commission of contract amount. It will be the responsibility of the Contractor to send a completed WH-5 form to the Idaho State Tax Commission, 700 W. State Street, Boise, ID Acceptance and Final Payment: Upon receipt of notice that the work is ready for final acceptance and inspection, the Owner s representative will make such inspection and when he finds the work acceptable and the contract fully performed he will have the Contractor issue a final payment request per progress payment schedule. Non-Appropriation: Should funding become not available, due to lack of appropriation, the City may terminate this agreement upon 30 (thirty) days notice. Contract Not To Exceed Amount $563,230 Five hundred sixty three thousand, two hundred thirty and 00/100 Dollars. END OF AGREEMENT

8 IN WITNESS WHEREOF, the City and the Contractor/Vendor have executed this Agreement as of the date first above written. City OF BOISE Contractor: Wausau Equipment Company, Inc 1905 S. Moorland Road APPROVED BY: New Berlin, WI David H. Bieter, Mayor Date Contractor Signature Date ATTEST: Print Name Craig Croner, City Clerk Date CONTRACT AMOUNT: NOT TO EXCEED $563,230 Denis Ryall, Purchasing Agent Date APPROVED AS TO FORM AND CONTENT Boise Airport Date Legal Department Date Risk Management Date

9 ACKNOWLEDGMENT State of ) ) ss County of ) On this day of 20, before me personally appeared, known to me and known by me to be the person who executed the above instrument, who, being by me first duly sworn, did depose and say that he is and that he executed the foregoing instrument on behalf of said firm for the use and purposes stated therein. Notary Public of Residing at My Commission Expires: (SEAL) Note: This form or a reasonable facsimile is to be completed and delivered to the City of Boise City Purchasing when contracts are signed.

10 STATE OF ) COUNTY OF ) CONTRACTOR'S AFFIDAVIT CONCERNING TAXES Pursuant to the Idaho Code, Title 63, Chapter 15, I, the above signed, being duly sworn, depose and certify that all taxes, excises and license fees due to taxing units in the State of Idaho, for which I or my property is liable then due or delinquent, have been paid, or secured to the satisfaction of the respective taxing units. Wausau Equipment Company {Contractor Name} 1905 S. Moorland Road (Address) New Berlin, WI (City and State) (Signature) Subscribed and sworn to before me the Day of, (Notary Republic) (City and State) Commission Expires: NOTE: This form or a reasonable facsimile is to be completed and delivered to the City of Boise Purchasing Office when contracts are signed.

11 PERFORMANCE BOND BOND NO. KNOW ALL MEN BY THESE PRESENTS: That (Here insert the name and address or legal title of Contractor) as Principal, hereinafter called Contractor, and, and as Surety, hereinafter called Surety, held and firmly bond unto, (Here insert name and address of legal title of the Owner) as Obligee, hereinafter called Owner, in the amount of Dollars being 100% of the contract price in lawful money of the United States, for the payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns jointly and severally, firmly by these presents. WHEREAS, Contractor has by written agreement dated, 20 enter into a contract contract with Owner of in accordance with drawings and specifications prepared by DEPARTMENT NAME, which contract is by reference made a part hereof, and is hereinafter referred to as the Contract. NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Contractor will promptly and faithfully perform said contract, then this obligation will be null and void; otherwise it will remain in full force and effect. The Surety hereby waives notices of any alteration or extension of time made by the Owner. Whenever Contractor will be, and is declared by Owner to be in default under the Contract, the Owner's obligations hereunder, the Surety may promptly remedy the default, or will promptly: 1) Complete the Contract in accordance with its terms and conditions, or 2) Obtain a bid or bids for submission to Owner for completing the Contract in accordance with its terms and conditions, and upon determination by Owner and Surety of the lowest responsible bidder, arrange for a contract between such bidder, arrange for a contract between such bidder and Owner, and make available as work progresses (even though there would be default or a succession of defaults under the contract or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the contract price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph, will mean the total amount payable by Owner to Contractor under the Contract and any amendments thereto, less the amount properly paid by Owner to Contractor.

12 Performance Bond (cont) Any suit under this bond must be instituted before the expiration of 2 years from the date on which final payment under the contract falls due. No right of action will accrue on this bond to or for the use of any person or corporation other than the Owner named herein or the heirs, executors, administrators or successors of Owner. Signed and Sealed this day of, A.D. 20 In the presence of: (Principal) (Seal) (Title) By: Note: This form or a reasonable facsimile is to be completed and delivered to City of Boise Purchasing Office when contracts are signed.

13 KNOW ALL MEN BY THESE PRESENTS: LABOR AND MATERIAL PAYMENT BOND That we (Here insert the name and address or legal title of Contractor) as Principal, and the corporation, as Surety, are held and firmly bound unto Boise City, a Municipal Corporation in the State of Idaho. As Obligee, in the sum of Dollars, being 100% of the contract price, in lawful money of the United States, for which sum, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, by these presents. WHEREAS, Contractor has by written agreement dated, 20 enter into a contract WHEREAS, on the Day of, 20, the principal entered into a contract with the Obligee for Which contract is by reference made a part hereof and, hereafter referred to as the Contract: NOW THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the principal will pay all laborers, mechanics, subcontractors, material suppliers and all persons who will supply said Principal or said subcontractors with provisions and supplies for the carrying on of such work, then this obligation will be null and void; otherwise to remain in full force and effect. Signed and Sealed this day of, A.D. 20 Principal Insurance Company Attorney-in-Fact By: Note: this form or a reasonable facsimile is to be completed and delivered to City of Boise Purchasing Office when contracts are signed.

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141 October 25, 2010 Mr. Collin Millar Boise City Purchasing PO Box 500 Boise, ID Subject: Equipment Proposal for one (1) Primary Snow Removal Equipment per Friedman Memorial Airport Authority s contract No. AIP including the Prime Mover Chassis, Snow Broom & Airblast, and Snow Plow Dear Mr. Millar, The Wausau Equipment Company, Inc. hereby offers the City of Boise, ID the following equipment under the terms and conditions listed to be identical to the same equipment and services provided to the Friedman Memorial Airport Authority under Contract No. AIP Equipment: 1. One (1) Wausau Model SD3131 SNODozer Prime Mover Chassis outlined as follows: - Cab forward Rear Engine Design Chassis, 4 wheel drive, 4 wheel steer - Powered by Caterpillar C-13 Engine RPM - Allison automatic 4 speed RDS4000 transmission, top speed = 45 MPH - 31,000 lb rear drive steer axle with operator controlled differential lock - 31,000 lb front drive steer axle with operator controlled differential lock - Front Quick Hitch assembly with weight transfer system - Radio Equipment per specification - All standard and optional equipment supplied to Friedman Memorial Airport 2. One (1) Wausau Model HSB5220 SNOSaw High Speed Broom & Airblast outlined as follows: long x 46 diameter High Speed Broom Head w/hitch assembly - 20,000 CFM Dual Impeller Airblast System - Powered by Caterpillar C-13 Engine RPM - All equipment mounted, installed, and tested on chassis prior to delivery - All standard and optional equipment supplied to Friedman Memorial Airport

142 Page 2 Equipment (continued): 3. One (1) Wausau Model BMP2250 BlueMax High Speed Runway Plow outlined as follows: - 22 ft long x 50 in high Poly Moldboard Plow w/hitch assembly - Hydraulic Reversing Frame to angle plow left/right - Dual Pneumatic Caster assemblies - Steel Cutting Edges - All standard and optional equipment supplied to Friedman Memorial Airport Services: 1. Two sets of Operator s, Parts, & Service Manuals for all equipment supplied. 2. Delivery, Set-up, and Training at Boise, ID airport Pricing: Total Price for Chassis, Broom & Airblast, Plow, Delivery, & Training as outlined $ 563, ea Delivery Time: No more than 330 days after receipt of order per Friedman Memorial Airport contract Delivery Point: F.O.B. Destination; City of Boise Airport, 3201 Airport Way, Boise, ID Payment Terms: Net 30 Days Warranty Period: One Year Parts & Labor per attached Warranty Policy & Friedman Memorial Airport Contract Regards, Chuck Reichwald Chuck Reichwald Senior Product Manager Direct: (262) Cell: (262)

143 WAUSAU EQUIPMENT COMPANY, INC. A Subsidiary of Wausau-Everest LP LIMITED WARRANTY 1. LIMITED WARRANTY Wausau Equipment Company, Inc. ( Wausau ), except as provided below, warrants to the original owner that its products are free from defects in material and workmanship under normal use and service for a period of one (1) year from date of delivery as established by our original invoice. This warranty shall apply only if the equipment is properly maintained and used in service which is normal for the equipment. If the buyer or subsequent owner discovers a defect or nonconformity to this warranty, it must notify Wausau in writing within fifteen (15) days after the date of discovery. Wausau makes no express or implied warranty as to (1) Integral parts, components, attachments or trade accessories that Wausau used in manufacturing or assembling the equipment but that Wausau did not manufacture, but instead, the applicable warranties, if any, of the respective manufacturers thereof shall apply; (2) Any vehicle or component, part, attachment or accessory damaged by misuse, neglect, accident, act of nature, failure to follow recommended service procedures and adjustments, lack of operational knowledge or by non-compliance with the general standard of reasonable care; (3) Any vehicle or component, part, attachment or accessory which shall have been repaired, altered, or assembled in any way by others than Wausau which, in the sole judgment of Wausau, affects the performance, stability or purpose for which it was manufactured; (4) Frames or cross-members which have been subject to welding, heat treatment or corrosion caused by the use of acids after delivery to the first user; (5) Products or parts which are not defective, but which may wear out and have to be replaced during the warranty period, including, but not limited to, tires, fluids, gaskets, seals, filters and light bulbs; (6) Normal maintenance services or adjustments, including but not limited to fuel system cleaning, wheel alignment and balancing, engine tune-up, clutch adjustment, and brake inspection or adjustment. Wausau assumes no responsibility for the assembly of its parts or sub-assemblies into finished products unless the assembly is performed by Wausau. 2. DISCLAIMERS OF WARRANTIES THE WARRANTIES EXPRESSLY STATED HEREIN ARE THE EXCLUSIVE WARRANTIES GIVEN BY WAUSAU. WAUSAU HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES OTHERWISE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. 3. BUYER S REMEDIES If the product fails to conform to the warranties set forth in paragraph 1 and such nonconformity is not due to misuse or improper maintenance, buyer shall notify Wausau as provided in paragraph 1, and shall make the product available for inspection by Wausau or its designated agent. At the request of Wausau any defective part shall be returned to Wausau for examination, with transportation charges prepaid. Within a reasonable time Wausau shall provide, at its option, repair or replacement of any nonconforming or defective parts. This warranty does not cover labor, travel and out-of-pocket expenses unless approved in writing by Wausau. All warranty claims must be submitted on Wausau s Warranty Claim Form. This warranty is void if the original invoice is not paid in full within the specified terms. 4. EXCLUSION OF CONSEQUENTIAL AND INCIDENTAL DAMAGES THE REMEDIES DESCRIBED ABOVE SHALL BE BUYER S ENTIRE AND EXCLUSIVE REMEDY. IN NO EVENT SHALL WAUSAU BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING IN CONNECTION WITH OR OUT OF THE EQUIPMENT, WHETHER RESULTING FROM NONDELIVERY OR FROM THE USE, MISUSE, OR INABILITY TO USE THE PRODUCT OR FROM DEFECTS IN THE PRODUCT OR FROM THE NEGLIGENCE OF WAUSAU OR FROM OTHER TORT. THIS EXCLUSION APPLIES REGARDLESS OF WHETHER SUCH DAMAGES ARE SOUGHT FOR BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT OR UNDER ANY OTHER LEGAL THEORY, AND WAUSAU S LIABILITY SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER, WHICH AMOUNT MAY BE REDUCED DUE TO DEPRECIATION AND DAMAGE BEYOND NORMAL WEAR AND TEAR. BUYER UNDERSTANDS THAT THE LIMITATION OF WAUSAU S LIABILITY RELATING TO THE EQUIPMENT IS A MATERIAL TERM OF THE PARTIES TRANSACTION. Corporate Headquarters: Wausau-Everest, L.P South Moorland Road New Berlin, WI U.S.A fax Wausau Equipment Co., Inc South Moorland Road New Berlin, WI U.S.A fax ISO 9001:2000 certified Everest Equipment Co Westmount Ayer s Cliff, Quebec J0B 1C0 CANADA fax Visit us at Rev. 10/2010