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Home My WebLink AboutC21-295 Cummins Rocky MountainDocuSign Envelope ID: 71541EE3-7478-4197-8B51-1AC2FACB0329 AGREEMENT FOR SERVICES BETWEEN EAGLE COUNTY, COLORADO AND CUMMINS INC. THIS AGREEMENT ("Agreement") is effective as of the 9/1/2021 by and between Cummins Inc. an Indiana corporation (hereinafter "Contractor"), and Eagle County, Colorado, a body corporate and politic (hereinafter "County"). RECITALS WHEREAS, County desires to contract for scheduled service preventive maintenance and additional on - call services for the emergency generators (the "Project") at the El Jebel Community Center located at 0020 Eagle County Drive, El Jebel, CO 81623 and the Maintenance Service Center located at 3289 Cooley Mesa Road, Gypsum, CO 81637 (the "Property"); and WHEREAS, Contractor is authorized to do business in the State of Colorado and has the time, skill, expertise, and experience necessary to provide the Services as defined below in paragraph 1 hereof; and WHEREAS, this Agreement shall govern the relationship between Contractor and County in connection with the Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Contractor and County agree as follows: 1. Services or Work. Contractor agrees to diligently provide all services, labor, personnel, and materials necessary to perform and complete the services or work described in Exhibit A ("Services" or "Work") which is attached hereto and incorporated herein by reference. The Services shall be performed in accordance with the provisions and conditions of this Agreement. a. Contractor agrees to furnish the Services in accordance with the schedule established in each proposal approved by County. If no completion date is specified, then Contractor agrees to furnish the Services in a timely and expeditious manner consistent with the applicable standard of care. By signing below, Contractor represents that it has the expertise and personnel necessary to properly and timely perform the Services. b. In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. 2. County's Representative. The Facilities Management Department's designee shall be Contractor's contact with respect to this Agreement and performance of the Services. 3. Term of the Agreement. This Agreement shall commence on the loth day of October, 2021, and subject to the provisions of paragraph 11 hereof, shall continue in full force and effect for a period of one C21-295 DocuSign Envelope ID: 71541EE3-7478-4197-8B51-1AC2FACB0329 year. 4. Extension or Modification. This Agreement may be extended for up to three additional one year terms upon written agreement of the parties. Any amendments or modifications shall be in writing signed by both parties. No additional services or work performed by Contractor shall be the basis for additional compensation unless and until Contractor has obtained written authorization and acknowledgement by County for such additional services in accordance with County's internal policies. Accordingly, no course of conduct or dealings between the parties, nor verbal change orders, express or implied acceptance of alterations or additions to the Services, and no claim that County has been unjustly enriched by any additional services, whether or not there is in fact any such unjust enrichment, shall be the basis of any increase in the compensation payable hereunder. In the event that written authorization and acknowledgment by County for such additional services is not timely executed and issued in strict accordance with this Agreement, Contractor's rights with respect to such additional services shall be deemed waived and such failure shall result in non-payment for such additional services or work performed. 5. Compensation. County shall compensate Contractor for the performance of the Services in a sum computed and payable as set forth in Exhibit A. The performance of the Services under this Agreement shall not exceed two thousand eight hundred sixty four dollars and 00/100 ($2,864.00). In the event Contractor and County agree upon the need for additional services beyond those described in Exhibit A, those services shall be billed at the rates as set forth in Exhibit A. Prior to commencement of any additional Services at the Property, Contractor shall first provide County with a written estimate which shall include an estimate of the labor, materials without any mark up and any additional costs necessary to perform the Services at the Property. Each estimate must be approved by County's Representative prior to commencement of the Services by Contractor and all rates shall be in accordance with the fee schedule set forth in Exhibit A. Total compensation under this Agreement shall not exceed one hundred thousand dollars ($100,000.00) without a written amendment to this Agreement. Contractor shall not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours unless specifically authorized in writing by County. a. Payment will be made for Services satisfactorily performed within thirty (30) days of receipt of a proper and accurate invoice from Contractor. All invoices shall include detail regarding the hours spent, tasks performed, who performed each task and such other detail as County may request. b. If, at any time during the term or after termination or expiration of this Agreement, County reasonably determines that any payment made by County to Contractor was improper because the Services for which payment was made were not performed as set forth in this Agreement, then upon written notice of such determination and request for reimbursement from County, Contractor shall forthwith return such payment(s) to County. Upon termination or expiration of this Agreement, unexpended funds advanced by County, if any, shall forthwith be returned to County. C. County will not withhold any taxes from monies paid to the Contractor hereunder and Contractor agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. d. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Contractor in respect of any 2 C21-295 DocuSign Envelope ID: 71541EE3-7478-4197-8B51-1AC2FACB0329 period after December 31 of any year, without an appropriation therefor by County in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 6. Subcontractors. Contractor acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Contractor. Contractor shall not enter into any subcontractor agreements for the performance of any of the Services or additional services without County's prior written consent, which may be withheld in County's sole discretion. County shall have the right in its reasonable discretion to approve all personnel assigned to perform the Services during the performance of this Agreement and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned to the Project. Contractor shall require each subcontractor, as approved by County and to the extent of the Services to be performed by the subcontractor, to be bound to Contractor by the terms of this Agreement, and to assume toward Contractor all the obligations and responsibilities which Contractor, by this Agreement, assumes toward County. County shall have the right (but not the obligation) to enforce the provisions of this Agreement against any subcontractor hired by Contractor and Contractor shall cooperate in such process. The Contractor shall be responsible for the acts and omissions of its agents, employees and subcontractors. 7. Insurance. Contractor agrees to provide and maintain at Contractor's sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. Workers' Compensation insurance as required by law. ii. Auto coverage with limits of liability not less than $1,000,000 each accident combined bodily injury and property damage liability insurance, including coverage for owned, hired, and non -owned vehicles. iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $1,000,000 aggregate limits. b. Other Requirements. i. The automobile and commercial general liability coverage shall be endorsed to include Eagle County, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds. A certificate of insurance consistent with the foregoing requirements is attached hereto as Exhibit B. ii. Contractor's certificates of insurance shall include subcontractors, if any, as additional insureds under its policies or Contractor shall furnish to County separate certificates and endorsements for each subcontractor. iii. The insurance provisions of this Agreement shall survive expiration or termination hereof. 3 C21-295 DocuSign Envelope ID: 71541EE3-7478-4197-8B51-1AC2FACB0329 iv. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities, and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. V. Contractor is not entitled to workers' compensation benefits except as provided by the Contractor, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Contractor or some other entity. The Contractor is obligated to pay all federal and state income tax on any monies paid pursuant to this Agreement. 8. Indemnification. The Contractor shall indemnify and hold harmless County, and any of its officers, agents, and employees against any losses, claims, damages, or liabilities for which County may become subject to insofar as any such losses, claims, damages, or liabilities arise out of, directly or indirectly, this Agreement, or are based upon any performance or nonperformance by Contractor or any of its subcontractors hereunder; and Contractor shall reimburse County for reasonable attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability, or action. This indemnification shall not apply to claims by third parties against the County to the extent that County is liable to such third party for such claims without regard to the involvement of the Contractor. This paragraph shall survive expiration or termination hereof. 9. Ownership of Documents. All documents (including electronic files) and materials obtained during, purchased or prepared in the performance of the Services shall remain the property of the County and are to be delivered to County before final payment is made to Contractor or upon earlier termination of this Agreement. 10. Notice. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (iv) when sent via facsimile so long as the sending party can provide facsimile machine or other confirmation showing the date, time and receiving facsimile number for the transmission, or (v) when transmitted via e-mail with confirmation of receipt. Either party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. COUNTY: Eagle County, Colorado Attention: Ron Siebert Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8881 Facsimile: 970-328-8782 E-Mail: ron.siebert@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway 4 C21-295 DocuSign Envelope ID: 71541EE3-7478-4197-8B51-1AC2FACB0329 Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 E-Mail: atty@eaglecounty.us CONTRACTOR: Cummins Inc. 390 Interlocken Crescent Suite 200 Broomfield, Colorado 80021 Telephone: 1-505-248-9503 Facsimile: 303 288 7080 E-Mail: matthew.harlow@cummins.com 11. Termination. County may terminate this Agreement, in whole or in part, at any time and for any reason, with or without cause, and without penalty therefor with seven (7) calendar days' prior written notice to the Contractor. Upon termination of this Agreement, Contractor shall immediately provide County with all documents as defined in paragraph 9 hereof, in such format as County shall direct and shall return all County owned materials and documents. County shall pay Contractor for Services satisfactorily performed to the date of termination. 12. Venue, Jurisdiction and Applicable Law. Any and all claims, disputes or controversies related to this Agreement, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed, interpreted under, and governed by the laws of the State of Colorado. 13. Execution by Counterparts, Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121. 14. Other Contract Requirements and Contractor Representations. a. Contractor has familiarized itself with the nature and extent of the Services to be provided hereunder and the Property or Properties, and with all local conditions, federal, state and local laws, ordinances, rules, and regulations that in any manner affect cost, progress, or performance of the Services. b. Contractor will make, or cause to be made, examinations, investigations, and tests as it deems necessary for the performance of the Services. C. To the extent possible, Contractor has correlated the results of such observations, 5 C21-295 DocuSign Envelope ID: 71541EE3-7478-4197-8B51-1AC2FACB0329 examinations, investigations, tests, reports, and data with the terms and conditions of this Agreement. d. To the extent possible, Contractor has given County written notice of all conflicts, errors, or discrepancies. e. Contractor shall be responsible for the completeness and accuracy of the Services and shall correct, at its sole expense, all significant errors and omissions in performance of the Services. The fact that the County has accepted or approved the Services shall not relieve Contractor of any of its responsibilities. Contractor shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to contractors performing similar services. Contractor represents and warrants that it has the expertise and personnel necessary to properly perform the Services and shall comply with the highest standards of customer service to the public. Contractor shall provide appropriate supervision to its employees to ensure the Services are performed in accordance with this Agreement. This paragraph shall survive termination of this Agreement. f. Contractor agrees to work in an expeditious manner, within the sound exercise of its judgment and professional standards, in the performance of this Agreement. Time is of the essence with respect to this Agreement. g. This Agreement constitutes an agreement for performance of the Services by Contractor as an independent contractor and not as an employee of County. Nothing contained in this Agreement shall be deemed to create a relationship of employer -employee, master -servant, partnership, joint venture, or any other relationship between County and Contractor except that of independent contractor. Contractor shall have no authority to bind County. h. Contractor represents and warrants that at all times in the performance of the Services, Contractor shall comply with any and all applicable laws, codes, rules, and regulations. i. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. j. Contractor shall not assign any portion of this Agreement without the prior written consent of the County. Any attempt to assign this Agreement without such consent shall be void. k. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties, and not to any third party. 1. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. In. The invalidity, illegality, or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. n. The signatories to this Agreement aver to their knowledge no employee of the County has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement. 1.1 C21-295 DocuSign Envelope ID: 71541EE3-7478-4197-8B51-1AC2FACB0329 The Contractor has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Services and Contractor shall not employ any person having such known interests. o. The Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) to the extent applicable shall comply with C.R.S. 24-76.5-103 prior to the effective date of this Agreement. 15. Prohibitions on Government Contracts. As used in this Section 15, the term undocumented individual will refer to those individuals from foreign countries not legally within the United States as set forth in C.R.S. 8-17.5-101, et. seq. If Contractor has any employees or subcontractors, Contractor shall comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Contractor certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Agreement and that Contractor will participate in the E-verify Program or other Department of Labor and Employment program ("Department Program") in order to confirm the eligibility of all employees who are newly hired for employment to perform Services under this Agreement. a. Contractor shall not: i. Knowingly employ or contract with an undocumented individual to perform Services under this Agreement; or ii. Enter into a subcontract that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an undocumented individual to perform work under the public contract for services. b. Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform Services under this Agreement through participation in the E-Verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E-verify program can be found at: https://www.uscis.gov/e-verify C. Contractor shall not use either the E-verify program or other Department Program procedures to undertake pre -employment screening of job applicants while the public contract for services is being performed. d. If Contractor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an undocumented individual, Contractor shall be required to: i. Notify the subcontractor and County within three (3) days that Contractor has actual knowledge that the subcontractor is employing or contracting with an undocumented individual; and ii. Terminate the subcontract with the subcontractor if within three days of 7 C21-295 DocuSign Envelope ID: 71541EE3-7478-4197-8B51-1AC2FACB0329 receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the subcontractor does not stop employing or contracting with the undocumented individual; except that Contractor shall not terminate the contract with the subcontractor if during such three (3) days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an undocumented individual. C. Contractor shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. 8-17.5-102(5). f. If Contractor violates these prohibitions, County may terminate the Agreement for breach of contract. If the Agreement is so terminated specifically for breach of this provision of this Agreement, Contractor shall be liable for actual and consequential damages to County as required by law. g. County will notify the Colorado Secretary of State if Contractor violates this provision of this Agreement and County terminates the Agreement for such breach. [REST OF PAGE INTENTIONALL Y LEFT BLANK] C21-295 DocuSign Envelope ID: 71541EE3-7478-4197-8B51-1AC2FACB0329 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER DocuSigned by: By: Jq SLny' Jeff Shro , Vd4RWrfter CONTRACTOR: CUMMINS INC. F ocuSigned b By: � 14BWID EAM44Q... Print Name: Fred P Ri sse Title: Director, PEM sales 9 C21-295 DocuSign Envelope ID: 71541 EE3-7478-4197-8B51-1AC2FACB0329 Sales and me Service GRAND JUNCTION CO BRANCH 731 SCARLET DR GRAND JUNCTION, CO 81505 Phone: 970-242-5776 PLANNED MAINTENANCE AGREEMENT Customer Address Customer Contact Ouote Information EAGLE COUNTY FACILITIES Contact: Glen Padgett Quote Date: 10-AUG-21 PO BOX 850 Phone: 970 4711768 Quote Expires: 10-AUG-22 Eagle, CO 81631 Fax: Quote Num: 143923 Cust Id: 466350 Quoted By: Melissa L Guillen Quote Term: 1 Year(s) Site Information 1 EAGLE COUNTY 0020 EAGLE COUNTY DR EL JEBEL CO 81623 2 FLEET MNTC 3289 COOLEY MESA ROAD GYPSUM CO 81637 Site Unit Number Manufacturer Model Prod Model Serial Number Type 1 GENERATOR ONAN GEN SET 25GGMB H090024012 ST 2 L080226491 ONAN GEN SET 125 GGLA L080226491 ST Site Unit Number Service Event Qty Sell Price Extended Price 1 GENERATOR FULL SERVICE 1 763.00 763.00 INSPECTION 1 577.00 577.00 2 L080226491 FULL SERVICE 1 917.00 917.00 INSPECTION 1 607.00 607.00 QUOTED PRICING IS BASED ON WEEKDAYS DURING NORMAL BUSINESS HOURS. LABOR RATE FOR REPAIRS DURING NORMAL BUSINESS HOURS IS $110.00 AND MILEAGE IS $2.50 PER MILE. AGREEMENT TERMS: 10/1/2021 - 9/30/2022 "QUOTE DOES NOT INCLUDE TAX IF ANY OR APPLICABLE. As a result of the outbreak of the disease Covid-19 arising from the novel coronavirus, temporary delays in delivery, labour or services from Cummins and its 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 modify its labour or service. While Cummins shall make every commercially reasonable effort to meet the delivery, service or completion obligations set forth herein, such dates are subject to change. Standard Agreement Amount Proposal Total - - - - - -- - - - - - -- -- - - - - -- -- -- - - -- - -- - ----- .. ...... . . .. .. . ... . $2,864.00 $2,864.00 EXHIBIT A Pa<x e of DocuSign Envelope ID: 71541 EE3-7478-4197-8B51-1AC2FACB0329 Sales and me Service PLANNED MAINTENANCE AGREEMENT Customer Address Customer Contact Quote Information EAGLE COUNTY FACILITIES Contact: Glen Padgett Quote Date: 10-AUG-21 PO BOX 850 Phone: 970 4711768 Quote Expires: 10-AUG-22 Eagle, CO 81631 Fax: Quote Num: 143923 Cust Id: 466350 Quoted By: Melissa L Guillen Quote Term: 1 Year(s) THAT THE CONTRACT TERMS AND CONDITIONS HAVE BEEN READ, FULLY UNDERSTOOD, AND ACCEPTED. Customer Approval CUMMINS INC Date Signature: WIZ4�7 08/10/2021 Date: C21-295 Page 2 of 2 DocuSign Envelope ID: 71541EE3-7478-4197-8B51-1AC2FACB0329 PLANNED MAINTENANCE AGREEMENT TERMS AND CONDITIONS These Planned Maintenance Agreement Terms and Conditions, together with the Quote on the front side and the Scope of Services, are hereinafter referred to as this'Agreemead and shall constitute the entire agreement between the customer identified in the Quote ('Customer') and Cummins Inc. ('Cummins') and supersede any previous agreement or understanding (oral or written) between the parties with respect to the subject matter of this Agreement. 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 this Agreement. Electronic transactions between Customer and Cummins will be solely governed by this Agreement, and any terms and conditions on Customer's 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 ref ce, or produces any purchase order or document, any terms and conditions related thereto shall be null and void and of no legal effect on Cummins. 1. SCOPE OF SERVICES; PERFORMANCE OF SERVICES. Cummins shall perform the maintenance ('Services') on the equipment identified in the Quote ('Equipment) in accordance with the schedule specified in the Quote. The Services include those services defined in the'Service Event' section of the Quote. No additional services or materials are included in this Agreement unless agreed upon by the parties in writing. Unless otherwise indicated in the Quote, Cummins will provide the labor and tools necessary to perform the Services and shall keep Customer's property free from accumulation of waste materials caused by Cummins' operations. Either party may terminate this Agreement with or without cause by providing thirty (30) days written notice to the other. 2. CUSTOMER OBLIGATIONS. Customer shall provide Cummins safe access to Customer's site and arrange for all related services and utilities necessary for Cummins to perform the Services. During the performance of the Services, Customer shall Polly and completely secure all or any part of any facility where the Equipment is located in remove and mitigate any and all safety issues and risks, including but not limited to facility occupants, customers, invitees, or any third party and or property damage or work interruption arising out of the Services. Customer shall make all necessary arrangement to address and mitigate the consequences of any electrical service interruption which might occur during the Services. CUSTOMER IS RESPONSIBLE FOR OPERATING AND MAINTAINING THE EQUIPMENT IN ACCORDANCE WITH THE OWNER'S MANUAL FOR THE EQUIPMENT, 3. PAYMENT TERMS. 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 Services. Ifpayment is not received when due, in addition many rights Cummins may have at law, Cummins may charge Customer eighteen percent (18%) interest annually on late payments, or the maximum cunt allowed by law. Customer agrees to pay all Cummins' costs and expenses (including all reasonable attomeys' fees) related to Cummins' enforcement and collection of unpaid invoices, or any other enforcement of this Agreement by Cummins. Unless otherwise stated, the Quote excludes all applicable local, state, or federal sales and/or use or similar taxes which Cummins is required by applicable laws to collect from Customer and shall be stated on the invoice. 4. DELAYS. Any performance dates indicated in this Agreement are estimated and not guaranteed. Cummins shall not be liable for any delays in performance however occasioned, including any that result directly or indirectly from acts of Customer or causes beyond Cummins' control, including but not limited to acts of God, accidents, fire, explosions, flood, unusual weather conditions, acts of government authority, or labor disputes. AS A RESULT OF THE OUTBREAK OF THE DISEASE COVID-19 ARISING FROM THE NOVEL CORONAVIRUS, TEMPORARY DELAYS IN DELIVERY, LABOUR OR SERVICES FROM CUMMINS AND ITS 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 MODIFY ITS LABOUR OR SERVICE. WHILE CUMMINS SHALL MAKE EVERY COMMERCIALLY REASONABLE EFFORT TO MEET THE DELIVERY, SERVICE OR COMPLETION OBLIGATIONS SET FORTH HEREIN, SUCH DATES ARE SUBJECT TO CHANGE. 5. WARRANTY. Cummins shall perform the Services in a reasonable and workmanlike manner. Parts and components supplied under this Agreement are governed by the express written manuf twer's limited warranty. No other warranty for parts or components is provided under this Agreement. All Services shall be free from defects in workmanship for a period of ninety (90) days after completion of Services. In the event of a warrantable def t in workmanship of Services supplied under this Agreement ('Warrantable Defect), Cummins' obligation shall be solely limited to correcting the Warrantable Defect. Cummins shall correct the Warrantable Defect where (i) such Warrantable Defect becomes apparent to Customer during the warranty period; (ii) Cummins receives written notice of any Warrantable Defect within thirty (30) days following discovery by Customer; and (iii) Cummins has determined that there is a Warrantable Defect. Warrantable Defects remedied under this provision shall be subject to the remaining warranty period ofthe original warranty of the Services. New parts supplied during the remedy of Warrantable Defects are warranted for the balance of the warranty period still available from the original warranty of such parts. The remedies set forth in this Section 5 shall not be deemed to have failed of their essential purpose so long as Cummins is willing to correct defective Services or refund the purchase price therefor. 6. LIMITATIONS OF WARRANTIES AND LIABILITY. THE REMEDIES PROVIDED IN THE LIMITED 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. 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, AND DAMAGES CAUSED BY DELAYS) IN ANY WAY RELATED TO OR ARISING FROM CUMMINS' SUPPLY OF PARTS OR SERVICES 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 PARTS AND SERVICES SUPPLIED BY CUMMINS UNDER THIS AGREEMENT. BY ACCEPTANCE OF THIS AGREEMENT, CUSTOMER ACKNOWLEDGES CUSTOMER'S SOLE REMEDY AGAINST CUMMINS FOR ANY LOSS SHALL BE THE REMEDY PROVIDED HEREIN. 7. INDE C BTY. Customer shall indemnify, defend and hold harmless Cummins from and against any and all claims, actions, costs, expenses, damages and flabiflfies, including reasonable attorneys' fees, brought against or incurred by Cummins related to or wising out of this Agreement or the Services 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. 8. 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. 9. GOVERNING LAW. 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. 10. INSURANCE. Upon Customer's request, Cummins will provide to Customer a Certificate of Insurance evidencing Cummins' relevant insurance coverage. 11. 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. 12. 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 licence or any other rights to use any of the intellectual property rights of Cummins. 13. MISCELLANEOUS. Cummins shall be an independent contractor with respect to the Services performed 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 nationally recognized express courier service to the addresses set forth in the Quote. 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 broach. Any provision of this Agreement that is invalid or unenforceable shall not affect the validity or enforceability of the remaining terms hereof. 14. ON -CALL SERVICES. Upon Customer's request, Cummins shall provide on -call services (repair, emergency work or other) on the Equipment ('On -call Services'). Any On -call Services shall be invoiced to the Customer at the Cummins current hour rate (including traveling) and shall be governed by the terms and conditions of this Agreement. 15. To the extent applicable, this contractor and subcontractor shall abide by the requirements of 41 CFR §§ 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 me, 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 art 471, Appendix A to Subpart A, are hereby incorporated by reference into this contract. [ ] Check if this Agreement pertains to government work or facilities. C21-295 DocuSign Envelope ID: 71541EE3-7478-4197-8B51-1AC2FACB0329 A� " CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) F8/11/2021 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Aon Risk Services Central Inc. CONTACT NAME: A. I. King Insurance A enc , Inc. 200 E Randolpph St., Suite 0900 Chicago, IL 60601 pH NNo Ext: 317-841-6004 (A/C, No: E-MAIL ADDRESS: Cummins aikin Insurance.COm INSURER(S) AFFORDING COVERAGE NAIC # INSURERA: Old Republic Insurance Company 24147 INSURED Cummins Inc. INSURER B : AIIIanZ Global Risks US Insurance Cc 35300 500 Jackson Street INSURER C : INSURERD: Mail Code 91676 INSURERE: Columbus IN 47201-6258 INSURER F : COVERAGES CERTIFICATE NUMBER: 63306586 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSD SUBR WVD POLICY NUMBER POLICY EFF MM/DD/YYYY POLICY EXP MM/DD/YYYY LIMITS A V COMMERCIAL GENERAL LIABILITY CLAIMS -MADE V OCCUR Deductible $25,000 ✓ MWZY302202-20 12/1/2020 12/1/2021 EACH OCCURRENCE $2,000,000 DAMAGE TO RENTED PREMISES Ea occurrence $ 2,000,000 MED EXP (Any one person) $ 10,000 PERSONAL & ADV INJURY $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY ❑ PRO- JECT ❑ LOC OTHER: GENERAL AGGREGATE $4,000,000 ✓ PRODUCTS - COMP/OP AGG $ 20,000,000 $ A AUTOMOBILE LIABILITY ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS NON-OWNEDHIRED AUTOS ONLY ✓ AUTOS ON MWTB 314312-20 12/1/2020 12/1/2021 (CMEa aBINEDtSINGLE LIMIT $ 2 000 000 ✓ BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ ✓ (Par ccdTnDAMAGE $ Phy Damage $Self Insured B V UMBRELLA LIAB EXCESS LIAB ,/ OCCUR CLAIMS -MADE USLO1543420 12/1/2020 12/1/2021 EACH OCCURRENCE $ 25,000,000 AGGREGATE $ 25,000,000 DED RETENTION $ $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N ANYPROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? N (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N/A MWC 314311-20 12/1/2020 12/1/2021 �/ STATUTE OERH E.L. EACH ACCIDENT $ 2,000,000 E.L. DISEASE - EA EMPLOYEE $ 2 000 000 E.L. DISEASE - POLICY LIMIT $ 2,000,000 A Excess Auto Liability MWZX315881-20 12/1/2020 12/1/2021 Limit $5,500,000 DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Eagle County, Colorado, its associated or affiliated entities, its successors and assigns, elected officials, employees agents and volunteers CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Eagle County THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN P.O. Box 850 ACCORDANCE WITH THE POLICY PROVISIONS. Eagle CO 81631 AUTHORIZED REPRESENTATIVE Richard Trakimas ©1988-2015 ACORD CORPORATION. EXHIBIT ACORD 25 (2016/03) The ACORD name and loge2aln?4gistered marks of ACORD B 63306586 20/21 GL AU UMB WC (Custom Merged) I Donna Howard 1 8/11/2021 9:26:15 AM (EDT) I Pago 1 of 2 L7 This certificate cancels and supersedes ALL previously issued certificates. DocuSign Envelope ID: 71541EE3-7478-4197-8B51-1AC2FACB0329 POLICY NUMBER: MWZY 302202 20 12/01/2020 - 12/01/2021 COMMERCIAL GENERAL LIABILITY CG20261219 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): All persons or organizations as required by contract or agreement Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: 1. In the performance of your ongoing operations; or 2. In connection with your premises owned by or rented to you. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following is added to Section III — Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable limits of insurance; whichever is less. This endorsement shall not increase the applicable limits of insurance. CG20261219 © Insurance Se�W62SDffice, Inc., 2018 63306586 20/21 GL AU UMB WC (Custom Merged)��,,{{��qq��ryry�� 8/11/2 (� 1��jj..,,ppM (EDT)12/(�192Vf $2/01/2021 This certificate cancels and supersedes ALL"''pY2�nssued�'f�Yd�Yes. Page 1 of 1