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Home My WebLink AboutR-2024-033 Purchase of Vehicles and GeneratorsRESOLUTION NO. 2024-C33 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, AUTHORIZING THE PURCHASE OF FIVE FORD VEHICLES AND TWO GENERA TORS FOR PARKS AND RECREATION DEPARTMENT AND STREETS, GROUNDS AND SEWER DIVISIONS IN AN AMOUNT NOT TO EXCEED THREE HUNDRED FIFTY TWO THOUSAND FIFTY FOUR DOLLARS AND FIFTY TWO CENTS ($352,054.52) FROM BOZARD FORD AND GENSET SERVICES, WITHOUT COMPETITIVE BIDDING AND WITHOUT ADVERTISEMENT FOR BIDS , BY UTILIZING THE PRICING UNDER THE FLORIDA SHERIFFS ASSOCIATION ("FSA") CONTRACT FSA23-VEL31.0 AND SOURCEWELL CONTRACT NUMBER 092222GNR; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Charter of the City of Dania Beach, Part III, Article 3, Section 4, Subsection U), authorizes the City Manager to purchase supplies, serv ices , equipment and materials for the City government in amounts in excess of the established monetary threshold without competitive bidding and without advertisement for bids if he/she is authori zed to do so in advance by a reso lution adopted by the City Commission and if such purchases are made pursuant to a competitive bid obtained within the last eighteen (18) months by other government agencies such as the federal government, state of Florida or a Florida municipality or county; and WHEREAS, the Dania Beach Code of Ordinances, Chapter 2, Article 1, Section 2-10, "Monetary thresholds for certain purchases and payment disbursement authorizations", Subsection (a), sets the monetary threshold or limitation at $50,000.00; and WHEREAS, the Public Services Department ("PSD") has determined that vehicles and equipment needed by the City can be purchased at the least cost to the City from Bozard Ford utilizing the pricing under the FSA Contract FSA23-VEL31 .0 , and Genset Services utilizing pricing under the Sourcewell Contract number 092222GNR, attached as composite Exhibit "A," copies of which are made a part of and are incorporated into this Resolution by this reference; and WHEREAS, th e approved FY24 budget provides for the purchase of vehicles and equipment to support existing and new staff in Parks and Recreation and Public Services Departments, as well as replacing units that have reached the end of their useful li ves. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the foregoing "Whereas" clauses are ratified and confirmed· as being true and correct and they are made a specific part of and incorporated into this Resolution by this reference. Section 2. That City Commission authorizes the purchase of (5) five Ford vehicles for Parks and Recreation De partment and Public Services D epartment by utilizing the pricing under the FSA Contract FSA23-VEL31.0 valid through September 30, 2024 and (2)two generators for the Sewer Division utilizing the pricing under the Sourcewell Contract #092222GNR. Section 3. That funding for this purchase is available and appropriated in the FY 24 budget from the following sources: Position/Department Vehicle Type Procurement cost GLAccount Parks Ford F-150 $38,728.00 506-39-03-539-64-20 Parks Bronco Sport $30,806.00 506-39-03-539-64-20 Grounds Ford F-150 $38,728.00 506-39-03-539-64-20 Grounds Ford F-150 $38,728 .00 506-39-03-539-64-20 Streets Ford F-150 $38 ,728 .00 506-39-03-539-64-20 Sewer MDG150DF4-$83,168.26 402-35-02-535-64-30 STD3 Sewer MDG150DF4- STD3 $83,168.26 402-35-02-535-64-30 Total $352,054.52 Section 4 . That the City Commission authorized the purchase of vehicles from Bachrodt FT (dba Palmetto Ford as stipulated above, authorizes the proper City officials to execute such documents as are necessary for the purchase of such vehicles. Section 5. That all resolutions or parts of resolutions in conflict with this Resolution are repea led to the extent of s uch conflict. Section 6. That thi s Resolution shall be effective 10 days after passage. SPACE INTENTIONALLY LEFT BLANK 2 RESOLUTION #2024-c 33 PASSED AND ADOPTED on Ho.\'" Gb 1_.(o , 2024. Motion by l£)mrY'. ,Jam-es; , second by ✓\c{ ~{ µ: Lcwe\\v n . FINAL VOTE ON ADOPTION: Unanimous / Yes No Commissioner Joyce L. Davis Commissioner Tamara James Commissioner Marco Salvino Vice Mayor Lori Lewellen Mayor Archibald J. Ryan IV APPROVED AS TO FORM AND CORRECTNESS: 3 RESOLUTION #2024-O '!::f3 Protecting, Leading & Uniting ... slnce 1893 FLORIDA SHERIFFS ASSOCIATION ~ " 2617 Mahan Drive, Tallahassee, Florida 32308 P.O. Box 12519 • Tallahassee, Florida 32317-2519 Notice of Final Award p: (850) 877-2165 f: (850) 878-8665 www.flsheriffs.org II D FSA23-VEL31.0: Pursuit, Administrative, & Other Vehicles Date: October 1, 2023 To: Bidders and Purchasers From: Hugh Oliver, Cooperative Purchasing Program Manger Re: Notice of Final Award for FSA23-VEL31.0: Pursuit, Administrative, & Other Vehicles Florida Sheriffs Association (FSA) has completed its 31st year of the cooperative purchasing pursuit, administrative, and other vehicles contract. FSA is issuing the Notice of Final Award for contract FSA23- VEL31.0: Pursuit, Administrative, & Other Vehicles that will be effective from October 1, 2023, through September 30, 2024. This year's bid included 216 items. The contract will offer pursuit rated vehicles, administrative sedans, pickup trucks, electric vehicles, cargo and passenger vans, electric bikes, motorcycles, and other light and midsize vehicles. The competitive process for this award began in May 2023, when stakeholders were surveyed regarding procurement needs. Items were added based on survey results and the Fleet Advisory Committee's review of products. An advertisement for the Invitation to Bid was published in the Florida Administrative Weekly, as well as the State of Florida's Office of Supplier Diversity and the FSA websites. On May 5, 2023, a direct notification was sent to 716 prospective bidders to participate in a voluntary bidder workshop. The 1TB advertisement resulted in 51 pre-bid attendees or waivers. Of these respondents, 22 submitted bids and 19 qualified. FSA has identified intended awardees in the attached Final Award Report. The Final Award Report shows up to three lowest bidders per item, per zone. The Florida Sheriffs Association Cooperative Purchasing Program has followed the Contract Terms and Conditions for this procurement. Bidders that become awarded vendors are governed by their manufacturer agreements and the Contract Terms and Conditions. Contract pricing will be extended and guaranteed to the Florida Sheriffs Association, any unit of local government, political subdivision or agency of the State of Florida, or to other entities approved by manufacturers to buy from this contract, which can include out-of-state sales. Vendors that wish to extend contract pricing to entities other than those defined here are governed by their manufacturer's agreement. All purchasers are bound by state law, local ordinances, rules, and regulations for purchases made under this contract. January 23, 2024 YAMILLOBO CITY OF DANIA BEACH BOZARD GOVERNMENT SALES 954-924-6808 EXT 3744 CELL 754-224-6385 Yyiobo@daniabeachfl.gov Greeting, Bozard Ford is pleased to submit the following quotw based on FSA Contract FSA 23-VEL31.0 . Color . Exterior Color YZ WHITE Interior Vehicle Color AS VINYL 40/20/ 40 FT SEAT Description FlK 2024 FORD F-150 REG CAB 4X2 6.5" BED 122" W/BASE 8 FT BED 141" W/BASE 995 S.OL V-8 ENG 44G 10 SPEED AUTOMATIC EQUIPMENT GROUP 101A 96W SPRAY IN BEB LINER SSH BACK UP ALARM 942 DAYTIME RUNNING LIGHTS T7C LT265/70R17C BSW A/T CITY TAG (1) EXTRA KEY 153 FT LICENSE PLATE BRACKET 4X All Vehiicles will be ordered WHITE unless agency choose a different color Approved Please return quote along with purchase order Sincerely, J:ifftey '£,uon Government Fleet Director Joe 11fr"mrl"ro-w Fleet Sales Manager (850) 776-5294 WINDROWll@GMAIL.COM Price $ 36,014.00 $ 979.00 INC INC INC $ 594.00 $ 219.00 $ 44.00 $ 294.00 $ 185.00 $ 399.00 INC $ 38,728.00 $ 154,900.00 February 14, 2024 CITY OF DANIA BEACH YAMILLOBO 954-924-6806 EXT 3744 ylobo@daniabeachfl.gov Greeting, BOZARl.,i GOVERNMENT SALES Bozard Ford is pleased to submit the following quotw based on FSA Contract FSA 23-VEL31.0 . • Color . Exterior Color YZ WHITE Interior Vehicle Color SH EBONY VINYL Description R98 2024 FORD BRONCO SPORT 4DR 4X4 996 1.5LL ECOBOOST ENG 448 8-SPEED AUTOMATIC EQUIPMENT GROUP 200A (1) EXTRA KEY NEW TAG 153 FT LICENSE PLATE BRACKET Ali Vehiicies will be ordered WHITE unless agency choose a different color Approved Please return quote along with purchase order Sincerely, $.ffe•y :P;.,,,. Government Fleet Director $,e '1t1ncfrow Fleet Sales Manager (850) 776-5294 WINDROWll@GMAIL.COM .. Price $ 30,122.00 INC INC INC $ 499.00 $ 185.00 INC $ 30,806.00 Sourcewell Generac #092222-GNR Pricing for contract #092222-GNR is provided to Sourcewell participating agencies at a percentage range off list prices, depending on product line. There are also quantity discounts that can be offered on a case-by-case basis. liEIISET S E R V I C E S, I N C, Sates & Service for Standby Engine Generators Revision: 1 Job Name: Prepared For: Contact: Dania Beach Public Service City of Dania Beach Yamil Lobo Project Rep: William Gonzalez Phone: 954-956-9252 Email: wgonzalez@gensetservices.com We are pleased to offer the following proposal: Reference: Dania Beach Public Services We are pleased to offer the following quote for the above project: Quantity 2 -MDG150DF4-STD3: Trailer Mounted Diesel Gensel, 150KVA, 240V single phase, 480V three phase, John Deere Tier IV engine Quantity 1 -Transport to jobsite Total investment for the above equipment (Not including any applicable tax or freight):$166,336.52 Revision No. 1: 11/29/2023, Proposal based on "Sourcewell" pricing contract No, 092222 GNR Total investments for the above equipment (not including any taxes): $ 166,336.52 Terms and Conditions: 30% deposit with order, balance before shipping. other payment terms need to be approved by the credit department before a purchase order is accepted. Payment obligations are not dependent or contingent upon the manner in which purchaser may receive, In the event of significant delay or price increase of material occurring during the performance of the contract through no fault of Gensel, the contract sum, time of performance, and contract requirements shall be equitably adjusted by change order in accordance with the procedures of the contract documents. Estimated Delivery: FOB: Quoted Per: 20 to 24 (Subject to change) Jobsite installation and offloading by others unless included in the above BOM Customer Request No Drawings/ Electrical Riser Not Provided 3100 Gateway Drive -Pompano Beach, FL 33069 -Phone: (954) 956-9252 -Fax: (954) 968-6110 578 Cooper Oaks Court-Apopka, FL 32703-Phone: 407-532-0414-Fax: 407-532-0415 GENSET S E R V I C E S, I N C. Sales & Service for Standby Engine Generators Revision: 1 Exceptions to the Proposal no. 46783 Based on "Sourcewell Pricing" Contract No. 092222 GNR specifications: 3100 Gateway Drive -Pompano Beach, FL 33069 -Phone: (954) 956-9252 -Fax: (954) 968-6110 578 Cooper Oaks Court -Apopka, FL 32703 -Phone: 407-532-0414 -Fax: 407-532-0415 &EIISET S E R V I C E S, I N C, GENERAC' I !11/EJ,PSTRIAL Sales & Service for Standby Engine Generators Revision: 1 Customer Authorization: (by signing below, ! acknowledge that I have read and ncccpt 1he Gensel terms and condilions that follow). Signature: Print Name: Title: Date: P.O.#: Project Status O Hold for Release O Release to Manufacturer 3100 Gateway Drive -Pompano Beach, FL 33069 -Phone: (954) 956-9252 -Fax: (954) 968-6110 578 Cooper Oaks Court -Apopka, FL 32703-Phone: 407-532-0414-Fax: 407-532-0415 GENSET S E R V C E S, N C, GENERAC' I IND~~!RIAL Sales & Service for Standby Engine Generators .. . .. Revision: 1 Terms and Conditions GENS ET SERVICES SERVICE TERMS & CONDITIONS I. Agreement and Order. The term$ a,idwndition. set forth below (~u, Te,ms and Conditions) and on GenselS proposal, quot,uion oronler form attached hereto (coll«:1ive!y refem,d to as the "Proposal" and together with those Terms and Cooditio!\$, U,e Agreement) constilutc die complete and exclusive slalcment oflhe terms ofthls transaction by and between Gensel Sc,vices, Inc. (Genset} and the customer identified on the Proposal {the Customer) for lhe pcrl'onnuneeoflhe services ,pedfieally set forth on the Proposal (the Services). To 1he e~tenl thut the terms conlained on the Propo,al differ from the lemJS contuincd in these Terms and Conditions, the terms of the Proposal ,hall go,·crn lo 1he el\leot ohuch differences pro\'ided !ha\ Gensel has executed the \'er.;ion oftlie Proposal con1aining such 1enm following 1he addition or inclu<ioo of,uch lcnn,. Gensel shall have no obligation lo perform othencr,ice, no! described on the Propo,a~ but Oenset may provide oth~r Ser,ice, at Customer:! request."' Olld when needed purnulll\t to the Agreement. Any addl!lonal Services -i,erformed ,hall he ,uhjec1 to these Tenns and Conditions 2. Parts. Genset sholl furnish parts as necessary at Gcnscts then current schc>dn!ed price or on an Cl\cbange basis, regardless of when ins1alled, and such pans shall eillier be new or equivalent to new in perfonnancc when used in Customer.; equipment. 3. Modification ofT crms. No lerms contained oo nny purchase order, service order, con\lllct or other document prepared by or submilled lo Gensel by Cuslomcror its agents, incleding modificution of the !errns contained on lhc Proposal and in these Terms and Conditions, ,boll be e[Tective or bind Gensel U11less Gensel agrees to such lmns orreqniremen!s by executing and returning (o Customer such pllfcbase order, agreement or n!her document. Failure by Gensel to respond in writing lo Customer upon re,;eipl of Gensel of a pmchase order or oiber agreem~nt by Cus!Omer shall not be a waiver of the requitement !hat Gensel agree in writing to any !enns contained in a purchase order or other contract. All representa1ions. promises, wouranties or statements by any agent or employ«" ofGemel thaidiffor in any way from the Proposal as prepared by Gensd or the Tcnns and Coudition• in the Agre<,mcnt shall Ix: ofno force or efTetl. No course of prior dealings bctw«"n the parties nnd no usage of the trade shall be relevont lo this lrnilsaction. Prke• quoted on the Proposal are good fora period of thirty (30l day, from the date of the Propu"11~ provided that prior 10 !he exeeulion of the Prq:,o."lnl by Customer and ncceptaucc by Gensel, prices arc subject lo change without notice. 4. Charges. Cbargcs for the Services described on 1l!C Proposal arc deseribed thereon. Charges for on-call, ll!UCbeduled or additional Sef\•ices requested by Customer, but notdcseribcd on the reverse, ,hall be at 1hc rates then puh!ished by Gcnset in writing. Customer shall be responsible for any parts and shipping charges for snob pans ordered by Gemet in order to perform the Services 5, Ta.xes. Quoied prices do not include any applicable sales, use, trans for. excise or other taxes. 1ariffs or custom duties unleS$ required by federal, state or local law, in wbiclt case, the quoted µrice shall indudeonly such il<'ms of sales, use, u-ansfer, el\Cisc urothcr taxes, tariffs or custom dulics as arc required by federal, state or !oc~I law, Cus1omcr will pay directly or lo Geru;et ony such taxes, tariffs ordulies levied upon the sale, lr.msfer, import, or service ornccess3l)'componenls thereof unless Cn,tomerprovides Gensel with a \'alid tol\ exemption certificate. Gensel shall prol'ide Customer with any ta., payment certificate upon request and after a,;ceplance of the Services being provided hereunder and full payment lo Gensel. 6. Time of Perfonnance. !fperfommncc ofOic Services is delayed through no faul! of Gensel, !hen ll!C time for perforrnan"" of the work shall be extended lo the extent of such delay. Gensel shall not hi' liable for any delays in perfonnance directly or indirectly resulri11g from nets ofCu.11nnier, its agents, employee,. or subcontmctur:1. or any other causes beyond Oie contto! of Gensel. If any necessary componcnlS oftl!c Services bel:ome unavailable, Uien Gc!lsel shall l>c rekased from anyohligation !O pro\'id<: tho spc..:ified materials which ore unavailable and Customer agrees to pay Gensel for any difference between the cost oftlte unaVllilnbk mal<'rials orequipmenl and !he cosl of any reasonably available substitule. The estimated dale ofpcrfonnonce inclicu(crlun the Proposal is subject 10 delay due lo uvailnbility ofnccess31)' componen1,, and Gcn,e( shall not beliab!e for any such delay.?. Payment Upon Customers execution and relum <>rn!C Proposal, Customer mus! pro,·ide a deposit in the amount of30% of the scl\"icC fee conlained in 1he Pmposal unless ~me otl1cr amounJ is sct forth on the l'rnposaL Unless utlie,wise set fonh on the Proposal, the entire service fee, plus all applicable sales tax and other charges conLained on the Proposal must lie 1<,ndered by Customer to Gensel wltl1in 2 days following natificatio11 by Gensd to Customer 1bat the Sef\•ices a,c ready to be performed. In any ca5e full and fmnl payment must be made by Customerond rec,iived by Gensel no Inter thnn two days prior to Geuselperforming the Services, and Gen.set sball have no obligation w pcrfonn 1he Services prior to receiving full and final payment. Cus1omer is responsible for the payment of ull registration fc,is, use tax or similar assessment~ and laxes which niay be Imposed upon the sel'lite or the S11le, possession or use of any necessary parts or componcnlS. Cmtomerbereby grllills Gensel a security intcre,1 in Customers generator and any parts imlalkd by Gcnsct until sucb lime as Genset is actually paid i11 full, and CUstomerwill assist Gensel in any action occc:r.sary lo perfect Gcnset.s security interest, provided !hat Genset may prepare. file and r,,cnrd a UCC financing sm1emem to evidence the security interest with nu furthef notice to or cunselltby Customer. No pans or components furnished by Gen~el shall become a rixture hy reason of being alloched lo real estate until poymen! in full has been received and acknowledged by Gensel. Cus1omcr shall not be enti!lcd to se1-ofT11ny amounts due from Customer against my mnounl clue to Gensel in connection with this transaction. 8. Warranty; Limilalion, (nl CUSTOMER ACKNOWLEDGES THAT THE ONLY WARRANTIES WITfl RESPECT TO THE SERVICES ARE ANY ArrLICABLE WARRANTIES OFFERED BY T!!E MANUFACTURER OF ANY NECESSARY PART OR COMrONENT THEREOF AND THAT GENS ET MAKES NO REPRESENTATION OR WARRANTY. EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, NOR DOES IT WARRANT THE MERCHANTABILITI' OF THE COMPONENTS OR THAT THE COMPONENTS ARE fff FORA PARTICULAR PURPOSE. PARTS AND COMPONENTS ARE SOLD AND SERVICES PROVIDED BY GENSETTO PURCHASER AS IS WHERE IS AND WITH ALL FAULTS. (bl CUSTOMER ACKNOWLEDGES THAT IT HAS DECIDED TO CONTRACT FOR SERVICES BASED ON ITS OWN ASSESSMENT OF ITS NEEDS. CUSTOMER ACKNOWLEDGES AND AGREES TilA TOENSET IIAS NOT MADE ANY STATEMENTS OF FACT CONCERNING THE SERVICES, AND CUSTOMER HAS NOT RELIED UPON A."lY STATEMENT BY GENS ET IN DEC to ING TO CONTRACT FOR THE SERVICES. (cl CUSTOMER IS SOLELY RESPONSIBLE !'OR FOLLOWING ALL MANUFAL'fUllER REQUIREMENTS WITH RESPECT TO THE EQUIPMENT ON WHICH THE SERVICES ARE PERFORMED. (d) Customer further agrees that in no event shall Genset's liability lo Customer for dainage, of•ny nature exceed the amonnts actually paid by Customer lo Gcnset for the Servic-es. 9, Access to &[uipm,nl; Performm1ce of Service'\; Cmtomer Obligations. (nl Ge11set's maintcnai1cc per.;onnel shall l1ave free access to the Customers Equipmenl for ll1cµmposc of providing Services. (bl During any Sel\"iccs provided pur:1u"nt 10 Uiis Agreement as to the SysMn, whether an iutenuption in clccttkol service is con\cmplaled by Custumeror Gensel or nol, as a mal\er ofn!localing lx:1wecn Customer and Gensel the risks ussoda!od with an interruption in electrical services and/or taking the Customer,; equipment ofTHnc, Cuslomer agrees lo use its best efTorts lo fully and compktely secure al! or any pan of any facility in which (he equipment is localed, as the case may bo, for any and all safo(y (,sues ll1a1 an electrical service interruption migbt gi\•e rise 10, including bu\ nol limiled to injury: to building occupains, customers, invi1i:c.s. or a11y third party anJ/nr property damage, or work interruption, arising out of any event of repairs performed byGenset as lo 1he equipment Customer agrees with Gensel that securing of!he premise; in ord<:r for Gensel to perform its Scl'liccs is a material a,id critical clement of!his Agreement and, prior tn !he -perfonnance ofony Service, nuder ~,is Agreement, Cus1omer will receive and cxccnle with Oc•isct a written Notification and Ad.Jiowledgcmcnt of Inspection and Warning (No!ilicatiunl related to 11,c Services provided herein. The Notification ,holl include Genset•s estimate as 10 wl!Cn inlcm,plion ofclccttical services may occur during the perfonnanec ofit.s obligations under ihis Agreement Customer further agrees thal Gensc! shall have no Uabilily In Cu,1omeror any third party for any eslima1e given in connection wi1l1 potential interruptions in eleclrica! service, during the performance ofGcnsct's oblication, herein. it being ack,inwledged by Customer that Genset's Services ar,,often affected hy actsofthird parties andlurcomponents nre!ements ofll1e Sy,lem that do nm ollow for more specific and accurate estimates"" to when an electrical service intemip1ion may occm. JO. Damages. CUSTOMER AGREES THAT GENSET SHALL NOT BE LIABLE BEYOND THE Rf.MF.DIES EXPRESSLY SET FORTH HEREIN. GENSET SHALL NOT BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL. INDIRECT OR CONSEQUENTIAL DAMAGES ARISING IN A,'>/Y MANNER FROM THE GOODS, EQUIPMENT OR MATERIALS FURNISHED OR TIIE WORK PERFORMED PURSUANT TO TIIE AGREEMENT, WHETHER BASED ON BREACH OF WARRANTY. NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. OR FOR THE LOSS OF PROFITS, RINENUES, Oil Ot'HER LOSSES AIUSING OUT or ANY DEFAULT UNDER THIS AGREEMENT, EVEN IF GENSET SHALL HA VE BEEN ADVISED OF THE POSSIBJLJIT OF SUCH POTENTIAL LOSS OR DAMAGE. THE PRICE OF THE GOODS AND SERVICES PURCHASED BY CUSTOMER !S CONS!DEllATION FOR LIMITING OEN SETS LIABILITY. GENSETS LIABILITY FOR ANY CLAL\1 ASSERTED BY CUSTOMER, WHETHER BASED ON A T!iEORY OF CONTRACT OR TORT, SHALL NOT EXCEED THE CONT!lACT PRICE OF THE SERVICES l!EREUNDER. NO ACTION OR SU!T TO ENFORCE RlGHTS OR REMEDIES ARISING FROM THIS TRANSACTION SHALL BE COMMENCED LATER TilAN ONE YEAR FROM THE DATE OF GEN SETS LAST FURNISHING SERVICES UNDER THIS AGREEMENT. I J. Concellalion. Service Order.; cannot be cancelled oraftcrCustomcr signs and rc111rns • Proposal which is accepted by Gensel, except with Gcnscts wriuen cnnsmt and subj eel to c"Dnditioiis then agreed upon which shall indemnify Geiiset again,1 liability iu1d expense incurred and cnmminnents made byGen>el. No material, or products provided in ,·oiljunction with the Service, may be retunied. 12. !ndemnl!y. Customer re-presents and warra11ts ~mt is fully insured for any and all pol~ntial damages arising out ofor in connection wiO, the Services pcrfonncd by or!o be pc,fonned by Gensel hereunder. Customer shall defend, indemnify and hold harmless Gensel and its officer.;, directors, employ«"S, agei1ts, owners and affiliates, from and agaiust any and oil damages, costs, liability, and expcruc whatsoever (including ottomeys' fees and related disburs-:menlsl incurred in whole or in part, directly orindire<,tly, by reason of: (a) any failure by Customer lo pcrfonn any covenant or acree1nenl of Customer set forth herein or1he breach of any rcprcsentaliruu orwarranlics set fonb herein: (bl death or bodily injury or loss ofordaiuoge lo property which arising out uf or in conucc1ion will! tl1e Services provided aiid ony goods, parts or components provided; or (c} any ac15 nf CUstomer or Customer's per.;om1el; or (dl the unloading, installatio11, operation, storage or use by Cuslomer of any goods provided by Genset or any other party or subsequent owner. The foregoing obligation ,hall survive Oie 1ermina1inn or expiratiou of ~,is Contract 13. Miscellaneous. In addition w ~,e other terms and conditions, Customer and Genset further agro, 1lmt !he following shoil nl,o govern this Agreement: (a) Wuivcrs. The failure or delay ofnny party al any time lo require performoncc by ano1l1crparty ufany provision of this Agreemcnl, even ifk110wn, shall not alket !he righ! of such party 10 require performance of ll1a1 provision or to exercise any right, power or remedy under !his Agrecmen1. Any waiver by any party of any breach of any provision of this Agreement should nm be construed as a wai\•cr of any cnnlinuing or succccdi11g breach of such provision.• waiver of the provi•inu itself, or• walverofany right. power or remedy ,mdcr ll1is Agreement Nu nt1tice to or demand on any pany in any drcumstonce shall, ufitse!f, entitle such pany to any olher or further notice or demand in similar urothcr circum.,tances. (bl G<Jvcrning Law; Construcrion. This Agn.,.m1en1 is being delivered nud pcrfonned in the SllltcofFlorida and shall l>c construed in accordance wi~,, and governed by, the law of the State of Florid". Vei,ue of any action related to this Agreement shall be placed in !he courts ofBrowanl County, Florida, exclusively. This Agreement, together wl1li any 01her documents exccu1ed in conjunction wi1lt or pursuant to this Ag1eement sha!l llOl be cons!rued against eilhcr CustomerorOeruie!, regardless ofwhkhparty drafted !he AgreemenL Jt is intended that llii, Agreement is the product ofinfonned negolialions between both parties wi1h full knowledge of the meaning of1he terms and conditions hcr.,to. {c) Euforcemeul. In COflUec1ion with any action arislug out of this Agreemem, or in any way relating to the 1nmsaetions contemplated hereby, the p,noailing party in such Rctiou shall be entitled to recover from the non-prevailing party 1111 ,·onrt costs ;md c~pcnscs oflitigalion, including attorneys foes, coun cosls, co.ts ofinvesrigation, accounting and othereosts reasonably related to tbe litigatio11, including, without !imitation, a!! attorneys fee, and costs subscqllent to cnny of any judgment on behalf of the prevailing party, on appeal; in connection with any bankruptcy proceeding.1, or in any alternative dispute molu1iou proceedings. THE PARTIES TO THIS AGREEMENT IIER£BY WAIVE, WITHOUT EXCErTION, ANY RJGl!T TO JURY TRIAL RELATED TO ANY ISSUE OR MATIER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. (d) Successor< and Assigns. All of1he terms and conditions of1hi• Agn:emenl, and the -righis and ob!iga1inns oflhc panics hereunder, shall be binding upon and shall inure to !he benefit of the respective heirs, pem>nal representa1ives. and pennitted succes,ors and assigns of the parties here!o. This Agreement dm:s not confor upon or give to any person o!herthan the parties any righ1s or benefi1s hereW1dcr. {c) Entire Agreement. This Agrccme11t, any Agreements referenced heruh1 and exhibits a!tached hereto conslilllte the entire Agrwrnent and undemanding of the parties witlt respect 1o 1lw transactions c-ontcmpla1cd hereby as an exclusive $tatement and !ncorporale and supercedc nil prior and contemporaneous negotiafiom, ogrcemenlS and under:1Landings ,elated lo the subjel:t mailer hereof. This Agreement, referenced Agreements, and exhibits may nol be amended, 1cnuinated or othe,wise modified, el\cepl by a wrillen jnslrumentcxe<,uted by oil oflhc p1111ies 1o be bound 1hereby. (f) Notice. Subject to wriucn notice of change of address, any notice, request, instroction. or other document lo be given tmderthis Agreement by any party to any other party sl1al1 be in "'Tiling, signed by oron behalf of the party giving t10tice, and ,hall be deemed lo have been given on the earlier to occur of: (!l the d111e ofactual performance; or (2) five (5) days ofter the date on which such notice is mailed by United Slates Mail, pos!n~eprepaid to each party at lhe addresses listed below; or(3l lhe dale of electronic facsimile lnuismission !!,at is verified by the issuai,ce ofa successful facsimile tran~mis,ion report at the facsimile telephone number for the rcceil•ing pany, which is currently on file "ill• tliesending part)'; or (4) 1he businc.ss day following the day on which such notice;, sent by ony ne~t day or overnight delivery service to c~eh plllly al the oddress listed below. If lo Customer: To the address and comae! person identified on the P1oposa!. lflo Gensel: Gensel Services, Inc .• 3100 Gateway Drive. Pompano Beach, FL 33069 Gensel shall not be in default of any of its obligalions hereunder unless CUstomerpro,,ides Gensel wrn, stven (7) days wrinen notice of default and specifying the ~ctioo required to cure tlie default and Genset fail, lo cure such default. 3100 Gateway Drive -Pompano Beach, FL 33069-Phone: (954) 956-9252 -Fax: (954) 968-6110 578 Cooper Oaks Court-Apopka, FL 32703-Phone: 407-532-0414-Fax: 407-532-0415