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HomeMy WebLinkAbout2012-103 Vehicle Loan Agrmt - Brammo Brammo Vehicle Loan Agreement,2011 BRAMMO VEHICLE LOAN AGREEMENT This VEHICLE LOAN AGREEMENT("Agreement'), is dated June 5th 2012,and is entered into between Brammo,Inc., a Delaware corporation ("Brammo"),and the City of Ashland ("Borrower"). For the mutual promises and consideration set forth below, Brammo and Borrower agree: SECTION 1. Vehicle; Term of Usage. Brammo hereby agrees to provide to Borrower,on terms set forth in this Agreement, a [Brammo motorcycle] ("Vehicle") identified in Attachment 1 attached hereto, for a term beginning on the date such Vehicle is delivered to Borrower, and continuing thereafter for six(6)months("Term")or as otherwise terminated as provided herein and subject to any mutually agreed extensions. The Vehicle is to be used in the normal and ordinary course of Borrower's business at the location("garagine address"), set forth in Attachment 2 attached hereto, upon the terms and conditions set forth in this Agreement. SECTION 2. Ownership. Borrower acknowledges this is a loan agreement and that Brammo owns the Vehicle. Borrower does not, by this Agreement or otherwise,acquire any right, title or interest in or to the Vehicle. SECTION 3. Vehicle Title& Registration. The Vehicle will bear license plates,and the title to such Vehicle will be in the name of Brammo. If Borrower intends to change the Vehicle's garaging address, Borrower must notify Brammo immediately. Brammo may then terminate this Agreement pursuant to Section 12 or approve of the change in the Vehicle's garaging address. If Brammo approves, Borrower must pay for all resulting taxes and title, registration or other fees. SECTION 4. Use of Vehicle. The intent and expectation of this Agreement is that only Borrower("Users')will be the operators of the Vehicle. Borrower hereby assumes full responsibility for its Users' compliance with this Section 5. Borrower agrees that neither Borrower nor any of its Users will: A. Allow unlicensed drivers to operate the Vehicle; B. Allow any driver other than the Users or authorized Brammo employees to operate the Vehicle; C. Use or allow the Vehicle to be used illegally, improperly, for hire or as a public conveyance or to transport or permit any passengers to ride the Vehicle; D. Use or allow the use of the Vehicle in any way that causes cancellation or suspension of insurance or causes the manufacturer's warranty to become void; E. Use or allow the Vehicle to be used to pull a trailer or another vehicle; F. Drive or allow the Vehicle to be driven in an illegal,reckless or negligent manner; G. Remove or allow to be removed more than 100 miles from the garaged location; H. Alter,mark or install accessories or equipment on the Vehicle or affix,attach or install any stickers, decals or labels on the Vehicle without advanced written authorization and approval by Brammo to do so; I. Initiate repairs of the Vehicle, including emergency repairs,except as authorized and directed by Brammo, or have any repair work or servicing done on the Vehicle other than by service locations designated by Brammo; B3990157vlags I Brammo Vehicle Loan Agreement,1012 J. Disassemble, dismantle,tamper with or attempt to reverse engineer the Vehicle, even if Borrower(or anyone else)reassembles such Vehicle, or allow anyone else to disassemble, dismantle,tamper with or attempt to reverse engineer the Vehicle, even if reassembled; K. Conduct Vehicle testing or install instrumentation on the Vehicle for the purposes of obtaining information on the Vehicle operation and performance(including, but not limited to, data capture, data or performance monitoring,without advanced written authorization and approval by Brammo to do so; L. Participate in any formal research project or formal questioning relating to the Vehicle or this loan arrangement without receiving advanced written authorization and approval from Brammo to do so; M. Allow use, operation or inspection by other automakers or their employees,affiliates, consultants, media,journalists, press or by an individual on their behalf; N. Operate the Vehicle on a flat tire or on any tire or tires which do not contain air pressure sufficient to prevent damage to the tires other than ordinary wear and tear; or O. Operate the Vehicle off of paved surfaces, at excessive speeds, in rough or loose terrain, on steep hills, in water or in connection with attempted stunts, including but not limited to jumps, wheelies and skidding. SECTION 5. Vehicle Maintenance and Overatina Costs. A. Borrower will ensure that the Vehicle is serviced in strict accordance with the owner's manual and in accordance with this Agreement, (b)when there is a dash warning/indicator indicating that service or repair is necessary, (c)as requested or directed by Brammo,and(d)as requested in connection with any recall or product update campaign. B. Borrower shall notify Brammo when servicing is needed for the Vehicle. C. The costs of all service shall be the responsibility of Brammo. D. Borrower will allow Brammo to perform additional service or replace parts, at any reasonable time upon reasonable notice, and shall cooperate in arranging to have such service performed. SECTION 6. Vehicle Insurance Requirements. Borrower is responsible for insuring the vehicle for a limit of no lower than at least state minimum limits with coverage as required by Oregon state law for auto liability. Borrower will present to Brammo, Inc. a certificate of insurance naming Brammo as an additional insured for the term of the contract. In the event vehicle is kept past term contract a new AI endorsement will be issued to Brammo, Inc. following the same guidelines. Brammo, hic. is accepting responsibility for the physical damage to the motorcycle, except in cases of clear abuse. SECTION 7. Vehicle Inspection. Borrower agrees to allow Brammo to inspect the Vehicle at any reasonable time and place after reasonable notice. SECTION 8. Notification of Accident or Damage to Vehicle. Borrower will promptly notify Brammo's insurance company and Brammo of any and all accidents,thefts or other damage,and any other incidents that may result in an insurance claim, both by telephone(on the same day of the accident B3990157vlags 2 Brammo Vehicle Loan Agreement,2012 or, in cases of extreme circumstances when same day notification is not possible, as soon as practicable thereafter)and in writing addressed to Brammo. The notice to Brammo shall provide the following information: name(s)of individuals involved,driver's license state and number, insurance company name,policy number,agent's name,agent's telephone number and address,the location of the Vehicle, the nature and cause of the damage and the date such damage or loss occurred. Borrower will cooperate and will cause Users and the driver of the Vehicle involved in the accident or incident to cooperate with Brammo in the investigation of the accident or incident; if requested by Brammo, Borrower will participate and will cause Users and the driver of the Vehicle involved in the accident or incident to participate in the defense of any claims arising from such accident or incident. Borrower shall cooperate with and assist Brammo in arranging and affecting all repairs of damage to the Vehicle. SECTION 9. Early Termination. Prior to the end of the Term, either party may terminate this Agreement at any time, by providing written notice to the other party. Upon termination, Borrower must immediately cease operation of the Vehicle and return the Vehicle to Brammo, within seven(7)business days of receipt of written notice of termination by the non-terminating party. SECTION 10. Return of the Vehicle. Whether the Agreement is terminated early or as scheduled, Borrower agrees to return the Vehicle to Brammo. If Borrower keeps possession of the Vehicle past the Term, Borrower agrees to pay for any costs, expenses and damages that Brammo may suffer because Borrower failed to return the Vehicle in a timely fashion. SECTION 11. Odometer Disclosure Statement. On termination of this Agreement, Borrower agrees to provide a signed written disclosure statement to Brammo of the correct odometer mileage on the Vehicle,as required by federal law(Federal Truth in Mileage Act). SECTION 12. Breach. Borrower shall be in breach of this Agreement if it is in breach of any provision hereof, including,without limitation, if any of the following occurs: A. Initiation of any proceeding in bankruptcy or insolvency by or against Borrower; B. The filing or initiation of any proceeding in receivership by or against Borrower or Borrower's property, or if Borrower makes an assignment for the benefit of creditors; C. A voluntary assignment of Borrower's interest under this Agreement; D. Borrower's failure to repair or maintain the Vehicle as required in this Agreement; E. Borrower fails to answer any traffic summons or pay any traffic tickets or other fines when due; F. The Vehicle becomes subject to a lien; G. The Vehicle is seized or confiscated for any reason by a law enforcement agency; or H. Borrower breaches any provision specified in Section 5 (Use of Vehicle). SECTION 13. Remedies. In the event of any breach, Brammo may do any or all of the following without giving advance notice to Borrower: (a)take any reasonable measures designed either to correct the breach or to save Brammo from loss, in which case Borrower will pay Brammo upon Brammo's request for the costs and expenses incurred; (b)terminate the Agreement and Borrower's rights to possess and use the Vehicle; (c)take possession of the Vehicle by any method or manner permitted by law; and (d)pursue any other remedy permitted by law. All of Brammo's rights are cumulative and the taking of any action will not prevent the taking of any other action. SECTION 14. Notices. Notices provided for under this Agreement will be deemed given when mailed to the addresses of the Borrower and Brammo, as contained in Attachment 2. Unless Borrower notifies Brammo in writing of any change in Borrower's address, any notices Brammo sends to Borrower B3990157vlags 3 Brammo Vehicle Loan Agreement,1012 are sufficient if sent to Borrower's address identified in Attachment 2. Borrower shall promptly notify Brammo of any change in Borrower's address or of any garaging address for the Vehicle. SECTION 15. No Waiver. Failure of Brammo in any one or more instances to insist on the performance of any of the terms of this Agreement,or to exercise any right or privilege conferred under this Agreement, or the waiver of any breach of any terms of this Agreement will not thereafter be construed as a waiver of such terms, which will continue in force as if no such waiver had occurred. Brammo can waive or delay the enforcement of its rights as to one signer without affecting its rights as to any other signer. Borrower also agrees that Brammo can release any signer from his or her obligations without releasing any other signer from their obligations. SECTION 16. Assignment. Borrower agrees not to assign,transfer, sublet, pledge or encumber any of its rights under this Agreement,the Agreement itself,the Vehicle or Borrower's right to use the Vehicle. Borrower agrees to perform all obligations under this Agreement. SECTION 17. Additional Charges. Borrower agrees to pay all storage charges,parking charges, toll fees, and fines imposed in relation to the Vehicle. In addition, Borrower agrees to pay for the electrical cost for charging the Vehicle and any equipment costs and installation costs for equipment necessary to charge the Vehicle. All charging equipment used to charge the Vehicle must be compliant with equipment identified in the owner's manual. SECTION 18. Liability for Contents. Brammo will not be liable for loss of or damage to any property left, stored, loaded,or transported upon the Vehicle, whether or not due to the negligence of Brammo, its agents or employees. Borrower will hold Brammo, its agents and employees,harmless from and indemnify them from and against all claims based on or arising out of such loss or damage. No right of Brammo under this Section may be waived except by prior written agreement of Brammo. SECTION 19. Technologv Rights/Confidentiality. Borrower acknowledges that the Vehicle incorporates innovative technology developed by and proprietary to Brammo. Borrower agrees to cooperate with Brammo in the evaluation of the new technology by responding to inquiries from Brammo as to the performance, handling and use of the Vehicle, whether during the Term for the Vehicle or after this Agreement has terminated,and by abiding by the requirements of the Agreement as to the maintenance and protection of the proprietary nature of the technology. Borrower shall have no rights in any of the technology associated with the Vehicle or in any other connection or of the goodwill associated therewith. Borrower expressly acknowledges that all such rights and goodwill are and shall remain vested in Brammo. Borrower shall not do, and shall not authorize any third party to do, any act or thing which would or might invalidate or be inconsistent with the rights of Brammo in relation to the technology rights hereunder. Borrower agrees to hold(and to cause Users and Borrower's agents and employees to hold)in confidence the technology rights and all proprietary know-how, data and other technical information received from or relating to Brammo. The provisions of this Section shall survive the termination or expiration of this Agreement. SECTION 20. Borrower's Representations and Warranties. Borrower hereby represents and warrants to Brammo and to Brammo's successors and assigns the following: (a) Borrower has taken all action needed to authorize the execution,delivery and performance of this Agreement and documents contemplated by this Agreement; (b)the person or persons executing and delivering this Agreement and documents contemplated by this Agreement are authorized to do so; (c)this Agreement constitutes a valid obligation of Borrower, legally binding upon it and enforceable in accordance with its terms; (d)the execution, delivery and performance of this Agreement do not require any consent or approval which has not been obtained; and(e)none of the execution and delivery by Borrower of this Agreement,or the consummation of the transactions contemplated hereby, or compliance by Borrower with any of the provisions hereof, will (i)conflict with, or result in the breach of,any provision of the certificate of B3990157vlags 4 Brammo Vehicle Loan Agreement,2012 incorporation or by-laws of Borrower or governing documents of Borrower,as the case maybe;or(iii) constitute a violation of any law applicable to Borrower. SECTION 21. Fines and Tickets. Borrower will promptly pay all fines and tickets imposed on the Vehicle or any of drivers of the Vehicle during the Term hereunder for the Vehicle. If Borrower fails to pay any such fines or tickets, Brammo may pay such fines or tickets on Borrower's behalf, for which Borrower will reimburse Brammo. SECTION 22. Privacy. An important function of this program is to provide Brammo with important real world information about customer use, such as: use habits, demographic profiles,etc. The Vehicle has instruments to capture detailed information about vehicle operation and conditions, including but not limited to start times, stop times, location,temperature, speed,battery condition and distance of each trip. Brammo shall be entitled to use and/or publish any and all such information if it is de-identified or aggregated with other Users, so no individual User's data can be associated with such User. Brammo will not disclose specific names, addresses, or phone numbers or other potentially identifying information without first obtaining the permission of the Borrower, unless disclosure is required by law or legal process. SECTION 23. Publicity. Borrower agrees that during the term of usage of the Vehicle, Brammo may identify Borrower as participating in the test usage of the Vehicle. Except as permitted by this Agreement, without the prior written approval of the other party,neither Brammo nor Borrower will issue any public statements or promotional materials disclosing the existence of this Agreement or the performance of, or details of this collaboration. SECTION 24. Warranties. BRAMMO PROVIDES THE VEHICLE HEREUNDER ON AN "AS-IS" BASIS AND IN WHATEVER CONDITION IT MAY BE IN. EXCEPT AS EXPRESSLY PROVIDED HEREIN,NEITHER BRAMMO NOR ITS AFFILIATES LETS OR SUPPLIES THE VEHICLE TO BORROWER WITH OR SUBJECT TO ANY REPRESENTATION,CONDITION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE CAPACITY, CONDITION, SUITABILITY OR FITNESS FOR PURPOSE, PERFORMANCE,USE, QUALITY OR MERCHANTABILITY OF THE VEHICLE,AND ALL SUCH REPRESENTATIONS, CONDITIONS AND WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. NEITHER BRAMMO NOR ITS AFFILIATES SHALL BE LIABLE TO BORROWER IN CONTRACT, TORT (INCLUDING NEGLIGENCE)OR OTHERWISE FOR ANY LOSS, INJURY OR DAMAGE ARISING BY REASON OF ANY DEFECTS IN OR THE SUPPLY OF OR INTERRUPTION OF SERVICE OR USE OF THE VEHICLE,UNLESS SUCH LOSS, INJURY OR DAMAGE ARISES BY REASON OF A DEFECT IN THE DESIGN OR MANUFACTURE OF THE VEHICLE CAUSED BY THE NEGLIGENCE OF BRAMMO OR ITS AFFILIATES, SUBCONTRACTORS OR SUPPLIERS. THE PROVISIONS OF THIS SECTION HAVE BEEN NEGOTIATED BY BRAMMO AND BORROWER AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY REPRESENTATIONS OR WARRANTIES OF BRAMMO, EXPRESS OR IMPLIED, WITH RESPECT TO THE VEHICLE AND THIS AGREEMENT THAT MAY ARISE PURSUANT TO ANY LAW NOW OR HEREAFTER IN EFFECT, OR OTHERWISE. BORROWER HEREBY WARRANTS, COVENANTS AND AGREES THAT IT SHALL NOT MAKE ANY CLAIM AGAINST BRAMMO OR ANY OF ITS AFFILIATES, INCLUDING, WITHOUT LIMITATION, BY THE INITIATION OF ANY LITIGATION, ARBITRATION OR OTHER JUDICIAL OR QUASI- JUDICIAL PROCEEDING IN THE UNITED STATES, OR IN ANY OTHER JURISDICTION, WITH RESPECT TO ANY CLAIM, ACT, DEBT, DEMAND, ACTION, CAUSES OF ACTION, SUIT, ACCOUNT, COVENANT, CONTRACT, CONTROVERSY, AGREEMENT, PROMISE, REPRESENTATION, RESTITUTION, DUES, OMISSION, DAMAGE OR LIABILITY, WHETHER IN LAW OR IN EQUITY, BASED UPON, ARISING OUT OF OR IN B3990157v1ags 5 Brammo Vehicle Loan Agreement,2012 CONNECTION WITH THIS AGREEMENT OR USE OF THE VEHICLE THAT IS IN CONFLICT WITH THIS SECTION 24. SECTION 25. Governing Law/Severability. This Agreement is to be governed by the laws of the State of Oregon and Brammo and Borrower hereby submit to the exclusive jurisdiction of the Federal or State courts within Oregon. If any provision of this Agreement is unenforceable or invalid,that provision shall be severed from the remainder of the Agreement and the validity and enforceability of the remaining provisions shall not be affected or impaired. SECTION 26. Modifications/Amendments. This Agreement sets forth all of the agreements between Brammo and Borrower for use of the Vehicle, and no modification of or amendment to this Agreement shall be valid unless it is made in writing and signed by Brammo and Borrower. B3990157v1ags 6 Brammo Vehicle Loan Agreement March,2012 IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date first set forth above. BORROWER BRAMMO, BY: ti. By: Printed Name: 'TG 9, Mo,.QyA eW. Printed Name: dean G Stewart Title: Av t.i c Ik !/iN i am % Title:Marketing Director B3990157v1 Brammo Vehicle Loan Agreement March,1012 Attachment 1 The Vehicle listed below is provided to Borrower: Vehicle I VIN Brammo Enertia 2010 151RUB2134AA000107 B3990157v1 Brammo Vehicle Loan Agreement March,2012 Attachment 2 Contact Designations,Accident Notification and Vehicle Garaging Address Contacts Brammo Borrower Insurance Company Details Accident Adam Lukoic City of Ashland Ken Kruger Notification alukoic(a)brammo.com KKrugernabrammo.com 541-482-9555 541482-9555 Vehicle City of Ashland Garaging Address Ba99oi57vi