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HomeMy WebLinkAbout43-05 RESOLUTIONRESOLUTION NO. 4 3 - 5 A RESOLUTION TO APPROVE THE GENERAL RELEASE AND WAIVER FROM FORD MOTOR COMPANY AND TO AUTHORIZE THE MAYOR TO SIGN THE GENERAL RELEASE AND WAIVER BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves the General Release and Waiver from Ford Motor Company (attached as Exhibit "A") and authorizes the Mayor to sign the General Release and Waiver. PASSED and APPROVED this 1st day of March, 2005. ATTEST: ................. fr("\•Cb.i..? 0..e•.("N • oat-% C . By: E') • • ,t1S. - • E • FAYETIIVILLE _ • 7- • ?h.°. Pstie :11,1f A Ns. • " .......... .............. By: &meet -4J SONDRA SMITH, City Clerk APPROVED: D N COODY, Mayor -••••Fm., • GENERAL RELEASE AND WAIVER For good and valuable consideration, the receipt of which is hereby acknowledged, the City of Fayetteville Police Department on behalf of itself and on behalf of its past, present or fitture beneficiaries, employees, agents, partners, administrators, executors, assigns ("the Releasing Parties"), hereby releases and forever waives all claims arising from Ford Motor Company's (i) advertising of the 2005 Model Year Crown Victoria Police Interceptor and (ii) sale to the Releasing Parties of the 2005 Model Year Crown Victoria Police Interceptor — as well as any of Ford's past, present and future parent and subsidiary corporations, divisions, affiliates, partners, dealers, joint venturers, stockholders, predecessors, successors, assigns, officers, directors, employees, agents, representatives, administrators, trustees, fiduciaries and any other person, firm, entity, association, or corporation with whom they may now or hereafter be affiliated — and each of them (collectively, the "the Released Parties"), from any and all claims, demands, obligations, losses, elements of damage, causes of action, costs, expenses, attorneys' fees, liabilities, restitution, and indemnities of any nature whatsoever, whether based on contract, tort, statute, or other legal or equitable theory of recovery, whether known or unknown, which as of the date of this Agreement March 1,2005 formerly had, now has, or claims to have against the Released Parties, arising out of or in any way connected with the advertising or sale of the 2005 Model Crown Victoria Police Interceptors. This release and waiver does not and is not intended to limit warranty coverage or to waive any product liability claims unrelated to false advertising. On behalf of the Releasing Parties, Mayor Dan Coody expressly waives any right or claim of right to assert hereafter that any claim, demand, obligation, and/or cause of "ES - 93-e 5- • action has, through ignorance, oversight, or error, been omitted from the terms of the Agreement, and further expressly waives any right or claim of right that he may have under the law of any jurisdiction that provides that releases such as this Agreement do not apply to unknown or unstated claims. It is the express intent of Mayor Dan Coody, on behalf of the Releasing Parties, to waive any and all claims described in this Agreement, including any that presently are unknown, unsuspected, unanticipated or undisclosed. Mayor Dan Coody, on behalf of the Releasing Parties, acknowledges that there is a risk that, subsequent to the execution of this Agreement, it or another Releasing Party may incur damage or loss that one or more of the Releasing Parties deems in some way attributable to the Released Parties' conduct relating to the advertising or sale of 2005 Model Crown Victoria Police Interceptors, but that is unknown and unanticipated at the time this Agreement is executed. On behalf of the Releasing Parties, Mayor Dan Coody acknowledges and assumes such risk that damages presently known may become more progressive, greater or more serious than is now known, expected or anticipated. Dan Coodv, Mayor Print name and title Signature and Title of Authori ignatory leXt Date •aye evile ARKANSAS Interdepartmental Correspondence ge5 C.) FLEET OPERATIONS ys_ds 1525 S. Happy Hollow Road fitf, Fayetteville, AR 72701 fdra /WY etnaild ashetio- To: Mayor/City Council Thru: Gary Dumas, Director of Operation& From: David Bragg, Fleet Operations Superintendent ce:-12/C1, Date: February 10, 2005 Subject: Execution of Release and Waiver to Ford Motor Co. RECOMMENDATION: That City Council approve the execution of a General Release and Waiver form as prescribed by Ford Motor Co. as a condition of acceptance of orders for 2005 Crown Victoria Police Interceptors. BACKGROUND: On January 18, 2005, the City Council approved the purchase of thirteen Ford Crown Victoria Police Interceptors from North Point Ford. Due to an investigation initiated by the Arkansas Attorney General, Ford has suspended order acceptance or delivery of these vehicles until the investigation issue is resolved or until the ordering agency agrees to a waiver in a form provided by Ford, of "all claims arising from Ford Motor Company's advertising of the 2005 Model Year Crown Victoria Police Interceptor " Contact with Jim Depnest of the office of the Attorney General indicates: • There is little chance of resolution in time to receive vehicles in the 2005 model year. • Investigation is not a result of any complaint or request from an Arkansas law enforcement agency or fleet. Due to changes in fleet management practices involving extended life of Police vehicles and consequent skipping of CVPI order in the 2004 model year, it is imperative that 2005 model vehicles be ordered and received as scheduled and approved by the Council. Waiting for resolution of this investigation will cause a shortage of serviceable Police vehicles to sustain current service levels and substantially delay implementation of planned service expansions. Fleet and Police staff are unaware of any complaints or allegations from the law enforcement fleet community regarding Ford's delivery of product that does not satisfy the expectations of the enforcement agency or its fleet managers. Posting on a national e-mail bulletin board for public fleet managers has revealed no concern or affirmation of issues under investigation. The City of Fayetteville has run Ford police cars exclusively for years and is well satisfied with the product. The other certified pursuit sedan, the Chevrolet Impala, does not have sufficient interior space to equip and operate in the manner that FPD currently operates its patrol units. The Equipment Committee on January 31, recommended execution of the waiver provided that there is no waiver of future warranty or product liability claims. The City Attorney has reviewed the waiver and his comments are attached. iuweveci am-unaware-arany complaints or allegations from the law enforcement fleet community regarding Ford's delivery of product that does not satisfy the expectations of the enforcement agency or its fleet managers The City of Fayetteville has run Ford police cars exclusively for years and is well satisfied with the product. The other certified pursuit sedan, the Chevrolet Impala, does not have sufficient interior space to equip and operate in the manner that FPD currently operates its patrol units According to the stated intent of the attached waiver, I request that City officials provide the requested waiver to Ford in order to receive our approved order as soon as possible I do have an Adobe copy of the waiver if it will facilitate preparation of the waiver document. fre °Y6° nom ignrwr Lan" intl. //°5 NORTH POIND • Fortp 1 LINCOLN -MERCURY Simply The Best January 26, 2005 Mr. David R. Bragg City of Fayetteville 1525 S. Happy Hollow Road Fayetteville, AR 72701 Dear Mr. Bragg: FAX 479-444-3425 I want to take this time to thank the City of Fayetteville for the order of thirteen 2005 Ford Crown Victoria Police Interceptors. I also need to inform you and the City of Fayetteville of the decision made by Ford Motor Company in light of the ongoing investigation of the 1994 — 2004 CVPI by the Arkansas Attorney General This decision is to allow the sale of 2005 Crown Victoria Police Interceptors to Arkansas Municipalities provided they agree to sign a Ford Motor Company issued waiver. This waiver has been set in place to protect Ford Motor Company against the possibility of another costly accusation for the 2005 model CVPI. This waiver does not and is not intended to limit warranty coverage or to waive any product liability claims unrelated to false advertising. So the bottom line is that the City, its law enforcement officers and their families are protected. Please sign and return this waiver to allow me to release your order. Sinc Fl gr N rth Point Ford 4400 Landers Road • P0. Box 16090 • North Little Rock, AR 72231 • (501) 945-1200 www.northpointcars.com Tony Gratson Government Sales Manager North American Fleet, Lease & Remarketing Operations To: All Ford Dealers in the State of Arkansas 16800 Executive Plaza Drive Regent Court Bldg. MD 6NE-2A Dearborn, MI 48126 . . . January 4, 2005 Subject: Update - Crown Victoria Police Interceptor Investigation by the Arkansas Attorney General Purpose The purpose of this letter is to both update you regarding the status of the Attorney General's Police Interceptor investigation, and provide you with a waiver form that will enable Ford to resume sales of Police Interceptors to interested law enforcement agencies. Status—Hoist Review A hoist review of a Police Interceptor and civilian Crown Victoria, with representatives from the Attorney Generals office, was conducted on December 22, 2004 in Little Rock. Ford believes that Company engineers clearly established the physical and engineering attributes of the Police Interceptor that form the basis of the "heavy duty" advertising claims. While Ford had hoped that the hoist review would lead to a rapid conclusion of the investigation, the Attorney General has instead indicated that Ford must provide voluminous written documents before the investigation will conclude. The identification, collection and production of the requested documents will take hundreds of person -hours, and then the Attorney General's office will then take weeks to review them. Consequently, we believe that the investigation will continue for at least two months. Resume Sales—Waiver Ford and its dealers have been contacted by dozens of law enforcement agencies that have indicated that they do not support or wish to be aligned with the Attomey General's investigation, and instead wish to continue to purchase Police Interceptors. The attached waiver is provided in recognition of this position, and is intended to enable any law enforcement department in Arkansas to determine its own policy with regard to litigation with Ford. If your law enforcement customer indicates an interest in purchasing Police Interceptors, then you should take the below steps: • Provide the attached waiver to the law enforcement customer • Fax the completed waiver, along with the account name and FIN code, to Ford's Patrick McGrath at the Fleet Customer Information Center (FCIC) at 1-866-823-5508 • Once Ford receives the waiver, Ford will re -activate the FIN code so dealerships can accept CVPI orders The contact for the State of Arkansas Attorney General: The Arkansas consumer hotline for complaints and inquiries is 800-482-8982. if you have any questions for Ford Fleet Sales Please contact the Fleet Customer Information Center at 1 -800 -34 -FLEET, Option #2. Sincerely, Tony Gratson ARKANSAS FLEET OPEIATIONS 1525 S. Happy Hollow Road Fayetteville, AR 72701 Interdepartmental Correspondence TO: KIT WILLIAMS, CITY ATTORNEY VIA: GARY DUMAS, DIRECTOR OF OPERATION FROM: DAVID BRAGG, FLEET OPERATIONS SUPERINTENDENT2-9t5 DATE: FEBRUARY 1, 2006 SUBJECT: WAIVER FOR PURCHASE OF FORD POLICE INTERCEPTORS At the regular meeting of the Equipment Committee, January 31, 2005, the committee voted unanimously to recommend providing the attached waiver form to Ford Motor Company to expedite release of our previously approved order for thirteen Crown Victoria Police Interceptors, provided that the release language does not waive product liability rights as is stated by Ford in letter communication accompanying the release form. . The attached documents provided to the committee explain the pressing need to achieve the timely delivery of these vehicles and Ford's position on this matter. TSTiEBS6S6Lt. •0,A3WH011B A113 dTT:TO SO OT clad ' THE CITY OF FAYETTEVILLE. ARKANSAS KIT WILLIAMS, CITY ATTORNEY DAVID WHTTAICER, ASST CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT TO: David Bragg, Fleet Operations Superintendent Gary Dumas, Director of Operations Dan Coody, Mayor City Council FROM: Kit Williams, City Attorne DATE: February 8,2005 RE. Ford's Waiver request Thank you for your memo with a copy of the General Release and Waiver proposed by Ford Motor Company. I believe that it is legally permissible for the City to waive and release its nghts to a vendor. I do not recommend undercutting Arkansas Attorney General Mike Beebe who is investigating whether Ford may have falsely advertised or represented the capabilities of their Crown Victona Police Interceptor. It is certainly unusual for a person, business or city to have to agree to waive and release false advertising claims before being allowed to Purchase a product. If no false advertising has occurred, why is such a waiver being required by Ford? The document we are being required to sign in order to obtain 2005 models is entitled "General Release and Waiver". It is drafted by Ford and is two pages of a very broad ("General") waiver and release of the City of Fayetteville's nghts versus Ford Motor Company. Fayetteville "hereby releases and forever waives all claims arising from Ford Motor Company's (i) advertising of the 2005 Model Year Crown A C 1A314210111:1 AJA 3 CII TO so Di- gad • Victoria Police Interceptor and (ii) sale (to Fayetteville) of the 2005 Model Year Crown Victoria Police Interceptor ...." (emphasis added) This "General Release and Waiver" forever waives and releases any present or future claims of any nature whatsoever ... arising out of or in any way connected with the advertising or sale of the 2005 Model Year Crown Victoria Police Interceptors." (emphasis added) This sounds like an all encompassing general release and waiver of all of our rights to make any claim against Ford. This general release and waiver language is somewhat modified by the following language: "This release and waiver does not and is not intended to limit warranty coverage or to waive any product liability claims unrelated to false advertising." This seems to conflict with the earlier general release language waiving any claims arising not only from false advertising, but also from the "sale" of the vehicle. As Ford drafted this "General Release and Waiver", uncertainty and ambiguity in its choice of language should be construed against Ford, but exactly how a Court would interpret this "general" release is not certain. If it was meant to be a "Limited Release and Waiver" so that Fayetteville would only be waiving claims related to false advertising (such as fraud) as stated in Ford's letter to Mr. Bragg, why is it entitled a "General Release and Waiver"? Why are all claims related not only to false advertising, but also to the sale of the cars waived? I cannot answer those questions. It is up to the City Council and Administration to determine if it is in our citizens' best interests to sign this General Release and Waiver. I repeat that I do not know of any legal impediment to the City Council's decision to waive and release possible claims against the car seller. I would imagine every business deahng with us would like us to waive and release any claims "of any nature whatsoever" against them, or even just potential false advertismg (misrepresentation, fraud, etc.) claims. A-31.1d011U- Ati 3. 13;;T.0 SCI.•0ir cla.d David Bragg Submitted By • City of Fayetteville Staff Review Form City Council Agenda Items Contracts 1 -Mar -05 City Council Meeting Date Fleet Operations Division Action Required: 'Action Required: Approval of the execution of a General Release and Waiver form as prescribed by Ford Motor Company as a condition of acceptance of orders for 2005 Crown Victoria Police Interceptors. • Operations Department Cost of this request Account Number Project Number Budgeted Item N/A Category/Project Budget Funds Used to Date Remaining Balance Budget Adjustment Attached Program Category / Project Name Program / Project Category Name Fund Name Previous Ordinance or Resolution # n/a 210'0.S Original Contract Date: n/a Department ISirector Date Original Contract Number: n/a City Attorney 4/ Mayor V/I`I/VC Date Receiyedlin Mayors.Office /1 it. Comments: 0 aye evi le ARKANSAS Interdepartmental Correspondence • FLEET OPERATIONS 1525 S. Happy Hollow Road Fayetteville, AR 72701 To: Mayor/City Council Thru: Gary Dumas, Director of Operations From: David Bragg, Fleet Operations Superintendent Date: February 18, 2005 Subject: Police Patrol Car Requirements Due to changes in fleet management practices involving extended life of Police vehicles and consequent skipping of Crown Victoria Police Interceptor order in the 2004 model year, it is imperative that 2005 model vehicles be ordered and received as soon as practical. Rather than replace patrol cars at 65,000 miles and pass them down to administrative use, for almost two years we have been running them as long as they can be maintained in safe and serviceable condition at reasonable cost. The average retirement mileage now is approximately 120,000 miles. The Police Department is currently operating without 3 patrol cars required to implement planned 2005 service expansions. Barring any catastrophic accident losses, we project 3 cars to require replacement by June and 3 more between June and December 2005. Without replacement, we either pour money into major repairs and live with increased downtime caused by continuing failure of additional components or take the car out of service completely. Typical cost to rebuild major components: Engine - $4,300; Transmission - $2,500; Rear Axle - $1,100; Front suspension - $1,200. Based upon original council approval, we anticipated delivery of vehicles in mid April, 2005. This would have allowed putting the expansions in service in the second quarter and having cars on hand to meet the expected June replacement requirements Execution of the requested waiver on March 2 will move delivery to early June. Without execution of a waiver at this time there is no way to determine when cars could be delivered or at what cost. Delays from four months to over a year are possible. Cc: Frank Johnson Clarice Pearman - Res 43-05 Page 1 From: Clarice Pearman To: Bragg, David Subject: Res 43-05 David, Attached is a copy of the resolution passed by Council March 1, 2005 approving the release and waiver from Ford. Also attached is a copy of the release. I will put in interoffice mail an original of two in your interoffice mail. Have a good day. Thanks. Clarice CC: Deaton, Vicki; Olsen, Barbara