HomeMy WebLinkAboutPR 23423: PURCHASE OF CAT 725 ARTICULATED TRUCK FROM MUSTANG MACHINERY COMPANY THROUGH THE SOURCEWELL COOPERATIVE ur/ r Jttt �
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www.PortArthurTx.Rov
INTEROFFICE MEMORANDUM
Date: November 22, 2023
To: The Honorable Mayor and City Council
Through: Ronald Burton, CPM, City Manager
From: Flozelle C. Roberts, EIT, MEng, MBA, CPM, Public Works Director V�
RE: P.R. No. 23423 —Authorizing the Purchase of a Cat 725 Articulated Truck from
Mustang Machinery Company through the Sourcewell Cooperative
Introduction:
This agenda item intends to seek the City Council's authorization for the City Manager to purchase
a Caterpillar(Cat)725 Articulated Truck from Mustang Machinery Company, LLC (dba Mustang
Cat) of Houston, Texas, for$533,593.62.
Background:
The Landfill's Texas Commission on Environmental Quality (TCEQ)-issued permit requires
earthen material to cover the working face daily to comply with the agency's regulations. Large
equipment such as articulated trucks is necessary to maintain the landfill's working face. The
articulated truck, approved in the fiscal year ending 2024 budget's capital equipment schedule,
will transport the earthen material stockpiled at the Landfill for the dirt work project throughout
the site and assist with other operations to maintain the landfill.
Mustang Machinery Company, LLC (dba Mustang Cat) of Houston, Texas, submitted a quote for
a Caterpillar model 725-04 articulated truck through the Sourcewell cooperative purchasing
contract number 032119-CAT for$533,593.62.
Budget Impact:
Funds are available in the Capital Reserve Account, 625-50-000-8522-00-00-000.
"Remember,we are here to serve the Citizens of Port Arthur"
444 46 Street X Port Arthur,Texas 77641-1089 X 409.983.8182 X FAX 409.983.8294
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www.PortArthurTx.gov
Recommendation:
It is recommended that the City of Port Arthur's City Council approve PR# 23423 authorizing
the City Manager to purchase a Caterpillar model 725-04 articulated truck from Mustang
Machinery Company, LLC (dba Mustang Cat) of Houston, Texas, for$533,593.62.
"Remember,we are here to serve the Citizens of Port Arthur"
444 4th Street X Port Arthur,Texas 77641-1089 X 409.983.8182 X FAX 409.983.8294
PR 23423
10/27/2023 jam
Page 1 of3
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO PURCHASE
A CATERPILLAR 725 ARTICULATED TRUCK FROM MUSTANG
MACHINERY COMPANY, LLC OF HOUSTON, TEXAS, THROUGH
SOURCEWELL CONTRACT NUMBER 032119-CAT FOR$533,593.62.
FUNDS ARE AVAILABLE IN THE CAPITAL RESERVE EQUIPMENT
NEW REQUEST PUBLIC WORKS SOLID WASTE — EQUIPMENT
ACCOUNT NUMBER 625-50-000-8522-00-00-000-.
WHEREAS, the Texas Commission of Environmental Quality (TCEQ) requires the
City of Port Arthur's Landfill to cover the working face with earthen material daily; and,
WHEREAS, the Caterpillar (Cat) 725 Articulated Truck, which is essential for
Landfill operations, was approved in the fiscal year ending 2024 budget's capital
equipment schedule and will be used to transport the earthen material stockpiled at the
Landfill for the dirt work project and assist with other operations; and,
WHEREAS, Mustang Machinery Company, LLC (dba Mustang Cat) of Houston,
Texas, submitted a quote for a Caterpillar model 725-04 Articulated Truck through the
Sourcewell Cooperative Purchasing Program contract 032119-CAT as exhibited in Exhibit
A; and,
WHEREAS, pursuant to Chapter 271, Subchapter D, of the Local Government
Code, a local government may participate in cooperative purchasing programs established
by the State Facilities Commission for the purchase of goods at prices established through
purchase contracts of the Commission; and,
PR 23423
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Page 2 of 3
WHEREAS, pursuant to Resolution 13-556, the City of Port Arthur is authorized
to participate in cooperative purchasing with JCB Sourcewell (formerly National Joint
Powers Alliance) Cooperative Purchasing Program; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR:
THAT, the facts and opinions in the preamble are true and correct; and,
THAT, the City Council of the City of Port Arthur hereby authorizes the City
Manager to purchase a Cat 725 Articulated Truck for $533,593.62; and,
THAT, funding is available in Capital Reserve Equipment New Request Public
Works Solid Waste - Equipment Account Number 625-50-000-8522-00-00-000; and,
THAT, a copy of the caption of this Resolution be spread upon the Minutes of the
City Council.
READ, ADOPTED AND APPROVED this the day of ,
A.D. 2023, at a meeting of the City of Port Arthur, Texas, by the
following vote:
Ayes: Mayor:
Council members:
Noes:
Thurman Bill Bartle
Mayor
PR 23423
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Page 3 of 3
Attest:
Sherri Bellard, TRMC
City Secretary
APPROVED AS TO FORM: APPROVED FOR ADMINISTRATION:
Via
Valecia R. Tizen Esq. Ronald Burton, CPM
City Attorney City Manager
APPROVED AS FOR AVAILABILITY OF
FUNDS:
4a,;() 130:3-6e-c
Lynda Boswell
Director of Finance
EjneRobertMg, A, M
Direct "r f Public o s
Clifton E. Williams, Jr., CPPB
Purchasing Manager
PR 23423
Exhibit
A
MUSTANG CAT New Machine Sales Agreement
1111i
REF#Q-06900 MUSTANG MACHINERY COMPANY,LLC.D/B/A MUSTANG CAT,12800 NORTHWEST FREEWAY,HOUSTON TX_'
77040 I PHONE:(800)256-1001 0
SOLD TO 'CUSTOMER City Of Port Arthur Landfill SHIP TO 201 H.O. Mills Blvd 'i
STREET ADDRESS Attn:Accounts Payable _ 16
P.o.Box 1089
CITY/STATE Port Arthur/TX Port Arthur/TX ,,i
POSTAL CODE 77641 .8
COUNTY/COUNTRY A/l
PHONE NUMBER (}
tO
EMAIL
4;0
CUSTOMER CONTACT EQUIPMENT F.O.B.AT: ' Sr
PRODUCT
SUPPORT
INDUSTRY CODE ' SHIP VIA: I 1
PRINCIPAL WORK CODE
SALES TAX EXEMPTION CUSTOMER PO
CUSTOMER NUMBER: 0588741 NUMBER(IF
APPLICABLE): NUMBER:
TERMS PAYMENT TERMS: 30 Days
DESCRIPTION OF EQUIPMENT ORDERED/PURCHASED
MAKE: Caterpillar MODEL: 725-04 YEAR: 2023
ID NUMBER: 23NE0292 SERIAL NUMBER: 03T900966 SMU: 1
725 725-04 p
23NE0292 23NE0292 $607,530.00
TIRES.750/65R25 MX'"'XAD-65 369-8730 _ $8,650.00
LUBRICATION,AUTOMATIC 582-7512 $7,853.00
LIGHTS ROOF MOUNTED WORK 480-2054 $1,35><r.00
AM/FM RADIO(BLUETOOTH READY) , 480-1980 $775.00
WIPER,REAR 480-7003 $735:00
ROLL ON-ROLL OFF OP-9902 $278.00
EXHAUST,STANDARD 555-6414 $0.:00
AID,STARTING.STANDARD 396-1948 $0.00
AUTOLUBE ARRANGEMENT 582-7511 $0.00
PRODUCT LINK.CELLULAR PLE641 481-8888 $0.00
NO TAILGATE 455-3502 $0.00
NO MACHINE SECURITY SYSTEM 480-1971 $0.00
MIRROR,STANDARD 500-5946 $0.00
SEAT,STANDARD _ 485-0330 $0.00
SEAT BELT,W/INDICATION 566-5659 $0.00
ANTIFREEZE.-36C(-33F) 381-0092 _ $0.00_
NO PAYLOAD 485-0336 $0.00
FILM GROUP,ANSI 555-6418 $0.00
SERIALIZED TECHNICAL MEDIA KIT 0 421-8926 $0.00
CAB,STANDARD 462-5037 $0.00
BODY,STANDARD 555-6462 $0.00
CHASSIS,STANDARD 555-6412 $0.00
ROW ENGINE ARRANGEMENT 583-9949 $0.00
LANE 3 ORDER OP-9003 $0.00
D PRICE UPDATE $0.00
TANK,STANDARD FUEL 503-2045 $0.00
Total Machine List Price:$627,213.00
Dealer Discount:$109,489.05
Install Bed Liners:$12,002.73
Install Belly Pan:52,770.00
Quote Notes
Sourcewell Contract#032119-CAT
TRADE-IN EQUIPMENT TERMS OF SALE
MODEL: YEAR: SERIAL NUMBER: SUB TOTAL $532,496.68
PAYOUT TO: AMOUNT: PAID BY: HEAVY EQUIPMENT TAX I $1,096.94
MODEL: YEAR: SERIAL NUMBER:
rHi VV I I V MIVI,JUIV I. rpm.)DI. - '-' 7u.VV
MODEL YEAR: SERIAL NUMBER: DOC FEE $0.00
PAYOUT TO: AMOUNT: PAID BY: DIESEL SURCHARGE $0 00
ALL TRADE-INS ARE SUBJECT TO EQUIPMENT BEING IN"AS INSPECTED CONDITION"BY TOTAL CASH PRICE $533,593 62
MUSTANG CAT AT TIME OF DELIVERY.CUSTOMER HEREBY STATES THE ABOVE LISTED CASH WITH ORDER
EQUIPMENT EMISSIONS HAVE NOT BEEN ALTERED OR CHANGED.CUSTOMER HEREBY SELLS TRADE IN ALLOWANCE
THE TRADE-IN EQUIPMENT DESCRIBED ABOVE TO MUSTANG CAT AND WARRANTS IT TO BE FREE TOTAL DOWN PMT ETRADE IN
AND CLEAR OF ALL CLAIMS,LIENS.MORTGAGES AND SECURITY INTEREST EXCEPT AS SHOWN ALLOWANCE
ABOVE. UNPAID BALANCE OF TRADES
Invoice—Downpayment IT1
PREVENTATIVE MAINTENANCE AGREEMENT +Trade in Allowance
CVAI500 Hours! TOTAL AMOUNT TO BE
FINANCED
EQUIPMENT WARRANTY
Customer acknowledges that he has received a copy of the manufacturer's warranty and has read
and understood said warranty.All used equipment is sold as is where is and no warranty is offered
or implied except as specified herein.
WARRANTY TERM 60 Month 17500 HourslPowertrain+Hydraulics+TechiParts&Labor CUSTOMER INITIAL.
CAT Work Tools Warranty 12 Months/Unlimited Hours
IT IS MUSTANG CAT's INTENT THAT THIS AGREEMENT REFLECTS THE FULL AND FINAL TERMS OF THIS TRANSACTION. HOWEVER,DUE TO
CHANGING CIRCUMSTANCES,MUSTANG CAT MAY NOT BE ABLE TO HONOR THE EXACT PRICING OR DELIVERY DATES HEREIN.EXAMPLES OF
THOSE CIRCUMSTANCES INCLUDE,BUT ARE NOT LIMITED TO,LIMITED PRODUCT AVAILABILITY,EXTENDED LEAD TIMES,AND SUPPLIER
PRICING CHANGES.CUSTOMER ACCEPTS AND ACKNOWLEDGES THAT IF MUSTANG CAT IS NOT ABLE TO HONOR THE TERMS OF THIS
AGREEMENT,THIS AGREEMENT WILL BE VOIDED,AND BOTH PARTIES RELEASED FROM THIS AGREEMENT'S BINDING EFFECT.VOIDING OF THIS
AGREEMENT DOES NOT PREVENT THE PARTIES FROM ENTERING INTO A NEW AGREEMENT, NOR IMPACT OTHER AGREEMENTS AMONG THE
PARTIES HERETO.
DISCLAIMER OF WARRANTIES AND WAIVER OF CLAIMS
MUSTANG CAT IS NOT A MANUFACTURER OF THE EQUIPMENT ALTHOUGH MUSTANG CAT MAY ADMINISTER WARRANTIES ISSUED BY THM
MANUFACTURER,CUSTOMER ACKNOWLEDGES AND AGREES THAT:(1)ANY EXPRESS WARRANTIES BY THE MANUFACTURER FOR THE
EQUIPMENT ARE NOT THE RESPONSIBILITY OF MUSTANG CAT;AND(2)THE MANUFACTURER'S WARRANTY CONTAINS LIMITATIONS AND
CUSTOMER MAY INCUR CERTAIN REPAIR,TRANSPORTATION,OR OTHER CHARGES BY MUSTANG CAT WHICH ARE NOT COVERED BY THE
MANUFACTURER'S WARRANTY.ANY AND ALL IMPLIED WARRANTIES ARE EXCLUDED.
MUSTANG CAT,BY VIRTUE OF HAVING SOLD THE EQUIPMENT UNDER THIS AGREEMENT, HAS NOT MADE AND DOES NOT MAKE ANY
REPRESENTATION OR WARRANTY,EXPRESS OR IMPLIED,AS TO CONDITION,COMPLIANCE WITH SPECIFICATIONS OR REGULATIONS,QUALITY,
DURABILITY,SUITABILITY, MERCHANTABILITY, FITNESS FOR USE OR FITNESS FOR A PARTICULAR PURPOSE,OR ANY OTHER WARRANTY
WHATSOEVER,EXPRESS OR IMPLIED,WITH RESPECT TO THE EQUIPMENT.MUSTANG CAT IS NOT LIABLE FOR ANY DAMAGES(WHETHER
ORDINARY,SPECIAL OR PUNITIVE)ARISING FROM ANY FAILURE OF THE EQUIPMENT TO OPERATE OR THE FAULTY OPERATION OF THE
EQUIPMENT,OR THE INSTALLATION,OPERATION, REPAIR OR USE OF THE EQUIPMENT.
OTHER TERMS AND CONDITIONS
ADDITIONAL TERMS AND CONDITIONS SET FORTH ON THE REVERSE SIDE HEREOF OR ATTACHED HERETO(AS APPLICABLE)CONSTITUTE AN
IMPORTANT PART OF THIS AGREEMENT AND ARE INCORPORATED HEREIN VERBATIM FOR ALL PURPOSES. PLEASE REVIEW SUCH OTHER TERMS
AND CONDITIONS BEFORE SIGNING THIS AGREEMENT.
THESE TERMS AND CONDITIONS SUPERSEDE ALL OTHER TERMS AND CONDITIONS PRESENTED BY OR TO CUSTOMER UNLESS PROVIDED IN A
DOCUMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF BOTH PARTIES AND CONTAINING REFERENCE TO THIS SALES ORDER
AGREEMENT.
THIS AGREEMENT IS SUBJECT TO THE TERMS AND CONDITIONS ATTACHED
DATE DATE
ORDER
RECEIVED
BY Jerrod Hines CUSTOMER NAME
SIGNATURE CUSTOMER SIGNATURE
TITLE OSR TITLE
1.DEFINITION OF MUSTANG: MUSTANG and Seller are defined as Mustang Machinery Company, LLC d/b/a MUSTANG CAT,Mustang Rental Services of
Texas, LLC.d/b/a MUSTANG RENTAL SERVICES,and their subsidiaries,affiliates and related entities.
2.AGREEMENT: This Agreement becomes binding on MUSTANG CAT only upon MUSTANG CAT's execution of this Agreement,and subject to the availability of
the equipment from the manufacturer Customer shall inspect the equipment immediately upon its receipt, and shall be conclusively deemed to have acceptedtthe
equipment in good and operating condition unless the customer promptly notifies MUSTANG CAT of any defects,in writing and via telephone.MUSTANG CAT shall
have the right,at its option,to either repair or replace the equipment,or terminate this Agreement. in which event the equipment shall be returned to MUSTANG
CAT Delays in delivery shall be excused if caused by any cause beyond the reasonable control of MUSTANG CAT. 44
3.TITLE TO EQUIPMENT: Title to the equipment shall pass to the customer only upon MUSTANG CAT's actual receipt of funds in the total amount of the Purt�hase
Price and other sums due to MUSTANG CAT hereunder. ��
4.TAKEN IN TRADE:Customer does hereby irrevocably sell,assign,transfer and convey possession,ownership and title unto MUSTNAG CAT to the Trade.Yn`
Equipment described above Customer warrants that it is the sole owner of the Trade-in Equipment, has full power and authority to sell the Trade-in Equipmei*'.and
that there is no lien or any encumbrance of any kind or nature against the Trade-in Equipment,of record or otherwise.
5.TAXES: Customer shall promptly pay all taxes,fees,transportation and other costs,assessments and all governmental charges of any kind or character,aq any
penalties,fines or interest thereon relating to the equipment.
le
6.CUSTOMER'S WARRANTIES AND USE: In addition to the other warranties contained herein,customer warrants that(i)if customer is an entity, it is duly ,,
organized and validly existing in good standing, and(ii)is duly authorized to execute, deliver,and perform under this Agreement.Customer further agrees and
warrants, at its cost,that: (1)the equipment shall at all times be used solely for customer's business and not for personal,family,or household use,and in
accordance with the use,and/or instructional materials,solely for the purpose for which it was intended; (2)only customer's employees(who must be skilled,trained
and certified to do so)shall use the equipment. Customer hereby further agrees and warrants that(i)any payments made pursuant to this Agreement are intended
by the customer to be a contemporaneous exchange for new value given to customer and it is a substantially contemporaneous exchange and(ii)each payment
made of a debt incurred by customer under this Agreement is in the ordinary course of business or financial affairs of customer and MUSTANG CAT,and such
payment was made in the ordinary course of business or financial affairs of customer and MUSTANG CAT,or made according to ordinary business terms.
7.SOLE AND EXCLUSIVE REMEDY: Customer further agrees that his SOLE AND EXCLUSIVE remedy, if any,against MUSTANG CAT,shall be as contained in
any express,written warranty applicable hereto. Customer acknowledges that he has received, read,understands and accepts the terms contained herein. The
customer agrees that no other remedy(including,but not limited to,claims for INCIDENTAL,CONSEQUENTIAL OR SPECIAL DAMAGES,OR ANY CAUSE,LOSS,
ACTION, CLAIM OR DAMAGE WHATSOEVER OR INJURY TO PERSON OR PROPERTY OR ANY OTHER CONSEQUENTIAL, ECONOMIC OR INCIDENTAL
LOSS)shall be available to him.
8.LOSS AND DAMAGE:Customer assumes all liability and risk of,and shall be solely responsible for,all damage and loss to the equipment from any cause
whatsoever,whether or not such loss or damage is or could have been covered by insurance. Until the equipment is paid in full,Customer shall promptly give
MUSTANG CAT written notice of any loss or damage and reimburse MUSTANG CAT for the value of the equipment if damaged or stolen.MUSTANG CAT's sole
responsibility for shipments shall be to deliver the equipment to a public carrier company.
9.SECURITY AGREEMENT:Unless the product(s)is paid for in full in cash at the time of delivery,MUSTANG CAT retains and customer hereby grants to
MUSTANG CAT a security interest in such product(s)within the meaning of the Uniform Commercial Code together with all and any substitutions, additions,or'
accessions to such product(s), and in any and all proceeds from the sale,exchange or disposal thereof to secure payment of the purchase price of such
product(s) Customer, prior to or after delivery,specifically agrees to enter into and execute a financing statement,or statements.and an additional security tree
agreement setting forth the terms and conditions of the Agreement between the parties in relation to the security interest of MUSTANG CAT. Customer further
appoints MUSTANG CAT as its attorney-in-fact to execute any such financing statement or security agreement in the place and stead of customer In the eve 4
customer fails to execute any such financing statement or security agreement upon request by MUSTANG CAT,the entire balance of the purchase price shall be at
MUSTANG CAT's option become due and payable and customer shall execute any notes or other evidences of indebtedness that may be required by MUSTANG
CAT However, any note taken herewith shall be evidence of customer's obligation to pay the unpaid time balance only and is not to be considered or constru to
be payment for the product(s).
10. EVENTS OF DEFAULT:The following are events of default by Customer (1)failure to pay any amount due hereunder or otherwise, (2)Customer's ceasing to
do business,becoming insolvent,taking advantage of any law for the relief of debtors or filing bankruptcy,making an assignment for the benefit of creditors:(5)
when MUSTANG CAT deems itself insecure with respect to customer's performance,(4)Customer fails to perform any of customer's other obligation hereunder or
otherwise; (5)Customer's representation or warranty is false or misleading.
11.REMEDIES ON DEFAULT: In the event of any default by customer, MUSTNAG CAT is entitled to any one or more of the following remedies,without any notice
of default: (a)take possession of the equipment or any other equipment, including enter premises where its located;(b)terminate this Agreement; (c)seek specific
performance or injunction or recover damages; (d)stop delivery of the equipment or any other equipment; (e)surrender any insurance policies and receive the
unearned premiums; (f)without terminating this Agreement, MUSTANG CAT may take possession of the equipment and sell, relet or otherwise dispose of the
equipment as a secured party under UCC and deduct all expenses,costs, reasonable attorneys fees,and other charges incurred by MUSTANG CAT; (g)recover
deficiency from customer;and/or(h)perform by itself, or cause performance of, customer's obligation,at customer's cost. In no event shall MUSTANG CAT be
required to sell or relet the equipment, nor required to rebate or pay back any gain or profit as a result of leasing the equipment. MUSTANG CAT's remedies
hereunder shall not be exclusive,but shall be cumulative and in addition to all other remedies existing at law or in equity.
12.COLLECTIONS:In the event any action either to collect payment or enforce the terms and provisions of this agreement becomes necessary, CUSTOMER
agrees to pay reasonable cost of collection and attorney's fees to MUSTIANG CAT should this matter be placed in the hands of a collection agency or an attorney for
collection.
13.INDEMNITY:CUSTOMER AGREES TO INDEMNIFY,DEFEND AND HOLD HARMLESS MUSTANG CAT AND MUSTANG CAT's PARTNERS,
EMPLOYEES,AGENTS,REPRESENATIVES,SUCCESSORS AND ASSIGNS FROM ANY AND ALL CLAIM,EXPENSE,CAUSE OF ACTION,DAMAGE,
LIABILITY,COST,PENALTY,TAX,ASSESSMENT,CHARGE,PUNITIVE DAMAGE OR EXPENSE BY REASON OF ANY ACT OR OMISSION OF CUSTOMER
OR ITS EMPLOYEES,AGENTS,CONTRACTORS,SUBCONTRACTORS,AFFILIATES OR INVITEES,WHILE THE EQUIPMENT IS IN THE POSSESSION OR
UNDER THE CONTROL OF THE CUSTOMER OR ITS AGENTS. f
14.INSURANCE COVERAGES:Customer shall maintain Equipment insurance and General Liability insurance,Auto Liability insurance,and Workers 3
Compensation and Employer's Liability Insurance,each with minimum$1,000,000 per occurrence and shall deliver to MUSTANG CAT a Certificate of Insurance
evidencing same. Such insurance obtained by customer shall be primary.
15.NOTICES:All notices hereunder shall be in writing and shall be deemed delivered if delivered personally or mailed,by certified mail, return receipt requested,to
the respective addresses of the parties set forth above or any other address designated by written notice. By signing this Agreement, customer represents that it has
read and agrees to the Terms and Conditions applicable to communications made by MUSTANG CAT to customer by Text or Email and which are found at
https://www.mustangcat.com/legal-notices/
16.MISCELLANEOUS:This Agreement may only be modified by a written agreement signed by MUSTANG CAT.If any provision of this Agreement is hereafter
held invalid or unenforceable,the remainder of the Agreement shall not be affected and the provisions are declared severable If there is more than one customer,
the obligations of customers hereunder are joint and several.Subject to the terms hereof,this Agreement shall be binding upon and inure to the benefit of
MUSTANG CAT and customer and their respective personal representatives,successors and assigns.This Agreement shall be governed by the laws of Texas,
each party hereby irrevocably consents to submit to the exclusive Jurisdiction of the courts of the state of Texas in Harris County,Texas. I agree and acknowledge
that to the extent equipment is equipped with a telematics system(e.g., Product Link),that data concerning such equipment,including condition,and operation are
being transmitted to Caterpillar Inc,and its affiliates. The full privacy statement applicable to the transfer of telematics information, including instructions on how to
ask questions about telematics and how to revoke your consent,is available at:https://www.caterpillar.com/en/legal-notices/data-governance-statement.html.THE
PARTIES HEREBY WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT OR THE
SUBJECT MATTER HEREOF,