Montebello City Council
February 28, 2024

CITY COUNCIL AGENDA REPORT - MEETING OF FEBRUARY 28, 2024

The FY 2023-24 Transit budget has funding appropriated in the above accounts and amounts, therefore no budget amendments are required. A summary of the total project expenses, including the bus purchase, training and tooling, contingency allotment, contract deliverables, and taxes is shown below:

BACKGROUND/DISCUSSION:

Montebello Bus Lines (MBL) manages a transit fleet consisting of sixty-six (66) active 35- 40 foot buses, including three electric (3), twenty-six hybrid (26), and thirty-seven (37) Compressed Natural Gas (CNG) buses. This fleet serves over 2.6 million riders annually across thirteen local communities. To ensure the delivery of quality and reliable transportation services to the City of Montebello and neighboring areas, MBL consistently evaluates and assesses the condition of its fleet.

In line with the City’s Administrative Policy: Capital Asset Policy (VI-C-3), MBL staff recommends the replacement of three (3) New Flyer CNG transit buses (manufacturer year 2009). These buses have exceeded the service life of twelve years as established by the Federal Transit Administration (FTA). This strategic initiative not only aims to sustain fleet operations but also aligns with the Innovative Clean Transit Regulation. This regulation encourages transit agencies to progressively transition towards 100-percent zero-emission bus fleets, contributing to a more sustainable and environmentally friendly public transportation system.

These buses will be purchased through a procurement process outlined in Montebello Municipal Code (“MMC”) Section 3.20.125 – “Piggybacking Purchasing Agreement,” as authorized under California Government Code section 54202 and is FTA approved. In accordance with MMC 3.20.125(A), the City will enter into a purchase agreement with New Flyer (Attachment A) using the base pricing and terms established in the Washington State Transit Bus Cooperative Master Contract, No.06719-01 (Cooperative

CITY COUNCIL AGENDA REPORT - MEETING OF FEBRUARY 28, 2024

Contract No. 06719-01), which expires on March 31, 2024 (Attachment B).

New Flyer has fully complied with all the stipulated requirements, technical specifications, and provided necessary documentation in accordance with Cooperative Contract No. 06719-01. MBL staff has thoroughly reviewed all federal clauses (Attachment C) and procurement documents. In addition, MBL predominantly operates a fleet of New Flyer CNG and Electric powered transit buses, procuring additional buses from the same manufacturer aligns with the City's ongoing efforts to standardize its fleet. If approved, the delivery of all three (3) buses is anticipated on or before Spring 2025.

ENVIRONMENTAL:

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ANALYSIS:

Following the guidelines outlined in MMC 3.20.125(A), the City will enter into a purchase agreement with New Flyer utilizing Cooperative Contract No. 06719-01, provided that the estimated price of purchase is lower than the estimated price of purchase if made directly by the City.

Staff conducted a base market price analysis to ensure the proposed purchase price provides the best value to the City. New Flyer’s proposal and cost sheet were compared to similar bus purchases from neighboring agencies and transit agencies with operational structures similar to MBL. The data used in the analysis is illustrated in the table below:

Under the Cooperative Contract No. 06719-01, the contractor can freely purchase and/or

CITY COUNCIL AGENDA REPORT - MEETING OF FEBRUARY 28, 2024

repair equipment at their convenience. Table 2 illustrates the anticipated total expenditure that the city expects for a single FCEB.

Based on the analysis, staff recommends replacing three (3) CNG transit buses, considering their age and mileage. New Flyer offers a competitive total base cost of $4,490.435 (Attachment D). Leveraging Cooperative Contract No. 06719-01 via the “piggyback” procurement option allows the City to customize buses for MBL’s operation at a bid-consistent base price. This approach ensures cost-effectiveness, capitalizes on competitive pricing, and aligns with the City’s municipal code, enhancing MBL’s transit fleet efficiency at a fair market price.

SUMMARY:

Staff recommends that the City Council consider approving Agreement No. 4183, attached hereto in substantial form (Attachment A), with New Flyer to purchase three (3), forty-foot (40’), Heavy Duty Hydrogen Fuel Cell Transit Buses using the base pricing and terms established in Master Contract, No. 06719-01 in an amount not to exceed Four Million, Seven Hundred Fifty-Three Thousand, Seven Hundred and Seven Dollars ($4,753,707); authorize the City Manager and/or their designee to approve change orders for up to two (2%) of the contract amount as necessary; and direct staff to take such additional, and related, action that may be desirable.

ATTACHMENT(S)

1. Attachment A - Proposed Purchase Agreement with New Flyer of America, Inc.

2. Attachment B - Washington State Transit Bus Cooperative Master Contract

3. Attachment C - Federal Required Clauses

4. Attachment D - New Flyer Proposal and Cost Sheet

NEXT STEPS:

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ATTACHMENT A

CITY OF MONTEBELLO
PURCHASE AGREEMENT NO. 4183
WITH NEW FLYER OF AMERICA, INC.

THIS PURCHASE AGREEMENT (“Agreement”) entered into on February 28, 2024, by and between the CITY OF MONTEBELLO, a California municipal corporation (hereinafter “CITY”), and NEW FLYER OF AMERICA, INC. (hereinafter “SELLER”) (collectively referred to herein as the “Parties” and individually as the “Party”), is made with reference to the following:

RECITALS
WHEREAS, CITY desires to “piggyback” on an existing contract, as amended, between SELLER and THE STATE OF WASHINGTON ENTERPRISE SERVICES, pursuant to THE STATE OF WASHINGTON ENTERPRISE SERVICES issued a Competitive Solicitation No. 06719-01 “Procurement of 40-Foot Fuel Cell Electric Bus (FCEB) Coaches issued on March 4, 2020, and executed on April 1, 2021 (hereinafter “Washington State Transit Bus Cooperative Master Contract No. 06719-01”); and
WHEREAS, CITY seeks to procure from SELLER, and SELLER seeks to build and deliver to CITY three (3), new forty (40)-Foot Heavy Duty, Fuel Cell Electric Transit Buses (hereinafter the “Bus”) for the Montebello Bus Lines (hereinafter “MBL”) through Washington State Transit Bus Cooperative Master Contract No. 06719-01; and WHEREAS, SELLER represents to CITY that it is fully qualified to provide the above- described services, that it is a validly existing corporation, formed and in good standing under the laws of the State of California and legally authorized to conduct the business in which it is currently engaged, and SELLER further represents it has the background, knowledge, experience and expertise necessary to provide CITY the Bus contemplated under this Agreement; and
WHEREAS, SELLER represents to CITY that is in full compliance with the federal procurement requirements and has provided all required certifications as dictated by the Federal Transit Administration (FTA); and
WHEREAS, the parties have negotiated upon the terms pursuant to which SELLER will provide such services and have herein reduced such terms to writing.

NOW, THEREFORE, in consideration of the mutual covenant and conditions contained herein, CITY and SELLER agree as follows:

1. INCORPORATION OF RECITALS AND EXHIBITS
The above “Recitals” constitute a material part hereof, and shall hereby be incorporated by reference as though fully set forth herein. Moreover, this Agreement consists of the following documents, in order of precedence, all of which as hereby referenced are incorporated herein

PURCHASE AGREEMENT NO. 4183

and made part of this Agreement, and shall be the entire Agreement between the Parties:
a. This Agreement, including any and all addenda or supplemental agreements. b. SELLER’S Price Change Summary and Detail, modified specific to the Buses to be purchase by CITY (Exhibit A); Warranty (Exhibit A.1); Training (Exhibit A.2); Tools (Exhibit A.3); Publications (Exhibit A.4); and Drawings (Exhibit A.5) c. Federal Requirements (Exhibit B).
d. Washington State Transit Bus Cooperative Master Contract No. 06719-01, as amended including all of the Contract Documents and Technical Specifications (hereinafter, the “Master Contract”) (Exhibit C).
e. All other documents, including but not limited to all required bonds, insurance certificates, permits, notices, schedules, forms, certifications, and affidavits.

In the event of a conflict with the terms outlined in the Master Contract, this Agreement and the above-referenced Exhibits, in order of precedence, shall prevail.

2. SCOPE OF WORK

2.1. Three (3), Forty-Foot (40-Foot) Heavy Duty, Fuel Cell Electric Transit Buses.

SELLER shall build and deliver three (3) new, forty-foot (40-foot) Heavy Duty, Fuel Cell Electric Transit Buses as specifically described in this Agreement, and in accordance with the specifications and other project documents contained in the Washington State Transit Bus Cooperative Master Contract No. 06719-01 (Exhibit C). In case of any conflict between the terms of these documents, the terms of this Agreement and the “NEW FLYER’S Price Change Summary and Detail,” Exhibits A and B, shall control and prevail over Washington State Transit Bus Cooperative Master Contract No. 06719-01 (Exhibit C) and other exhibits.

As set forth in Master Contract and SELLER’S Price Change Summary and Detail (Exhibits A and B), the Buses shall contain Americans with Disabilities Act (ADA) Equipment.

2.2. All New Materials and Parts. SELLER shall utilize and incorporate all new material and parts into each of the equipment purchased pursuant to this Agreement.

2.3. Workmanship. SELLER covenants with CITY to furnish its best skill, judgment and efforts and to cooperate with the CITY and any other consultants or contractors engaged by CITY in providing the Bus. SELLER covenants to use its best efforts to perform its duties and obligation under this Agreement in an efficient, expeditious and economical manner, consistent with the best interests of CITY. Workmanship throughout the performance of this Agreement shall conform to the highest standard of commercially accepted practice of work.

PURCHASE AGREEMENT NO. 4183

3. COMPENSATION

3.1. Total Maximum Compensation. As compensation for the Bus, equipment, goods and services set forth in this Agreement (referred herein as the “Scope of Work” or “Work”), the CITY shall pay and SELLER agrees to accept, the prices set forth in the “SELLER’S Price Change Summary and Detail,” Exhibits A and B. The total amount of the compensation to be paid hereunder for the satisfactory accomplishment and completion of all the Work set forth in this Agreement shall not exceed the following sums, unless agreed upon otherwise by both CITY and SELLER in writing:
a. Total cost for three (3) Buses (including warranty, ADA equipment, and delivery) shall not exceed Four Million, Seven Hundred Fifty-Three Thousand, Seven Hundred and Seven Dollars ($4,753,707).

3.2. Contingency Funding. SELLER acknowledges and understands that CITY has reserved contingency funds to be awarded to SELLER in addition to the Compensation defined above if and only if all of the following conditions are met:
a. Upon construction of CITY’s Transit buses, SELLER using its best and experienced judgement determines that CITY requires additional parts, body panels, doors, supplies, tools and fixtures not included in Exhibit A; and b. SELLER submits in writing to CITY work specifications and projected costs associated with extra parts, body panels, doors, supplies, tools and fixtures; and c. CITY has an opportunity to review, comment, and request revisions and/or recommendations to such parts, supplies, and fixtures; and d. CITY approves the purchase of such parts, supplies, and fixtures and both Parties execute a binding “First Amendment” to this Agreement for the purpose of awarding SELLER additional funding form CITY’s approved Contingency Amount in an additional amount of up to, and including Eighty-Four Thousand, Four Hundred and Fifty-Five Dollars ($84,455); and
e. SELLER receives a written Notice to Proceed from CITY specifically for the requested parts, supplies, and fixtures.

3.3. Payment to SELLER. CITY shall pay and SELLER shall accept the amounts set forth in the “SELLER’S Price Change Summary and Detail,” Exhibits A and B, as full compensation for all costs and expenses of completing all Work set forth in this Agreement, including but not limited to all labor and material required, overhead, expenses, storage and shipping, risks and obligations, taxes (as applicable), fees and profit, and any unforeseen costs.

All payments shall be made as provided herein, less any additional moneys withheld as

PURCHASE AGREEMENT NO. 4183

provided by Section 3.4 below.

The CITY shall make payments for the Buses in the following amounts:
a. With regard to the three (3) Buses: One hundred percent (100%) of the unit price(s) upon the delivery and acceptance of each Bus to MLB’s facility at 400 South Taylor Avenue, Montebello, California and within thirty (30) calendar days of receipt of a proper invoice, provided that the CITY has the complete and full funding for this procurement as of that date;

3.4. Conditional Acceptance. In the event that any Bus does not meet all requirements and/or specifications for acceptance, CITY may, at its exclusive option, “conditionally accept” the Bus and place it into revenue service pending receipt of SELLER furnished materials and/or labor necessary to effectuate corrective action for acceptance of the Bus. For any conditionally accepted Bus, the payment shall be reduced by an “amount to be withheld” paid upon corrective action by SELLER. For the purposes of this Agreement, the “amount to be withheld” shall be equal to the estimated cost for parts and labor for the corrective action.

3.5. Spare Parts and/or Equipment. CITY shall make payments for spare parts and/or equipment at the unit prices itemized in the price proposal within thirty (30) calendar days after the delivery and acceptance of said spare parts and/or equipment and receipt of a proper invoice.

3.6. Final Payment. CITY shall make its final payment(s) of the total Agreement price(s) plus any moneys withheld, as described in subsections 3.3 and 3.4, above, upon receipt of a final proper invoice and the following:
a. Delivery and acceptance of all deliverables, including manuals and other documentation required by this Agreement, excluding training.
b. Rectification of any deficiencies found during the acceptance of the Bus. c. Provision of any certifications as required by law and/or regulations. d. Completion of post-delivery audits required under the Agreement.

4. DELIVERY AND ACCEPTANCE SCHEDULE
SELLER shall deliver and ensure acceptance of the Bus no later than the dates set forth in the following schedule:

ITEM COMPLETION DATE
Delivery of three (3) new 40-Foot Heavy Duty
Fuel Cell Electric Buses
March 30, 2025
CITY Acceptance Ten (10) days after Delivery of Bus to CITY All of the goods, equipment and services shall be furnished and delivered to the MLB facility described in Section 3.3(a) above, in first class condition, complete and ready for service by the

PURCHASE AGREEMENT NO. 4183

Montebello Transportation Department and MBL. SELLER shall assume all costs and responsibility for delivery.

4.1. Intentionally deleted.

4.2. Unavoidable Delay. If SELLER is delayed at any time during the progress of the Work by the neglect or failure of CITY or by a cause described below, then the time for completion and/or affected delivery date(s) shall be extended by CITY subject to the following conditions:
a. The cause of the delay arises after the notice of award and neither was nor could have been anticipated by SELLER by reasonable investigation before such award; including acts of God, strikes, riots, of from other similar “force majeure” causes or events beyond SELLER’s control
b. SELLER demonstrates that the completion of the Work and/or affected delivery(s) will be actually and necessarily delayed;
c. The effect of such cause cannot be avoided or mitigated by the exercise of all reasonable precautions, efforts and measures whether before or after the occurrence of the cause of delay; and
d. SELLER makes written request and provides other information to CITY as described in “Notification of Contractor Delay”.

A delay meeting all the conditions of this Section shall be deemed an excusable delay. Any concurrent delay, which does not constitute an excusable delay, shall not be the sole basis for denying a request hereunder.

CITY reserves the right to rescind or shorten any extension previously granted, if subsequently CITY determines, that any information provided by SELLER in support of a request for an extension of time was erroneous; provided however, that such information or facts, if known, would have resulted in a denial of the request for an excusable delay. Notwithstanding the above, CITY shall not rescind or shorten any extension previously granted if SELLER acted in reliance upon the granting of such extension and such extension was based on information which, although later found to have been erroneous, was submitted in good faith by SELLER.

4.3. Notification of Contractor Delay. Notwithstanding “Unavoidable Delay” (Section

4.2 above), no extension or adjustment of time shall be granted unless: (1) written notice of the delay is filed with CITY within fourteen (14) calendar days after the commencement of the delay; and (2) a written application therefore, stating in reasonable detail the causes, the effect to date, and the probably future effect on the performance of SELLER under the Agreement, and the portion or portions of the Work affected is filed by SELLER with CITY within thirty (30) calendar days after the commencement of the delay. No such extension or adjustment shall be deemed a waiver of the rights of either party under this Agreement. CITY shall make its determination within thirty (30) calendar days after receipt of the application.

5. WARRANTY
As set forth in Master Contract, SELLER hereby warrants and guarantees to CITY that all of the

PURCHASE AGREEMENT NO. 4183

goods and equipment of the Bus contemplated in this Agreement shall be free from defects in material and workmanship for the periods specified in Exhibit C with respect to the entire Bus, subsystems and/or components.

6. NONDISCRIMINATION
In the performance of this Agreement, SELLER represents and agrees that SELLER, its affiliates, subsidiaries, or holding companies do not and will not discriminate against any subcontractor, consultant, employee, or applicant for employment because of race, creed, color, religion, national origin, ancestry, sex, marital status, age, sexual orientation, handicap, or disability, in accordance with the requirements of state and federal. Such discrimination shall include, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.

7. SUBCONTRACTORS
SELLER shall not subcontract any portion of the services to be performed under this Agreement without the prior written consent of CITY, which may be withheld for any reason or for no reason. Subcontracts, if any, shall contain a provision making them subject to all provisions in this Agreement. No person or firm whose name is included in the U.S. Comptroller General’s Consolidated List of Persons or Firms Currently Debarred for Violation of Various Public Contracts Incorporating Labor Standards Provisions shall be eligible to subcontract on any portion of this Agreement.

8. PROHIBITION AGAINST TRANSFERS
SELLER shall not assign, sublease, or transfer this Agreement or any interest or obligations herein directly or indirectly, by operation of law or otherwise during the term of this Agreement or during the operation of any of the warranties set forth in Section 5 without the prior written consent of CITY. As a condition to any assignment or transfer, any prospective assignee or transferee shall also assume the obligations to CITY pursuant to this Agreement, including the warranties set forth in Section 5. Any attempt to assign, sublease, or transfer this Agreement without prior written consent of CITY shall be null and void, and any assignee, sublessee, or transferee shall acquire no right or interest by reason of such attempted assignment, or transfer.

The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of SELLER, or of the interest of any general partner or joint venturer or syndicate member or covenant, if SELLER is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of SELLER, shall be construed as an assignment of this Agreement. For purposes of this Agreement, “control” means the ownership fifty percent (50%) or more of the voting power of the corporation.

9. NOTICES
All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or

PURCHASE AGREEMENT NO. 4183

certified, addressed as hereinafter provided. All notices, demands, requests, or approvals hereunder shall be given to the following addresses or such other addresses as the Parties may designate by written notice:

If to CITY: City of Montebello
Attn: Raul Alvarez, City Manager
1600 West Beverly Boulevard
Montebello, CA 90640
(323) 887-1200
With a copy to: City of Montebello – Montebello Bus Lines Attn: Adrianna Kendricks, Director of Transportation
400 South Taylor Avenue
Montebello, CA 90640
(323) 558 -1625 x 201
(323) 887- 4643 (Fax)
[email protected]
If to SELLER: NEW FLYER of America, Inc.

Attn: Chris Stoddart, President
711 Kernaghan Avenue
Winnipeg, Manitoba
Canada R2C 3T4
(204)224-6387
[email protected]

10. INDEMNIFICATION

10.1. Indemnification for Acts or Omissions of SELLER. SELLER shall defend, indemnify, and hold harmless CITY, its elected and appointed officials, boards and commissions, officers, agents and employees (collectively hereinafter the “CITY”) against any or all injuries, deaths, losses, damages, claims, suits, liabilities, judgments, reasonable attorneys’ fees, costs and expenses, which may accrue against the CITY arising out of, or resulting from the acts or omissions of SELLER or its officers, agents, employees, subcontractors or subconsultants, or related corporations attributable to its performance under this Agreement.

10.2. Indemnification for Claims Brought By Subconsultants of SELLER. In addition to Subsection 10.1, SELLER shall defend, indemnify, and hold harmless the CITY, from and against any and all proven third party damages, including reasonable attorneys’ fees occurring or resulting to any and all persons, firms, or corporations employed or contracted by SELLER or its subcontractors or subconsultants in connection with its performance under this Agreement.

11. INSURANCE
During the Term of this Agreement, SELLER shall carry, maintain, and keep in full force and effect all of the following minimum scope of insurance against claims for death or injuries to persons or damages to property that may arise from or in connection with SELLER’s performance of this Agreement. Such insurance shall be of the types and in the amounts as set forth below:

PURCHASE AGREEMENT NO. 4183

Commercial General Liability (CGL): Broad-form, Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis for bodily injury and property damage, including premise-operations, products-completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury or bodily injury, and advertising injury, with limits no less than Two Million Dollars and Zero Cents ($2,000,000), combined single limits, per occurrence. If a general aggregate limit applies, the limit shall be twice the required occurrence limit.
Business Automobile Liability Insurance: For owned vehicles, hired, and non-owned vehicles, Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if SELLER has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than One Million Dollars and Zero Cents ($1,000,000.00) per accident for bodily injury and property damage.
Worker 's Compensation insurance as required by the laws of the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than One Million Dollars and Zero Cents ($1,000,000.00) per accident for bodily injury or disease.

SELLER agrees to waive, and to obtain endorsements from its workers’ compensation insurer waiving subrogation rights under its workers’ compensation insurance policy against CITY, its elected and appointed boards, officers, officials, employees, agents and volunteers for losses arising from work performed by SELLER for CITY and to require each of its subcontractors, if any, to do likewise under their workers’ compensation insurance policies.

By executing this Agreement, SELLER further certifies as follows:

I am aware of, and will comply with, Section 3700 of the Labor Code, requiring every employer to be insured against liability of Workers’ Compensation or to undertake self-insurance before commencing any of the work contemplated herein.

If SELLER maintains higher limits than the minimums shown above, CITY requires and shall be entitled to coverage for the higher limits maintained by SELLER. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to CITY.

SELLER shall require each of its subcontractors, if any, to maintain insurance coverage that meets all of the requirements of this Agreement.

The policy or policies required by this Agreement shall be issued by an insurer admitted in the State of California, with a current rating of at least A:VII in the latest edition of Best's Insurance Guide, and approved by CITY.

Each insurance policy required herein shall state that coverage shall not be canceled, except after providing CITY thirty (30) days’ (or ten [10] calendar days’ for non-payment) prior written notice. SELLER agrees that if it does not keep the aforesaid insurance in full force and effect CITY may either: (i) immediately terminate this Agreement for Cause; or (ii) take out the necessary insurance and pay, at SELLER’S expense, the premium thereon.

At all times during the Term of this Agreement, SELLER shall maintain on file with CITY’s Risk Manager a certificate or certificates of insurance showing that the aforesaid policies are in effect in the required amounts and naming CITY, its officers, agents, employees and

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volunteers as an additional insured. SELLER shall, prior to commencement of work under this Agreement, file with CITY’s Risk Manager such certificate(s).

SELLER shall provide proof that policies of insurance required herein expiring during the Term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished at least two (2) weeks prior to the expiration of the coverages.

The general liability and automobile policies of insurance required by this Agreement shall contain an endorsement naming CITY, its elected and appointed boards, officers, officials, employees, agents and volunteers as additional insureds. All of the policies required under this Agreement shall contain an endorsement providing that the policies cannot be canceled or reduced except on thirty (30) days’ prior written notice to CITY. SELLER agrees to require its insurer to modify the certificates of insurance to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word “endeavor” with regard to any notice provisions.

Except for professional liability and workers’ compensation policies, the policies herein are primary and non-contributing with any insurance that may be carried by CITY. Any insurance or self-insurance maintained by CITY, its officers, employees, agents or volunteers, shall be in excess of SELLER’s insurance and shall not contribute with it.

All insurance coverage provided pursuant to this Agreement shall not prohibit SELLER, and SELLER’s employees, agents or subcontractors, from waiving the right of subrogation prior to a loss. SELLER hereby waives all rights of subrogation against CITY. SELLER agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver if subrogation endorsement from the insurer.

Coverage not affected. Any failure to comply with the reporting provisions of the policies contemplated herein, shall not affect coverage provided to CITY, its elected and appointed boards, officers, officials, employees, agents and volunteers.

Coverage applies separately. SELLER’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.

Any deductibles or self-insured retentions must be declared to and approved by CITY.

At the option of CITY, SELLER shall either reduce or eliminate the deductibles or self-insured retentions with respect to CITY, or SELLER shall procure a bond guaranteeing payment of losses and expenses.

Procurement of insurance by SELLER shall not be construed as a limitation of SELLER's liability or as fall performance of SELLER’s duties to indemnify, hold harmless and defend under Section 10 of this Agreement.

CITY, its officers and employees shall not be responsible for any claims in law or in equity occasioned by failure of SELLER to comply with this section.

12. TERMINATION

12.1. Notice of Default and Termination. In the event that either Party hereto fails or refuses to perform any of the provisions of this Agreement at the time and in the manner

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required, the non-defaulting party shall give the defaulting party written notice of the default, the nature of the default, and of the steps necessary to cure the default.

For any breach deemed by the non-defaulting party to constitute a material breach, the defaulting party is required to cure the breach within five (5) calendar days upon receipt of written notice. For any breach deemed by the non-defaulting party to constitute a nonmaterial breach, the defaulting party is obligated to cure such breach within ten (10) calendar days upon receipt of written notice. However, if the nature of the nonmaterial breach requires more than ten (10) days to cure, the defaulting party shall have thirty (30) days to diligently pursue and complete a cure.

In addition to any other available legal or equitable rights or remedies, if the default is not cured within the time periods described above, the non-defaulting party may terminate this Agreement by giving written notice thereof to the defaulting party, setting forth the effective date thereof.

12.2. Termination Without Cause. CITY shall have the option, at its sole discretion and without cause, of terminating this Agreement in whole, or in part, by giving ten (10) days’ written notice to SELLER as provided herein.

12.3. Payment Upon Termination.

If CITY terminates this Agreement as provided in Section 12.2, titled "Termination Without Cause", of this Agreement, CITY shall then provide to SELLER the part of Compensation which would otherwise be payable to SELLER for services completed as of the date of termination, including costs, contract close-out costs and profit on work performed, less the amount previously paid or withheld with respect to the Compensation. If CITY terminates this Agreement as provided in Section 12.1, titled "Notice of Default and Termination", of this Agreement, CITY shall then provide to SELLER the part of Compensation which would otherwise be payable to SELLER for services completed as of the date of termination, less the amount previously paid or withheld with respect to the Compensation, which shall not include costs, close-out costs or profit on work performed.

12.4. Expiration. After full acceptance of the single Bus contemplated in this Agreement by CITY, this Agreement shall expire upon full payment of the Compensation by CITY to SELLER. Notwithstanding the foregoing, the Warranty Agreement shall remain in effect despite expiration of this Agreement.

13. REMEDIES FOR BREACH OF CONTRACT

13.1. Litigation Expenses. If any legal action or other proceeding is brought by either Party for the enforcement of this Agreement or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Agreement, the successful or prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys’ fees, incurred in that action or proceeding, in addition to any other relief to which the prevailing party may be entitled.

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13.2. Liability of SELLER. SELLER shall be responsible for all damages resulting in whole or in part from the acts or omissions of SELLER or its subconsultants or subcontractors.

Nothing in this Agreement shall constitute a waiver or limitation of any legal rights or remedies which CITY may have under this Agreement or under applicable law.

13.3. Liability of CITY. CITY’s contractual obligations to SELLER shall be limited to the payment of the Compensation provided for in this Agreement. In no event shall CITY be liable for any special, consequential, indirect or incidental damages arising out of or in connection with this Agreement unless otherwise specified herein.

14. DISPUTE RESOLUTION
Disputes regarding the interpretation or application of any provision of this Agreement shall, to the extent reasonably feasible, be resolved through good faith negotiations between the Parties.

If any legal action or proceeding is necessary to enforce any provision of this Agreement or for breach of this Agreement, the prevailing party shall be entitled to receive from the opposing party all costs and expenses and such amount as may be adjudged to be reasonable attorney’s fees. The prevailing party shall be entitled to recover an amount equal to the fair market value of legal services provided by attorneys employed by the prevailing party as well as any attorneys’ fees paid to outside attorneys in connection with the action.

15. GOVERNING LAW AND VENUE
This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any lawsuit brought to enforce this Agreement shall be brought in the appropriate court in Los Angeles County, State of California.

16. COMPLIANCE
It is agreed that SELLER shall comply with and shall require its subcontractors to comply with all applicable local, state and federal laws and regulations including but not limited to those set forth to in the Master Contract.

17. DAYS
Any term in this Agreement referencing days of performance shall be deemed to be calendar days and not work (or business) days.

18. BINDING ON ASSIGNS
Each and all of the covenants and conditions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the respective Parties.

19. INDEPENDENT CONTRACTOR
SELLER is an independent contractor. As such, SELLER shall have no power or authority to incur any debt, obligation or liability on behalf of CITY. SELLER is not to be considered an agent or employee of CITY and is not entitled to participate in any pension plan, medical, or dental plans, or any other benefit provided by CITY for its employees.

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20. SEVERABILITY
For purposes of this Agreement, if any provision of this Agreement is deemed to be invalid or illegal, the remaining provisions nevertheless will continue in full force and effect without being impaired or invalidated in any way.

21. TIME IS OF THE ESSENCE
Time is of the essence in this Agreement, and all Parties agree to execute all documents and to proceed with due diligence to complete all covenants and conditions set forth herein in a timely manner.

22. COUNTERPARTS
This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument.

23. CAPTIONS
The captions of the various articles and paragraphs of this Agreement are for the convenience and ease of reference only, and do not define, limit, augment or describe the scope, content or intent of this Agreement or any part or parts of this Agreement.

24. CONSTRUCTION

In all cases, the language in all parts of this Agreement shall be construed simply, according to its fair meaning and not strictly for or against any Party, it being agreed by the Parties or their agents having all participated in the preparation of this Agreement.

25. COOPERATION/FURTHER ACTS
The Parties shall fully cooperate with one another in attaining the purposes of this Agreement and, in connection therewith, shall take any such additional further acts and steps and sign such additional documents as may be necessary, appropriate and convenient as related to.

26. REFERENCES
All references to SELLER with respect to this Agreement shall include all personnel, employees, agents and subcontractors of SELLER.

27. WAIVER
A waiver by either Party of any breach or default of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach or default of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. No waiver, benefit, privilege or service voluntarily given or performed by one Party

PURCHASE AGREEMENT NO. 4183

shall give the other any contractual right by custom, estoppel, or otherwise.

28. ENTIRE AGREEMENT; MODIFICATION
This Agreement in addition to the attached Exhibits, contains the entire agreement between CITY and SELLER and supersedes any prior or written statements or agreement between the Parties. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. No attempted waiver of any of the provisions herein, nor any change, amendment or modification of this Agreement shall be effective unless in writing and signed by the Party against whom the same is sought to be enforced.

29. RISK OF LOSS.

CITY shall assume risk of loss of the Bus on delivery. Prior to delivery, SELLER shall bear the risk of loss of the Buses.

30. TITLE.

Title to the Buses shall pass to CITY upon acceptance of the Bus by CITY.

31. PRICE ADJUSTMENTS DUE TO REGULATORY CHANGES.

Notwithstanding anything else to the contrary contained herein, in the event that a price adjustment is required in respect of changes that are mandatory as a result of legislation or regulations that become effective after the date of the proposal submission, such price adjustment shall be negotiated in good faith by CITY and SELLER.

32. SUBJECT DATA.

All "subject data''. including specifications, technical data, records and reports, engineering drawings (including shop drawings and working drawings), manuals and instruction materials and computer or microprocessor software that is delivered or specified to be delivered under this Agreement shall remain the property of SELLER; provided however, CITY shall have a royalty-free, non-exclusive, non-transferable and irrevocable license to use such subject data only for the purposes of operating and maintaining the Buses.

33. EFFECTIVE DATE.

Unless otherwise specified herein, this Agreement shall become effective as of the date on which the last of the Parties, whether SELLER or CITY, executes said Agreement.

34. SIGNATURES.

SELLER affirms that the signatures, titles, and seals set forth hereinafter in execution of this Purchase Agreement represents all individuals, firm members, partners, joint ventures, and/or corporate officers having principal interest herein.

PURCHASE AGREEMENT NO. 4183

[SIGNATURE PAGE TO FOLLOW]

PURCHASE AGREEMENT NO. 4183

IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above.

CITY OF MONTEBELLO, a California
municipal corporation
NEW FLYER OF AMERICA INC.
(“CITY”) (“SELLER”)
Raul Alvarez, City Manager Chris Stoddart, President
Date: _______________ Date: _______________
ATTEST:

Christopher Jimenez, City Clerk
APPROVED AS TO FORM:

Arnold M. Alvarez-Glasman, City Attorney

WASHINGTON STATE TRANSIT BUS COOPERATIVE

STATE COOPERATIVE PURCHASING SCHEDULE

MASTER CONTRACT
NO. 06719-01
TRANSIT BUSES: HEAVY DUTY
35 FT DIESEL, 40 FT DIESEL, 60 FT DIESEL, 35 FT HYBRID, 40 FT HYBRID, 60 FT HYBRID, 35 FT CNG, 40 FT CNG, 60 FT CNG, 35 FT ELECTRIC, 40 FT ELECTRIC, 60 FT ELECTRIC, 40 FT HYDROGEN, 60 FT

HYDROGEN CATEGORIES
Fo
r Use by Washington State Transit Bus Cooperative Participants B
y and Between

STATE OF WASHINGTON

DEPARTMENT OF ENTERPRISE SERVICES
a
nd
NEW FLYER OF AMERICA, INC.

Da
ted April 1, 2021

ATTACHMENT B

MASTER CONTRACT NO. 06719-01
PAGE 1

WASHINGTON STATE TRANSIT BUS COOPERATIVE

STATE COOPERATIVE PURCHASING SCHEDULE

MASTER CONTRACT
NO. 06719
TRANSIT BUS – HEAVY DUTY
35 FT DIESEL, 40 FT DIESEL, 60 FT DIESEL, 35 FT HYBRID, 40 FT HYBRID, 60 FT HYBRID, 35 FT CNG, 40 FT CNG, 60 FT CNG, 35 FT ELECTRIC, 40 FT ELECTRIC, 60 FT ELECTRIC, 40 FT HYDROGEN, 60 FT

HYDROGEN CATEGORIES

This Master Contract (“Master Contract”) is made and entered into by and between the State of Washington acting by and through the Department of Enterprise Services, a Washington State governmental agency (“Enterprise Services”) and New Flyer of America Inc., a North Dakota corporation (“Contractor”) and is dated and effective as of April 1, 2021.

RECITALS
A. Whereas, p ursuant to Legislative direction codified in RCW chapter 39.26, Enterprise Services, on behalf of the State of Washington, is authorized to develop, solicit, and establish master contracts for goods and/or services for general use by Washington state agencies and certain other entities (eligible Participants).

B. Whereas, p ursuant to RCW 39.26.060, Enterprise Services may develop, solicit, and establish cooperative purchasing agreements for procurement of any goods or services with one or more states, state agencies, local governments, local government agencies, federal agencies, or tribes located in the state, in accordance with an agreement entered into between the participants.

C. Whereas, pursuant to Section 3019 of the FAST Act , the State of Washington acting by and through Enterprise Services, may enter into a cooperative procurement contract with one or more vendors if the vendors agree to provide an option to purchase rolling stock and related equipment to such State government a nd any other participant and such State government acts throughout the term of the contract as the lead procurement agency.

D. The State of Washington, acting by and through Enterprise Services is a member of and the lead procurement for the Washington State Transit Bus Cooperative. The Washington State Transit Bus Cooperative is a cooperative purchasing agreement for eligible participants to procu re transit buses through a competitively solicited and awarded Cooperative Master Contract.

E. Whereas, o n behalf of the State of Washington, Enterprise Services, as part of a competitive governmental procurement, issued a Competitive Solicitation No. 06719-01 dated March 4, 2020 regarding Heavy Duty Transit Buses
.

MASTER CONTRACT NO. 06719-01
PAGE 2
F. Whereas, Enterprise Services evaluated all responses to the Competitive Solicitation and identified Contractor as an apparent successful bidder.

G. Whereas, Enterprise Services has determined that entering into this Master Contract will meet the identified needs and be in the best interest of the State of Washington and the Washington State Transit Bus Cooperative.

H. Whereas, the purpose of this Master Contract is to enable e ligible Participants to purchase Transit Buses as set forth herein.

AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the parties hereto hereby agree as follows:

1. TERM.

The term of this Master Contract is twenty -four (24) months, commencing April 1, 20 21 and ending March 31 , 2023; Provided, however, that Enterprise Services at is sole discretion may extend the term for three (3) subsequent twelve (12) month extensions if Contractor is not in default; and provided further, that in no event shall such term be extended if Contractor cannot meet the required certifications of this Contract. The maximum contract term is sixty (60) months, ending March 31, 2026.

2. ELIGIBLE PARTICIPANTS. This Master Contract may be utilized b y any of the following types of entities (“Participants”):

2.1. WASHINGTON STATE AGENCIES. All Washington state agencies, departments, offices, divisions, boards, and commissions.

2.2. WASHINGTON STATE INSTITUTIONS OF HIGHER EDUCATION (COLLEGES). Any the following institutions of higher education in Washington:
 State universities – i.e., University of Washington & Washington State University;  Regional universities – i.e., Central Washington University, Eastern Washington University, & Western Washington University
 Evergreen State College;
 Community colleges; and
 Technical colleges.

2.3. MCUA PARTIES. Any of the following types of entities that have executed a Master Contract Usage Agreement with Enterprise Services:
 Political subdivisions (e.g., counties, cities, school districts, public utility districts) in the State of Washington;
 Federal governmental agencies or entities;
 Public-benefit nonprofit corporations (i.e., § 501(c)(3) nonprofit corporations that receive federal, state, or local funding); and
 Federally-recognized Indian Tribes located in the State of Washington.

2.4. TRANSIT BUS COOPERATIVE PARTIES. A ny authorized entity that has executed a Washington State Transit Bus Cooperative Purchasing Agreement with Enterprise Services. The following types of

MASTER CONTRACT NO. 06719-01
PAGE 3
entities are anticipated to execute a Washington State Transit Bus Cooperative Purchasing Agreement:
 State agencies, local governments, local government agencies, or political subdivisions (e.g., counties, cities, school districts, public utility districts, ports) of any state or territory of the United States;
 Federal governmental agencies or entities located in any state or territory of the United States; and
 Federally-recognized Indian Tribes located in any state or territory of the United States

3. S
COPE – INCLUDED GOODS AND PRICE.

3.1. CONTRACT SCOPE. Pursuant to this Master Contract, Contractor is authorized to sell only those Transit Buses within the scope of their authorized goods meeting the requirements set forth in Exhibit A – Included Transit Buses for the prices set forth in Exhibit B – Prices. Contractor shall not represent to any Participant under this Master Contract that Contractor has contractual authority to sell any Transit Buses beyond those meeting the requirements set forth in Exhibit A – Included Transit Buses.

3.2. STATE’S ABILITY TO MODIFY SCOPE OF MASTER CONTRACT. Subject to mutual agreement between the parties, Enterprise Services reserves t he right to modify the goods included in this Master Contract; Provided, however, that any such modification shall be effective only upon thirty (30) days advance written notice; and Provided further, that any such modification must be within the scope of this Master Contract. Enterprise Services may, at any time, without notice to Contractor by written order designated or indicated to be a change order, make changes within the general scope of the contract to adjust the quantities of Transit Buses purchased under this Master Contract.

3.3. PARTICIPANT CHANGE ORDERS.
(a) Participants may, at any time, by written order designated or indicated to be a c hange order, make changes in their Purchase Order within the general scope of th is Master Contract, including changes : (1) In the specifications; (2) In the method or manner of performance of the work; (3) In the price sheet to include additional options within the scope of the contract; (4) In the delivery performance of the work ; or ( 5) In additional requirements for compliance with state or federal law.
(b) Any other written or oral order (which includes direction, instruction, interpretation, or determination) from the Participant that causes a change shall be treated as a change order under this clause; provided, that Contractor gives the Participant written notice stating (1) the date, circumstances, and source of the order and (2) that Contractor regards the order as a change order.
(c) Except as provided in this clause, no order, statement, or conduct of the Participant shall be treated as a change under this clause or entitle Contractor to an equitable adjustment. (d) If any change under this clause causes an increase or decrease in Contractor’s cost of, or the time required for, the performance of any part of the work under this Master Contract, whether or not changed by any such order, the Participant will make an equitable adjustment and modify the Purchase Order in writing. However, except for an adjustment based on defective specifications, no adjustment for any change under this clause shall be made for any costs incurred more than twenty (20) days before Contractor

MASTER CONTRACT NO. 06719-01
PAGE 4
gives written notice as required. In the case of defective specifications for which the Participant is responsible, the equitable adjustment shall include any increased cost reasonably incurred by the Contractor in attempting to comply with the defective specifications.
(e) Contractor will assist Participant in obtaining all of the requested cost details as may be required for FTA assisted purchases. Failure to respond or provide needed details may be grounds for the Participant to cancel the purchase without penalty. (f) The Contractor must assert its right to an adjustment under this clause within 30 days after

1. receipt of a written change order under paragraph (a) of this clause or

2. the furnishing of a written notice under paragraph (b) of this clause, by submitting to the Contracting Officer a written statement describing the general nature and amount of proposal, unless this period is extended by the Participant. The statement of proposal for adjustm ent may be included in the notice under paragraph (b) above.
(g) No proposal by the Contractor for an equitable adjustment shall be allowed if asserted after final payment under this Master Contract.
(h) This clause does not supersede FTA Circular C 4220.1F.

3.4. E
CONOMIC ADJUSTMENT. Beginning twelve (12) months after the effective date of this Master Contract and for every annual anniversary thereafter, the prices set forth in Exhibit B shall be adjusted, based upon the percent changes (whether up or down) in the United States Department of Labor, Bureau of Labor and Statistics (BLS) indices described below, for the most recent year. The Index is the Producer Price Index for Truck and Bus Bodies, Series No. WPU 1413, published by the United States Department of Labor, Bureau of Labor Statistics, or if such Index is no longer in use, then such replacement that is most comparable to the Index as may be designated by the Bureau of Labor Statistics, or as agreed by the parties . Economic adjustment will lag one (1) cal endar quarter past the Master Contract commencement date to allow for publication of BLS data. All calculations for the index shall be based upon the latest version of data published as of April 1
st each year. Prices shall be adjusted on June 1st. If an index is recoded, that is the replacement is a direct substitute according to the BLS, this Master Contract will instead use the recode. If an index becomes unavailable , Enterprise Services shall substitute a proxy index. If there is not a direct substitute, the next higher aggregate index available will be used. The economic adjustment shall be calculated as follows:

New Price = Old Price x (Current Period Index/Base Period Index).

For certainty, notwithstanding anything else to the contrary contained herein, in the event that a price adjustment is required in respect of changes that are mandatory as a result of legislation or regulations that become effective after the date of the tender submission, such price adjustment shall be negotiated in good faith by the Participants and the Contractor.

3.5. PRICE CEILING. Although Contractor may offer lower prices to Participants, during the term of this Master Contract, Contractor guarantees to provide the Heavy Duty Transit Buses at no greater than the prices set forth in Exhibit B – Prices for Heavy Duty Transit Buses (subject to economic adjustment as set forth herein).

MASTER CONTRACT NO. 06719-01
PAGE 5

3.6. GOODS AND SERVICES ADDITION. Contractor may offer new goods and services within the scope of the authorized goods set forth in Exhibit A – Included Transit Buses to Participants to implement new technology solutions or meet specific Participant requirements. Goods and services added to purchase orders under the Master Contract must be commercially available at the time they are added and fall within the original scope of the Master Contract.

3.7. PRICING OF GOODS AND SERVICE ADDITIONS. Prices for ad ditional Transit Bus goods and services performed under this Master Contract follow cost reimbursement rules under 4220.1F Ch VI,

2.c(1). Cost-reimbursement provides for payment of Contractor’s allowable incurred costs, to the extent agreed to in the Contractor’s agreement with the Participant. Participants are required to include FAR Part 31 cost principles in their cost reimbursement contracts for the purpose of determining allowable costs under the contract. Contract shall comply with Participant s’ requests in determining reasonable prices, including but not limited to providing a breakdown of relevant incurred costs or individual component pricing to Participant upon request. A dispute on the reimbursement costs will follow the dispute procedures of this Master Contract.

3.8. MASTER CONTRACT INFORMATION. Enterprise Services shall maintain and provide information regarding this Master Contract, including scope and pricing, to eligible Participants.

4. CONTRACTOR REPRESENTATIONS AND WARRANTIES. Contractor makes each of the following representations and warranties as of the effective date of this Master Contract and at the time any order is placed pursuant to this Master Contract. If, at the time of any such order, Contractor cannot make such representations and warranties, Contractor shall not process any orders and shall, within three (3) business days notify Enterprise Services, in writing, of such breach.

4.1. Q
UALIFIED TO DO BUSINESS. Contractor represents and warrants that it is in good standing and qualified to do business in the S tate of Washington, that it is registered with the Washington State Department of Revenue and the Washington Secretary of State, that it possesses and shall keep current all required licenses and/or approvals, and that it is current, in full compliance, and has paid all applicable taxes owed to the State of Washington. Contractor represents and warrants that it is or will be qualified to do business in other applicable states for purchases under this Master Contract with each of the Washington State Transit Bus Cooperative member states, including but not limited to Alaska, Idaho, Oregon, Colorado, Montana, and Nevada.

4.2. SUSPENSION & DEBARMENT. Contractor represents and warrants that neither it nor its principals or affiliates presently are debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any governmental contract by any governmental department or agency within the United States.

4.3. QUALITY OF GOODS OR SERVICES. Contr actor represents and warrants that any Transit Bus sold pursuant to this Master Contract shall be merchantable, shall conform to this Master Contract and Participant’s Purchase Order, shall be fit and safe for the intended purposes , shall be free from defe cts in materials and workmanship , and shall be produced and delivered in full compliance with applicable law. Contractor further represents and warrants it has clear title to the goods and that the same shall be delivered free of liens and encumbrances and that the same do not infringe any third party patent. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or equity, including, without limitation, actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys’ fees and costs. Whenever under the Master Contract or Purchase Order it is provided that Contractor shall furnish materials or manufactured components or shall do work for which no detailed specifications are set forth, the w ork

MASTER CONTRACT NO. 06719-01
PAGE 6
performed shall be in full conformity and harmony with the intent to secure the best standards of manufacture in the work as a whole or in part. No advantage shall be taken by Contractor in the omission of any part or detail which goes to make the Transit Buses complete and ready for service, even though such part or detail is not mentioned in the specifications or in Contractor's approved design.

4.4. EXECUTIVE ORDER 18-03 – WORKERS’ RIGHTS (MANDATORY INDIVIDUAL ARBITRATION). Contractor represents and warrants, as previously certified in Contractor’s bid submission, that Contractor does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. Contractor further represents and warrants that, during the term of this Contract, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

4.5. OREGON REVISED STATUTE 279A.112. Contractor represents and warrants, as previously certified in Contractor’s bid submission, that their firm has a written policy and practice preventing sexual harassment, sexual assault and discrimination against employees who are members of a protected class.

4.6. EMISSIONS INFORMATION. Contractor represents and warrants, as previously certified in Contractor’s bid submission , that their firm has a written policy and practice to assess and provide accurate emission information on products to Participants.

4.7. SUSTAINABILITY POLICY. Contractor represents and warrants, as previously certified in Contractor’s bid submission , that their firm has a written policy and practice, detailing own sustainability policies and programs in place and to provide services in line with the principles established therein.

4.8. PROCUREMENT ETHICS & PROHIBITION ON GIFTS. Contractor represents and warrants that it complies fully with all applicable procurement ethics restrictions including, but not limited to, restrictions against Contractor providing gifts or anything of economic value, directly or indirectly, to Participants’ employees.

4.9. W
ASHINGTON’S ELECTRONIC BUSINESS SOLUTION (WEBS). Contractor represents and warrants that it is registered in Washington’s Electronic Business Solution (WEBS), Washington’s contract registration system and that, all of its information therein is current and accurate and that throughout the term of this Master Contract, Contractor shall maintain an accurate profile in WEBS.

4.10. STATEWIDE PAYEE DESK. Contractor represents and warrants that it is registered with the Statewide Payee Desk, which registration is a condition to payment.

4.11. COOPERATIVE MASTER CONTRACT PROMOTION; ADVERTISING AND ENDORSEMENT. Contractor represents and warrants that it shall use commercially reasonable efforts both to promote and market the use of this Master Contract with eligible Participants and to ensure that those entities that utilize this Master Contract are eligible Participant s. Contractor understands and acknowledges that neither Enterprise Services nor Participants are endorsing Contractor’s goods and/or services or suggesting that such goods and/or services are the best or only solution to their needs.

Accordingly, Contractor represents and warrants that it shall make no reference to Enterprise Services, any Participant, or the State of Washington in any promotional material without the prior written consent of Enterprise Services.

MASTER CONTRACT NO. 06719-01
PAGE 7

4.12. MASTER CONTRACT TRANSITION. Contractor represents and warrants that, in the event this Master Contract or a similar contract resulting from the Cooperative , is transitioned to another contractor (e.g., Master Contract exp iration or termination), Contractor shall use commercially reasonable efforts to assist Enterprise Services for a period of sixty (60) days to effectuate a smooth transition to another contractor to minimize disruption of service and/or costs to the State of Washington.

4.13. VEHICLE TITLE & REGISTRATION. Contractor represents and warrants that u pon payment in full, Contractor shall convey to Participant all necessary paperwork , including a “manufacturer’s statement of origin” (MSO) and applicable state title application to register the Transit Bus with the Participant’s applicable state licensing authority at the time of acceptance . Title to the bus shall pass to the Participant upon acceptance of the bus by the Participant.

4.14. WAGE VIOLATIONS. Contractor represents and warrants that, during the term of this Master Contract and the three (3) year period immediately preceding the award of the Master Contract, it is not determined, by a final and binding citation and notice of assessment issued by the Washington Department of Labor and Industries or through a civil judgment entered by a court of limited or general jurisdiction, to be in willful violation of any provision of Washington state wage laws set forth in RCW chapters 49.46, 49.48, or 49.52.

4.15. PAY EQUITY. Contractor represents and warrants that, among its workers, similarly employed individuals are compensated as equals. For purposes of this provision, employees are similarly employed if the individuals work for the same employer, the performance of th e job requires comparable skill, effort, and responsibility, and the jobs are performed under similar working conditions. Job titles alone are not determinative of whether employees are similarly employed.

Contractor may allow differentials in compensation for its workers based in good faith on any of the following: a seniority system; a merit system; a system that measures earnings by quantity or quality of production; a bona fide job -related factor or factors; or a bona fide regional difference in compensation levels. A bona fide job-related factor or factors may include, but not be limited to, education, training, or experience that is: consistent with business necessity; not based on or derived from a gender-based differential; and accounts for the entire differential. A bona fide regional difference in compensation level must be consistent with business necessity; not based on or derived from a gender-based differential; and account for the entire differential.

Notwithstanding any provision to the contrary, upon breach of warranty and Contractor’s failure to provide satisfactory evidence of compliance within thirty (30) days, Enterprise Services may suspend or terminate this Master Contract and any Participant hereunder similarly may suspend or terminate its use of the Master Contract and/or any agreement entered into pursuant to this Master Contract.

4.16. S
UBJECT DATA. All “subject data”, including specifications, technical data, records and reports, engineering drawings (including shop drawings and working drawings), manuals and instruction materials and computer or microprocessor software that is delivered or specified to be delivered under this contract shall remain the property of the Contractor; provided however, the Participants shall have a royalty-free, non-exclusive, non-transferable and irrevocable license to use such subject data only for the purposes of operating and maintaining the Transit Buses. The Participants grant the Contractor the right to inspect, examine, download, and otherwise obtain any information or data available from components provided by the Contractor, including, but not limited to, any electronic control modules or other data -collection devices, to the extent necessary to enable the Contractor to perform reliability maintenance analysis, corrective action and/or other engineering-type work for the Transit Buses.

MASTER CONTRACT NO. 06719-01
PAGE 8

5. USING THE MASTER CONTRACT – PURCHASES.

5.1. ORDERING REQUIREMENTS. Participants shall order Transit Buses from this Master Contract, consistent with the terms hereof and by using any ordering mechanism agreeable both to Contractor and Participant but, at a minimum, including the use of a purchase order. When practicable, Contractor and Participant also shall use telephone orders, email orders, web-based orders, and similar procurement methods (collectively “Purchase Order”). All order documents must reference the Master Contract number. Consistent with Participant’s procurement authority, Participant may propose and negotiate additional terms with the applicable Contractor to meet Participant’s needs, subject to agreement with the applicable Contractor. Under no circumstances will Participant’s agreements change or modify the contract obligations of this Master Contract. The terms of this Master Contract shall apply to any Purchase Order and, in the event of any conflict, the terms of this Master Contract shall prevail. Notwithstanding any provision to the contrary, in no event shall any ‘click -agreement,’ s oftware or web -based application terms and conditions, or other agreement modify the terms and conditions of this Master Contract.

5.2. A
PPROVAL OF PURCHASES. Enterprise Services and, if the Participant is using FTA funds, the Participant’s respective authorization authority for use of those FTA funds shall approve the Participant’s initial Purchase Order . Enterprise Services shall review the Purchase Order and approve that the purchase is within the Scope of the Master Contract. The Participant’s respective authorization authority for use of those FTA funds will approve the purchase according to their own policies and procedures. Participant and Contractor shall provide timely information as requested by Enterprise Services for the approval process.

5.3. CONTRACTOR COOPERATIVE USE APPROVAL. Pursuant to RCW 39.26.060, the intent of this Contract is to allow for cooperative procurement to the maximum extent possible. Accordingly, any authorized entity that has executed a Washington State Transit Bus Cooperative Purchasing Agreement with Enterprise Services may place orders under this Master C ontract. Participation in the cooperative is voluntary. If agreed to by Contractor, this Contract may be used by any participant in the cooperative to procure the Transit Buses. Co ntractor has the right to refuse initial orders by cooperative participants on a capacity basis , if the Contractor cannot fulfill the complete order based on delivery deadlines. Orders under this Contract will be fulfilled on a first come, first serve basi s of the initial order date . If Contractor rejects an order for capacity, Enterprise Services may request additional information from the Contract regarding Contractor’s capacity to fulfill orders.

5.4. FTA
PRE-AWARD AND POST-DELIVERY CERTIFICATIONS. Contractor shall take all reasonable steps assist Participants in completing all required pre -award and post -delivery certifications required by federal or state law or policy for purchases under this Master Contract. Contractor shall provide all requested informati on to complete the certifications in a reasonable time to ensure certifications are completed in a timely manner.

5.5. D
ELIVERY REQUIREMENTS. Contractor must ensure that delivery of Transit Buses will be made as required by this Master Contract, the Purchase Order used by Participants, or as otherwise mutually agreed in writing between the Participant and Contractor. The following apply to all deliveries:
(a) Contractor shall make all deliveries to the applicable delivery location specified in the Purchase Order by the delivery date. The delivery date must be within 18 months of the initial order date, as stated in the Purchaser Order or agreement between Participant and

MASTER CONTRACT NO. 06719-01
PAGE 9
Contractor; provided however that t he Participant and Contractor may a mend the delivery date by mutual agreement. Deliveries shall occur during Participant ’s normal work hours and within the time period mutually agreed in writing between Participant and Contractor at the time of order placement.
(b) Contractor shall deliver all buses with a full tank of fuel and clean inside and out. For any bus not meeting this requirement, Contractor will be assessed $300. When Transit Buses are delivered, certificates or releases signed by Participant simply acknowledge receipt of the Transit Buses and do not constitute acceptance by the Participant of the condition of the Transit B uses, or its conformance with the terms of the Master Contract or Participant’s Purchase Order. Acceptance by Participant occurs subsequent to final inspection when Participant provides Contractor with a written Notice of Acceptance. (c) Contractor shall ship or deliver all goods and/or services purchased pursuant to this Master Contract, freight charges prepaid by Contractor, FOB Participant’s specified destination with all transportation and handling charges included. Contractor shall bear all risk of loss, damage, or destruction of the goods and/or services ordered hereunder that occurs prior to delivery, except loss or damage attributable to Participant ’s negligence. Contractor shall use a qualified and experienced common or contract carrier who is properly licensed and insured. Contractor shall make all arrangements for shipment.
(d) All packing lists, packages, instruction manuals, correspondence, shipping notices, shipping containers, and other written materials associated with this Master Contract shall be identified by the Master Contract number set forth on the cover of this Master Contract and the applicable Participant’s Purchase Order number. Packing lists shall be included with each shipment and clearly identify all contents and any backorders.

5.6. PROTOTYPE BUSES. If requested by Participant, Contractor shall produce one prototype bus for each type of bus with respect to the Purchase Order for i nspection and testing at the Participant’s facilities. The prototype bus will demonstrate that the bus fully meets all requirements of the Purchase Order . Contract or shall produce and deliver the prototype bus to Participant for inspection and testing a mi nimum of one -hundred twenty (120) days prior to initiation of any production activities for the remaining buses unless otherwise authorized in writing by Participant. The cost of transporting the prototype bus to and from the Participant’s facilities shall be at the expense of Contractor. Contractor shall schedule the prototype review with the Participant when a vehicle has been completed with all equipment and furnishings installed, but early enough so design changes resulting from the review will not delay production or cause scrapping of production material.

In the event of nonconformity Participant shall, to the extent practicable , notify Contractor of said nonconformity. No later than seven (7) days after the end of the fourteen (14) day test, Participant shall issue a written report to the Contractor that advises the Contractor of any noncompliance issues and/or any proposed modifications or changes required on the remaining vehicles. Any failure by Participant to detect any defects or omissions in this testing period will in no way relieve Contractor from fully complying with the specifications of the Master Contract and Participant Order. All prototype buses shall be brought up to the final production bus configuration in all respects at no additional cost to Participant , except as may be agreed by change orders.

MASTER CONTRACT NO. 06719-01
PAGE 10

5.7. NOTIFICATION OF DELAY. Contractor shall provide prompt notice to Participant and Enterprise Services for any delay in the manufacturing process that w ill affect the expected delivery date.

Contractor will provide notice of the delay within fourteen (14) days of discovery of the potential delay. This notice of delay must include a reasonable expectation of when the delay will be resolved, the reason for the delay, whether the delay will cause the delivery to exceed the delivery date, and any other applicable information regarding the delay.  Participant shall provide Contractor with notice of acceptance of the reasonable delay or notice that the delay is determined to be non -excusable within seven (7) days of receipt of the notice of delay.
 If there is a dispute between Contractor and Participant as to whether the delay is reasonable, Contractor may appeal Participant’s decision to Enterprise Services with in seven (7) days of receipt of the notice that the delay is non-excusable. Enterprise Services will review the provided information and make a final determination as to whether the delay is reasonable or non -excusable. If a dispute remains after this proc edure, parties shall follow the dispute resolution process of Section 16.  Contractor shall promptly comply with any request from Enterprise Services or Participant for additional information in making the delay determination. A request for more information from Enterprise Services or Participant tolls the time for required response until the time that Contractor responds to the request for more information.  Reasonable delay is a delay for which the Contractor is not responsible. A reasonable delay must arise from unforeseeable causes, be beyond the control of Contractor, and be without the fault of the Contractor. A reasonable delay will extend the delivery date by the agreed upon length of the delay. For certainty, the reasons for such reasonable delay shall include but not be limited to, the neglect or failure of the Participant or by delay or failure of the Contractor caused by an event beyond its control, including, but not limited to, natural disasters, floods, fires, acts of war or terrorism, labor shortages, strikes or lock-outs or shortages or loss of transportation, then the time for completion of the work and/or the delivery dates shall be extended by the Participant by a reasonable period of time after such event of delay has ended in order that the Contractor may complete the work or deliver the buses.
 Non-excusable delay is a delay for which Contractor is wholly or partially responsible. A non-excusable delay is a delay that arises from a foreseeable cause, is within the control of Contractor, or is due to the fault of Contractor. A non-excusable delay will not extend the agreed upon delivery date.

5.8. D
ELAY DAMAGES. Participant will be damaged by any failure on the part of Contractor to deliver the buses within the time specified in delivery date. The amount of damages for delay of beyond the delivery date is difficult if not impossible to ascertain. The amount of such damages Contractor shall pay to Participant is fixed at the amount of $250.00 per day for each bus not delivered in substantially good condition as inspected by the Participant. Participant may elect to deduct the amount of the damages from the amount due to Contractor under the Purchase Order or may notify Contractor of the amount due based on the delay. If Participant requires Contractor to pay the delay damages, Contractor shall pay the entire amount within thirty (30) days after receipt of a written demand by Participant. The payment of damages will be in lieu of any damages for any loss of profit, loss of revenue, loss of use, or for any other direct, indirect, special or consequential losses or damages of any kind that may be suffered by Participant arising at any time from the failure of Contractor to fulfill the delivery obligations in a timely manner.

MASTER CONTRACT NO. 06719-01
PAGE 11

5.9. INSPECTION AND ACCEPTANCE OF TRANSIT BUSES. Transit Buses purchased under this Master Contract are subject to Participant’s reasonable inspection, testing, and approval at Participant’s destination for a period of fourteen (14) days from the date that the Transit Buses are received at the place of delivery. Participant reserves the right to reject and refuse acceptance of Transit Buses that are not in accordance with this Master Contract and the Participant’s Purchase Order during this inspection period. Representatives of Contractor may witness acceptance inspections and testing if so requested by Contractor. Participant retains the right to complete as thorough an inspection as it deems necessary to determine if each bus is in conformance with Master Contract and Purchase Orders req uirements for configuration and performance parameters.

Contractor shall coordinate and manage Contractor’s post-delivery inspection process and notify the Participant of scheduling and availability of buses ready for pre -acceptance inspection.

Acceptance by the Participant occurs when Participant provides Contractor with a written Notice of Acceptance, which will be subsequent to final inspection by responsible assigned employees of the Participant. All acceptances are subject to the warranty requirements of this Master Contract. For certainty, if the Transit Buses pass these tests or if the Participants do not notify the Contractor of non -acceptance within 14 calendar days after delivery of the Transit Buses, acceptance of the Transit Buses by the Participants shall be deemed to have occurred on the 14th day after delivery. Acceptance shall occur earlier if the Participants notify the Contractor of early acceptance or places the Transit Buses into revenue service.

5.10. I
NSPECTION DEFECTS. If there are any appare nt defects in the goods and/or services within the inspection period, Participant will promptly notify Contractor. At Participant’s option, and without limiting any other rights, Participant may:
 Require Contractor to repair or replace, at Contractor’s expense, any or all of the damaged goods; or
 Require Contractor to refund the price of any or all of the damaged goods; or  Participant may note any damage to the goods on the receiving report , decline acceptance, and deduct the cost of rejected goods from final payment.

Payment for any goods under such Purchase Order shall not be deemed acceptance of the goods.

If Participant discovers defects during the inspection process, the requirement for timely delivery under 6.2(a) will continue to run until Contract or resolves the defects and provides Participant with the applicable goods free of defects. The period for the delivery date for the goods will be tolled for the length of time Participant was in the inspection period until the time that Participant provided notice of defect to Contractor.

5.11. P
OST-INSPECTION REPAIR BY CONTRACTOR. In the event of non-acceptance of the bus, Contractor must begin Work within five (5) working days after receiving notification from Participant of failure of acceptance tests. Participant shall make the bus available to complete repairs timely with the Contractor repair schedule. If Contractor fails or refuses to begin the repairs within five (5) days, then the repair work may be done by Participant’s personnel with reimbursement by Contractor.

Contractor shall provide, at its own expense, all spare parts, tools and space required to complete the repairs. At Participant’s option, Contractor may be required to remove the bus from Participant’s property while repairs are being made. If the bus is removed from Participant’s property, then repair procedures must be diligently pursued by Contractor’s representatives, and Contractor shall assume risk of loss while the bus is under its control. Upon completion of repairs, the forteen (14) calendar day acceptance period shall re-commence as per section 5.9.

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5.12. CONTRACTOR SERVICE AND PARTS SUPPORT. For each Participant Order, Contractor shall supply Participant with a completed Exhibit D - Contractor Service and Parts Support Data with contact information on the representatives responsible for assisting Participant, as well as the location of the nearest distribution center, which shall furnish a complete supply of parts and components for the repair and maintenance of the buses to be supplied. Contractor shall also submit its policy on transportation charges for parts other than those covered by warranty.

5.13. PARTS AVAILABILITY GUARANTEE. Contractor guarantees to provide the spare parts, software, and all equipment necessary to maintain and repair the buses supplied under this Master Contract for a period of at least twelve (12) years after the date of acceptance. Parts will be interchangeable with the original equipment and will be manufactured in accordance with the quality assurance provisions of this Master Contract. Prices shall not exceed the Contractor’s then -current published catalog prices.

Where the parts ordered by the Participant are not received within two (2) working days of the agreed-upon time and date and a bus procured under this Master Contract is out of service due to the lack of said ordered parts, then the Contractor shall provide the Participant, within eight (8) hours of the Participant ’s verbal or written request, the original suppliers’ and/or manufacturers’ parts numbers, company names, addresses, telephone numbers and contact persons’ names for all of the specific parts not received by the Participant.

In the event Contractor fails to honor this parts guarantee or parts ordered by the Participant are not received within thirty (30) days of the agreed -upon delivery date, then Contractor shall provide to Participant, within seven (7) days of the Agency’s verbal or written request, the design and manufacturin g documentation for those parts manufactured by t he Contractor and the original suppliers’ and/or manufacturers’ parts numbers, company names, addresses, telephone numbers and contact persons’ names for all of the specific parts not received by the Participant.

Contractor’s design and manufacturing documentation provided to the Participant shall be for its sole use in regard to the buses procured under this Master Contract and for no other purpose.

5.14. TERMINATION FOR WITHDRAWAL OF FUNDING. If any Participant’s expected or actual funding for purchases under this Master Contract are withdrawn, reduced, or limited in any way prior to the payment for the last bus accepted, Participant may, upon written notice to Contractor, terminate their Purchase Order for Transit Buses not yet accepted. If the Purchase Order is terminated as provided in this subsection: (1) Participant will be liable only for payment in accordance with the terms of this Contract for work performed satisfactorily up to the date of termination an d materials on order that cannot be canceled; and (2) Contractor shall be released from any obligation to provide additional buses as are affected by the termination. The Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination

5.15. F
ACILITY INSPECTIONS. Contractor shall provide right of access to its facilities to Enterprise Services, any Enterprise Services agents, Participant, any of Participants agents, or to any other authorized agent or official of the state of Washington or the federal government, at all reasonable times, in order to monitor and evaluate performance, compliance, and/or quality assurance under this Contract.

5.16. O
N SITE REQUIREMENTS. While on Participant ’s premises, Contractor, its agents, employees, or subcontractors shall comply, in all respects, with Participant’s physical, fire, access, safety, or other security requirements.

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6. INVOICING & PAYMENT.

6.1. CONTRACTOR INVOICE. Contractor shall submit to Participant’s designated invoicing contact properly itemized invoices. Such invoices shall itemize the following:
(a) Master Contract No. 06719
(b) Contractor name, address, telephone number, and email address for billing issues (i.e., Contractor Customer Service Representative)
(c) Contractor’s Federal Tax Identification Number
(d) Date(s) of delivery
(e) Invoice amount; and
(f) Payment terms, including any available prompt payment discounts.

Contractor’s invoices for payment shall reflect accurate Master Contract prices. Invoices will not be processed for payment until receipt of a complete invoice as specified herein.

6.2. P
AYMENT. Payment is the sole responsibility of, and will be made by, the Participant. Payment is due within thirty (30) days of invoice. If Participant fails to make timely payment(s), Contractor may invoice Participant in the amount of one percent (1%) per month on the amount overdue or a minimum of $1. Payment will not be considered late if a check or warrant is mailed within the time specified. Contractor provides a prompt payment discount of 0.2192% for payments within 10 days of receipt of the invoice. This discount will only be provided for Participant payments within the stated time.

6.3. MILESTONE PAYMENTS. Participant and Contractor may condition payment on the achievement of various agreed upon milestones for the Transit Buses . Milestone payments will be mutually agreed upon by Participant and Contractor in regard to timing of milestone, acceptance of milestone, and amounts for milestone payments. Payment f or milestones will follow the procedure for invoice payment.

6.4. OVERPAYMENTS. Contractor promptly shall refund to Participant the full amount of any erroneous payment or overpayment. Such refunds shall occur within thirty (30) days of written notice to Contractor; Provided, however, that Participant shall have the right to elect to have either direct payments or written credit memos issued. If Contractor fails to make timely payment(s) or issuance of such credit memos, Participant may impose a one percent ( 1%) per month on the amount overdue thirty (30) days after notice to the Contractor.

6.5. N
O ADVANCE PAYMENT. No advance payments shall be made for any goods or services furnished by Contractor pursuant to this Master Contract.

6.6. NO ADDITIONAL CHARGES. Unless otherwise specified herein, Contractor shall not include or impose any additional charges including, but not limited to, charges for shipping, handling, or payment processing.

6.7. T
AXES/FEES. Contractor promptly shall pay all applicable taxes on its operation s and activities pertaining to this Master Contract. Failure to do so shall constitute breach of this Master Contract. Unless otherwise agreed, Participant shall pay applicable sales tax imposed by the tax jurisdictions in which delivery occurs on purchased goods and/or services. Contractor, however, shall not make any charge for federal excise taxes and Participant agrees to furnish Contractor with an exemption certificate where appropriate.

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7. CONTRACT MANAGEMENT.

7.1. CONTRACT ADMINISTRATION & NOTICES. Except for legal notices, the parties hereby designate the following contract administrators as the respective single points of contact for purposes of this Master Contract. Enterprise Services’ contract administrator shall provide Master Contract oversight. Contractor’s contract administrator shall be Contractor’s principal contact for business activities under this Master Contract. The parties may change contractor administrators by written notice as set forth below.

Any notices required or desired shall be in writing and sent by U.S. mail, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:

Enterprise Services Contractor
Attn: David Mgebroff
Washington Dept. of Enterprise Services
PO Box 41411
Olympia, WA 98504-1411
Tel: (360) 407-8049
Email: [email protected]
Attn:

Tel:

Email:

Notices shall be deemed effective upon the earlier of receipt, if mailed, or, if emailed, upon transmission to the designated email address of said addressee.

7.2. CONTRACTOR CUSTOMER SERVICE REPRESENTATIVE. Contractor shall designate a customer service representative (and inform Enterprise Services of the same) who shall be responsible for addressing Participant issues pertaining to this Master Contract.

7.3. LEGAL NOTICES. A ny legal notices required or desired shall be in writing and delivered by U.S. certified mail, return receipt requested, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:

Enterprise Services Contractor
Attn: Legal Services Manager
Washington Dept. of Enterprise Services
PO Box 41411
Olympia, WA 98504-1411
Email: [email protected]
Attn:

Email:

Notices shall be deemed effective upon the earlier of receipt when delivered, or, if mailed, upon return receipt, or, if emailed, upon transmission to the designated email address of said addressee.

8. CONTRACTOR SALES REPORTING; VENDOR MANAGEMENT FEE; & CONTRACTOR REPORTS.

8.1. MASTER CONTRACT SALES REPORTING. Contractor shall report total Master Contract sales quarterly to Enterprise Services, as set forth below.
(a) Master Contract Sales Reporting System. Contractor shall report quarterly Master Contract sales in Enterprise Services’ Master Contract Sales Reporting System.

Enterprise Services will provide Contractor with a login password and a vendor

MASTER CONTRACT NO. 06719-01
PAGE 15
number. The password and vendor number will be provided to the Sales Reporting Representative(s) listed on Contractor’s Bidder Profile. (b) Data. Each sales report must identify every authorized Participant by name as it is known to Enterprise Services and its total combined sales amount invoiced during the reporting period (i.e., sales of an entire agency or political subdivision, not its individual subsections). The “Miscellaneous” option may be used only with prior approval by Enterprise Services. Upon request, Contractor shall provide contact information for all authorized Participant s specified herein during the term of the Master Contract. If there are no Master Contract sales during the reporting period, Contractor must report zero sales.
(c) Due dates for Master Contract Sales Reporting. Quarterly Master Contract Sales Reports must be submitted electronically by the following deadlines for all sales invoiced during the applicable calendar quarter:

FOR CALENDAR QUARTER ENDING MASTER CONTRACT

SALES REPORT DUE
March 31: April 30
June 30: July 31
September 30: October 31
December 31: January 31

8.2. VENDOR MANAGEMENT FEE. Contractor shall pay to Enterprise Services a vendor management fee (“VMF”) of 0.15 percent on the purchase price for all Master Contract sales (the purchase price is the total invoice price less applicable sales tax).
(a) The sum owed by Contractor to Enterprise Services as a result of the VMF is calculated as follows:

Amount owed to Enterprise Services = Total Master Contract sales invoiced (not including sales tax) x .00150.
(b) The VMF must be rolled into Contractor’s current pricing. The VMF must not be shown as a separate line item on an y invoice unless specifically requested and approved by Enterprise Services.
(c) Enterprise Services will invoice Contractor quarterly based on Master Contract sales reported by Contractor. Contractors are not to remit payment until they receive an invoice from Enterprise Services . Contractor’s VMF payment to Enterprise Services must reference this Master Contract number, work request number (if applicable), the year and quarter for which the VMF is being remitted, and the Contractor’s name as set forth in this Master Contract, if not already included on the face of the check. (d) Failure to accurately report total net sales, to submit a timely usage report, or remit timely payment of the VMF , may be cause for Master Contract suspension or termination or the exercise of other remedies provided by law . Without limiting any other available remedies, the Parties agree that Contractor’s failure to remit to Enterprise Services timely payment of the VMF shall obligate Contractor to pay to Enterprise Services, to offset the administrative and transaction costs incurred by the

MASTER CONTRACT NO. 06719-01
PAGE 16
State to identify , process, and collect such sum , the sum of $200.00 or twenty -five percent (25%) of the outstanding amount, whichever is greater, or the maximum allowed by law, if less.
(e) Enterprise Services reserves the right, upon thirty (30) days advance written notice, to increase, reduce, or eliminate the VMF for subsequent purchases , and reserves the right to re negotiate Master Contract pricing with Contractor when any subsequent adjustment of the VMF might justify a change in pricing.

8.3. ANNUAL MASTER CONTRACT SALES REPORT. Contractor shall provide to Enterprise Services a detailed annual Master Contract sales report. Such report shall include, at a minimum: Product description, part number or other Product identifier, per unit quantities sold, and Master Contract price. This report must be provided in an electronic format that can be read by MS Excel.

9. RECORDS RETENTION & AUDITS.

9.1. RECORDS RETENTION. Contractor shall maintain books, records, documents, and other evidence pertaining to this Master Contract and orders placed by Participants under it to the extent and in such detail as shall adequately reflect performance and administration of payments and fees.

Contractor shall retain such records for a period of six (6) years following expiration or termination of this Master Contract or final payment for any order placed by a Participant against this Master Contract, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.

9.2. AUDIT. Enterprise Services reserves the right to audit, or have a designated third party audit, applicable records to ensure that Contractor has properly invoiced Participant s and that Contractor has paid all applicable contract management fees. Accordingly, Contractor shall permit Enterprise Services, any Participant, and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe C ontractor’s books, documents, papers and records directly pertinent to this Master Contract or orders placed by a Participant under it for the purpose of making audits, examinations, excerpts, and transcriptions.

This right shall survive for a period of six (6) years following expiration or termination of this Master Contract or final payment for any order placed by a Participant against this Master Contract, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved. The Participants and their representatives and agents agree to enter into a confidentiality agreement with the Contractor prior to commencing an audit, review or analysis in order to protect and maintain the confidentiality of the Contractor’s information.

9.3. O
VERPAYMENT OF PURCHASES OR UNDERPAYMENT OF FEES. Without limiting any other remedy available to any Participant, Contractor shall (a) reimburse Participants for any overpayments inconsistent with the terms of this Master Contract or orders, at a rate of 125% of such overpayments, found as a result of the examination of the Contractor’s records; and (b) reimburse Enterprise Services for any underpayment of fees, at a rate of 125% of such fees found as a result of the examination of the Contractor’s records (e.g., if Contractor underpays the Vendor Management Fee by $500, Contractor would be required to pay to Enterprise Services $500 x 1.25 = $625).

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PAGE 17

10. INSURANCE.

10.1. REQUIRED INSURANCE. During the Term of this Master Contract, Contractor, at its expense, shall maintain in full force and effect the insurance coverages set forth in Exhibit C – Insurance Requirements. All costs for insurance, including any payments of deductible amounts, shall be considered incidental to and included in the prices for goods/services and no additional payment shall be made.

10.2. WORKERS COMPENSATION. Contractor shall comply with applicable workers compensation statutes and regulations (e.g., RCW Title 51, Industrial Insurance). If Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, Enterprise Services may terminate this Master Contract. This provision does not waive any of the Washington State Department of Labor and Industries (L&I) rights to collect from Contractor. In addition, Contractor waives its immunity under RCW Title 51 to the extent it is required to indemnify, defend, and hold harmless the State of Washington and its agencies, officials, agents, or employees.

11. WARRANTY.

11.1. CONTRACTOR WARRANTY. Warranties in this document are in addition to any statutory remedies or warranties imposed on Contractor. Consistent with this requirement, Contractor warrants and guarantees to Participant each complete Transit Bus and specific subsystems and components as follows.

Contractor warrants the Transit Buses are of good material and workmanship and agrees to promptly replace any part or parts, at no cost to the Participant, which by reason of defective materials or workmanship fail under normal use, free of ne gligence or accident during the applicable warranty period. Contractor warranties include the replacement of parts and services associated with the replacement and repair, including but not limited to any diagnostic, refurbishment, shipping, or travel costs.

Performance requirements based on design criteria will not be deemed a warranty item.

Contractor shall insure in its procurement arrangements that the warranty requirements of this Master Contract are enforceable through and against the Contractor's sup pliers, vendors, material men, and subcontractors. Any inconsistency or difference between the warranties extended to Participant s by Contractor and those extended to Contractor by its suppliers, vendors, material men, and subcontractors, are at the risk and expense of Contractor. Such inconsistency or difference will not excuse Contractor's full compliance with its obligations under this Contract.

11.2. W
ARRANTY INFORMATION. Upon Participant’s request, Contractor promptly shall provide complete copies of all written warranties or guarantees and documentation of any other arrangement relating to such warranties or guarantees extended by Contractor's suppliers, sub -suppliers, vendors, material men, and subcontractors covering parts, components, and systems utilized in the bus. Contractor shall ensure that such suppliers, sub -suppliers, vendors, material men, and subcontractors satisfactorily perform warranty related work when requested to do so by Participant.

11.3. SYSTEM WARRANTIES. The following systems are warranted t o be free from defects and related defects for the years and mileage listed in the table below, whichever comes first. Each warranty is based on regular operation of the bus under the operating conditions prevailing in Participant’s locale.

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Warranty Description Years/Mileage
Complete Bus Complete bus, propulsion system,
components, major subsystems, and
body and chassis structure
2 years, 100,000 miles;
Class 1 or 2 Failures: 12
years, 500,000 miles
Body And Chassis
Structure
Body, body structure, structural elements
of the suspension and engine cradle
3 years, 150,000 miles
Body and Chassis
Corrosion Failure or
Fatigue Failure
Primary load-carrying members of the
bus structure, including structural
elements of the suspension
Class 1 or 2 Failures: 12
years, 500,000 miles
Propulsion System
(Diesel, CNG, Hybrid)
engine, transmission or drive motors, and
generators (for hybrid technology) and
drive and non-drive axles
2 years, 100,000 miles
Propulsion System
(Electric)
traction motors, traction motor
controllers, transmission, drive motors,
drive and non-drive axles, and any other
propulsion system-related replacement
component
5 years, 300,000 miles
Energy Storage
System
traction battery, Battery Management
System, and any other ESS-related
replacement component
2 years, unlimited miles
Emission Control
System
complete exhaust system, including
catalytic converter (if required), after
treatment device, components identified
as emission control devices
5 years, 100,000 miles
The ESS is warranted to remain within warrantable end of life during the warranty period. The ESS original specified energy storage capacity and warrantable end of life, as a percentage of the original specified energy capacity, must be clearly defined by the Contrac tor. Acceptable methods for measuring or obtaining ESS storage capacity with respect to its original specified capacity must be clearly identified by the manufacturer. The manufacturer will propose the test method, and certify the results are true and accurate. The test will be performed according to a documented test procedure. Participant may engage third-parties for capacity testing.

11.4. S
UBSYSTEMS WARRANTY. The Contractor warrants the following subsystems to be free from defects and related defects for at least two years or 100,000 miles, whichever comes first.  Brake system: Foundation brake components, including advancing mechanisms, as supplied with the axles, excluding friction surfaces.
 Destination signs: All destination sign equipment for the front, side and rear signs, power modules and operator control.
 Heating, ventilating: Roof and/or rear main unit only, excluding floor heaters and front defroster.
 AC unit and compressor: Roof and/or rear main unit only, excluding floor heaters and front defroster.
 Door systems: Door operating actuators and linkages.
 Air compressor.
 Air dryer.
 Wheelchair lift and ramp system: Lift and/or ramp parts and mechanical only.

MASTER CONTRACT NO. 06719-01
PAGE 19
 Starter.
 Alternator: Alternator only. Does not include the drive system.  Charge air cooler: Ch arge air cooler including core, tanks and including related surrounding framework and fittings.
 Fire suppression: Fire suppression system including tank and extinguishing agent dispensing system.
 Hydraulic systems: Including radiator fan drive and power steering as applicable.  Propulsion cooling systems: Radiator including core, tanks and related framework, including surge tank. Transmission cooler.
 Power electronics: DC/DC converters, inverters, if supplied  Passenger seating excluding upholstery.
 Fuel storage and delivery system.
 Surveillance system including cameras and video recorders.

Contractor warrants the following subsystems to be free from defects and related defects for at least 2 years or 100,000 miles, whichever comes first:
 Low voltage and high voltage electrical wiring and harnesses

11.5. S
ERIAL NUMBERS. Prior to final delivery of each bus, Contractor shall provide a complete electronic list of serialized units installed on each bus to facilitate warranty tracking. The list will include, but is not limited to the following:
 Engine
 Transmission or Traction Motor
 Alternator
 Starter
 Destination/Luminator (Major
components)
 Drive axle and non-drive axle(s)
 DVR unit, supporting electronics
(Monitors)
 Driver's seat
 Battery equalizer
 Radiator package
 Exhaust emission components
 A/C compressor and
condenser/evaporator unit
 Power steering unit
 Fuel cylinders (if applicable)
 Air compressor
 Wheelchair ramp (if applicable)
Contractor shall provide updated serial numbers resulting from warranty campaigns. The format of the list will be approved by Participant prior to delivery of the first production bus.

11.6. E
XTENSION OF WARRANTY. If, during the warranty period, repairs or modifications on any bus are made necessary by defective design, materials, or workmanship but are not completed due to lack of material or inability to provide the proper repair for thirty (30) calendar days, then the applicable warranty period shall be extended by the number of days equal to the delay period.

11.7. V
OIDING OF WARRANTY. The warranty will not apply to the failure of any part or component of the bus that directly results from misuse, negligence, accident, or repairs not conducted in accordance with the Contractor-provided maintenance manuals and with workmanship performed by adequately trained personnel in accordance with recognized standards of the industry. The warranty will be void if Participant fails to conduct normal inspections and scheduled prev entive maintenance procedures as recommended in the Contractor’s maintenance manuals and if that omission caused the part or component failure. Participant should maintain documentation, auditable by Contractor, verifying service activities in conformance with the Contractor’s maintenance manuals.

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11.8. EXCEPTIONS AND ADDITIONS TO WARRANTY. Warranties will not apply to the following items:
 scheduled maintenance items
 normal wear-out items, such as brake linings, filters, belts, and wiper blades  items furnished by Participant
Should Participant require the use of a specific product and has rejected Contractor’s request for an alternate product, then the standard supplier warranty for that product will be the only warranty provided to Participant. This product will not be eligible under “Fleet Defects,” below.

11.9. PASS-THROUGH/SUPERIOR WARRANTY. If any vendor to the Contractor offers, at no additional cost, a warranty on a component that is longer or more comprehensive than the required warranties on this Contract, Contractor shall inform Participant of the additional warranty and pass it through to Participant at no additional cost.

Contractor shall state in writing that Participant’s warranty reimbursements will not be impacted.

Contractor also shall state in writing any exceptions and reimbursement including all costs incurred in transport of vehicles and/or components. At any time during the warranty period, Contractor may request approval from Participant to assign its warranty obligations to others, but only on a case-by-case basis approved in writing by Participant. Otherwise, Contractor shall be solely responsible for the administration of the warranty as specified. Warranty administration by others does not eliminate the warranty liability and responsibility of Contractor.

11.10. F
LEET DEFECTS. “Fleet Defect” means cumulative failures of twenty (20 %) percent of the same components in the same or similar application in a minimum fleet size of twelve (12) or more buses where such items are covered by warranty. A Fleet Defect applies only to the base warranty period in for Complete Bus, Propulsion System, and Subsystems Warranty. When a Fleet Defect is declared, the remaining warranty period on that item/component is suspended. The warranty period does not resume until the Fleet Defect is corrected.

For the purpose of Fleet Defects, each order shall be treated as a separate bus fleet. In addition, if there is a change in a major component within the order, the buses containing the new major component will become a separate bus fleet for the purposes of determining Fleet Defects.

Contractor shall correct a Fleet Defect under the warranty provisions defined in Section 13 Repair Procedure. After correcting the Fleet Defect, Participant and Contractor shall mutually agree to and Contractor shall promptly undertake and complete a work program reasonably designed to prevent the occurrence of the same Fleet Defect in all other buses and spare parts purchased under the order . Where the specific Fleet Defect is solely attributed to particular identifiable parts, the work program will include redesign and/or replacement of only the defectively designed and/or manufactured parts. In all other cases, the work program will include inspection and/or correction of all the buses in the fleet via a mutually agreed-to arrangement. Contractor shall update, as necessary, technical support information (parts, service and operator’s manuals) due to changes resulting from warranty repairs. Participant may immediately declare a defect in design resulting in a safety hazard to be a Fleet Defect. Contractor shall be responsible to furnish, install and replace all defective units.

The Fleet Defect warranty provisions do not apply to Participant-supplied items, such as radios, fare collection equipment, communication systems , and tires. In addition, Fleet Defects do not apply to interior and exterior finishes, hoses, fittings, and fabric.

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12. REPAIR PROCEDURE.

12.1. REPAIR PERFORMANCE. Contractor is responsible for all warranty -covered repair work , including diagnostics of warranty covered parts. To the extent practicable, Participant will allow Contractor or its designated representative to perform repair work. At its discretion, Participant may perform such repair wo rk if it determines it needs to do so based on transit service or other requirements. Contractor shall reimburse Participant for any warranty -covered repair work it performs. Minor/Major Warranty -covered repairs may be carried out by the Purchaser and reimbursed through New Flyer's on -line warranty system. New Flyer is available to assist in completing these warranty -covered repairs if needed. Whenever feasible and mutually beneficial, the Purchser may provide a work space for New Flyer to accomplish the repair onsite as needed. This allows us to work with the Purchaser to return the bus to revenue service as quickly as possible. If shop space is unavailable, New Flyer will utilize one of its three subcontractors (Top Tempo, Tri-State, Coach Retrofit) with their own service facilities within the State of Washington area to perform the repairs and get the buses back into revenue service as soon as possible. In addition, Contractor can utilize its service centers for repairs within the State of Washington as ne eded. Major Component Warranty repairs should be carried out by the equipment suppliers (Engine, Transmission, Propulsion System, High Voltage Batteries, HVAC and Destination Sign Suppliers) in order to adhere to their mandate that all warranty repairs be performed by an authorized dealer unless the Purchaser is an authorized warranty center. If the Purchaser elects to perform these repairs, without the written permission of the original equipment manufacturer, the remaining warranty coverage may be voided

12.2. R
EPAIRS BY THE CONTRACTOR. Participant shall notify Contractor’s designated representative within thirty (30) days if Participant detects a defect within the warranty periods defined in this Master Contract or the applicable Participant Order. Contractor or its designated representative shall, if requested, begin repair work on warranty -covered repairs within five (5) calendar days after receiving notification of a defect from Participant. Participant will make the bus available to complete repairs timely with the Contractor’s repair schedule.

Contractor shall provide at its own expense all spare parts, tools, and space required to complete repairs. At Participant’s option, Contractor may be required to remove the bus from Participant’s property while repairs are made. If the bus is removed from Participant’s property, then repair procedures must be diligently pursued by Contractor’s representative.

12.3. R
EPAIRS BY PARTICIPANT. If Participant performs the warranty-covered repairs, then it must correct or repair the defect and any related defects utilizing parts supplied by Contractor specifically for this repair. At its discretion, Participant may use Contractor-specified parts available from its own stock if deemed in its best interests. Parts supplied by Contractor may be remanufactured but must have the same form, fit and function, and warranty. The parts will be shipped prepaid to Participant from any source selected by Contractor within fourteen (14) days of receipt of the request for said parts and shall not be subject to a handling charge.

12.4. D
EFECTIVE COMPONENT RETURN. Contractor may request that parts covered by the warranty be returned to the manufacturing plant. Contractor will pay the freight costs for this action.

12.5. FAILURE ANALYSIS. Upon specific request of Participant, Contractor will provide a failure analysis of Fleet Defect or safety-related parts, or major components, removed from buses under the terms of the warranty that could affect fleet operation. Such reports will be delivered within 60 days of the receipt of failed parts.

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12.6. REIMBURSEMENT FOR LABOR AND OTHER RELATED COSTS. Contractor shall reimburse Participant for repair labor. The amount is determined by Participant for a qualified mechanic at a straight time wage rate per hour, which includes fringe benefits and overhead adjusted for Participant’s most recently published rate in effect at the time the repair work is performed, plus the cost of towing the bus if such action was necessary and if the bus was in the normal service area. These wage and fringe benefit rates shall not exceed the rates in effect in Participant’s service garage at the time the defect correction is made.

12.7. REIMBURSEMENT FOR PARTS. Contractor shall reimburse Participant for defective parts and for parts that must be replaced t o correct the defect. The reimbursement will be at the current price at the time of repair and include taxes where applicable, plus fifteen (15) percent handling costs.

Handling costs will not be paid if parts are supplied by Contractor and shipped to Participant.

12.8. R
EIMBURSEMENT REQUIREMENTS. Contractor shall respond to parts warranty claim s with an accept/reject decision including necessary failure analysis no later than sixty (60) days after Participant submits the claim and defective part(s), when request ed. Reimbursement for all accepted claims shall occur no later than sixty (60) days from the date of acceptance of a valid claim. Participant may dispute rejected claims or claims for which Contractor did not reimburse the full amount. Contractor and Participant will review disputed warranty claims during the following quarter to reach an equitable decision to permit the disputed claim to be resolved and closed. Contractor and Participant will review all claims at least once per quarter throughout the entire warranty period to ensure that open claims are being tracked and properly dispositioned.

12.9. W
ARRANTY AFTER REPLACEMENT/REPAIRS. If any component, unit , or subsystem is repaired, rebuilt , or replaced by Contractor or by Participant with the concurrence of Co ntractor, then the component, unit, or subsystem will have the unexpired warranty period of the original. Repairs will not be warranted if Contractor- provided or authorized parts are not used for the repair, unless Contractor has failed to respond within five days, in accordance with Section 13.2 Repairs by the Contractor.

If an item is declared to be a Fleet Defect, then the warranty stops with the declaration of the Fleet Defect. Once the Fleet Defect is corrected, the items shall have three (3) months or the remaining time and/or miles of the original warranty, whichever is greater. This remaining warranty period will begin on the repair/replacement date for corrected items on each bus if the repairs are completed by Contractor or on the date Contractor provides all parts to Participant if repairs are completed by Participant.

12.10. W
ARRANTY PROCESSING PROCEDURES. The following list represents information required by Contractor from the Participant for processing warranty claims. One failure per bus per claim is allowed.
 bus number and VIN
 total vehicle life mileage at time of repair
 date of failure/repair
 acceptance/in-service date
 Contractor part number and description
 component serial number
 description of failure
 all costs associated with each failure/repair (invoices may be required for third -party costs):
o towing

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o road calls
o labor
o materials
o parts
o handling
o troubleshooting time
The Participant’s forms will be accepted by Contractor if all of the above information is included.

Electronic submittal may be used if available between Contractor and Participant.

12.11. RETURN OF PARTS. When returning defective parts to Contractor, Participant will tag each part with the following:
 bus number and VIN
 claim number
 part number
 serial number (if available)

12.12. TIMEFRAME. Each claim must be submitted no more than thirty (30) days from the date of failure and/or repair, whichever is later. All defective parts must be returned to the Contractor, when requested, no more than forty-five (45) days from the date of repair.

13. QUALITY ASSURANCE

13.1. QUALITY ASSURANCE ORGANIZATION ESTABLISHMENT. Contractor shall establish and maintain an effective in-plant quality assurance organization.

13.2. QUALITY CONTROL. The quality assurance organization shall exercise quality control over all phases of production, from initiation of design through manufacture and preparation for delivery. The organization shall also control the quality of supplied articles.

13.3. A
UTHORITY AND RESPONSIBILITY. The quality assurance organization shall have the authority and responsibility for reliability, quality control, inspection planning, establishment of the quality control system, and acceptance/rejection of materials and manufactured articles in the production of the transit buses.

13.4. MINIMUM FUNCTIONS. The quality assurance organization shall include the following minimum functions:
 Work instructions: The quality assurance organization shall verify inspection operation instructions to ascertain that the manufactured product meets all prescribed requirements.  Records maintenance: The quality assurance organization shall maintain and use records and data essential to the effective operation of its program. These records and data shall be available for review by the resident inspectors. Inspection and test records for this procurement shall be available for a minimum of one year after inspections and tests are completed.
 Corrective action: The quality assurance organization shall detect and promptly ensure correction of any conditions that may result in the production of defec tive transit buses.

These conditions may occur in designs, purchases, manufacture, tests or operations that culminate in defective supplies, services, facilities, technical data or standards.

13.5. B
ASIC STANDARDS AND FACILITIES. The following standards and facilities shall be basic in the quality assurance process:

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 Configuration control: Contractor shall maintain drawings, assembly procedures and other documentation that completely describe a qualified bus that meets all of the options and special requirements of each Purchase Order. The quality assurance organization shall verify that each transit bus is manufactured in accordance with these controlled drawings, procedures and documentation.
 Measuring and testing facilities: Contractor shall provide and maintain the necessary gauges and other measuring and testing devices for use by the quality assurance organization to verify that the buses conform to all specification requirements. These devices shall be calibrated at established periods against certified measu rement standards that have known, valid relationships to national standards.  Production tooling as media of inspection: When production jigs, fixtures, tooling masters, templates, patterns and other devices are used as media of inspection, they shall be proved for accuracy at formally established intervals and adjusted, replaced or repaired as required to maintain quality.
 Equipment use by resident inspectors: Contractor’s gauges and other measuring and testing devices shall be made available for use by the resident inspectors to verify that the buses conform to all specification requirements. If necessary, the Contractor’s personnel shall be made available to operate the devices and to verify their condition and accuracy.

13.6. M
AINTENANCE OF CONTROL. Contractor shall maintain quality control of purchases:
 Supplier control: Contractor shall require each s upplier to maintain a quality control program for the services and supplies that it provides. C ontractor’s quality assurance organization shall inspect and test m aterials provided by s uppliers for conformance to specification requirements. Materials that have been inspected, tested and approved shall be identified as acceptable to the point of use in the manufacturing or assembly processes.

Controls shall be established to prevent inadvertent use of nonconforming materials.  Purchasing data: Contractor shall verify that all applicable specification requirements are properly included or referenced in purchase orders of articles to be used on transit buses.

13.7. MANUFACTURING CONTROL. Contractor shall maintain quality control of production:
 Controlled conditions: Contractor shall ensure that all basic production operations, as well as all other processing and fabricating, are performed under controlled conditions.

Establishment of these controlled conditions shall be based on the documented w ork instructions, adequate production equipment and special working environments if necessary.
 Completed items: A system for final inspection and test of completed transit buses shall be provided by the quality assurance organization. It shall measure the overall quality of each completed bus.
 Nonconforming materials: The quality assurance organization shall monitor the Contractor’s system for controlling nonconforming materials. The syste m shall include procedures for identification, segregation and disposition.  Statistical techniques: Statistical analysis, tests and other quality control procedures may be used when appropriate in the quality assurance processes.

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 Inspection status: A system shall be maintained by the quality assurance organization for identifying the inspection status of components and completed transit buses. Identification may include cards, tags or other normal quality control devices.

13.8. Inspection System. The quality assurance organization shall establish, maintain and periodically audit a fully documented inspection system. The system shall prescribe inspection and test of materials, Work in process and completed articles. A t a minimum, it shall include the following controls:
 Inspection personnel: Sufficient trained inspectors shall be used to ensure that all materials, components and assemblies are inspected for conformance with the qualified bus design.
 Inspection records: Acceptance, rework or rejection identification shall be attached to inspected articles. Articles that have been accepted as a result of approved materials review actions shall be identified. Articles that have been reworked to specified drawing configurations shall not require special identification. Articles rejected as unsuitable or scrap shall be plainly marked and controlled to prevent installation on the bus. Articles that become obsolete as a result of engineering changes or other actions shall be controlled to prevent unauthorized assembly or installation. Unusable articles shall be isolated and then scrapped. Discrepancies noted by the Contractor or resident inspectors during assembly shall be entered by the inspection personnel on a record that accompanies the major component, subassembly, assembly or bus from start of assembly through final inspection.

Actions shall be taken to correct discrepancies or deficiencies in the manufacturing processes, procedures or other conditions that cause articles to be in nonconformity with the requirements of the Contract specifications. The inspection personnel shall verify the corrective actions and mark the discrepancy record. If discrepancies cannot be corrected by replacing the nonconforming materials, then the Agency shall approve the modification, repair or method of correction to the extent that the Contract specifications are affected.  Quality assurance audits: The quality assurance organization shall establish and maintain a quality control audit program. Records of this program shall be subject to review by the Agency.

14. C
LAIMS.

14.1. ASSUMPTION OF RISKS; CLAIMS BETWEEN THE PARTIES. Contractor assumes sole responsibility and all risks of personal injury or property damage to itself and its employees, and agents in connection with its operations under this Master Contract . For certainty, the Participants shall assume risk of loss of the bus on delivery. Prior to delivery, the Contractor shall have risk of loss of the bus .

Neither Enterprise Services nor any Participant has made any representations regarding any factor affecting Contractor’s risks. Contractor shall pay for all damage to any Participant’s property resulting directly or indirectly from its acts or omissions under this Master Contract.

14.2. THIRD-PARTY CLAIMS; INDEMNITY. To the fullest extent permi tted by law, Contractor shall defend, indemnify, and hold harmless Enterprise Services and any Participant and their employees and agents from and against all claims, demands, judgments, assessments, damages, penalties, fines, costs, liabilities or losses including, without limitation, sums paid in settlement of claims, attorneys’ fees, consultant fees, and expert fees (collectively “claims”) arising from any act or omission of Contractor or its successors, agents, and subcontractors under this Master Contract, except claims caused solely by Enterprise Services or any Participant s’ negligence. Contractor

MASTER CONTRACT NO. 06719-01
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shall take all steps needed to keep Participant ’s property free of liens arising from Contractor’s activities, and promptly obtain or bond the release of any such liens that may be filed.

15. DISPUTE RESOLUTION.

15.1. DISPUTE PROCEDURE. The parties shall cooperate to resolve any dispute pertaining to this Master Contract efficiently, as timely as practicable, and at the lowest possible level with authority to resolve such dispute. If, however, a dispute persists and cannot be resolved, it may be escalated within each organization. In such situation, upon notice by either party, each party, within five (5) business days shall reduce its description of the dispute to writing and deliver it to the other party. The receiving party then shall have three (3) business days to review and respond in writing. In the event that the parties cannot then agree on a resolution of the dispute, the parties shall schedule a conference between the respective senior manager o f each organization to attempt to resolve the dispute. In the event the parties cannot agree, either party may resort to court to resolve the dispute.

15.2. P
ERFORMANCE DURING DISPUTE. Unless otherwise directed by Enterprise Services, Contractor shall continue performance under this Master Contract while matters in dispute are being resolved.

16. SUSPENSION & TERMINATION.

16.1. SUSPENSION & TERMINATION FOR DEFAULT. Enterprise Services may suspend Contractor’s operations under this Master Contract immediately by written cure notice of any default. In such case, the notice of suspension will state the time period in which cure is permitted and other appropriate conditions. Suspension shall continue until the default is remedied to Enterprise Services’ reasonable satisfaction; Provided, however, that, if after thirty (30) days from such a suspension notice, Contractor remains in default , Enterprise Services may terminate Contractor’s rights under this Master Contract. All of Contractor’s obligations to Enterprise Services and Participants survive termination of Contractor’s rights under this Master Contract, until such obligations have been fulfilled.

16.2. DEFAULT. Each of the following events shall constitute default of this Master Contract by Contractor:
(a) Contractor fails to perform or comply with any of the terms or conditions of this Master Contract including, but not limited to, Contractor’s obligation to pay vendor management fees when due;
(b) Contractor breaches any representation or warranty provided herein; or (c) Contractor enters into proceedings relating to bankruptcy, whether voluntary or involuntary.

16.3. REMEDIES FOR DEFAULT.
(a) Enterprise Services’ rights to suspend and terminate Contractor’s rights under this Master Contract are in addition to all other available remedies. (b) In the event of termination for default, Enterprise Services may exercise any remedy provided by law including, without limitation, the right to procure for all Participants replacement goods and/or services. In such event, Contractor shall be liable to Enterprise Services for damages as authorized by law including, but not limited to, any price difference between the Master Contract price and the replacement or cover price.

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16.4. LIMITATION ON DAMAGES. Notwithstanding any provision to the contrary, the parties agree that in no event shall any party or Participant be liable to the other for exemplary or punitive damages.

16.5. GOVERNMENTAL TERMINATION.
(a) Termination for Withdrawal of Authority. Enterprise Services may suspend or terminate this Master Contract if, during the term hereof, Enterprise Services’ procurement authority is withdrawn, reduced, or limited such that Enterprise Services, in its judgm ent, would lack authority to enter into this Master Contract; Provided, however, that such suspension or termination for withdrawal of authority shall only be effective upon twenty (20) days prior written notice; and Provided further, that such suspension or termination for withdrawal of authority shall not relieve any Participant from payment for goods and/or services already ordered as of the effective date of such notice. Except as stated in this provision, in the event of such suspension or termination for withdrawal of authority, neither Enterprise Services nor any Participant shall have any obligation or liability to Contractor. (b) T
ERMINATION FOR CHANGE OF AUTHORITY. Enterprise Services may suspend or terminate this Master Contract if, during the term hereof, federal procurement authority is withdrawn, reduced, or limited such that Enterprise Services, in its judgment, would lack authority to enter into this Master Contract as a State Cooperative Purchasing Schedule under applicable federal law; Provide d, however, that such suspension or termination for withdrawal of authority shall only be effective upon twenty (20) days prior written notice; and Provided further, that such suspension or termination for withdrawal of authority shall not relieve any Part icipant from payment for goods and/or services already ordered as of the effective date of such notice. Except as stated in this provision, in the event of such suspension or termination for withdrawal of authority, neither Enterprise Services nor any Par ticipant shall have any obligation or liability to Contractor.
(c) T
ERMINATION FOR PUBLIC CONVENIENCE. Enterprise Services, for public convenience, may terminate this Master Contract; Provided , however, that such termination for public convenience must, in Enterprise Services’ judgment, be in the best interest of the State of Washington ; and Provided further , that such termination for public convenience shall only be effective upon sixty (60) days prior written notice; and Provided further, that such termination for public convenience shall not relieve any Participant from payment for goods and/or services already ordered as of the effective date of such notice. Except as stated in this provision, in the event of such termination for public convenience, neither Enterprise Services nor any Participant shall have any obligation or liability to Contractor.
(d) P
AYMENT UPON TERMINATION. In the event of termination for any reason under this Section 16, the Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination.

16.6. TERMINATION PROCEDURE. Regardless of basis, in the event of suspension or termination (in full or in part), the parties shall cooperate to ensure an orderly and efficient suspension or termination.

Accordingly, Contractor shall deliver to Participants all goods and/or services that are complete (or with approval from Enterprise Services, substantially complete) and Participants shall inspect, accept, and pay for the sa me in accordance with this Master Contract and the applicable

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Purchase Order. Unless directed by Enterprise Services to the contrary, Contractor shall not process any orders after notice of suspension or termination inconsistent therewith.

17. FTA ROLE IN DISPUTES, BREACHES, DEFAULTS, OR OTHER LITIGATION.

17.1. FTA INTEREST. The U.S. Federal Transit Administration (“ FTA”) has a vested interest in the settlement of any violation of federal law, regulation, or requirement, or any disagreement involving the a ward, this Master Contract, and any a mendments thereto including, but not limited to, a default, breach, major dispute, or litigation. Accordingly, FTA shall have the right to concur in such any settlement or compromise.

17.2. N
OTIFICATION TO FTA. If a current or prospective legal matter that may affect the Federal Government emerges, Enterprise Services and Participant promptly shall notify the FTA Chief Counsel, or FTA Regional Counsel for the Region in which Enterprise Services and Participant are located.

1. The types of legal matters that require notification include, but are not limited to, a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal disagreement in any forum for any reason.

2. Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s interests in the a ward, this Master Contract, and any a mendments thereto, or the Federal Government’s administration or enforcement of federal laws, regulations, and requirements.

3. If Enterprise Services or Participant have credible evidence that a Principal, Official, Employee, Agent, or Third Party Participant of Enterprise Services or Participant , or other person has submitted a false claim under the False Claims Act, 31 U.S.C. § 3729 et seq., or has committed a criminal or civil violation of law pertaining to such matters as fraud, conflict of interest, bribery, gratuity, or similar misconduct involving federal assistance, Enterprise Services and Participant promptly shall notify the U.S. DOT Inspector General, in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the Enterprise Services and Participant are located.

17.3. F
EDERAL INTEREST IN RECOVERY. The Federal Government retains the right to a proportionate share of any proceeds recovered from any third party, based on the percent age of the federal share for this Master Contract.

18. GENERAL PROVISIONS.

18.1. TIME IS OF THE ESSENCE. Time is of the essence for each and every provision of this Master Contract.

18.2. COMPLIANCE WITH LAW. Contractor shall comply with all applicable law.

18.3. INTEGRATED AGREEMENT. This Master Contract constitutes the entire agreement and understanding of the parties with respect to the subject matter and supersedes all prior negotiations, representations, and understandings between them. There are no representations or understandings of any kind not set forth herein.

18.4. AMENDMENT OR MODIFICATION. Except as set forth herein, this Master Contract may not be amended or modified except in writing and signed by a duly authorized representative of each party.

18.5. AUTHORITY. Each party to this Master Contract , and each individual signing on behal f of each party, hereby represents and warrants to the other that it has full power and authority to enter

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into this Master Contract and that its execution, delivery, and performance of this Master Contract has been fully authorized and approved, and that no further approvals or consents are required to bind such party.

18.6. NO AGENCY. The parties agree that no agency, partnership, or joint venture of any kind shall be or is intended to be created by or under this Master Contract . Neither party is an agent of the other party nor authorized to obligate it.

18.7. ASSIGNMENT. Contractor may not assign its rights under this Master Contract without Enterprise Services’ prior written consent and Enterprise Services may consider any attempted assignment without such consent to be void; Provided, however, that, if Contractor provides written notice to Enterprise Services within thirty (30) days, Contractor may assign its rights under this Master Contract in full to any parent, subsidiary, or affiliate of Contractor that controls or is controlled by or under common control with Contractor, is merged or consolidated with Contractor, or purchases a majority or controlling interest in the ownership or assets of Contractor. Unless otherwise agreed, Contractor guarantees prompt performance of all obligations under this Master Contract notwithstanding any prior assignment of its rights.

18.8. BINDING EFFECT; SUCCESSORS & ASSIGNS. This Master Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.

18.9. PUBLIC INFORMATION. This Master Contract and all related documents are subject to public disclosure as required by Washington’s Public Records Act, RCW chapter 42.56 . The Purchase Order and all related documents are subject to the public disclosure requirements of the Participant’s jurisdiction.

18.10. ASSIGNMENT OF ANTITRUST RIGHTS REGARDING PURCHASED GOODS/SERVICES. Contractor irrevocably assigns to Enterprise Services, on behalf of the State of Washington, or any applicable Participant any claim for relief or cause of action which the Contractor now has or which may accrue to the Contractor in the future by reason of any violation of state or federal antitrust laws in connection with any Transit Buses provided in Washington for the purpose of carrying out the Contractor’s obligations under this Master Contract , including, at Enterprise Services ' option, the right to control any such litigation on such claim for relief or cause of action.

18.11. FEDERAL FUNDS. To the extent that any Participant uses federal funds to purchase goods and/or services pursuant to this Master Contract, such Participant shall specify, with its order, any applicable requirement or certification that must be satisfied by Contractor at the time the order is placed or upon delivery.

18.12. SEVERABILITY. If any provision of this Master Contract is held to be invalid or unenforceable, such provision shall not affect or invalidate the remainder of this Master Contract, and to this end the provisions of this Master Contract are declared to be severable. If such invalidity becomes known or apparent to the parties, the parties agree to negotiate promptly in good faith in an attempt to amend such provision as nearly as po ssible to be consistent with the intent of this Master Contract.

18.13. W
AIVER. Failure of either party to insist upon the strict performance of any of the terms and conditions hereof, or failure to exercise any rights or remedies provided herein or by law, or t o notify the other party in the event of breach, shall not release the other party of any of its obligations under this Master Contract, nor shall any purported oral modification or rescission of this Master Contract by either party operate as a waiver of any of the terms hereof. No waiver by either party of any breach, default, or violation of any term, warranty, representation,

MASTER CONTRACT NO. 06719-01
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contract, covenant, right, condition, or provision hereof shall constitute waiver of any subsequent breach, default, or violatio n of the same or other term, warranty, representation, contract, covenant, right, condition, or provision.

18.14. SURVIVAL. All representations, warranties, covenants, agreements, and indemnities set forth in or otherwise made pursuant to this Master Contract shall survive and remain in effect following the expiration or termination of this Master Contract, Provided, however, that nothing herein is intended to extend the survival beyond any applicable statute of limitations periods.

18.15. GOVERNING LAW. The validity, construction, performance, and enforcement of this Master Contract shall be governed by and construed in accordance with the laws of the State of Washington, without regard to its choice of law rules. The validity, construction, performance, and enforcement of Purchase Orders shall be governed by and construed in accordance with the laws of the Participant’s jurisdiction.

18.16. JURISDICTION & VENUE. In the event that any action is brought to enforce any provision of this Master Contract, the parties agree to exclusive jurisdiction in Thurston County Superior Court for the State of Washington and agree that in any such action venue shall lie exclusively at Olympia, Washington. In the event that any action is brought to enforce any provision of a Purchase Order, the parties agree to submit to exclusive jurisdiction and venue in the Participant’s jurisdiction.

18.17. ATTORNEYS’ FEES. Should any legal action or proceeding be commenced by either party in order to enforce this Master Contract or any provision hereof, or in connection with any alleged dispute, breach, default, or misrepresentation in connection with any provision herein contained, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred in connection with such action or proceeding, including costs of pursuing or defending any legal action, including, without limitation, any appeal, discovery , or negotiation and preparation of settlement arrangements, in addition to such other relief as may be granted.

18.18. F
AIR CONSTRUCTION & INTERPRETATION. The provisions of this Master Contract shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions contained herein in order to achieve the objectives and purposes of this Master Contract. Each party hereto and its counsel has reviewed and revised this Master Contract and agrees that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be construed in the interpretation of this Master Contract. Each term and provision of this Master Contract to be performed by either party shall be construed to be both a covenant and a condition.

18.19. FURTHER ASSURANCES. In addition to the actions specifically mentioned in this Master Contract, the parties and any applicable Participant shall each do whatever may reasonably be necessary to accomplish the transactions contemplated in this Master Contract including, without limitation, executing any additional documents reasonably necessary to effectuate the provisions and purposes of this Master Contract.

18.20. EXHIBITS. All exhibits referred to herein are deemed to be incorporated in this Master Contract in their entirety.

18.21. CAPTIONS & HEADINGS. The captions and headings in this Master Contract are for convenience only and are not intended to, and shall not be construed to, limit, enlarge, or affect the scope or intent of this Master Contract nor the meaning of any provisions hereof.

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18.22. ELECTRONIC SIGNATURES. A signed copy of this Master Contract or any other ancillary agreement transmitted by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Master Contract or such other ancillary agreement for all purposes.

18.23. COUNTERPARTS. This Master Contract may be executed in any number of counterparts, each of which shall be deemed an original and all of which counterparts together shall constitute the same instrument which may be sufficiently evidenced by one counterpart. Execution of this Master Contract at different times and places by the parties shall not affect the validity thereof so long as all the parties hereto execute a counterpart of this Master Contract.

EXECUTED as of the date and year first above written.

STATE OF WASHINGTON
Department of Enterprise Services
NEW FLYER OF AMERICA INC.,
a North Dakota corporation
By: ___________________________
Elena McGrew
By: ___________________________
Its: Enterprise Procurement Manager Its:

CONTRACT NO. ‐ AMENDMENT NO.
(4‐24‐2017)

State of Washington
Contracts & Procurement Division
Department of Enterprise Services
P.O. Box 41411
Olympia, WA 98504‐1411

New Flyer of America, Inc.
6200 Glenn Carlson Dr.

St. Cloud, MN 56301

FIRST AMENDMENT
TO
CONTRACT NO. 06719‐01

TRANSIT BUSES

This First Amendment (“Amendment”) to Contract No. 06719‐01 is made and entered into by and between the State of Washington acting by and through the Department of Enterprise Services, a Washington State governmental agency (“State”) and New Flyer of America, Inc., a North Dakota corporation (“Contractor”) and is dated as of June 1, 2022.

RECITALS
A. State and Contractor (collectively the “Parties”) entered into that certain Contract No. 06719‐01 for Transit Buses dated effective as of April 1, 2021 (“Contract”).

B. The amendment set forth herein is within the scope of the Contract.

C. The Parties now desire to amend the Contract as set forth herein.

AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the Parties hereby agree to amend the Contract, as previously amended, as follows:

1. ECONOMIC PRICE ADJUSTMENT. Pursuant to Section 3.4 of the Master Contract Economic Price Adjustment using the Bureau of Labor Statistics Index for Truck and Bus Bodies, Series No. WPU 1413 to determine a price change, the prices set forth in the Exhibit B – Prices are increased by

11.78%.

2. NO CHANGE OTHER THAN AMENDMENT. Except as amended herein, the Contract is unaffected and remains in full force and effect.

3. INTEGRATED AGREEMENT; M ODIFICATION. This Amendment constitutes the entire agreement and understanding of the Parties with respect to the subject matter and supersedes all prior negotiations and representations. In the event of any conflict between this Amendment and the Contract or any earlier amendment, this Amendment shall control and govern. This Amendment may not be modified except in writing signed by the Parties.

4. AUTHORITY. Each party to this Amendment, and each individual signing on behalf of each party, hereby represents and warrants to the other that it has full power and authority to enter into this Amendment and that its execution, delivery, and performance of this Amendment has been fully

CONTRACT NO. ‐ AMENDMENT NO.
(4‐24‐2017)

authorized and approved, and that no further approvals or consents are required to bind such party.

5. ELECTRONIC SIGNATURES. A signed copy of this Amendment or any other ancillary agreement transmitted by facsimile, email, or other means of electronic trans mission shall be deemed to have the same legal effect as delivery of an original executed copy of this Amendment or such other ancillary agreement for all purposes.

6. COUNTERPARTS. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, and all of which counterparts together shall constitute the same instrument which may be sufficiently evidenced by one counterpart. Execution of this Amendment at different times and places by the parties shall not affect the val idity thereof so long as all the parties hereto execute a counterpart of this Amendment.

EXECUTED AND EFFECTIVE as of the day and date first above written.

NEW FLYER OF AMERICA, INC

A NORTH DAKOTA CORPORATION

By:

Name: _Jennifer McNeill
Title: Vice President, Sales & Marketing

STATE OF WASHINGTON

DEPARTMENT OF ENTERPRISE SERVICES

By:

Name:

Title:

Date: August 22, 2022 Date:

David Mgebroff
Strategy Supervisor
August 24, 2022

STATEWIDE CONTRACT NO 06719 - AMENDMENT NO. 2 Page 1
(Rev. 2022-07-26)
State of Washington
Contracts & Procurement Division
Department of Enterprise Services
P.O. Box 41411
Olympia, WA 98504-1411

CONTRACT AMENDMENT
Contract No.: 06719-01
New Flyer of America, Inc.
6200 Glenn Carlson Dr.

St. Cloud, MN 56301
Amendment No.: 2
Effective Date: April 1, 2023

SECOND AMENDMENT
TO
STATEWIDE CONTRACT NO. 06719-01

TRANSIT BUSES

This Second Amendment (“Amendment”) to Contract No. 06719-01 is made and entered into by and between the State of Washington acting by and through the Department of Enterprise Services, a Washington State governmental agency (“State”) and New Flyer of America, Inc. , a North Dakota corporation (“Contractor”) and is dated as of April 1, 2023.

R E C I T A L S
A. State and Contractor (collectively the “Parties”) entered into that certain Contract No. 06719-01 for Transit Buses dated effective as of April 1, 2021 (“Contract”).

B. The Parties previously amended the Contract June 1, 2022 for an economic adjustment of 11.78%.

C. The amendment set forth herein is within the scope of the Contract.

D. The Parties now desire to amend the Contract as set forth herein.

A G R E E M E N T
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the Parties hereby agree to amend the Contract, as previously amended, as follows:

1. CONTRACT TERM. Pursuant to Section 1 Term of the Contract, this Contract has been extended for an addition twelve (12) months, this extension term is until March 31, 2024.

2. ECONOMIC PRICE ADJUSTMENT. Section 3.4 of the contract is deleted in its entirety and replaced with the following:

ECONOMIC ADJUSTMENT. Beginning twelve (12) months after the effective date of this Master Contract and for every annual anniversary thereafter, the prices set forth in Exhibit B shall be adjusted, based upon the percent changes (whether up or down) in the United States Department of Labor, Bureau of Labor and Statistics (BLS) indices described below, for the most recent year. The Index is the Producer Price Index for Truck and Bus Bodies, Series No.

WPU 1413, published by the United States Department of Labor, Bureau of Labor Statistics, or if such Index is no longer in use, then such replacement that is most comparable to the

STATEWIDE CONTRACT NO 06719 - AMENDMENT NO. 2 Page 2
(Rev. 2022-07-26)
Index as may be designated by the Bureau of Labor Statistics, or as agreed by the parties.

Economic adjustment will lag one (1) calendar quarter past the Master Contract commencement date to allow for publication of BLS data. All calculations for the index shall be based upon the latest version of data published as of February each year. Prices shall be adjusted on April 1st. If an index is recoded, that is the replacement is a direct substitute according to the BLS, this Master Contract will instead use the recode. If an index becomes unavailable, Enterprise Services shall substitute a proxy index. If there is not a direct substitute, the next higher aggregate index available will be used. The economic adjustment shall be calculated as follows:

New Price = Old Price x (Current Period Index/Base Period Index).

3. ECONOMIC PRICE ADJUSTMENT. Pursuant to Section 3.4 of the Master Contract Economic Price Adjustment using the Bureau of Labor Statistics Index for Truck and Bus Bodies, Series No. WPU 1413 to determine a price change, the prices set forth in the Exhibit B – Prices are increased by

15.00%.

4. NO CHANGE OTHER THAN AMENDMENT. Except as amended herein, the Contract is unaffected and remains in full force and effect.

5. INTEGRATED AGREEMENT; MODIFICATION. This Amendment constitutes the entire agreement and understanding of the Parties with respect to the subject matter and supersedes all prior negotiations and representations. In the event of any conflict between this Amendment and the Contract or any earlier amendment, this Amendment shall control and govern. This Amendment may not be modified except in writing signed by the Parties.

6. A
UTHORITY. Each party to this Amendment, and each individual signing on behalf of eac h party, hereby represents and warrants to the other that it has full power and authority to enter into this Amendment and that its execution, delivery, and performance of this Amendment has been fully authorized and approved, and that no further approvals or consents are required to bind such party.

7. E
LECTRONIC SIGNATURES. A n electronic signature or electronic record of this Amendment or any other ancillary agreement shall be deemed to have the same legal effect as delivery of an original executed copy of this Amendment or such other ancillary agreement for all purposes.

8. COUNTERPARTS. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, and all of which counterparts together shall constitute the same instrument which may be sufficiently evidenced by one counterpart. Execution of this Amendment at different times and places by the parties shall not affect the validity thereof so long as all the parties hereto execute a counterpart of this Amendment.

STATEWIDE CONTRACT NO 06719 - AMENDMENT NO. 2 Page 3
(Rev. 2022-07-26)
EXECUTED AND EFFECTIVE as of the day and date first above written.

NEW FLYER OF AMERICA, INC.,

A NORTH DAKOTA CORPORATION
By: _____________________________
Name: _____________________________
Title: _____________________________
Date: _____________________________

STATE OF WASHINGTON

DEPARTMENT OF ENTERPRISE SERVICES
By: _____________________________
Name: _____________________________
Title: _____________________________
Date: _____________________________
Jennifer McNeill
Vice President, Sales & Marketing
3/31/2023
Procurement Supervisor
Alexander Kenesson
3/31/2023

8/17/2021

02/06/2024
RE : Purchase Request #72
This document is in response to request dated 01/18/2024 for authorization to purchase transit buses from DES Master Contract #6719-01. Your request is as follows:

DES Contract #: Agreement/ FTA Grant Number Contractor/ Vendor Sales Rep Delivery Address
400 S. Taylor Avenue
Montebello, CA 90640
Vehicle Type Quantity Bus Length (feet) Fuel Type
Heavy Duty Hydrogen Fuel Cell Transit Buses 3 40 Hydrogen Fuel Cell The contract pricing established during the competitive bid process and the terms and conditions shall apply for this purchase. DES authorizes your organization to proceed in ordering the above referenced buses.

Thank you for your interest in doing business with the State of Washington. If you have any questions or concerns, please contact [email protected].

Sincerely,
Vang, Ricky (DES)
Contracts & Procurement Division
Washington State Department of Enterprise Services
6719-01 CA - 2023 - 202 New Flyer

Gary Ashcroft
New Flyer of America
Contract Administration
State and Regional Procurement Department
6200 Glenn Carlson Drive
St Cloud, MN 56301

RE: Washington State Contract #06719 July 6, 2021

Dear Mr. Ashcroft,

On Friday July 2, 2021 the California Department of General Services was granted approval from the State of Washington State Department of Enterprise Services that California has been granted the approval to utilize their Transit Buses Contract #06719.

This contract is valid from 4-1-21 until 3-31-23. Per Washington’s agreement each agency utilizing the contract must include the following in the body of any Purchase Order or Contract.

The base pricing for these transit buses is based on the Washington State Department of Enterprise Services Contract #06719 with valid dates of 4-1-21 until 3-31-23

Per the contact at the State the Washington the state approval list will be updated by 8-1-21.

Gary, this letter represents our departments approval for any public transit agency to utilize the Washington State Department contract. If you have any additional questions please reach out to me.

Sincerely,

Erik Mondelez
Contract Administrator
Procurement Division – Contracts Management Unit
DGS General Service – State of California
Phone 916.376.7181
Email [email protected]

ATTACHMENT C
1 FEDERAL REQUIREMENTS

1.1 Federal Funding, Incorporation of FTA Terms
The preceding provisions include, in part, certain standard terms and conditions required by the U.S. Department of Transportation ("DOT"), whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in Federal Transit Administration ("FTA") Circular 4220.1F or its successors are hereby incorporated by reference.

Anything to the contrary herein notwithstanding, all FTA -mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this agreement. The CONTRACTOR shall not perform any act, fail to perform any act or refuse to comply with any AGENCY requests that would cause AGENCY to be in violation of the FTA terms and conditions.

1.2 Federal Changes
The CONTRACTOR shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between AGENCY and FTA, as they may be amended or promulgated from time to time during the term of this Contract. CONTRACTOR'S failure to so comply shall constitute a material breach of this Contract.

1.3 No Government Obligation to Third Parties
The AGENCY and CONTRACTOR acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying Contract, absent the express written consent by the Federal Government, the Federal Government is not a part to this Contract and shall not be subject to any obligations or liabilities to the AGENCY, CONTRACTOR, or any other party (whether or not a party to that Contract) pertaining to any matter resulting from the underlying Contract.

The CONTRACTOR agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the Subcontractor who will be subject to its provisions.

1.4 Program Fraud and False or Fraudulent Statements or Related Acts The CONTRACTOR acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. §§ 3801, et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this project. Upon execution of the underlying Contract, the CONTRACTOR certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying Contract of the FTA-assisted project for which this Contract work is being performed.

In addition to other penalties that may be applicable, the CONTRACTOR further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the CONTRACTOR to the extend the Federal Government deems appropriate.

2 The CONTRACTOR also acknowledges that if it makes, or caused to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the CONTRACTOR, to the extent the Federal Government deems appropriate.

The CONTRACTOR agrees to include the above two clauses in each sub-contract financed in whole or in part with Federal assistance provided by the FTA. It is further agreed that the clauses shall not be modified, except to identify the Sub-contractor who will be subject to the provisions.

1.5 Inspection and Retention of Records
The CONTRACTOR shall permit authorized representatives of the AGENCY, the FTA Administrator, and the Comptroller General of the United States to inspect and audit all data and records of the CONTRACTOR relating to its performance and its sub-contracts under this Contract from the date of the Contract through and until the expiration of three years after the date of termination or expiration of this Contract, except in the event of litigation or settlement of claims arising from the performance of this Contract, in which case CONTRACTOR agrees to maintain same until the AGENCY, the FTA Administrator, and the Comptroller General of the United States, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. The AGENCY retains ownership of all project documents and records maintained by the CONTRACTOR on behalf of the AGENCY.

1.6 Suspension and Debarment
This Contract is a covered transaction for purposes of 49 CFR Part 29. As such, the CONTRACTOR is required to verify that none of the CONTRACTOR, its principals, as such defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945.

The CONTRACTOR is required to comply with 49 CFR 29, Subpart C and must include this requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into.

By signing and submitting its bid or proposal, the Bidder or Proposer certifies as follows:

The certification in this clause is a material representation of fact relied upon by the AGENCY. If it is later determined that the Bidder or Proposer knowingly rendered an erroneous certification, in addition to remedies available to the AGENCY, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The Bidder or Proposer agrees to comply with the requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period of any contract that may arise from this proposal. The Bidder or Proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.

1.7 Termination
Pursuant to the Contract, in the event that either Party hereto fails or refuses to perform any of the provisions of this Contract at the time and in the manner required, the non-defaulting party

3 shall give the defaulting party written notice of the default, the nature of the default, and of the steps necessary to cure the default.

For any breach deemed by the non-defaulting party to constitute a material breach, the defaulting party is required to cure the breach within five (5) calendar days upon receipt of written notice.

For any breach deemed by the non -defaulting party to consti tute a non -material breach, the defaulting party is obligated to cure such breach within ten (10) calendar days upon receipt of written notice. However, if the nature of the non-material breach requires more than ten (10) days to cure, the defaulting party shall have thirty (30) days to diligently pursue and complete a cure.

In addition to any other available legal or equitable rights or remedies, if the default is not cured within the time periods described above, the non -defaulting party may terminate this Contract by giving written notice thereof to the defaulting party, setting forth the effective date thereof.

The AGENCY shall have the option, at its sole discretion and without cause, of terminating this Contract in whole, or in part, by giving ten (10) business days' written notice to CONTRACTOR.

Upon the termination of this Contract as provided herein, the AGENCY shall provide to CONTRACTOR the part of Compensation which would otherwise be payable to CONTRACTOR for services CONTRACTOR had completed as of the date of termination, less the amount of all previous payment with respect to the Compensation. Further, upon such a termination for convenience by AGENCY, the Parties agree that CONTRACTOR shall be reimbursed for any "non- refundable" costs that CONTRACTOR has incurred for its services under this Contract, provided that: (1) such "non -refundable" costs were incurred by the CONTRACTOR prior to the date of termination, and (2) that CONTRACTOR provides the AGENCY with adequate proof that CONTRACTOR incurred the costs, and is unable to be seek a refund for such costs. Such "non- refundable" costs may include, but are not limited to, travel reservations incurred by CONTRACTOR for its performance of services under this Contract. CONTRACTOR agrees to cease all work under this Contract on or before the effective date of any notice of termination. Pursuant to the Contract, all AGENCY data, documents, objects, materials or other tangible things shall be returned to the AGENCY upon the termination or expiration of this Contract.

1.8 Civil Rights Requirements
During the performance of this Contract, the CONTRACTOR agrees as follows:

1. N
ondiscrimination - In accordance with Title VI of the Civil Rights Act, the CONTRACTOR agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability.

2. Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying Contract:
(a) Race, Color, Creed, National Origin, Sex - The CONTRACTOR agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age.

Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or

4 termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
(b) Ag e - The CONTRACTOR agrees to refrain from discrimination against present and prospective employees for reason of age.
(c) Disabilities - The CONTRACTOR agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities.

3. The C ONTRACTOR also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties.

1.9 Disadvantaged Business Enterprise (DBE)

1. AG ENCY Assurance: AGENCY shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any U.S. Department of Transportation (DOT)-assisted contract, or in the administration of its DBE Program.

AGENCY shall take all necessary and reasonable steps under Part 26, Title 49 of the Code of
Federal Regulations (CFR), to ensure nondiscrimination in the award and administration of DOT-assisted contracts. AGENCY'S DBE Program, as required by 49 CFR Part 26, and as approved by DOT, is incorporated by reference in this Contract. Implementation of this DBE Program is a legal obligation and failure to carry out its terms shall be treated as a violation of this Contract. Upon notification to AGENCY of its failure to carry out its approved program, the DOT and/or the Federal Transit Administration (FTA) may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. § 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. §§ 3801 et seq.).

2. A
nnual Overall Goal: In accordance with 49 CFR Part 26, "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs," the AGENCY is required to establish an annual overall goal for the participation of DBEs in all contracts utilizing federal financial assistance. For the current fiscal year, the AGENCY has established a DBE participation goal of five percent
(5 %).

AGENCY'S annual overall goal represents the amount of ready, willing, and able DBEs that are identified as available to participate in contracting opportunities, and is reflective of the amount of DBE participation AGENCY would expect absent the effects of discrimination.

3. C
ontract Goals: AGENCY intends to meet its goal to the maximum extent feasible through race-neutral measures, including the encouragement of DBE participation on contracts which have no specific DBE goal. Where race -neutral measures are inadequate to meet the annual overall goal, AGENCY will establish specific contract goals for particular projects with subcontracting opportunities.

There is no DBE project goal established for this project. At this time AGENCY will meet D
BE goal on federally assisted projects through race neutral measures. AGENCY supports the use of race neutral measures to facilitate participation by DBEs and other

5 small businesses, and encourages prime contractors to subcontract portions of their work that might otherwise perform with their own forces.

4. G ood Faith Efforts: If a specific DBE participation goal is identified in the above Section

5.9.3, a proposer must demonstrate that it can meet this specified goal in the performance of this Contract in order for the proposal to be determined a responsive proposal. If a proposer cannot meet the specified goal, the proposer must demonstrate that it performed sufficient good faith efforts to meet the goal. A proposer who is not responsive shall be ineligible for award of contract.

Determination of Good Faith Efforts: I
f the amount of DBE participation does not meet the
Contract-specific goal, the DBE Officer shall review the good faith effort report submitted by the proposer. The DBE Officer shall determine whether the proposer has performed the quality, quantity, and intensity of efforts that demonstrates a reasonably active and aggressive attempt to meet the Contract-specific goal.

The kinds of effort that will be considered demonstrative of "Good Faith Efforts" include, but
are not limited to, the following: Whether the CONTRACTOR solicited through all reasonable and available means (e.g., attendance at pre -proposal meetings, advert ising and/or written notices) the interest of all certified DBEs who have the capability to perform the work; whether the CONTRACTOR solicited interest within sufficient time to allow the DBEs to respond and, if appropriate steps were taken, to follow -up with interested DBEs; whether the CONTRACTOR selected portions of work to be performed by DBEs and, where appropriate, broke -out contract work items into economically feasible units to facilitate DBE participation even when the CONTRACTOR might otherwise pr efer to perform these work items with its own forces; whether the CONTRACTOR negotiated in good faith with interested DBEs (evidence includes names, addresses, and phone numbers; description of information provided regarding plans and specifications; and evidence as to why additional agreements could not be reached); whether the CONTRACTOR made efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services; whether the CONTRACTOR made efforts to as sist interested DBEs in obtaining bonding, lines of credit, or insurance; whether the CONTRACTOR effectively used the services of available minority/women community organizations, contractors' groups, or other organizations to provide assistance; and whether other proposers on the procurement met the DBE goal.

Proposer's Right to Administrative Reconsideration: I
n the event that the DBE Officer
determines that the responsible proposer has not met the Contract -specific goal, and has not demonstrated good faith efforts, the DBE Officer will notify the proposer in writing. The notification shall explain the basis and include the reasons for the determination, and shall inform the proposer of its right to submit further written documentation or appear before the Reconsideration Official prior to the time that a recommendation for award of contract is presented to the City Council. (The Reconsideration Official is a CITY representative who did not take part in the original determination.) After reconsideration, AGENCY shall provide the proposer with a written decision. The result of the reconsideration process is not appealable by the proposer.

In the event that the Reconsideration Official finds that the proposer has not met the C
ontract goal or demonstrated good faith efforts, AGENCY will deem said proposer not responsible and evaluate the proposer submitting the next proposal.

6 5. CO NTRACTOR Compliance with AGENCY DBE Policy: It is the policy of AGENCY to ensure nondiscrimination in the award and administration of DOT -assisted contracts and to create a level playing field on which DBEs can compete fairly for contracts and subcontracts relating to AGENCY'S construction, procurement, and professional services activities. To this end, AGENCY has developed procedures to remove barriers to DBE participation in the proposal and award process and to assist DBEs to develop and compete successfully outside of the DBE program.

In connection with the performance of this Contract, the CONTRACTOR will cooperate with AGENCY in meeting these commitments and objectives.

6. R
equired Proposal/Proposal Submittals: The CONTRACTOR shall submit with its Proposal the name and address of each Sub- contractor it intends to employ, a description of the work which the Sub-contractor is to do, the dollar amount of each Sub-contractor contract, and such other information as may be required in order that AGENCY'S approval may be obtained as to reliability and ability to perform the work (Bidders List of Participating Firms).

In addition, proposer shall submit within five (5) days of proposal opening the names and addr
esses of all DBE firms that will participate in the Contract; a description of the work that each DBE will perform; the dollar amount of the participation of each DBE firm; written documentation of commitment to use DBE Subcontractors whose participation the CONTRACTOR submits to meet the Contract goal; and written confirmation from the DBE that it is participating in the Contract as provided in the CONTRACTOR's commitment. (Statement of Disadvantaged Business Enterprise Participation) AGENCY shall require that any DBEs listed by proposers for participation in the Contract be certified as eligible DBEs. AGENCY will accept current certifications by the DOT and its agencies, the Small Business Administration, or other DOT federal financial assistance recipients, as appropriate. Within five (5) days of proposal opening, DBEs with current certification must attach a copy of their current Letter of Certification and a copy of their current Statement of Personal Net Worth.

AGENCY will require any firm listed, but not currently certified as a DBE, to submit the proper certification information within five (5) days of proposal opening in order to be included in the proposer's DBE achievement.

CONTRACTOR Assurance: P
ursuant to 49 CFR Part 26, the CONTRACTOR is required
to make the following assurance in its agreement with AGENCY and to include this assurance in any agreements it makes with subcontractors in the performance of this Contract:
"The CONTRACTOR or Sub- c
ontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Contract. The CONTRACTOR shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of D OT- assisted contracts. Failure by the CONTRACTOR or Subcontractor to carry out these requirements is a material breach of this Contract, which may result in the termination of this Contract or such other remedy, as AGENCY deems appropriate."

7 8. Prompt Payment to Subcontractors: The CONTRACTOR must pay Subcontractors for satisfactory performance of their contracts no later than 15 days from the receipt of payment made to the CONTRACTOR by AGENCY. Prompt return of retainage payments from the CONTRACTOR to the Subcontractor will be made within 15 days after the Subcontractor 's work is satisfactorily completed.

Any delay or postponement of payment among the parties may take place only for good cause and with AGENCY'S prior written approval. If the CONTRACTOR determines the work of the Subcontractor to be unsatisfactory, it must notify AGENCY'S DBE Officer immediately in writing and state the reasons. Failure by the CONTRACTOR to comply with this requirement will be construed to be a breach of contract and subject to contract termination.

Reports of Payment to DBE Sub -contractors: The DBE Officer will monitor the amount actually paid by the CONTRACTOR to Subcontractors, and will require the CONTRACTOR to provide monthly reports of payments to DBEs. A letter will be sent to the DBE Subcontractors to verify the dollar amount.

The amount awarded to the DBE, the amount paid to the DBE as stated by the CONTRACTOR, and the amount paid to the DBE as verified by the DBE, will be reported to the Federal Transit Administration (FTA).

10. Contract Change or Amendment: When a contract change or amendment is made, the CONTRACTOR will submit a statement to the DBE Officer regarding how the change may affect DBE subcontracting.

11. R
eporting DBE Participation: The CONTRACTOR is required to report all DBE participation on their contract whether or not the contract contains a specified DBE goal.

The CONTRACTOR is not to count participation of a DBE Subcontractor until the amount being counted has been paid to the DBE.

12. C
ounting DBE Participation toward the Contract Goal: Only the work actually performed by a DBE will be counted towards the DBE goal. The cost of supplies and materials obtained by the DBE or equipment leased (except from the CONTRACTOR or its affiliate) may also be counted.

Commercially Useful Function: W
ork that a DBE subcontracts to a non -DBE firm does
not count toward DBE goals. Expenditures may only be counted if the DBE is performing a commercially useful function. A DBE should perform at least 30 percent of the total cost of its contract with its o wn work force. Decisions on commercially useful function are subject to review by the FTA, but are not administratively appealable to DOT.

If materials or supplies are obtained from a DBE manufacturer, 100 percent of the cost will be counted. If the materials and supplies are purchased from a DBE regular dealer, 60 percent of the cost will be counted.

13. DBE Replacement: The CONTRACTOR must make a good faith effort to replace a defaulting DBE Subcontractor with another certified DBE. The CONTRACTOR must immediately notify the DBE Officer of the DBE's inability to perform, and provide reasonable documentation. The CONTRACTOR must receive prior written approval on

8 the substitute DBE from AGENCY. The CONTRACTOR will provide copies of new or amended subcontracts and copies of the substitute DBE's current Letter of Certification and current Statement of Personal Net Worth.

If the CONTRACTOR proposes to replace a DBE Subcontractor with a non-DBE, sufficient good faith efforts documentation must be provided. If the CONTRACTOR fails or refuses to comply in the time specified, AGENCY will issue an order stopping all, or part of, payment/work until satisfactory action has been taken. If the CONTRACTOR still fails to comply, AGENCY may issue a termination for default proceeding.

14. Evaluation of Proposals with DBE Goals: After the proposal opening, or submission of proposals, the DBE Officer shall evaluate all proposals with regard to the DBE requirements to determine a recommendation for award of contract. The responsible proposer, who also meets the Contract -specific goal or demonstrates good faith efforts, shall be recommended for contract award. In the event that the proposer does not meet the Contract-specific goal or demonstrate good faith efforts, the DBE Officer shall evaluate the next proposal.

1.10 Buy America
The Buy America requirement provides that federal funds may not be obligated for mass transportation projects unless steel, cement, and manufactured products used in such projects are produced in the United States. The requirement will not apply in the following four cases:

A. When its application is against the public interest (as decided by the FTA Administration on a case-by-case basis).

When the required materials and products are not produced in the U.S. in sufficient quantities and of satisfactory quality.

C. When, in the procurement of buses and other rolling stock, the cost of the components which are produced in the U.S. is more than 60 percent of the cost of all components of the vehicle or equipment, and if the final assembly takes place in the U.S.

D. When the inclusion of domestic material will increase the over-all cost of the project Contract by more than 10 percent in the case of projects for the acquisition of buses and rolling stocks; and 25 percent in the case of all other projects.

The CONTRACTOR, who seeks to establish grounds for an exception, must seek the exception, in writing, to the Purchasing Manager at least fifteen (15) days prior to proposal opening.

When a petition for investigation has been filed with FTA before award, the AGENCY reserves the right to not make an award prior to the resolution of the investigation by FTA and when a request for investigation has been filed with FTA before the opening of proposals, the AGENCY reserves the right to not open proposals prior to the resolution of the investigation by FTA.

The CONTRACTOR and all Sub- contractor with contracts of $100,000 or more are required to certify compliance or non-compliance with this provision by submitting the attached "Buy America Certificate", with the proposal.

9 1.11 Remedies/Sanctions for Breach of Contract
Pursuant to the Contract, the AGENCY may terminate the Contract if the successful Proposer breaches the terms or violates the conditions of the Contract, and does not cure such breach or violation within the specified time period. The successful Proposer s hall be liable for any and all costs incurred by AGENCY as a result of such default, including but not limited to re- procurement costs of the same or similar services defaulted by the successful Proposer under this Contract [49CFR

18.36(i)(2)1

1.12 Federal Prohibited Interest
No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Contract or to any benefit arising therefrom {FTA Grant Agreement, Part II, Sec. 114 ( 11)}.

1.13 Lobbying
CONTRACTORS who apply or bid for an award of $100,000 or more shall file the certification required by 49 C.F.R. Part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non -Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient.

If the successful offeror, and/or primary Sub- contractor, did engage in lobbying activities, then OMB Standard Form LLL "Disclosure of Lobbying Activities" must also be completed and submitted to AGENCY. Form is available upon request.

1.14 Clean Air Requirements
The CONTRACTOR agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The CONTRACTOR agrees to report each violation to the AGENCY and understands and agrees that the AGENCY will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.

The CONTRACTOR also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.

1.15 Clean Water Requirements
The CONTRACTOR agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251 et seq. The CONTRACTOR agrees to report each violation to the AGENCY and understands and agrees that the AGENCY will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.

10 The CONTRACTOR also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.

1.16 Cargo Preference
The CONTRACTOR agrees to the following clauses for the purchase of equipment, materials or commodities that may be transported by ocean vessel in carrying out the project:

A. To use privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels.

B. To furnish within 20 working days following the date of loading for shipments originating within the United States, or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated, "on- board" commercial ocean bill- of-lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590, and to AGENCY (through the CONTRACTOR in the case of a Sub-contractor's bill-of-lading).

C. To include these requirements in all sub-contracts issued pursuant to this Contract.

1.17 Fly America Requirements
The CONTRACTOR agrees to comply with 49 U.S.C. § 40118 (the "Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR Part 301-10, which provide that recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The CONTRACTOR shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The CONTRACTOR agrees to include the requirements of this section in all subcontracts that may involve international air transportation.

1.18 State Labor Provisions/ Labor Compliance/ Contract Work Hours and Safety Standards Act

1. Prevailing Wage Rates: Attention is directed to the requirement that no less than the Prevailing Wage Rates shall be paid on this project. Certified Payrolls on AGENCY - approved State forms are required for all workmen. Rates of pay will be current State of California, as shown in the "General Prevailing Wage Rate" Manual as determined by the State Director of Industrial Relations.

CONTRACTOR agrees to abide by the provisions of the State Labor Code, and to comply with the prevailing rates of wages and apprenticeship employment standards established by the State Director of Industrial Relations. FTA Grant Agreements, part II, section 119 (a).

11 Pursuant to the provisions of Section 1770 of the California Labor Code of the State of California, not less than the general prevailing rate of wages (which rate includes employer payments for health and welfare, vacation, pension and similar purposes) applicable to the work to be done, shall be maintained at all times during the course of the Contract.

These rates are made a part of this Contract by reference. The CONTRACTOR shall comply with Section 177.5 of the Labor Code of State of California for all apprentice-able occupations.

2. Labor Compliance. It is the policy of AGENCY that all CONTRACTORS and Sub- contractors engaged in public works construction shall adhere to applicable laws and regulations. In accordance with this policy, for the duration of this Contract, AGENCY shall institute a labor compliance program to monitor compliance. The .CONTRACTOR shall cooperate fully with Labor Compliance monitoring efforts and the representatives engaged in this effort.

Because this project is subject to the provisions of State and Federal law governing public works contracts, all pertinent statutes and regulations are hereby incorporated by reference into this document as if set forth in their entirety, including Copeland Anti -Kickback Act requirements of 29 CFR part 3, Davis-Bacon and Related Act requirements of 29 CFR parts 1, 3, and 5, and Contract Work Hours and Safety Standards Act requirements of Section 107, 40 U.S.C. § 333 and 29 CFR part 1926. CONTRACTORS and Sub- contractors by entering into, or performing work under, this project agree to comply with all provisions of the law that apply to public works. It is the responsibility of the CONTRACTOR to obtain and adhere to the latest edition of the statutes and regulations including, but not limited to, the following:

A. Apprentices - All apprentices employed on this project shall be bona fide apprentices registered with the State of California, Division of Apprenticeship Standards.

B. Certified Payroll - All CONTRACTORS shall submit weekly certified payroll records for all laborers and mechanics furnishing labor to the project not later than ten calendar days after the closed payroll period.

Payment Of The Prevailing Wage - The CONTRACTOR and all Sub- contractors under him shall pay not less than the specified prevailing wage rate to all workmen employed in the execution of the contract.

Working Hours - The CONTRACTOR shall pay workers employed on the Contract not less than the appropriately specified straight time and overtime prevailing wages for all hours worked.

E. Employee Interviews - AGENCY, through its representatives, will conduct weekly on-site interviews of workers employed on the Contract. The interviews shall be conducted without the interference or obstruction of the CONTRACTOR. No worker who is interviewed is to be threatened, coerced, or intimidated.

Violations: AGENCY will take cognizance of violations of the prevailing wage and public works laws committed during the course of this Contract. Such evidence of violation may result in the assessment of penalties and forfeitures to the fullest extent allowed by law

12 until compliance has been strictly effectuated. AGENCY may suspend or terminate a contract, or debar a CONTRACTOR from future contracts, for breach of the Labor Compliance Requirements.

4. Contract Work Hours and Safety Standards Act
A. Overtime requirements - No CONTRACTOR or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one -half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

Violation; liability for unpaid wages; liquidated damages - In the event of any violation of the clause set forth in subparagraph (b) (1) of 29 CFR Section 5.5, the CONTRACTOR and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such CONTRACTOR and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in subparagraph (b) (1) of 29 CFR Section 5.5 in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in subparagraph (b) (1) of 29 CFR Section 5.5.

C. Withholding for unpaid wages and liquidated damages — AGENCY shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the CONTRACTOR or subcontractor under any such contract or any other Federal contract with the same prime CONTRACTOR, or any other federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime CONTRACTOR, such sums as may be determined to be necessary to satisfy any liabilities of such CONTRACTOR or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in subparagraph (b) (2) of 29 CFR Section 5.5.

D. Subcontracts - The CONTRACTOR or subcontractor shall insert in any subcontracts the clauses set forth in this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime CONTRACTOR shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in this section.

E. Payrolls and basic records - (i) Payrolls and basic records relating thereto shall be maintained by the CONTRACTOR during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide

13 fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the CONTRACTOR shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing suc h benefits. CONTRACTORS employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.

1.19 Seismic Safety
The CONTRACTOR agrees that any new building or addition to an existing building will be designed and constructed in accordance with the standards for Seismic Safety required in Department of Transportation Seismic Safety Regulations 49 CFR Part 41 and will certify to compliance to the extent required by the regulation. The CONTRACTOR also agrees to ensure that all work performed under this Contract including work performed by a subcontractor is in compliance with the standards required by the Seismic Safety Regulations and the certification of compliance issued on the project.

1.20 Safety and Health Regulation
The CONTRACTOR agrees to comply with Section 107 of the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 333, and applicable U.S. Department of Labor regulations, "Safety and Health Regulations for Construction" 29 C.F.R. Part 1926. Among other things, the CONTRACTOR agrees that it will not require any laborer or mechanic to work in unsanitary, hazardous, or dangerous surroundings or working conditions. The CONTRACTOR also agrees to include the requirements of this section in each subcontract.

1.21 Federal Energy Conservation Requirements
The CONTRACTOR agrees to comply with mandatory standards and policies relating to energy efficiency that are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.

1.22 Recycled Products
The CONTRACTOR agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. § 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247.

The CONTRACTOR also agrees to include these requirements in each sub- contract.

14 1.23 Access Requirements for Individuals with Disabilities The Prime CONTRACTOR and all Sub-contractors on this project are required to comply with all applicable requirements of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 et seq.; section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; section 16 of the Federal Transit Act, as amended, 49 U.S.C.A. § 1612; and the following regulations and any amendments thereto:

A. U.S. DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 C.F.R. Part 37;
B. U.S. DOT regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance," 49 C.F.R. Part 27; C. U.S. DOT regulations, "Americans with Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 49 C.F.R. Part 38;
D. Department of Justice (DOJ) regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services," 28 C.F.R. Part 35; E. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," 28 C.F.R. Part 36;
F. General Services Administration regulations, "Accommodations for the Physically Handicapped," 41 C.F.R. Subpart 101-19.

G. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630; H. Federal Communications Commission regulations, "Telecommunications Relay Services and Related Customer Premises Equipment for the Hearing and Speech Disabled," 47 C.F.R. Part 64, Subpart F; and
I. FTA regulations, "Transportation for Elderly and Handicapped Persons," 49 C.F.R. Part 609.

1.24 Privacy Act
The CONTRACTOR agrees to comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. § 552a.

The CONTRACTOR also agrees to include these requirements in each sub- contract.

1.25 Prohibited Interest
No Council member, officer, or employee of the AGENCY or of a local Public Body during his/her tenure or for one year thereafter shall have any interest, direct or indirect, in this contract or the

15 proceeds thereof. If any such interest comes to the knowledge of any party at any time, a full and complete disclosure of all such information will be made in writing to the other parties, even if such interest would not be considered a conflict of interest under Article 4 of Chapter 1 of Division 4 of Title 1 (Sections 1090-1097) of the Government code of the State of California.

1.26 Drug -Free Workplace
The CONTRACTOR, and all Sub-contractors, must certify that they have a drug-free workplace and comply with Government Code Section 8355 (Certification of Drug-Free Workplace).

1.27 Notification to FTA; Flow Down Requirement.

If a current or prospective legal matter that may affect the Federal Government emerges, the Recipient must promptly notify the FTA Chief Counsel and FTA Regional Counsel for the Region in which the Recipient is located. The Recipient must include a similar notification requirement in its Third Party Agreements and must require each Third Party Participant to include an equivalent provision in its subagreements at every tier, for any agreement that is a “covered transaction” according to 2 C.F.R. §§ 180.220 and 1200.220. (1) The types of legal matters that require notification include, but are not limited to, a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal disagreement in any forum for any reason. (2) Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal Government’s administration or enforcement of federal laws, regulations, and requirements.
(3) Additional Notice to U.S. DOT Inspector General. The Recipient must promptly notify the U.S.

DOT Inspector General in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the Recipient is located, if the Recipient has knowledge of potential fraud, waste, or abuse occurring on a Project receiving assistance from FTA. The notification provision applies if a person has or may have submitted a false claim under the False Claims Act, 31 U.S.C. § 3729, et seq., or has or may have committed a criminal or civil violation of law pertaining to such matters as fraud, conflict of interest, bid rigging, misappropriation or embezzlement, bribery, gratuity, or similar misconduct involving federal assistance. This responsibility occurs whether the Project is subject to this Agreement or another agreement between the Recipient and FTA, or an agreement involving a principal, officer, employee, agent, or Third Party Participant of the Recipient. It also applies to subcontractors at any tier. Knowledge, as used in this paragraph, includes, but is not limited to, knowledge of a criminal or civil investigation by a Federal, state, or local law enforcement or other investigative agency, a criminal indictment or civil complaint, or probable cause that could support a criminal indictment, or any other credible information in the possession of the Recipient. In this paragraph, “promptly” means to refer information without delay and without change. This notification provision applies to all divisions of the R ecipient, including divisions tasked with law enforcement or investigatory functions.

1.28 2 CFR § 200.216 Prohibition on certain telecommunications and video surveillance services or equipment.
(a) Recipients and subrecipients are prohibited from obligating or expending loan or grant funds to:
(1) Procure or obtain;

16 (2) Extend or renew a contract to procure or obtain; or (3) Enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
(i) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
(ii) Telecommunications or video surveillance services provided by such entities or using such equipment.
(iii) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. (b) In implementing the prohibition under Public Law 115– 232, section 889, subsection (f), paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained.

1.29 Seat Belt Use.

The Recipient agrees to implement Executive Order No. 13043, “Increasing Seat Belt Use in the United States,” April 16, 1997, 23 U.S.C. § 402 note, (62 Fed. Reg. 19217), by: (1) Adopting and promoting on-the-job seat belt use policies and programs for its employees and other personnel that operate company-owned vehicles, company-rented vehicles, or personally operated vehicles; and (2) Including a “Seat Belt Use” provision in each third party agreement related to the Award.

1.30 Distracted Driving, Including Text Messaging While Driving.

The Recipient agrees to comply with: (1) Executive Order No. 13513, “Federal Leadership on Reducing Text Messaging While Driving,” October 1, 2009, 23 U.S.C. § 402 note, (74 Fed. Reg. 51225); (2) U.S. DOT Order 3902.10, “Text Messaging While Driving,” December 30, 2009; and (3) The following U.S. DOT Special Provision pertaining to Distracted Driving: (i) Safety. The Recipient agrees to adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers, including policies to ban text messaging while using an electronic device supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle Recipient owns, leases, or rents, or a privately -owned vehicle when on official business in connection with the Award, or when performing any work for or on behalf of the Award;

17 (ii) Recipient Size. The Recipient agrees to conduct workplace safety initiatives in a manner commensurate with its size, such as establishing new rules and programs to prohibit text messaging while driving, re -evaluating the existing programs to prohibit text messaging while driving, and providing education, awareness, and other outreach to employees about the safety risks associated with texting while driving; and
(iii) Extension of Provision. The Recipient agrees to include the preceding Special Provision of section 34(b)(3)(i) – (ii) of this Master Agreement in its third party agreements, and encourage its Third Party Participants to comply with this Special Provision, and include this Special Provision in each third party subagreement at each tier supported with federal assistance.

18

M
ontebello Bus Lines
O
ption Proposal for Three (3) – 40’
Hydrogen Fuel Cell Buses

ATTACHMENT D

February 1, 2024

Rohan Anderson
Senior Management Analyst
Montebello Bus Lines, City of Montebello
400 S Taylor Ave., Montebello, CA 90640
P: (323) 558-1625 ext. 104
C: (323) 926-9337
E: [email protected]

Subject: Quotation for 40-foot Heavy-Duty Hydrogen Fuel Cell Transit buses

Dear Rohan:

New Flyer of America Inc. is pleased to submit a revised option price quotation for the production of Three (3), 40-Foot Heavy Duty Hydrogen Fuel Cell Transit Buses based on New Flyer’s contract with State of Washington (SoW).

The proposed buses will be technically configured as per SR-2641 with the necessary changes to go from a CNG to a fuel cell-electric bus, including the VMM1615 Multiplex Module and Titanium Fuel Management Module (AVM) from Fuel Master that are included in the base offer. Please be advised we do not use a conventional a/c compressor; the HVAC unit is electric with the a/c compressor built into the HVAC unit.

The price for three (3) buses – is $1,407,566.83/Bus USD which includes Warranty, Publications, and Delivery.

This revised proposal contains the following modifications:
 A breakdown of the 470 and 600 option group per vendor and/or component in the pricing details (see Tab 2)
 The revised Training and Tooling and Diagnostics lists your organization has selected after your internal review (see Tabs 4 and 5). Please note, all billable Training and Tooling and Diagnostics have been included in the revised price change summary (see Tab 2)  A separate list of the Avail Bill of Materials (BoM) included in our quote (see Appendix A). These items are the items included in our proposal.
 A Sales Information Bulletin (SIB) of the 7” color LCD touch screen included in the proposed buses. Please note this touch screen is default for New Flyer’s battery-electric and fuel cell- electric buses as it allows for additional diagnostics and reporting.

Please refer to Tabs 1-2 for further details regarding the pricing.

We want to take this opportunity to highlight key elements of our proposal.

Warranty: New Flyer exceeds industry standard warranties in many areas such as 5 years / 300,000 miles warranty for axles (Standard warranty is 2 years) and our multiplex warranty is 3 years/150,000 miles (Standard competitor warranty is 1 year/50,000 miles). Please refer to Tab 3 of our proposal for details. Warranty is included in the bus price.
 In addition to the warranty included in the base bus offering, New Flyer is proposing an optional

3-year extended warranty for the HVAC System to match SR 2524. See Tab 3 for further details.

Training: New Flyer Training is an organization within the New Flyer Customer Services group – a division of New Flyer Industries. As a part of the leading manufacturer of heavy-duty transit buses in the United States and Canada, we have access to top design, engineering, propulsion technology and electrical systems professionals. This enables us to offer the service and expertise to maximize the lifetime value of your fleet. Please refer to Tab 4 of our proposal for additional details regarding the training package. This package includes all training your organization has selected.

Tooling and Diagnostics: Tooling and Diagnostics is provided as per your organization’s internal review.

Please refer to Tab 5 of our proposal for additional details regarding our Tooling and Diagnostics package. This package includes all tooling and diagnostics your organization has selected.

Publications: Our New Flyer Publications professionals combine extensive, hands-on technical experience with exceptional writing, illustrating, and publishing skills to create the industry’s benchmark in maintenance manuals. Supplying accurate information in a timely manner assists the customer in the performance of proper bus maintenance, which in turn, adds to the overall reliability and lifetime value of each New Flyer bus on the road. Publications are included in the bus price. Please refer to Tab 6 of our proposal for additional details regarding our publications package.

Delivery Proposal: New Flyer is proposing a complete delivery by Q1 of 2025 based on a receipt of a Notice to Proceed within forty-five (45) days of this submission. Please note that delivery is included in the bus price.

Payment Terms: Following the terms and conditions of New Flyer’s contract with the State of Washington, proposed payment terms are Net 30 days from acceptance. Acceptance is within 15 days of delivery.

This is a very important project to us as it allows us the opportunity to continue to build on the strong relationship we have enjoyed with Montebello Bus. It also affords us the opportunity to deliver to you, once again, some of the most advanced vehicles available in North America. We thank you for your continued interest in New Flyer products and look forward to working with you in the near future.

This proposal is valid for forty-five (45) days. Please indicate your acceptance by signing and returning a copy of the Price Change Summary to New Flyer, attention Adrian Graca, Business Segment Director – Municipal / Regional Transit Operators via email: [email protected] S
incerely,
NEW FLYER OF AMERICA INC.

Nicole Robertus
Technical Sales Manager
C 204.299.6249
[email protected]
CC:

Adrian Graca – Business Segment Director – Municipal / Regional Transit Operators Walter Yang – Regional Sales Manager

Montebello Bus Lines
Option for Three (3) XHE40 Buses
Proposal Table of Contents
Tab Title
1 Price Change Summary
2 Price Change Detail
3 Warranty
4 Training
5 Tooling and Diagnostics
6 Publications
Appendix A

Montebello Bus Lines
Option for Three (3) XHE40 Buses
Tab 1, Price Change Summary
New Flyer Response:

Please refer to the attached Price Change Summary for review.

Price Change Summary
Property: Montebello
Option Origin: SOW, BID 20-046
Sales Release No.: SR-2641
Quantity: 3
Type: XHE40
Price Change No.: 1
Revision: C
Date: 26-Jan-24
Each Total
Original Contract Price Base Coach 1,306,165.23$ 3,918,495.69$ Base Bus Price Change Total 101,401.60 $ 304,204.80 $ Discounts (see Price change detail for more information) -$ -$ Revised Price Base Bus (including ADA & delivery) 1,407,566.83$ 4,222,700.49$ ADA Equipment (Non-Taxable) 43,862.23 $ 131,586.69 $ Delivery Fee (Non-Taxable) 9,526.00$ 28,578.00$
Extended Warranties (Non-Taxable) -$ -$ Non-Taxable Items Total 53,388.23 $ 160,164.69 $
Base Price (Non-taxable items removed) 1,354,178.60$ 4,062,535.80$ Training and Tooling (taxable) 59,605.42$ 178,816.25$ Sales Tax @ 10.25% on bus price without non- taxable items, includes -Partial Exemption Certificate- Zero-Emission Transit Bus (3.9375%) for a total Tax rate of 6.3125%.
89,245.12$ 267,735.35 $
Total Base bus (without ADA/Delivery) plus tax 1,443,423.72$ 4,330,271.15$ Total Bus with Tax, ADA and Delivery 1,496,811.95$ 4,490,435.84$ 2/1/2024

Montebello Bus Lines
Option for Three (3) XHE40 Buses

Tab 2, Price Change Detail

New Flyer Response:

Please refer to the attached Price Change Detail for review.

Price Change Detail
Property: Montebello
Option Origin: SOW, BID 20-046
Sales Release No.: SR-2641
Quantity: 3
Bus Type: XHE40
Price per coach
Price Change Type Reference No. Option No.Option Group SRCR No. Description Total Base Bus Price Change 2 421 Insulation Remove Docket 90 requirements (4,375.89) 3 203 Suspension Front Change Electronic Brake stroke monitor to Montebello requirement (1,979.81) 4 205 Tires Change from steel wheels to Alcoa, polished, durabright wheels (7 wheels) (Per SoW) 292.68 5 246 Air, Brake & Lev System Change air dryer to Bendix AD9 Tandem air dryer with IPC (Integrated Puraguard Cartridge). 107.26 6 246 Air, Brake & Lev System Change front air charge connector to Montebello requirements 277.30 8 260 Battery Compartment Change 2 East Penn 8D Batteries to 4 Northstar AGM group 31 773.14 9 284 Elect - Side/Console Delete auxillary jack locations on forward facing side of SDS box (132.62) 10 273 Exterior Lamp Change rear tail light configuration to Montebello requirements (74.18) 11 286 Elect - Instrument & Switch Change interior LEDS to Montebello requirements 341.92 12 280 Passenger Signal Change Pullcord configuration to Montebello requirements (Touchtape) 309.72 13 304 Paint & Decal Change Interior/exterior decals to Montebello specific 6,831.41 14 209 Steering Change steering column, Steering wheel, and foot switches to Montebello requirements 3,888.60 15 422 Body A/P After Paint Change Internal Sidewall color to Celes te Cashmere, 0.10" thick (145.57) 16 450 Flooring A/P Change Floor covering to Capri TFCR 2760 for aisle and underseats (1,427.26) 17 460 Windows Change window configuration to Montebello requirements 20,566.29 19 470 Destination Signs Change street side, curb side, and interior mirrors to Montebello requirements 249.41 20 491 Door Exit Change entrance/exit door system to Montebello requirements 6,423.09 21 526 Seating & Stanchions Change Insight resin shell seat to Vision stainless steel seats 4,641.56 22 526 Seating & Stanchions Change drivers seat buildup to Montebello requirements (176.84) 23 526 Seating & Stanchions Change modesty panel material from Melamine to laminated sandwich with aluminum skin 2,214.66 25 (blank) Customer Options (blank) 0.00
26 600 Customer Options Change fire detection/methane detection system to Montebello requirements 0.00 27 600 Customer Options Add bicycle rack system as per Montebello requirements (Per SoW) 1,677.00 28 600 Customer Options Delete DC to AC Power Inverter (2,024.23) 29 526 Seating & Stanchions Change wheelchair ramp and switches per Montebello requirement (4,380.70) 30 600 Customer Options Add Arow Global Drivers barrier door 12,262.80 31 600 Customer Options Add drivers storage box behind seat 171.10 32 600 Customer Options Add registration and maintenance holder 14.12 33 600 Customer Options Add 2 trash containers on luggage rack and dash panel 193.94 34 526 Seating & Stanchions Add overhead grabrail straps per Montebello spec 101.51 35 549 HVAC System Remove floor heater (1,624.35)
43 470 Destination Signs Change from SOW with Hanover/Twin Vision Destination Signs to Montebello specific Aesys Destination Signs (67.72) 44 470 Destination Signs Change from SOW to Montebello Specific Fuel Management System. System for Montebello will be Titanium Fuel Management Module (AVM) from Fuel Master.944.59 45 470 Destination Signs Add Avail System (AVA/AVL and Automatic Passenger Counter) as per Montebello Specifications. See attached BoM breakdown in Appendix A)55,528.68 Base Bus Price Change Total 101,401.60
Contract Spares Changes (Priced Separately) 46 Training Deliverable Add Montebello Specific Training 34,710.75 47 Training Deliverable Add Montebello Specific Tooling 24,894.67 Contract Spares Changes (Priced Separately) Total 59,605.42 Grand Total 161,007.02

Montebello Bus Lines
Option for Three (3) XHE40 Buses

Tab 3, Warranty

New Flyer Response:

Please refer to the attached Warranty proposal for review.

Please note that Standard Warranty Pricing is included in the Bus Price.

- Confidential -CONTRACT DELIVERABLES LIST Warranty
CUSTOMER NAME Montebello
OPTION NUMBER 2023‐140
BUS MODEL XHE40 (136 kwh)
QUANTITY 3
MAJOR COMPONENT DESCRIPTION COMMENTS

PROVIDER YEARS MILES
Base Bus Warranty New Flyer of America 2 100,000 Excluding  scheduled maintenance items, acts of nature, or normal consumables Basic Bus Structure New Flyer of America 3 150,000 Body, and body structure shall consist of the components that are bolted or riveted to the structure, such as, exterior panels, interior panels, roof, ceiling, and driver’s barrier.

Chassis Structure (Integrity) New Flyer of
America 12 500,000
Consists of all components that are welded together to form the main frame (skeleton) and body construction. The structural integrity guarantee covers against a significant loss of structural integrity of the assembly or its functional performance due to non corrosion related failures.

Chassis Structure (Corrosion) New Flyer of
America 12 500,000
Consists of  all components that are welded together to form the main frame (skeleton) and body construction. The corrosion guarantee covers against a significant loss of structural integrity of the assembly or its functional performance, resulting from a pertinent loss of cross‐section due to corrosion caused by normal environmental elements but excludes corrosion caused by aggressive road de‐icers such as Magnesium Chloride or equivalents, unless New Flyer approved preventative measures are taken.

Propulsion System
(Traction System,
Controllers/Inverters and Gear Box) Siemens/New Flyer of America 6 300,000 First 5 years covered by Siemens and the 6th year covered by New Flyer. All warranty claims to be submitted to New Flyer.

Hydrogen Fuel Cell Ballard 6 250,000 Some  limitations
and exclusions may apply ‐ Please see manufacturer's warranty document.

Hydrogen Fuel Cell DC to DC Converter Ballard 6 250,000 Some  limitations and exclusions may apply ‐ Please see manufacturer's warranty document.

Fuel Cell High Voltage Batteries (136 kwh) Xalt Energy/New Flyer Industries Limited 6 300,000
“Capacity fade is the
relative reduction of the total amount of energy the battery system can store in a single charge for the purpose of powering the bus as compared to capacity at beginning of life (BOL). Capacity fade is warranted to 80% at year 6 when;
1) capacity measurements are taken from a balanced ESS, and 2) ESS is maintained in the manner described in the New Flyer Service Manual.” “The string Battery Management System (BMS) controllers and Power Distribution Unit (PDU) are warranted for proper operation up to year 6 when the ESS is maintained in the manner described in the New Flyer Service Manual.” All warranty claims to be submitted to New Flyer.

Axle (Front and Rear) MAN 5 300,000
Excluding maintenance items
& items that are not covered by the OEM's warranty. All friction materials are excluded from this limited warranty.  Wear and third party items supplied with the axle (e.g. slack adjuster, seals and bearings, shocks, air bellows, radius rods, brake chambers) are not included in the 5 year warranty. Please see manufacturer's warranty document.

A/C Thermo King 2 Unlimited Some
limitations and exclusions may apply ‐ Please see manufacturer's warranty document.  All repairs/warranty claims need to be handled through the local authorized repair facility.

Brake System New Flyer of
America 2 100,000 Friction  Material Excluded
BASE AND EXTENDED WARRANTY
Montebello Option #2023-140 Warranty Contract Deliverables XHE40 (TC) XHE40 Page 1 of 2 Issued 11/14/2023 11:50 AM Note: In addition to the warranty deliverables below, New Flyer is offering an Optional 3-year extended warranty on HVAC to Match SR 2524.

Should this option be selected, the pricing will be $2,767.50 USD / Bus, outside of the bus price.

- Confidential -Destination Signs Aesys 6 Unlimited Some limitations and exclusions may apply ‐ Please see manufacturer's warranty document.  All repairs/warranty claims need to be handled through the local authorized repair facility.

Door Systems Vapor 3 150,000 Excluding  maintenance items & items that are not covered by the OEM's warranty Air Compressor New  Flyer of America 2 Unlimited
Wheelchair Ramp New  Flyer of America 2 100,000
Electrical System Parker 3 150,000 Excluding  maintenance items & items that are not covered by the OEM's warranty LED Headlights J.W.Speaker 6 Unlimited Some  limitations and exclusions may apply ‐ Please see manufacturer's warranty document.

Tires New  Flyer of America 2 24,000
New Flyer Industries Limited warrants the tires installed as original equipment on this vehicle only against defects in materials and workmanship which cause the vehicle to fail to comply with applicable U.S. and Canadian greenhouse gas emission limits (“Warrantable Emissions Failures”). This vehicle emissions limited express warranty relating to original equipment tires is valid for two (2) years or 24,000 miles whichever occurs first.

Towing New  Flyer of America
Component
Warranty
Period
Unlimited
Air Dryer New  Flyer of America 2 100,000
Fire Suppression System Amerex 3 Unlimited Some  limitations and exclusions may apply ‐ Please see manufacturer's warranty document.

Power Steering New  Flyer of America 2 100,000
Radiator Fan Drive Modine 4 200,000
Hydraulic Systems New  Flyer of America 2 100,000
DC to DC Converter Vanner 3 150,000 Some  limitations and exclusions may apply ‐ Please see manufacturer's warranty document.

New Flyer Connect System New  Flyer of America 3 Unlimited Warranty  covers system and subscription for 3 years.

Paint Axalta 5 Unlimited Some  limitations and exclusions may apply ‐ Please see manufacturer's warranty document.

Montebello Option #2023-140 Warranty Contract Deliverables XHE40 (TC) XHE40 Page 2 of 2 Issued 11/14/2023 11:50 AM

Montebello Bus Lines
Option for Three (3) XHE40 Buses

Tab 4, Training

New Flyer Response:

Please refer to the attached training selected by your organization for reference.

As per the base contract, Training is not included in the Bus Price.

DESCRIPTION QTY HRS.

TOTAL SELLING
PRICE AT BID REQUIREMENT BILLABLE: Y/NQty HoursCost COMMENTS Operator Orientation 4 986.85 $ Recommended Y 0 -$ Maintenance Orientation 4 986.85 $ Recommended Y 0 -$ Multiplex System 32 7,894.80 $ Recommended Y 32 7,894.80$ Air System 4 986.85 $ Recommended Y 4 986.85$ Suspension and Steering 8 1,973.70 $ Recommended Y 8 1,973.70$ Coolant Loop Fill Procedure 4 986.85 $ Recommended Y 0 -$ Propulsion/Fuel Cell/ESS Familiarization/HV Safety 32 7,894.80$ Recommended Y 64 15,789.60$ Requesting x2 Training, additional cost offset my reduction in tools Propulsion/Fuel Cell/ESS Troubleshooting 16 3,947.40 $ Recommended Y 32 7,894.80$ Requesting x2 Training, additional cost offset my reduction in tools HVAC Maintenance 8 4,050.00 $ Recommended Y 8 4,050.00$ Fire Suppression/Gas Detection 8 3,780.00 $ Recommended Y 8 3,780.00$ Siemens Propulsion Troubleshooting 24 14,580.00 $ Recommended Y 24 14,580.00$ XALT ESS Troubleshooting 16 9,112.50 $ Recommended Y 16 9,112.50$ Ballard Fuel Cell Level 1 & 2 24 20,250.00 $ Recommended Y 24 20,250.00$ Ballard Fuel Cell Level 3 24 17,820.00 $ Recommended Y 24 17,820.00$

Montebello Bus Lines
Option for Three (3) XHE40 Buses

Tab 5, Tooling and Diagnostics

New Flyer Response:

Please refer to the attached details of the Tooling and Diagnostics proposal for review.

As per the base contract, Tooling and Diagnostics are not included in the Bus Price. This proposal serves as a shopping list to best select the tools and equipment necessary for your operation.

Type DESCRIPTION

EXTENDED
SELLING PRICE PURCHASE? Total Comment
Diagnostic Equipment Intelligaire III Diagnostic Software & Cables $2,249.96 YES 2,249.96$ Diagnostic Equipment PVSG Software $0.00 YES -$
Diagnostic Equipment Cable - PVSG Interface $54.03 YES 54.03$ Diagnostic Equipment Cable - Transtech VR Interface $321.81 YES 321.81$ Diagnostic Equipment Siemens PCAN Interface Harness $203.07 YES 203.07$ Diagnostic Equipment USB CAN Adapter - Siemens Interface $397.31 YES 397.31$ Diagnostic Equipment UDS Software - Vector Indigo $3,400.64 YES 3,400.64$ Diagnostic Equipment Annual Maintenance - Vector Indigo $612.14 YES 612.14$ Diagnostic Equipment Vector Keyman USB Dongle $139.79 YES 139.79$ Diagnostic Equipment Indigo Interface - Vector VN1630 Log $2,617.80 YES 2,617.80$ Diagnostic Equipment CANPiggy 1057GCap - Vector $553.28 YES 553.28$ Diagnostic Equipment CANcable 2Y - Vector Indigo $108.89 YES 108.89$ Diagnostic Equipment XALT Service Tool Software $0.00 YES -$ Diagnostic Equipment XALT Interface Cable - Batteries $206.01 YES 206.01$ Diagnostic Equipment Kit - XALT SPI Tool Universal $2,496.26 YES 2,496.26$ Diagnostic Equipment Modine BTMS Software $0.00 YES -$
Diagnostic Equipment Danfoss Software - Berendsen Pwr Strg $0.00 YES -$ Diagnostic Equipment Cables Kit - Berendsen Pwr Strg $351.66 YES 351.66$ Diagnostic Equipment Ballard Software $0.00 YES -$
Diagnostic Equipment Diag Cable - Ballard RDU $394.36 YES 394.36$ Special Tools TK A/C Tool Kit - TE15 R407c $22,626.84 YES 22,626.84$ Needed if TK Air Compressors are to be installed.

Special Tools Assy - H2 Tank Pressure Interface $880.94 YES 880.94$ Special Tools Valve Instl Tool $1,665.74 YES 1,665.74$
Special Tools Ballard Special Tools Kit, HD7 $1,272.85 YES 1,272.85$ Special Tools Kit - Pressure Test Tool $1,805.53 YES 1,805.53$ Special Tools Head Wrench, Dessicant Canister $270.39 YES 270.39$ Special Tools Kit - ESS Coolant Pressure Tester $1,153.44 YES 1,153.44$ Special Tools Kit - ESS Coolant Pressure Fill $4,960.31 YES 4,960.31$ Special Tools Assy, Lift Beam ESS Rack $4,927.86 YES 4,927.86$ Special Tools Boom, Forklift Adapter $3,556.39 YES 3,556.39$ Special Tools Lifting Adapter Assy - Siemens PEM $1,015.46 YES 1,015.46$ Special Tools Lifting Device - XALT XMOD Battery Modules $1,765.80 YES 1,765.80$ Special Tools Key, Cam Latch #4 (ESS Triangle Key) $4.29 YES 4.29$ HV Tools Plug - MSD Blank $163.38 YES 163.38$
HV Tools Cap - 12 PK Bus Bar Protective Cvr $381.28 YES 381.28$ HV Tools Conductivity Meter $555.50 YES 555.50$
HV Tools modular test lead kit $265.86 YES 265.86$
HV Tools wiha 1/4 in ratchet set insulated SAE $655.25 YES 655.25$ HV Tools wiha 1/4 in ratchet set insulated Metric $655.18 YES 655.18$ HV Tools 16 PC 3/8 drive socket set $536.80 YES 536.80$ HV Tools wiha open end wrench insulated metric $708.67 YES 708.67$ HV Tools wiha open end wrench insulated sae $880.55 YES 880.55$ HV Tools Wiha insulated Serrated Tweezers Straight $65.92 YES 65.92$ HV Tools Wiha insulated Serrated Tweezers Angled $91.83 YES 91.83$ HV Tools insulated crimper 30 - 6 Awg 7" $60.03 YES 60.03$ HV Tools wire striper 6 - 3/8 overall 20 to 10 $54.15 YES 54.15$ HV Tools insulated water pump pliers v-jaw $100.28 YES 100.28$ PPE ARC Flash Protection Clothing Kit - 2PC Medium $819.27 YES 819.27$ PPE ARC Flash Protection Clothing Kit - 2PC Large $819.27 YES 819.27$ PPE ARC Flash Protection Clothing Kit - 2PC XL $819.27 YES 819.27$ PPE ARC Flash Protection Clothing Kit - 2PC 2XL $915.69 YES 915.69$ PPE ARC Flash Protection Clothing Kit - 2PC 3XL $983.12 YES 983.12$ PPE ARC Flash Protection Clothing Kit - 1PC Medium $651.16 YES 651.16$ PPE ARC Flash Protection Clothing Kit - 1PC Large $651.16 YES 651.16$ PPE ARC Flash Protection Clothing Kit - 1PC XL $651.16 YES 651.16$ PPE ARC Flash Protection Clothing Kit - 1PC 2XL $874.07 YES 874.07$ PPE ARC Flash Protection Clothing Kit - 1PC 3XL $874.07 YES 874.07$ PPE Black electrical glove kit, Size 7 $148.99 YES 148.99$ PPE Black electrical glove kit, Size 8 $148.99 YES 148.99$ PPE Black electrical glove kit, size 9 $148.99 YES 148.99$ PPE Black electrical glove kit, size 10 $144.63 YES 144.63$ PPE Black electrical glove kit, size 11 $151.86 YES 151.86$ PPE Black electrical glove kit, size 12` $144.63 YES 144.63$ PPE HV Blanket 3' x 3' $495.41 YES 495.41$
PPE Blanket Clamp 9-1/2" L, 5" Opening $35.02 YES 35.02$ PPE Hv Warning sign $19.26 YES 19.26$
PPE Arc Flash Warning sign $14.30 YES 14.30$

Montebello Bus Lines
Option for Three (3) XHE40 Buses

Tab 6, Publications

New Flyer Response:

Please refer to the attached Publications for review.

Publications are included in the Bus Price, as per the base contract.

CONTRACT DELIVERABLES PROPOSAL PUBLICATIONS rev a. November 2, 2023 City of Montebello PRIMARY CUSTOMER NAME Montebello
PUBLICATIONS CUSTOMER NAME City of Montebello
EIN#
BID NUMBER 2023-140 (refresh of 2022-121)
SR #
BUS MODEL XHE40
QUANTITY 3

CUSTOMER PROGRAM MANAGER
PROPULSION SYSTEM Siemens - ELFA3 Electric Drive System includes 1BD2016PEM 160kw Traction Drive Motors, Inverters, E-drive Controls and related components
FUEL CELL RANGE EXTENDER BALLARD - FCMove Fuel Cell Range Extender PROPULSION SYSTEM FUEL H2 - Five Agility ACF Type 5 Tanks with total system capacity of 37.5 kg .
and Luxfer WEH TN1 and TN5 fast fill receptacle
HIGH VOLTAGE SYSTEM ESS Xalt - TBD kWh Total Capacity Two String Rooftop 12/24V BATTERIES Odyssey group 31 Absorbed Glass Matt (AGM) maintenance free batteries. 1150 CCA
AIR COMPRESSOR Powerex - Scroll type, direct coupled electric motor driven AIR DRYER Bendix AD9 Tandem air dryer with IPC (Integrated Puraguard Cartridge).

COOLING-Fuel Cell Modine - 9 Fan Fuel Cell Radiator
COOLING-Drive Unit EMP - 2 Fan Roof Mounted radiator for Traction Motor and Inverters COOLING-ESS Modine - Battery Thermal Management System
FRONT AXLE M.A.N. - VOK-07-F GAWR 15,873 lbs., Disc brakes, Hub mount, Knorr cylinders, Ferodo lining
REAR AXLE M.A.N. - HY-1350-F Ratio 5.67:1, GAWR 28,660, Disc brakes, hub mount, Knorr cylinder, Ferodo lining.

ABS Meritor WABCO - 24V with ATC
POWER STEERING Sheppard - M110 Gear Box, Berendson Electric Pump HVAC UNIT TK - TE15 Rear Mount electric unit
HVAC CONTROLLER TK - Intelligaire III
HVAC COMPRESSOR TK - Electric driven integrated in HVAC unit CABIN HEATER Valeo - Thermo DC200 electric heater
DEFROSTER Grayson

FLOOR HEATERS MCC
PLC MULTIPLEX Vansco - VMM 1615
WINDOWS Arow Global - non-flush mounted
ENTRANCE DOOR Vapor - Slide Glide, electric
EXIT DOOR Vapor - Medium Slide Glide, electric
STRUCTURE Carbon Steel/Ferritic SST (12 year corrosion warranty) INTERIOR LIGHTING New Flyer - 24V LED
INFOTAINMENT Luminator
DRIVERS DOOR Arow Global - DPS
DRIVERS SEAT Recaro - Ergo AM80
PASSEGER SEATS American Seating - Vision
PASSEGER SEAT - Capacity 39
DESTINATION SIGNS AESYS - 24V LED
BIKE RACK Sportworks - DL2-NP
WHEELCHAIR RAMP New Flyer - 32" 1:7 Slope at Entrance Door KNEELING - Front New Flyer - SmartRider Lite Electronic Kneeling & Levelling APC INFODEV - DA200
AVM Fuel Master
FSS Amerex - SafetyNet
FIRE DETECTORS New Flyer - In all ESS Enclosures
VEHICHLE MONITORNG SYSTEM New Flyer - CONNECT with DMAS AVA/AVL SYSTEM Avail
This is for one XHE40 Option Build of 3
Buses Only

DESCRIPTION QTY CUSTOMER DELIVERY UPDATES
(years) COMMENTS
Emergency Responder Guide (8.5x11 3-hole laminated) 3 With First Bus Delivery 6 Emergency information to be onboard each bus.

Operator's Guide (8.5x11 3-hole) 2 With First Bus Delivery 6 Parts Manual 2 Within 30 Business Days After Last Bus Delivery 6 Service Manual 2 Within 30 Business Days After Last Bus Delivery 6 Vehicle System Drawings Manual (Incl. Elect, Air, Hyd, Cool, HVAC, PLC schems, layouts on 11x17 3-hole regular paper) 2 Within 30 Business Days After Last Bus Delivery 6 TIV USB 2 Within 30 Business Days After Last Bus Delivery 6 USB Includes only NF Manuals plus OEM
manual below identified with "*"
Sub Total
This is for one XHE40 Option Build of 3
Buses Only

DESCRIPTION QTY CUSTOMER DELIVERY UPDATES
(years) COMMENTS
Siemens E-Drive Propulsion System OEM Vendor Manual Set (includes only the following)
With First Bus Delivery or Soon After Receiving From OEM Supplier Includes 1BD2016PEM Traction Drive Motors, Inverters, E-drive Controls and related
components. *
ELFA3 System User Guide (Safety, Installation, Operation ,
Maintenance, Diagnostics and Parts information documents) 2 "
N/A *
With First Bus Delivery or Soon After Receiving From OEM Supplier System User Documentation 2
"
N/A *
With First Bus Delivery or Soon After Receiving From OEM Supplier ESS Batteries OEM Manual (includes only the following) OEM Supplier Publications
New Flyer Standard Bus Publications
Ballard FCMove Fuel Cell OEM Vendor Manual Set (includes only the following)

Xalt System User Guide 2
"
N/A *
With First Bus Delivery or Soon After Receiving From OEM Supplier

BTMS Service Manual 2 " N/A *
With First Bus Delivery or Soon After Receiving From OEM Supplier TK2 Oil Cooler Operation and Maintenance Manual 2
"
N/A *
CP Oil Cooler Troubleshooting Manual 2
"
N/A *
With First Bus Delivery or Soon After Receiving From OEM Supplier 9 Fan Fuel Cell Cooler Service and Diagnostic Manual 2 " N/A * With First Bus Delivery or Soon After Receiving From OEM Supplier Unit Maintenance Manual 2 " N/A *
Intelligaire III Diagnostic Manual 2 " N/A *
With First Bus Delivery or Soon After Receiving From OEM Supplier Thermo DC200 Workshop Manual 2 " N/A *
With First Bus Delivery or Soon After Receiving From OEM Supplier Operation & Maintenance Manual 2 " N/A *
With First Bus Delivery or Soon After Receiving From OEM Supplier ABS Maintenance Manual 2 " N/A *
With First Bus Delivery or Soon After Receiving From OEM Supplier IRMA Operations and Maintenance Manual 2 " N/A *
With First Bus Delivery or Soon After Receiving From OEM Supplier DPS Service and Maintenance Manual 2 " N/A *
With First Bus Delivery or Soon After Receiving From OEM Supplier Infotransit User Guide 2 " N/A *
With First Bus Delivery or Soon After Receiving From OEM Supplier Amerex V25ABC System Operation & Maintenance Manual 2 " N/A * Amerex SafetyNet Controller Operation & Maintenance Manual 2 " N/A * With First Bus Delivery or Soon After Receiving From OEM Supplier Hardware User Guides 2 " N/A *
Software User Guides 2 " N/A *
This is for one XHE40 Option Build of 3
Buses Only

DESCRIPTION QTY CUSTOMER DELIVERY UPDATES
(Years) COMMENTS
Standard Labour Hours required for NF Bus Manual Set Publishing 450 N/A Not charged to the customer Modine BTMS OEM Manual (includes only the following)
EMP Cooling System OEM Manual Set (includes only the following) Modine Cooling System OEM Manual Set (includes only the following) Arow Global Drivers Door System OEM Manual Set (includes only the following)
Other New Flyer Costs
WABCO ABS System OEM Manual (includes only the following) Vansco Multiplexing System OEM Manual (includes only the following) Destination Sign OEM Manual (includes only the following) Thermo King HVAC OEM Manual (includes only the following) Valeo Cabin Heater OEM Manual (includes only the following) Luminator Infotainment System OEM Manual (includes only the following) Amerex FSS System OEM Manual (includes only the following) IRIS APC System OEM Manual (includes only the following)

Montebello Bus Lines
Option for Three (3) XHE40 Buses
Appendix A
N
ew Flyer Response:

S
upplementary material included in Appendix A is as follows:
• B
ill of Materials (BoM) from Avail included in our quote • Sales Information Bulletin (SIB) of the 7” color LCD touch screen included in the proposed buses

Montebello Bus Lines
Option for Three (3) XHE40 Buses

Montebello Bus Lines
Option for Three (3) XHE40 Buses

Sales Information Bulletin
This document and the contents discussed herein are the confidential and proprietary information of New Flyer Industries Canada ULC and New Flyer of America Inc. and are disclosed by New Flyer in confidence. This document and the contents herein are not to be disclosed by the intended recipient without the prior written authorization of New Flyer. Any unauthorized disclosure, reproduction or other distribution of this document or information strictly prohibited and may result in action being taken against the party making the unauthorized disclosure. This document and all copies hereof must be returned to New Flyer upon request.

Revision Level A
Revision Date 3. 15.21
#286-003 | Xcelsior CHARGE NG™ | 35FT 40FT 60FT
Dash Display (7” LCD T ouch Screen)
OEM Parker Vansco
Model DSP70
Display 7” color LCD touch screen
800x480
Inputs Analog (10), Digital (9), Freq (2)
Video Inputs Up to 5 (up to 4 concurrent)
Outputs High-side (2) & 5V sensor supply
output (1)
Communication Op-
tions
USB host, USB device, RS232, 3 x
CAN, serial and Ethernet
Voltage 12VDC/24VDC systems
Operating
T emperature
-30°C to +80°C
Additional Features Internal buzzer, RTC and battery
backup
Value Proposition
Providing both the bus operator and service team with a clear view of bus health and performance is part of New Flyer’s belief in providing our customers with the best bus value and support for life. Combining these features into an easy to use, easy to read LCD touch screen display puts the control of your fleet at your fingertips.

Features & Benefits
The DPS70 dash display cluster features 4 constant analog gauges (speedometer & front, back and rear air pressure gauges), 26 indicator lights and a 7”interactive touch screen.

The touch screen has two modes:

The first mode is for the operator to view typical vehicle gauges (customizable), set trip odometers, access basic diagnostic functions and view cameras. Four of the five video inputs can be viewed simultaneously, while the fifth camera is full screen only (backup camera view). Cameras and camera systems are available options, and should be discussed with New Flyer to ensure compatibility.

The second mode is for the purpose of running diagnostics and network system monitoring. This screen mode provides access to VMM controllers (routing tables, IO status/ fault information), J1939 query, ladder logic and other optional screens such as brake wear, fan drive, engine, transmission, voltage regulator and HVAC.

The DPS70 is a stand-alone service and diagnostic tool, meaning that all functionality can be accessed without a laptop or any other additional equipment.

LCD Display Panel

ITEM # 10

CITY OF MONTEBELLO

CITY COUNCIL AGENDA STAFF REPORT

TO: Honorable Mayor and City Council Members

FROM: Raul Alvarez, City Manager

BY: Adrianna Kendricks, Director of Transportation

SUBJECT: APPROVE ISSUING A REQUEST FOR PROPOSAL, NO. 24-12 FOR

BUS DETAILING SERVICES

DATE: February 28, 2024

RECOMMENDATION(S):

It is recommended that the City Council:

1. Approve issuing a Bus Detailing Services Request for Proposal (RFP) No. 24-12; and

2. Take such additional, related action that may be desirable.

FISCAL IMPACT:

There is no fiscal impact related to issuing Request For Proposals (RFP) No. 24-12 for Bus Detailing Services (Attachment A). Once a contractor is selected for award, the City Council will be asked to consider approving a Professional Services Agreement and amend the Department of Transportation’s Fiscal Year 2023-24 adopted budget if needed.

BACKGROUND/DISCUSSION:

The City of Montebello's Montebello Bus Lines (MBL), is soliciting proposals from highly qualified contractors to provide bus detailing services. This initiative aims to enhance the overall presentation and cleanliness of MBL's transit system while reinforcing its commitment to delivering reliable and efficient public transportation services to the residents of Montebello and neighboring communities.

Operating a vast municipal bus system in Los Angeles County, MBL proudly serves approximately 2.6 million passengers annually throughout the communities of Alhambra,

CITY COUNCIL AGENDA REPORT - MEETING OF FEBRUARY 28, 2024

Bell Gardens, San Gabriel, Boyle Heights, Commerce, Downtown Los Angeles, East Los Angeles, La Mirada, Montebello, Monterey Park, Pico Rivera, Rosemead, South Gate, and Whittier. MBL’s transit system consists of a fleet of sixty-six (67) 35ft-40ft buses (three electric, twenty hybrid, and forty-four Compressed Natural Gas (CNG) buses), one 25ft cutaway shuttle, nearly 1,000 bus stops, and 2 transit hubs. MBL buses travel in highly visible corridors throughout various communities. These corridors include colleges and universities, retail areas, and other commercial and industrial areas.

The goal of RFP No. 24-12 is to enhance the overall appearance of the buses through a thoughtful and careful cleaning process. The selected contractor will be responsible for giving the buses a polished and vibrant look, focusing on both the exterior and interior.

The detailing service includes tasks such as cleaning, polishing, and restoring the exterior of each bus. The project’s intent is to maintain the branding integrity of the fleet, ensuring that the buses present a well-maintained image. Interior detailing will also be part of the process to improve the cleanliness and condition of passenger spaces for a more pleasant travel experience.

Once RFP No. 24-12 is approved, the notice inviting proposals will be published using Planetbids.com, Montebelloca.gov, and the Wave Newspaper, beginning February 29, 2024. All bids will be submitted through the Planetbids.com platform. The due date for all proposals will be April 4, 2024. It is anticipated that a contractor will be selected in May 2024 with the award of a professional services agreement brought before the City Council for consideration shortly thereafter.

ENVIRONMENTAL:

N/A

ANALYSIS:

The Transportation Department requests the authority to issue RFP No. 24-12, soliciting proposals from qualified contractors specializing in bus detailing services.

The selected contractor should have relevant experience in delivering bus detailing services, which includes industry standards of effective cleaning processes and maintaining the overall appearance of the MBL fleet. The contractor must be able to complete the following tasks:

CITY COUNCIL AGENDA REPORT - MEETING OF FEBRUARY 28, 2024

A selection process will be used to evaluate proposals based on various qualitative components and award an agreement based on a combination of price and qualitative

CITY COUNCIL AGENDA REPORT - MEETING OF FEBRUARY 28, 2024

considerations. Qualitative considerations include a management plan, quality of proposed personnel, qualifications and experience, and technical approach. Proposals will be evaluated based on the following qualitative and quantitative factors with the weighted value set forth below:

SUMMARY:

Staff recommends that the City Council approve issuing RFP No. 24-12 attached hereto in substantial form (Attachment A), for Bus Detailing Services; and direct staff to take such additional related, action that may be desirable.

ATTACHMENT(S)

1. Attachment A -Request for Proposal (RFP) No. 24-12

NEXT STEPS:

N/A

City of Montebello
REQUEST FOR PROPOSAL (RFP) No. 24-12
BUS

DETAILING SERVICES
February 29, 2024
O

NLINE PROPOSAL SUBMITTAL ONLY THROUGH PLANET BIDS
NOTE: Updates, changes or addendums to the RFP are posted at:
https://pbsystem.planetbids.com/portal/33072/portal-home

ATTACHMENT A

RFP No. 24-12

2 Montebello Bus Lines

TABLE OF CONTENT
Section Page(s)
INTRODUCTION 4
COVER LETTER 5
TIMETABLE & SCHEDULE OF EVENTS 6
PROPOSAL SUBMISSION CHECKLIST 7
SECTION 1 - INSTRUCTIONS TO PROPOSERS 8
Proposal Format and Submittal
Examination of Proposal Documents

SECTION 2 - GENERAL TERMS AND CONDITIONS

9-16
Addenda
Clarifications
Discrepancies and Misunderstandings
Withdrawals of Proposal
References
Proposal Signatures
Pre Contractual Expenses
City of Montebello Rights
State Credentials and Taxes
Responsibility for Compliance with Legal Requirements
Confidentiality and Public Record
Joint Offers
Company Personnel
Single Proposal Response
Protest Procedures
Incorporation of Proposal into Agreement
Time of Completion
Payment
Contract Documents
Scope of Contract
Performance of Work
Award of Contract
Point of Contact
Evaluation of Proposals
Proposal Evaluation Criteria

SECTION 3 - OTHER REQUIREMENTS 17-18

Licensing and Permit Requirement
Liquidation Damages
Bond Requirements

SECTION 4 - SCOPE OF WORK 19-22

SECTION 5 - QUALIFICATIONS 22-23

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SECTION 6 - FORM OF CONTRACT (SAMPLE) 24-34

SECTION 7 - FORMS AND CERTIFICATIONS

Letter of Transmittal 35

EXHIBITS

Exhibit A - Indemnification and Hold Harmless Agreement and Waiver of Subrogation and Contribution
Exhibit B – References
Exhibit C – Insurance
Exhibit D – Cost Proposal Sheet
Exhibit E – Statement of Disadvantaged Business Enterprise Participation Exhibit F – Bidder’s List of Subcontractor (DBE and Non- DBE) Exhibit G – Certification Regarding Debarment, Suspension and Other Responsibility Matters - Primary Covered Transactions
Exhibit H – Performance Guarantee Certification
Exhibit I – Performance Bond
Exhibit J – Irrevocable Standby Letter Of Credit Certificate Exhibit K – Bank Draft

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Introduction/ Background

The City of Montebello (City), Montebello Bus Lines (MBL), is soliciting competitive proposals from fully qualified and experienced contractors, licensed in the State of California, to provide bus detailing services.

The project's scope encompasses a comprehensive bus detailing initiative aimed at maintaining and enhancing the aesthetic and functional aspects of MBL's fleet of buses. The selected contractor will be entrusted with the responsibility of providing meticulous and high-quality detailing services to ensure that the buses meet industry standards in cleanliness, appearance, and overall operational efficiency.

The City operates MBL to provide reliable and efficient public transportation services to the residents of Montebello and neighboring communities. As the third -largest municipal bus system in Los Angeles County, MBL proudly serves 2.6 million passengers a year throughout the communities of Alhambra, Bell Gardens, San Gabriel, Boyle Heights, Commerce, Downtown Los Angeles, East Los Angeles, La Mirada, Montebello, Monterey Park, Pico Rivera, Rosemead, South Gate, and Whittier.

The City’s intent of this Request for Proposal (RFP) is to solicit a contractor who can provide meticulous and high-quality detailing services. The selected contractor will play a vital role in contributing to the positive public image of Montebello Bus Lines and ensuring that the buses remain in optimal condition.

The City seeks to form a partnership with a contractor committed to delivering exceptional results while adhering to safety and environmental standards. . The City reserves the right to increase or decrease the quantity listed and to delete any item from the contract.

In addition, the City reserves the right to reject any or all proposals, to waive information or irregularities to the extent permitted by law in any proposal received , and to be the sole judge of the merits of the respective proposals received.

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DATE: February 29th, 2024
ATTENTION: PROSPECTIVE PROPOSERS
SUBJECT: REQUEST FOR PROPOSAL (RFP) NO. 24-12
TITLE: CITY OF MONTEBELLO and MONTEBELLO BUS LINES

BUS DETAILING SERVICES
The City of Montebello (City), Montebello Bus Lines (MBL) , invite proposals from fully qualified and experienced contractors, licensed in the State of California, to provide bus detailing services. The project's scope encompasses a comprehensive bus detailing initiative aimed at maintaining and enhancing the aesthetic qualities of MBL's fleet of buses. The selected contractor will be entrusted with the responsibility of providing meticulous and high-quality detailing services to ensure that the buses not only meet but exceed industry standards in cleanliness, appearance, and overall operational efficiency.

The term of the proposed a greement shall be one year initially, with the option to extend for an additional four (4) , one-year periods, commencing upon the date of the contract execution between the City and the successful Contractor.

A Pre -Proposal Meeting will be held on March 12, 2024. The meeting will convene at 3:00pm Pacific Standard Time in the Transportation Building located at 400 South Taylor Avenue, Montebello . A facility walk-thru will follow the meeting.

It is highly recommended that all potential proposers (“Proposers”) attend this important meeting. All correspondence, communications, and contact concerning any aspect of this solicitation or offers shall be only with the following person [or his designated representative if applicable] (hereinafter, the “City’s Point of Contact”).

Name: Nicholas Ochoa
Title: Management Analyst
Address: 400 S. Taylor Ave.

Montebello, CA 90640
Telephone: (323) 558-1625 ext.1345
E-mail: nochoa@montebelloca.
gov

Only substantive inquiries will receive a response. All substantive questions submitted in writing as outlined below will be responded to according to the guidelines contained herein. Responses will be in writing and will be provided to all prospective Proposers and placed on the City ’s website. Responses to questions or comments regarding this RFP provided by any ot her department, employee, or City department other than the City’s Point of Contact set forth above shall not be considered valid and the City will not be bound by any such comments or responses. Inquiries received via telephone or orally in - person will not receive a response.

Proposals must b e received by April 4, 2024 at 3:00 PM Pacific Standard Time and submitted in accordance with the instructions contained in this RFP. No exceptions will be granted regardless of reason or circumstances.

All proposals must contain an original signature by an authorized officer of the company.

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The successful Proposer will be required to comply with all applicable Equal Opportunity Laws and Regulations. The City hereby notifies all prospective Proposers that the City will require each Proposer affirmatively demonstrate that Disadvantaged Business Enterprises are afforded full opportunity to participate in the performance of contracts and sub-contracts financed in part or in whole under this RFP, and will not be discriminated against on the grounds of race, color, gender, age, or national origin in consideration for an award.

The City reserves the right to reject any or all proposals, to accept all or any part of any proposal, to waive any informality or minor irregularities in any proposal received to the extent permitted by law and where such action best serves the interest of the City , and to be the sole judge of the merits of the respective proposal received.

The City and MBL is committed to ensuring that no person is excluded from participation in, or denied the benefits of its programs and/or services on the basis of race, color or national origin in accordance with FTA Circular 4704.1 and Title VI of the Civil Rights Act of 1964, as amended ("Title VI"). In addition to Title VI, NTS also prohibits discrimination based on sex, age or disability.

Any person who believes he or she has been subjected to discrimination under Title VI can file a complaint with MBL. For more informati on on MBL’s Civil Rights Program, and the procedures to file a complaint, contact:

Name: Adrianna Kendricks
Title: Director of Transportation
Address: 400 S. Taylor Ave.

Montebello, CA 90640
Telephone: (323) 558-1625
Fax Number: (323) 887-4643
E-mail: RideMBL.com

You may also contact the Federal Coordination and Compliance Office, Civil Rights Division at the Title VI Hotline: 888-TITLE-06 (888-848-5306) or send a letter to:

U.S. Department of Justice
Civil Rights Division
Federal Coordination and Compliance Section, NWB
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
More information on Title VI is available from the Justice Department online at www.justice.gov

TIMETABLE & SCHEDULE OF EVENTS
Scheduled Tasks Scheduled Date
Issuance of RFP Thursday February 29, 2024
Pre-Proposal Meeting Tuesday March 12, 2024
Deadline to Submit Questions Tuesday March 19, 2024, at 3:00 PM PST Responses to Questions Provided Thursday March 28, 2024 Deadline to Submit Proposals Thursday April 4, 2024, at 3:00 PM PST Presentations & Intent to Award May/June

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PROPOSAL SUBMISSION CHECKLIST
This checklist must be completed and returned with the Proposal. Failure to return this checklist may be cause for considering the Proposal non-responsive.

Description Section/
Page
Proposer shall
initial here
1 Proposal Page # 5
2 Letter of Transmittal Page # 36
3 Licensing, Permits, and Certificates Page # 17
4 Indemnification and Hold Harmless Agreement and Waiver of Subrogation and Contribution
Exhibit A
5 References Exhibit B
6 Insurance Exhibit C
7 Cost Proposal Sheet Exhibit D
8 Statement Of Disadvantaged Business Enterprise Participation Exhibit E 9 Bidder’s List of Subcontractor (DBE and Non-DBE) Exhibit F 10 Certification Regarding Debarment, Suspension…. Exhibit G 11 Performance Guarantee Certification Exhibit H
12 Performance Bond Exhibit I
13 Irrevocable Standby Letter Of Credit Certificate Exhibit J 14 Bank Draft Exhibit K

OPTIONAL ITEMS
15 Requests for exceptions or deviations. Page # 8

Company Name:

Name of Proposer initialing document (print):

Email address of Company Contact:

Signature:

Title:

Date:

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SECTION 1 - INSTRUCTIONS TO PROPOSERS

PROPOSAL FORMAT AND SUBMITTAL
Proposals can be submitted via the https://pbsystem.planetbids.com/portal/33072/portal-home Portal (accessed through the City of Montebello’s official website at https://cityofmontebello.hosted2.civiclive.com/cms/One.aspx?portalId=58756&pageId=84839) up to the hour of 3:00 p.m. on Thursday, April 4, 2024.

All proposals must contain an original signature by an authorized officer of the company. Proposals received after the above listed date and time will not be considered.

Proposals shall not include a photocopy of the following:
· INSTRUCTIONS TO PROPOSERS,
· QUALIFICATIONS,
· SCOPE OF WORK.

Proposals shall be typed, single -spaced and submitted on 8 1/2“x11” paper. Proposals shall not include any unnecessarily elaborate or promotional material. Proposals may not be modified or corrected after being opened unless an addendum is issued requesting resubmissions. Proposals will not be valid until all information has been verified and Propos ers references have been checked. All p roposals shall be accompanied by a completed and signed letter of transmittal provided as a part of this RFP.

All requests for exceptions or deviations as a result of this RFP shall be clearly identifiable by a separate section of the Proposer’s submitted proposal for review by the City. It shall be the City’s right to accept or reject any portion of the submitted requests.

Proposals shall be submitted in accordance with the form prescribed herein. Failure to respond in this manner may render the proposal non -responsive. Unauthorized conditions, limitations, or provisions attached to a Proposal will render the p roposal non-conforming and non-responsive and may cause its rejection. The completed proposal shall be without interlineations, alterations, or erasures. Proposer submitting basic conforming p roposals may choose to submit alternate p roposals as complete and separate offers, if the alternate proposal offers technical or other improvements or modifications, which are to the overall benefit to the City. Any and all alternate p roposals must be submitted in writing and included with the original p roposal, conforming to the requirements as stated herein. No verbal modifications will be accepted.

Proposal documents shall be deemed to include by reference each and every one of the following:

1. Request for Proposal (RFP)

2. Addenda to RFP

3. Supplements to RFP

4. All other required forms

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EXAMINATION OF PROPOSAL DOCUMENTS
By submitting a proposal, Proposer represents that: (1) Proposer has thoroughly examined and become familiar with the Scope of Work required under this RFP, (2) Proposer comprehends all conditions that may impact the proposal, (3) Proposer has reviewed all addenda, and (3) Proposer is capable of providing the equipment, goods and services necessary to perform the Scope of Work and/or meet the specifications outlined in this RFP, in a manner that meets the City’s objectives. Failure to examine the documents and inform itself shall be at the Pro posers’ own risk. A Proposer shall have no claim against the City based upon ignorance of or misunderstanding of the RFP documents. Once the award has been made, failure of a Proposer to have read all of the conditions, instructions and the agreement shall not be cause to alter any term of the a greement nor shall such failure provide valid grounds for a Proposer to withdraw its proposal or to seek additional compensation.

SECTION 2 – GENERAL TERMS AND CONDITIONS

ADDENDA
Any changes made by the City to the requirements in this RFP will be made by written addenda. Any written addenda issued to this RFP shall be incorporated into the terms and conditions of any resulting Agreement. The City will not be bound by any modifications to or d eviations from the requirements set forth in this RFP as the result of oral instructions. The City reserves the right to revise or withdraw this RFP at any time and for any reason.

CLARIFICATIONS
Should a Proposer require clarifications of this RFP, the Proposer shall notify the contact person identified in this RFP in writing. Should the City, in its sole discretion, determine that the point in question is not clearly and fully set forth; the City will issue a written addendum clarifying the ma tter. Said addendum shall be posted on the https://pbsystem.planetbids.com/portal/33072/portal-home web page.

All questions, clarifications or comments must be submitted to or no later than 3:00 pm, Tuesday, March 19, 2024. No questions will be answered individually by the City or Transportation Departments.

Requests for clarification, questions and comments must be clearly posted on the PlanetBids Q & A section. The City is not responsible for failure to respond to a request that has not been submitted in accordance with this section.

Responses by the City to the clarifications, comments and questions will be communicated via PlanetBids.

Every attempt will be made to provide resp onses to all Proposers in accordance with the procurement schedule for this RFP. Inquiries received after the deadline will not be accepted and will be returned to the sender without a response.

Requests for clarifications and questions should be formatted in the following manner:

1. Section

2. Paragraph number

3. Page number

4. Text of passage being questioned

5. Question

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DISCREPANCIES AND MISUNDERSTANDINGS
Proposing Companies must satisfy themselves by personal examination of any work site, drawings, Scopes of Work and by any other means as they may believe necessary, as to the actual physical conditions, requirements and difficulties under which the work must be performed. No Proposing Company shall at any time after submission of the p roposal, make any claim or assertion that there was any misunderstanding or lack of information regarding the nature or amount of work necessary for the satisfactory completion of the job. Any errors, omissions, or discrepancies found in any plans, specifications, or other documents provided, shall be called to the attention of the Buyer and clarified prior to the submission of proposals.

WITHDRAWAL OF PROPOSALS
Proposers may withdraw their proposals in writing, provided that such requests are received by the City prior to the scheduled deadline for Proposal submission or within six months following the scheduled deadline for Proposal submission when no contract has been awarded.

REFERENCES
All reference information requested in this RFP and s pecified in the form included in this RFP must be submitted with the proposal. Refer to Exhibit B.

At the discretion of the Evaluation Committee, the City may elect to perform site visits at the Proposer’s customer locations. These optional site visits will be in addition to any presentations and/or technical demonstrations. Some or all RFP Evaluation Committee members may travel, at City expense, to sites at which finalist Proposers are performing like services. The purpose of such visits shall be to provide the evaluation team with an increased understanding of the process and assess the Proposer’s implementation and performance.

PROPOSAL SIGNATURES
If an individual makes the proposal it shall be signed and the full name and address of the Proposer shall be given.

If a partnership makes the p roposal, it shall be signed with the partnership name, by a me mber of the partnership who shall sign by name and the name and address of each partner shall be given.

If a corporation prepares the proposal, the name of the corporation shall be provided and signed by two (2) duly authorized Officers and, if available, stamped with the corporate seal, and the names and titles of all officers of the corporation shall be given. If a corporation provides a certified letter stating that one (1) duly authorized officer signature is binding for the corporation, this will suffi ce to omit the second signature requirement in the proposal. Certified letter is to be included in the proposal accompanied with the Letter of Transmittal.

PRE-CONTRACTUAL EXPENSES
The City will be under no obligation for payment of pre -contractual expenses. Pre-contractual expenses are defined as expenses incurred by Proposer in:
· Preparing the proposal in response to this request.

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11 Montebello Bus Lines

· Submitting that proposal to the City.
· Negotiating with the City any matter related to this proposal, and/or · Any other expenses incurred by the Proposer prior to date of award.

CITY OF MONTEBELLO RIGHTS
In its discretion, the City reserves the right to:

1. Reject any and/or all proposals for no reason or any reason including but not limited to the following:
a. The proposal is incomplete, non-responsive, obscure, irregular or lacking necessary detail and specificity.
b. The Proposer, in the sole judgment of the City, lacks the qualifications, experience, and/or responsibility necessary to provide the services.
c. The Proposer failed or neglected to complete and submit any information within the time specified by the City, and as may be otherwise required herein.

2. Reject any proposal that, in the opinion of the City, is so unbalanced in comparison to other proposals received and/or to the City’s internal estimates that it does not accurately reflect the cost to perform.

3. Accept all or any part of a proposal.

4. Cancel the entire RFP;

5. Issue subsequent RFPs; and/or

6. Waive any errors or informalities in any proposal, to the extent permitted by law.

STATE CREDENTIALS AND TAXES
The Proposer shall be appropriately licensed in accordance with the laws of the State of California for the work to be performed. The cost for any required licenses and/or permits shall be the responsibility of the successful Proposer. The successful Proposer is liable for any and all taxes due as a result of the contract.

RESPONSIBILITY FOR COMPLIANCE WITH LEGAL REQUIREMENTS
The Proposer’s products, services, and facilities shall be in full compliance with all applicable Federal, State and local regulations, standards and ordinances, regardless of whether or not they are referred to in the RFP.

CONFIDENTIALITY AND PUBLIC RECORD
All Proposers are hereby pu t on notice that each Proposal received shall become the exclusive property of the City. Notwithstanding authorized exemptions and privileges, each Proposal shall be subject to disclosure according to the California Public Records Act and/or the Federal Freedom of Information Act.

The City shall not in any way be liable or responsible for the disclosure if required to do so by law .

JOINT OFFERS
Where two or more Proposers desire to submit in response to this RFP, they shall do so on a prime -sub Contractor basis rather than as a joint venture. The City intends to contract with a single firm and not with multiple firms doing business as a joint venture. Any proposal submitted on behalf of any form of joint venture or partnership between two (2) exi sting Proposers may be considered collusive and may be rejected as non-responsive.

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12 Montebello Bus Lines

COMPANY PERSONNEL
It shall be the burden of the successful Proposer to ensure all personnel possesses qualifications and/or experience. All personnel required in performing the services herein shall be secured at the expense of the successful Proposer. Personnel shall not be employees of or have any contractual relationship with the City. Successful Proposer’s personnel shall conduct themselves in a professional m anner to all City employees at all times. Rude or discourteous behavior by the successful Proposer will not be tolerated and the offense can be justification for termination of contract. All sub-Contractors of successful Proposer shall abide by all the requirements set forth in this section.

SINGLE PROPOSAL RESPONSE
If only one proposal is received in response to this RFP, a detailed cost/price proposal may be requested of the Proposer. A cost or cost and price analysis and evaluation and/or audi t of the cost may be performed in order to determine if the price is fair and reasonable. If the City determines a cost analysis is required, Proposer must be prepared to provide, upon request, cost summaries of estimated costs (i.e. labor, equipment, supplies, overhead costs etc.) and documentation supporting all cost elements.

PROTEST PROCEDURES
All protests must be filed in accordance with the following:

1. The protest must be in writing and identify the solicitation (RFP) number.

2. The protest must be submitted by some return receipt method or guarantee of delivery that insures that the protest was received in a timely manner. The City is not responsible for lost or delayed deliverables.

3. The party’s standing to protest must be identified.

4. Identification of the specific provision, law, regulation, specification, procedure or policy violated.

5. A statement of the relief requested.

Protests related to the content of the RFP shall be received no later than ten (10) days before the Proposal due date. Protests related to matters other than the content of the RFP shall be received no later than five (5) days after proposal opening. If the Protest does not comply with the preceding requirements it may not be evaluated and may be returned to the Protestor.

All protests shall be submitted to the contact person identified in this solicitation. If the solicitation is funded with Federal Transit Administration (FTA) monies, a protest may be filed with the FTA. However, the FTA only accepts protests alleging that a grantee failed to have written protest procedures or did not comply with those procedures or protests that involve a conflict of interest or fraud.

INCORPORATION OF PROPOSAL INTO AGREEMENT
This RFP and the Proposer’s response, includin g all promises, warranties, commitments and representations made in the successful p roposal, shall be binding and incorporated by reference in the City’s contract with the successful Proposer.

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TIME OF COMPLETION
The Contract time shall commence from the date on the Notice to Proceed (NTP) as authorized in writing by the City. The services shall be completed within the time period specified in the Request for Proposal. In case the services under the terms of these provisions and related p rofessional contract shall be necessarily delayed because of strike, injunctions, government controls, or by reasons of any cause or circumstances beyond the control of the successful contractor (the “Contractor”), the time of completion shall be extended by a number of days to be determined in each instance by mutual agreement between the Contractor and MBL.

PAYMENT
A separate invoice, referencing the respective purchase order number, shall be issued in duplicate for each invoice shown in the payment schedule, and addressed to: City of Montebello, Attn: Accounts Payable, 1600 West Beverly Boulevard, Montebello, California, 90640.

Payment will be made within thirty (30) days after acceptance and approval of invoice.

Payment Schedule: Monthly
Provide (1) One invoice monthly.

CONTRACT DOCUMENTS: ORAL CHANGES / CONTRACT TERMINATION Oral Changes: Oral changes and oral change orders are not permitted. All proposed changes must be submitted in writing to, and approved by, MBL prior to becoming a c ontract modification.

Contract Termination: MBL may terminate any resulting contract for convenience at any time by giving the Contractor five (5) days’ written notice thereof. Upon termination, MBL shall pay the Contractor his allowable cost incurred to date of term ination, and those costs deemed reasonably necessary by MBL to effect such termination, determined in accordance with Part 1-8.705-1 of the Federal Procurement Regulations (41CFR 1-8) or other applicable portion(s) of said Regulations. In addition, MBL sh all pay the Contractor a percentage of the project, which relates to contract work accomplished to date of termination. The effective date of termination shall be the date of Notice of Termination.

In the event the Contractor breaches the terms or violates the conditions of the contract, and does not within ten days, thereafter, cure such breach of violation, MBL may immediately terminate the Contract for default. The Contractor shall be liable for any and all costs incurred by MBL as a result of such default.

SCOPE OF CONTRACT
The Contractor shall provide all services necessary as per the Scope of Work described in this Request for Proposal.

PERFORMANCE OF WORK
It is the intent of these specifications to provide only services of the highest quality. The cost to be quoted and submitted shall include all items of service and any other costs necessary to fully complete the work pursuant to the provisions. It is the aim of these specifications that the Contractor provide complete services

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14 Montebello Bus Lines

of the type prescribed. Any items omitted from such specifications which are clearly necessary for the completion of such services shall be considered a portion of such services, although not directly specified or called for in these specifications. No advantage shall be taken by the Contractor in the omission of any detail which goes to make the services complete, even though such detail is not mentioned in these specifications.

AWARD OF CONTRACT
The contract resulting from this RFP ( or the “Agreement”) will be awarded to the responsive and responsible Proposer whose proposal, conforming to the requirements of the RFP, is determined to be the most advantageous (“Best Value” as described in the Federal Transit Administration Circular 4220.1F) to the City, based on the Evaluation Criteria. No agreement shall exist until the City Council or the City Manager has awarded the Agreement and it has been mutually executed. The City reserves the right to:
(a) Accept all or any part of a proposal;
(b) Reject any or all proposals for any reason;
(c) Waive any informality or minor errors to the extent permitted by law; (d) Award the Agreement as the interest of the City may require; (e) Cancel the entire RFP; or
(f) Issue subsequent RFPs.

An Evaluation Committee comprised of MBL staff, in accordance with the Proposal Evaluation Criteria set forth in Evaluation Criteria section of this RFP, will evaluate all the proposals. During the evaluation period, the City may interview some or all the proposing firms. Proposers should be aware; however, that award may be made without interviews or further discussions.

The City may negotiate contract terms with the selected Proposer prior to award, and expressly reserves the right to negotiate with several Proposers simultaneously and, thereafter, to award a contract to the Proposer offering the most favorable terms to the City. However, negotiations may or may not be conducted with Proposers; therefore, the proposal submitted should conta in the most favorable terms and conditions, since the selection and award may be made without discussion with any Proposer.

No agreement shall exist until the City Council or City Manager has awarded the Agreement and it has been mutually executed. The City reserves the right to reject any and all proposals for any reason, to waive any informality or minor errors as determined by the City in any proposal and to award the Agreement as the best interests of the City may require. The award, if any, may be made by the City within ninety (90) calendar days after the opening of the proposals.

Point of Contact
This RFP is issued by the City, and the Management Analyst will be the sole point of contact (“Point of Contact”) during the RFP submission and procurement process. Communications initiated by respondents to this RFP with members of the City Council, or officers, personnel or employees of the City, other than as coordinated by the Point of Contact, may be grounds for disqualification. Any inquiries or requests during this submission or procurement process shall be submitted in writing to the following Point of Contact:

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15 Montebello Bus Lines

City of Montebello Transportation Department
Attention: Nicholas Ochoa
Management Analyst
400 South Taylor Ave.

Montebello, CA 90640
(323) 558-1625 ext. 1345
Email: [email protected]

If the Point of Contact determines a response to any such inquiry is warranted, said response will be issued to all prospective Proposers via PlanetBids.com

EVALUATION OF PROPOSALS
MBL uses a selection process in whi ch proposals contain both price and qualitative components, and award is based upon a combination of price and qualitative considerations. Qualitative considerations may include experience and qualifications, technical approach, quality of proposed personnel, and/or management plan. The award selection is based upon consideration of a combination of technical and price factors to determine the offer deemed most advantageous to MBL.

An evaluation committee will be appointed to review all proposals. The commi ttee will be comprised of MBL staff. Committee members will initially evaluate each proposal using the pass or fail criteria identified herein. Proposers who pass this first stage of testing will progress to the next step in the evaluation.

MBL will evaluate the offers based on the following criteria: Pass/Fail Criteria • Proposer has demonstrated the ability to meet the insurance requirements described in the Agreement. Proof of ability, for example a sample certificate with another agency, or a statement that the proposer can meet the insurance requirements in the RFP should be attached to proposal.
• Proposer has demonstrated evidence of good standing. If the Proposer is a corporation or limited liability company, provide evidence that it is in good standing in the state of its incorporation/organization and qualified to do business in California. If the Proposer is a partnership or joint venture, provide such evidence for all partners or members. The evidence provided must be in the form of (i) an official certificate of good standing issued by the state of incorporation/organization and (ii) qualification to do business issued by the California Secretary of State. If the Proposer is operating under a fictitious name or trade name, provide evidence that the P roposer has filed for and/or registered the fictitious name with the county where the Proposer’s business is located.

On the completion of the initial Pass/Fail review, the committee will evaluate proposals using the two - step process. Qualitative considerations will be reviewed and scored first without attention to the price.

The committee will then present the cost and price proposals and evaluate and score them accordingly.

During the qualitative evaluation, the committee, at its sole discretion may contact any or all the Proposers with specific questions or requests for clarification. After both the qualitative and cost/price proposals have been evaluated and scored, the committee will arrive at a “comprehensive proposal score” for each proposal. A list of top-ranked proposals within a competitive range will be developed based upon the total comprehensive scores provided by committee members. At this time, the committee may decide