SERVICE AGREEMENT
BUS TIRE LEASING SERVICES FOR NORWALK TRANSIT SYSTEM (NTS) THIS AGREEMENT FOR BUS TIRE LEASING SERVICES (“Agreement”) is dated July 1, 2024 (“Effective Date”), and is between the City of Norwalk, a California municipal corporation (“CITY”), and The Goodyear Tire and Rubber Company, a Akron, Ohio Corporation (“CONTRACTOR”). The CONTRACTOR and the CITY are sometimes referred to herein collectively as the “Parties” and singularly as “Party.”
R E C I T A L S
A. CITY desires to utilize the services of a CONTRACTOR to provide bus tire leasing services for Norwalk Transit System (NTS) Fixed-Route Service.
B. CONTRACTOR represents that it is fully qualified to perform such services by virtue of its experience and the training, education and expertise of its principals and employees.
C. CITY desires to retain CONTRACTOR and CONTRACTOR desires to serve CITY to perform these services subject to the terms contained herein and all applicable local, state and Federal regulations.
The parties therefore agree as follows:
1. CONTRACTOR’S Services.
1.1 Scope of Services . CONTRACTOR shall provide bus tire leasing services for Norwalk Transit System (NTS) Fixed -Route Service, and shall perform the specific work more particularly described in Exhibit A (“Services”), attached hereto and incorporated herein by this reference as though set forth in full.
1.2 RFP No. 2 4-736 and Addenda . CONTRACTOR has confirmed receipt of all Addenda amending RFP No. 24-736, and CONTRACTOR, in the performance of all services required under this agreement, shall adhere to terms and requirements for RFP No. 24-736 and all Addenda provided to CONTRACTOR, including the General Terms and Conditions, attached hereto as Exhibit D and incorporated herein by reference, except as otherwise agreed to between the Parties, as set forth in Exhibit E, attached hereto and incorporated herein by reference.
1.3 Personnel. CONTRACTOR represents that it has, or will secure at its own expense, all personnel required to perform the work under this Agreement. All of the Services required under this Agreement will be performed by CONTRACTOR or under its supervision, and all personnel engaged in the Services shall be qualified to perform such services.
1.4 Party Representatives. For purposes of this Agreement, the CITY Representative shall be the City Manager or such other person designated by the City ATTACHMENT NO. 1 AGREEMENT
Manager (the “City Representative”). For purposes of this Agreement, the CONTRACTOR Representative shall be Walter Welker (the “CONTRACTOR Representative”).
1.5 Time of Performance. CONTRACTOR shall commence the Services contemplated under this Agreement immediately upon the commencement date for a term not to exceed the term set forth in Section 2. If the CONTRACTOR is not the incumbent. New CONTRACTOR shall commence the services contemplated under this Agreement within thirty (30) calendar days upon receipt of a Notice to Proceed for such services from the City representative.
1.6 Permits and Licenses. CONTRACTOR shall obtain and maintain during the Agreement term all necessary licenses, permits and certificates required by law for the provision of services under this Agreement, including a business license.
2. Term of Agreement. The term of this Agreement shall be from July 1, 2024 to June 30, 2027 (“Initial Term”), unless sooner terminated as provided in Section 13 herein. CITY may review CONTRACTOR’s performance under this Agreement and, upon mutual agreement with CONTRACTOR, may extend the agreement beyond the initial term for two (2) additional one (1) year periods from July 1 st through June 30 th of each year thereafter (“Additional Terms”).
3. Compensation.
3.1 Compensation. CONTRACTOR shall be paid on a fixed amount not to exceed price contracted rates set forth in Exhibit B as compensation for bus tire leasing services. This sum includes payment for all taxes, insurance, and fringe benefits as well as indirect costs, overhead, and profit allowance, materials, and supplies.
3.2 Bus Tire Lease Rates . Bus tire lease rate shall not exceed the amount specified in Exhibit B unless mutually agreement upon by CITY and CONTRACTOR in writing by the contractual representative designated herein.
3.3 Additional Services. CITY may request additional services under this Agreement. All such work, however, must be authorized in writing by the City Council or the City Manager, as applicable, prior to commencement. CONTRACTOR shall perform such services, and City shall pay for such additional services in accordance with fee schedule set forth in Exhibit B, or as otherwise agreed upon by the parties in writing. Any work incurred by CONTRACTOR which is not expressly authorized by this Agreement will not be reimbursed by CITY.
4. Method of Payment.
4.1 Invoices. No later than the fifteenth (15 th) day of each month, CONTRACTOR shall submit monthly invoices to the City Representative for the services performed pursuant to this Agreement during the preceding month. The invoices shall describe in detail the services rendered during the preceding month period and shall show the days worked and number of hours worked for each day in the preceding month period.
CONTRACTOR shall remit all invoices to the City Representative at the address provided in Section 14.
4.2 Disputed Amounts. CITY shall review all invoices and notify CONTRACTOR in writing ten (10) business days after receipt of the invoice of any disputed amounts.
4.3 Payment. CITY shall pay all undisputed portions of the invoice within fifteen (15) calendar days after receipt of the invoice up to the maximum compensation set forth in Section 3.
4.3 Audit of Records. Upon CITY providing 24-hour prior written notice, CONTRACTOR shall make all records, invoices, time cards, cost control sheets and other records maintained by CONTRACTOR in connection with this Agreement available to CITY for review and audit by CITY. CITY may conduct such review and audit at any time during CONTRACTOR’s regular working hours. Notwithstanding the foregoing, CITY’s right to inspect, copy and audit shall not extend to the composition of CONTRACTOR’s rates and fees, percentage mark-ups or multipliers but shall apply only to their application to the applicable units.
5. Standard of Performance. CONTRACTOR shall perform all work under this Agreement in accordance with the standard of care and skill generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to CITY. The acceptance of CONTRACTOR’s work by CITY shall not operate as a release of CONTRACTOR from such standard of care and skill.
6. Ownership of Work Product . Upon full payment of all monies owed to CONTRACTOR, all reports, documents or other written material (collectively, “work product”) developed by CONTRACTOR in the performance of this Agreement shall be and remain CITY’s property without restriction or limitation upon its use or dissemination by CITY. Work product shall not be the subject of a copyright application by CONTRACTOR. Any alteration or reuse by CITY of work product on any project other than the Project shall be at CITY’s sole risk, unless CITY compensates CONTRACTOR for such reuse. CITY agrees, to the fullest extent permitted by law, to indemnify and hold CONTRACTOR harmless from any claim, liability or cost (including reasonable attorney’s fees and defense costs) arising or allegedly arising out of any reuse or modification of the work product by CITY or any person or entity that obtains the work product from or through CITY on any project other than the Project.
7. Status as Independent Contractor . CONTRACTOR is, and shall at all times remain as to CITY, a wholly independent contractor. CONTRACTOR shall have no power to incur any debt, obligation or liability on behalf of CITY. Neither CITY nor any of its agents shall have control over the conduct of CONTRACTOR or any of CONTRACTOR’s employees, except as set forth in this Agreement. CONTRACTOR shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of CITY. CONTRACTOR shall pay all required taxes on amounts paid to CONTRACTOR under this Agreement and indemnify and hold CITY harmless from any and all taxes, assessments, penalties and interest asserted against CITY by reason of the independent contractor relationship created by this Agreement. CONTRACTOR shall fully comply with the workers’ compensation law regarding CONTRACTOR and CONTRACTOR’s employees. CONTRACTOR shall indemnify and hold CITY harmless from any failure of CONTRACTOR to comply with applicable workers’ compensation laws. CITY may offset against the amount of any fees due to CONTRACTOR under this Agreement any amount due to CITY from CONTRACTOR as a result of CONTRACTOR’s failure to promptly pay to CITY any reimbursement or indemnification arising under this Section 7.
7.1 In the event that CONTRACTOR, or its employee, agent, or subcontractor providing Services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (“PERS”) to be eligible for enrollment in PERS as an employ ee of CITY, CONTRACTOR shall indemnify, defend, and hold CITY harmless for the payment of any employee and/or employer contributions for PERS benefits on behalf of CONTRACTOR, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of the CITY.
7.2 The Parties further acknowledge the following: (i ) that CONTRACTOR shall provide the Services outlined in the Scope of Services directly to CITY; (ii) CONTRACTOR maintains a business location at the address listed under Section 13 that is separate and distinct from the CITY; (iii) CONTRACTOR contracts with other businesses to provide the same or similar services and maintains a clientele without restriction from the CITY; (iv) CONTRACTOR advertises and holds itself out to the public as available to provide the same or similar services; (v) unless otherwise specified in this Agreement, CONTRACTOR provides its own tools, vehicles, and equipment necessary for performing the Scope of Services; (vi) CONTRACTOR has proposed and negotiated its own rates; and (vii) consistent with the nature and demands of the project and the CITY’s business hours and CITY staff availability, CONTRACTOR may set its own hours and location of work.
8. Confidentiality. CONTRACTOR covenants that all data, documents, discussion or other information (collectively, “data”) developed or received by CONTRACTOR or provided for performance of this Agreement are deemed confidential and shall not be disclosed by CONTRACTOR to any person or entity without CITY’s prior written authorization. The restrictions on the use and disclosure of the confidential information shall not apply to information which (a) was known to CONTRACTOR before receipt of same from CITY; or (b) becomes publicly known other than through CONTRACTOR; or (c) is disclosed pursuant to the requirements of a governmental authority or judicial order, but only to the extent required to comply with the said requirements of the government authority or judicial order . CITY shall grant such authorization if disclosure is required by law. CONTRACTOR shall return all data to CITY upon the expiration or termination of this Agreement. CONTRACTOR’s covenant under this Section 8 shall survive the expiration or termination of this Agreement.
9. Conflict of Interest . CONTRACTOR and its officers, employees, associates and subcontractors, if any, will comply with all conflict of interest statutes of the State of California applicable to CONTRACTOR’s work under this Agreement, including, but not limited to, the Political Reform Act (Cal. Gov. Code, § 81000 et seq.) and Government Code Section 1090. During the term of this Agreement, CONTRACTOR may perform similar services for other clients, but CONTRACTOR and its officers, employees, associates a nd subcontractors shall not, without the City Manager’s prior written approval, perform work for another person or entity for whom CONTRACTOR is not currently performing work that would require CONTRACTOR or one of its officers, employees, associates or subcontractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute. CONTRACTOR shall incorporate a clause substantially similar to this Section 9 into any subcontract that CONTRACTOR executes in connection with the performance of this Agreement.
10. Indemnification. CONTRACTOR shall indemnify, and hold harmless CITY, and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors and assigns, in accordance with the Indemnification and Hold Harmless Agreement and Waiver of Subrogation and Contribution attached as Exhibit C.
CONTRACTOR’s covenant under this Section 10 shall survive the expiration or termination of this Agreement.
11. Insurance.
11.1. CONTRACTOR shall at all times during the term of this Agreement, carry, maintain, and keep in force and effect, with an insurance company admitted to do business in California, rated “A” or better in the most recent A.M. Best Insurance Rating Guide, and approved by CITY,:
(1) broad -form commercial general liability insurance of One Million Dollars ($1,000,000) combined single limit and Two Million Dollars ($2,000,000) aggregate coverage against any injury, death, loss or property damage as a result of wrongful or negligent acts by Contractor, its officers, employees, agents, and independent contractors in performance of Services under this Agreement;
(2) Automobile liability insurance, with minimum combined single limits coverage of $1,000,000 (one million dollars) per accident for bodily injury and property damage covering any vehicle;
(3) Workers’ compensation insurance with a minimum limit of $1,000,000 (one million dollars) or the amount required by law, whichever is greater, unless otherwise agreed to by CITY Manager or designee in writing, and;
11.2 Each insurance policy required by this Section 11 shall be endorsed as follows: (1) except for professional liability and workers’ compensation policies, the policies are primary and non -contributing with any insurance that may be carried by CITY; and ( 2) the policies may not be canceled or materially changed such that the requirements in this Agreement are no longer met except written notification will be per policy provisions.
11.3 All insurance coverages shall be confirmed as required under Section 11.2. CONTRACTOR shall file the endorsements with CITY on or before the date of commencement of services pursuant to this Agreement, and thereafter maintain current certificate(s) of insurance on file with CITY. The certificate(s) of insurance are subject to CITY’s approval. CONTRACTOR shall not cancel, reduce or otherwise modify the insurance policies required by this Section 11.
12. Cooperation. In the event any claim or action is brought against CITY relating to CONTRACTOR’s performance of Services rendered under this Agreement, CONTRACTOR shall render any reasonable assistance and cooperation that CITY requires.
13. Termination. CITY may terminate this Agreement for convenience, after giving written notice to CONTRACTOR at least thirty (30) calendar days before the termination is to be effective. If CITY defaults under this Agreement, and if CITY has not cured the default within thirty (30) calendar days after CONTRACTOR has given CITY notice of the event of default, CONTRACTOR may terminate this Agreement for cause after giving written notice to CITY at least thirty (30) calendar days before the termination is to be effective. CONTRACTOR shall cease all work under this Agreement on or before the effective date of termination specified in the notice of termination. CONTRACTOR shall be paid for services satisfactorily rendered to the last working day this Agreement is in effect, and pursuant to Article 24. Disposition of Tires at Termination from the Scope of Work, and CONTRACTOR shall deliver all materials, reports, documents, notes or other written materials compiled through the last working day this Agreement is in effect In no event shall CONTRACTOR be entitled to receive more than the maximum compensation set forth in Section 3 of this Agreement that would be paid to CONTRACTOR for the full performance of the services required by this Agreement.
Neither party shall have any other claim against the other party by reason of such termination.
14. Notices. Any notice, consent, request, demand, bill, invoice, report or other communication required by or permitted under this Agreement shall be in writing and given by first class U.S. mail or by personal service. Notices shall be conclusively deemed received on: (a) personal delivery; (b) confirmed delivery by courier service during CONTRACTOR’s and CITY’s regular business hours or by facsimile before or during CONTRACTOR’s regular business hours; or (c) on the third (3 rd) business day following deposit in the United States mail, postage prepaid, to the addresses below, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this Section 14.
All notices shall be delivered to the parties at the following addresses:
If to CITY: City of Norwalk
Attn: City Clerk
12700 Norwalk Boulevard
PO Box 1030
Norwalk, CA 90651-1030
Fax: (562) 929-5773
With a copy to: City of Norwalk
Attn: James C. Parker, Executive Director of Regional
Transportation
12700 Norwalk Boulevard
PO Box 1030
Norwalk, CA 90651-1030
Fax: (562) 929-5572
If to CONTRACTOR: The Goodyear Tire and Rubber Company
Attn: Walter L. Welker, Manager Business Operations
Contract Acquisitions and Compliance
200 Innovation Way D/710
Akron, OH 44316-0001
Email:[email protected]
15. Non-Discrimination and Equal Employment Opportunity. In the performance of this Agreement, CONTRACTOR shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation. CONTRACTOR will take affirmative action to ensure that subcontractors and applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition or sexual orientation.
16. Non-Assignability; Subcontracting . CONTRACTOR shall not subcontract or assign any of its rights or delegate any of its duties under this Agreement, either in whole or in part, without CITY’s prior written consent. Such consent may be given by the City Manager in his/her discretion. Any attempt by CONTRACTOR to so subcontract, assign or delegate this Agreement or any rights, duties or obligations arising hereunder in violation of this Section 16 shall be void and of no effect.
17. Compliance with Laws. CONTRACTOR shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in the performance of this Agreement, including all federal and state grant funding requirements applicable to this Agreement.
17.1 COVID-19. CONTRACTOR shall adhere to all COVID -19 related protocols established by the Los Angeles County Department of Public Health (“County Health Department”) and/or the State of California. CONTRACTOR is responsible for providing their own Personal Protective Equipment, if applicable, in accordance with the County Health Department guidelines.
18. No Third Party Beneficiaries Intended . Unless otherwise expressly provided for in Exhibit A, this Agreement is made solely for the benefit of the parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
19. Non-Waiver of Terms, Rights and Remedies. No waiver by any party of any breach, any failure of a condition, or any right or remedy under this Agreement shall be (1) effective unless it is in writing and signed by the party making the waiver, (2) deemed to be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy, or (3) deemed to constitute a continuing waiver unless the writing expressly so states. No delay or omission to exercise any right, power or remedy accruing to CITY under this Agreement shall impair any right, power or remedy of CITY, nor shall it be construed as a waiver of, or consent to, any breach or default by CONTRACTOR.
Further, no payment made by CITY to CONTRACTOR shall constitute or be construed as a waiver by CITY of any breach or default by CONTRACTOR, and the making of any such payment by CITY shall in no way impair or prejudice any right or remedy available to CITY with regard to such breach or default.
20. Attorney’s Fees . In the event that either party to this Agreement shall commence any legal action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney’s fees.
21. Exhibits; Precedence . All documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by refere nce, the provisions of this Agreement shall prevail.
22. Governing Law and Choice of Forum. This Agreement, and any dispute arising from the relationship between the parties to this Agreement, shall be governed by and construed in accordance with the laws of the State of California, except that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in interpreting this Agreement. Any dispute that arises under or relates to this Agreement (whether contract, tort or both) shall be resolved in a municipal, superior or federal court with geographic jurisdiction over the City of Norwalk.
23. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between CONTRACTOR and CITY. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the parties which expressly refers to this Agreement.
24. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable for any reason, the validity of and enforceability of the remaining provisions of this Agreement shall not be affected and continue in full force and effect.
[SIGNATURE PAGE FOLLOWS]
The Parties, through their respective authorized representatives, are signing this Agreement on the date stated in the introductory clause.
CITY OF NORWALK
By:
Jesus M. Gomez
City Manager
Date:____________________________
ATTEST:
By:
Theresa Devoy, CMC
City Clerk
APPROVED AS TO FORM:
By: _____________________________
Arnold M. Alvarez-Glasman
City Attorney
THE GOODYEAR TIRE AND RUBBER
COMPANY
By:
Walter L. Welker
Manager Business Operations
Mileage Sales, Lease & Service
(Please note, two signatures required
for corporations under California
Corporations Code Section 313,
unless corporate documents
authorize only one person to sign
this Agreement on behalf of the
corporation.)
EXHIBIT A
SCOPE OF SERVICES
1. Overview. The City of Norwalk, Norwalk Transit System (NTS) is seeking proposals from qualified and experience firms to provide bus tire leasing services for NTS’ heavy-duty bus fleet.
Contractor shall provide all new tires, re-groove and re -retread (rears only), labor, tools, equipment that are in good working condition necessary to mount tires on wheels, dismount tires from wheels, and perform necessary repairs to tires such as flats, air tires, and tire balance .
Contractor shall perform services described herein on a weekly basis on the entire active bus fleet on City premises located at 12650 E. Imperial Hwy., Norwalk, CA 90650.
1. General Requirements. Proposer must have five years experience providing bus tire leasing services to a public transportation agency. Proposers must be either the Original Equipment Manufacturer (OEM) or an authorized dealer of the types of tires described herein.
3. Hours of Operation. Contractor shall provide services between 5:30am to 10:3 0pm on Saturday and/or Sunday. Contractor shall provide a minimum of eight (8) hours of service weekly.
4. Holidays. The below table is the City’s holiday schedule. Contractor is not obligated to work on Contractor’s observed holidays.
Non-Observed Holiday Observed Holiday
Martin Luther King Jr. Day New Years Day
President’s Day Memorial Day
Veteran’s Day Independence Day
Labor Day
Thanksgiving
Christmas
5. Accidents/Incidents. Contractor shall notify the City immediately if City property and/or Contractor's personnel and/or subcontractor personnel were involved in an accident or incident in relation to the services provided by the Contractor and/or subcontractor. Contractor sh all provide the City a detailed written detailed description within three (3) business days of the event.
6. Annual Mileage. The mileage for Fiscal Year FY 2023 was 991,389 or 82,616 miles per month. NTS reserves the right to add or reduce miles as needed without immediate notice to the Contractor.
7. Tires Furnished. All tires furnished by Contractor shall be of high quality, radial tire design suitable for Transit operations. All materials used in the manufacture of the tires furnished under this bid shall conform to all U.S. Government and State of California laws and regulations and likewise the manufacturing of the tires furnished shall conform to all federal, state, and local laws and regulations.
7.1 Tires shall provide reliable transit bus service, free from excessive noise and vibration, and free from defects in material and construction.
7.2 Contractor (“Lessor”) shall provide tires meeting all applicable federal, state, and local laws and regulations.
EXHIBIT A
7.3 Tires to be run on front wheels shall be new tires only and shall be removed when the tread depth reach 5/32” minimum at any point in the tread configuration. Tires to be run on other than front wheels shall be removed when depth reaches 3/32” minimum at any point in the tread configuration.
7.4 The use of re -grooved tires shall be limited to the rear axle of transit buses shall comply with all federal, state, and local laws and regulations.
7.5 All tires provided are to be factory molded and D.O.T approved for 65 mile per hour city and suburban use. All tires shall be capable of 65MPH sustained operation.
7.6 NTS shall not be precluded during the life of the contract from including in the contract new or improved tires that may be developed by the Contractor. Contractor shall provide tires that the NTS may add, at NTS’s sole discretion, to its fleet. The City and Contractor will mutually agree on the specified new tire added as an amendment to the contractor signed by both parties.
7.7 Tires Unfit for Service. NTS will remove tires from service immediately when determined unfit by either the Successful Contractor or NTS. Contractor’s tires are to be removed from NTS property within 30 days of determination of unfitness, in accordance with local, state and federal laws and regulations
8. Inventory. Contractor shall monitor and control tire inventory and to ensure a number of mounted spare tires for buses, so that City, at all times, will have a stock of tires to maintain continuous operation of its buses. The amount of spare tires shall be mutually agreed upon between City and Contractor. All spare tires shall be mounted on City provided wheels.
8.1 Within two weeks after the effective Agreement date, Contractor shall inspect all bus tires in NTS possession, shall record the tire numbers and provide NTS with a listing of all tires, with appropriate comments on exceptional conditions encountered regarding fitness of tires for continued use or need for changes.
8.2 In the event of a manufacturing delay in tires due to a strike, the Contractor shall, to the degree possible, prior to the effective day of the strike, ship additional spare tires sufficient for NTS to maintain uninterrupted transit service during the manufacturing delay.
8.3 In any event, it is the Contractor’s responsibility to assure an adequate supply of tires at all times.
8.4 The Contractor shall be responsible for controlling the tire purchasing process through the entire contract period including option years in order to ensure that NTS has a sufficient inventory of tires.
8.5 Annual Inventory. At least once a year on a date to be agreed upon between Contractor and Fleet Maintenance Manager or designee, Contractor will perform a physical inventory of all leased tire stock on City property and provide the City with an electronic file containing the inventory results.
8.6 Tire Branding. Contractor shall brand all tires furnished to NTS individually or group with their own unique identification number prior to delivery. Contractor shall accurately list inventory on the Monthly Report.
EXHIBIT A
8.7 NTS will not transfer, sublet, or lend the tires furnished by, or permit the tires to be used by, anyone other than NTS, or its agents, without the prior written consent of the Contractor.
9. Title of Tires. Ownership and title to any leased tires and equipment shall remain with the Contractor unless and until a tire is purchased by NTS as provided for at the expiration of the contract, expiration of the run-out period, or in a scrap tire contract.
10. Tire Technical Requirements. Contractor shall refer to Table C for Fleet Composition Details including Gross Vehicle Weight Rating (GVWR). All buses are currently low floor and possess a six (6) tire position. Contractor shall provide the following tires sizes and specifications:
Refer to Table A & B for current tire sizes.
TABLE A- Current NTS Fleet Composite
QTY. YEAR Make Bus
Length
Model Wheel
Position
Tire Size
1 2009 New Flyer 41’ GE41LFR 6 B305/70R22.5 Load Range H 2 2010 New Flyer 36’ GE36LFR 6 B305/70R22.5 Load Range H 2 2012 Gillig 40’ G27D1024N 6 B305/85R22.5 G652 RTB Metro Miller Load Range J
12 2013 Gillig 40’ G27D1024N 6 B305/85R22.5 G652 RTB Metro Miller Load Range J
4 2016 Gillig 40’ G27D1024N 6 B305/85R22.5 G652 RTB Metro Miller Load Range J
2 2017 Gillig 40’ GD31D 6 B305/85R22.5 G652 RTB Metro
Miller Load Range J
1 2018 Gillig 40’ GD31D 6 B305/85R22.5 G652 RTB Metro
Miller Load Range J
4 2021 Gilig 40’ G28D 6 B315/80R22.5
G652 Load Range L
4 2021 Gillig 40’ G31D102H4 6 B305/85R22.5 G652 RTB Metro Miller Load Range J
Battery Electric Buses- Subject to California AB 1250
QTY. YEAR Make Bus
Length
Model Wheel
Position
Tire Size
Front
Tire Size
Rear
2 2023 Gillig 40’ G31D102H4 6 B315/80R22.5
G652 Load
Range L
B315/80R22.5
Intercity Cruiser
Load Range J
TABLE B- Future Bus Purchase. Buses to be delivered September 2024 QTY. YEAR Make Bus
Length
Model Wheel
Position
Tire Size
Front
Tire Size
Rear
3 2023 Gillig 40’ G31D102H4 6 B315/80R22.5
G652 Load Range
L
B315/80R22.5
Intercity Cruiser
Load Range J
TABLE C- Current NTS Fleet Composite
QTY. YEAR Make Description GVWR
1 2009 New Flyer Low Floor-Gasoline Hybrid Bus
42540
EXHIBIT A
2 2010 New Flyer Low Floor-Gasoline Hybrid Bus 42540
2 2012 Gillig Low Floor Passenger Bus - CNG Bus 41600
12 2013 Gillig Low Floor Passenger Bus - CNG Bus 41600
4 2016 Gillig Low Floor Passenger Bus - CNG Bus 41600
2 2017 Gillig Low Floor Passenger Bus - CNG Bus 41600
1 2018 Gillig Low Floor Passenger Bus - CNG Bus 41600
4 2021 Gilig Low Floor- Battery Electric Bus 45000
4 2021 Gillig Low Floor Passenger Bus - CNG Bus 41600
2 2023 Gillig Low Floor- Battery Electric Bus 47180
11. NTS’ Responsibilities.
11.1 NTS will provide a secured space with its Equipment Maintenance Shop for tire related equipment and space for tire inventory to be stored.
11.2 NTS staff will p rovide mileage data on a per bus per month basis for the purpose of billing for the service rate and tire mileage lease no later the 15 th of each month.
11.3 NTS will replace tire/wheel assemblies that are necessary to be done on the road, noting that spare assemblies shall be provided to NTS via the Contractor for this purpose.
11.4 NTS will service tires as needed and to Original Equipment Manufacturer’s recommendations in accordance with industry best practices.
11.5 Fleet Maintenance Manager or designee will investigate misalignment and other conditions reported by the Contractor and correct as necessary.
11.6 NTS will provide necessary air and electrical outlets for tire service equipment.
12. Contractor Services. Contractor shall provide and maintain in a safe operating condition all labor, equipment, tools and supplies in the provision of leased tires.
12.1 Original Equipment Manufacturer (OEM) . Contractor and Contractor’s subcontractor must meet or exceed Original Equipment Manufacturer (OEM) specification standards and workmanship at all times.
12.2 Contractor shall ensure that no bus is kept from next day revenue service due to the Contractor’s failure to perform required tire services.
12.3 Mounting / Dismounting . Contractor shall be responsible for mounting and dismounting tires.
12.4 Torquing.
12.4.1 Contractor shall ensure all wheel nuts are properly torqued.
12.4.2 Contractor shall safety stripe all wheel nuts after they are torqued.
EXHIBIT A
12.4.3 Should the torque wrench pro vided by Contractor be inoperable , Contractor shall hand torque all wheel nuts pursuant to the OEM specifications.
12.4.4 Contractor’s torque wrench shall be maintained to OEM specifications and calibrated in accordance with OEM requirements. Contractor’s torque wrench shall possess a tag indicating certification.
12.5 Balancing. Contractor shall balance all tires utilized in the front position only.
12.6 Rotation. Contractor shall inspect tires to verify need for rotation. Contractor shall rotate tires pursuant to the OEM specifications.
12.7 Tire Repair. Contractor shall repair all tire punctures and flat tires.
12.8 Tire Inspections. Contractor shall perform a weekly visual inspection of all tires for tread depth, visual defects, adversities, or damage, including defective or leaking valves, defective or loose valve stems, and missing valve caps. Contractor shall visually inspect tires for evidence of irregular wear that may occur as a result of mechanical adversities. Tires determined to not meet standards or possess defects, adversities, or damage shall be removed. Contractor shall promptly notify City of such findings.
12.9 Tire Pressures . Contractor shall perform weekly tire air pressure check s and maintain OEM inflation specifications on buses. Contractor shall visual inspect alignment or misalignment for each type of tire application and adjust tire pressure accordingly.
12.10 At no time shall the Service Technician be authorized to drive the buses. City staff will assist the Contractor to maneuver the buses as needed.
13. Contractor Service Technician(s). At no time shall the City be without the services from the Service Technician(s) provided by the Contractor. Necessary arrangements shall be made by Contractor to provide continuous coverage when the Service Technician(s) is/are unavailable due to scheduled or unscheduled time off. Contractor shall notify NTS immediately of such events.
13.1 Service Technician(s), including all subcontractors, performing the services described in the Scope of Work herein shall be properly trained with mounting and dismounting tires and operating procedures regarding manual and machine methods in accordance to OSHA 1910.177.
14. Tire Delivery
14.1 Delivery. Contractor shall obtain City written signature for acceptance of all tire deliveries. City shall assist with unloading tire deliveries. Contractor shall be responsible for the accuracy of the tires delivered and ordered. Contractor shall pay all freight and delivery charges.
Standard delivery time of tires is 30 days from receipt of order. Tire deliveries can be made Monday- Friday between 8:00a.m.- 6:00p.m.
14.2 Expiration of Agreement. Contractor shall not delivery tires within six (6) months prior to the expiration date of the contract without written approval from City.
15. Storage of Tires and Contractor Workspace.
EXHIBIT A
15.1 City shall furnish inside, secured storage space and workspace for maintenance of tires used by the Contractor.
15.2 Storage is located indoors inside the Vehicle Maintenance shop. Current racking can accommodate up to ninety six (96) tires.
15.3 City shall keep garage floors and bus parking areas clean and free of hazardous conditions that could impact the performance of the tires.
15.4 Contactor shall maintain a clean and safe work area where all equipment, tools and supplies are retained. Contractor shall notify the City immediately regarding an unsafe work environment.
15.5 Tire that need recapping or re -grooving may be picked up by Contractor on a monthly basis as long as store pace is not at capacity.
16. Scrap Tire Storage.
16.1 City shall furnish the Contractor with an outside storage area for scrap tires.
16.2 Storage area is located within the City yard and is secured at all times.
16.3 City shall provide a maximum of three (3) pallets and tarp covering for the storage of scrap tires. Each pallets can hold a maximum of five (5) tires.
16.4 Pallets may not block storm drains and/or manholes at any time.
16.5 Contractor shall place scrap tires on pallets and cover scrap tires in the designated area.
16.6 Pursuant to square footage provided, Contractor shall load onto Contractor’s vehicle and remove scrap tires from City yard. City will not provide additional storage space.
16.7 Contractor is responsible for all costs and/or fees related to the removal of the Contractor’s scrap lease tires.
16.8 Contractor shall use their Facility Tire Program ID in relation to the disposal of scrap tires.
17. Damaged, Lost and Stolen Tires.
17.1 The cost for damaged tires shall be included in the fixed rate per tire mile “Normal” damage to a tire means abuse by partial or total destruction of a tire by means other than normal wear, including but not limited to irregular wear, curbing, road hazards and misalignment. Normal damage does not include heat-related cracking of the tire in and around the bead area and such damage is the responsibility of the Contractor.
17.2 NTS agrees to maintain the buses’ suspension and steering in accordance with the bus manufacturer’s alignment specifications and keep brakes properly adjusted.
EXHIBIT A
17.3 Tires that are damaged beyond repair due to an accident or fire, vandalism, or have been lost, sold, stolen, or purchased shall be paid for by the City. The City shall pay for any mileage remaining, less the mileage already paid for on the damaged tire. The remaining mileage shall be prorated by determining the percentage of tread rubber remaining, multiplied by the Expected Tread Life (Exhibit B) multiplied by the effective base rate per tire mile (Exhibit B). Value shall be fixed for the term of the contract.
17.4 When a tire is not available for inspection to apply the above formula due to loss, theft, or complete destruction of tire, NTS shall not reimburse the Contractor in excess of fifty percent (50%) of the current value of a similar tire, unless the Contractor can provide an auditable accounting of the tire’s accurate mileage prior to the loss.
18. New Buses. If during the term of the contract, NTS purchases new buses with leased tires, Contractor shall deliver to the North American bus manufacturer the new tires required, if in Contractor’s product line. NTS shall give Contractor not less than a sixty-day (60) written notification of tire quantities and delivery dates. It will be the bus manufacturer’s responsibility to receive and install tires.
18.1 If any such buses equipped with tires furnished by the Contractor shall be driven over land instead of being shipped by the manufacturer, NTS shall pay the Contractor for use of the tires. The City shall pay the Contractor the following month mileage rate for the miles that are incurred. The mileage rates billable to City for such tires shall be the current mileage rate at the time buses are purchased.
18.2 Any tire lost, stolen, or damaged while in the possession of the bus manufacturer, dealer, or seller, or while the bus is being delivered shall be paid for by NTS.
18.3 When bus manufacturer requires a tire that is a different make/model than those itemized in Exhibit B or one(s) requiring a different size/construction type of tire, are required, a separate per-tire-mile rate shall be negotiated between the City and Contractor.
19. Removal of Buses from Service.
19.1 Should the City dispose of or remove from service any vehicles in its fleet for more than ninety days, the City shall notify the Contractor in writing, thirty (30) calendar days advance notice barring any unforeseen circumstances that would prevent such notice.
19.2 Tires on such vehicles will be removed by the Contract. The Contractor shall utilize tires on other buses in the NTS fleet. Tires that cannot be used on City fleet will be purchased by the City based on remaining miles pursuant to the rates in Exhibit B.
19.3 Scrap Tires No Value Tires. It is the desire of the City to use scrap tires for the sole and exclusive purpose of transporting, storing, and disposing out of service vehicles. Contractor is required to provide and mount uncut scrap tires for buses removed out of service at no cost to City, if available. Scrap tire will be provided as-is with no warranties as to the condition or fitness of such tires for continued use, and the City assumes all liability for use and possession of scrap tires furnished by the Contractor.
20. Unused New Tires. Unused and unmounted new tires at the end of the original Contract period shall be returned to the Contractor at no additional cost to the City and shall not be available for use during the run-out period.
EXHIBIT A
21. Recordkeeping and Reports.
21.1 The Contractor shall provide NTS accurate and detailed Monthly Reports to include the following:
a. Bus tires mileage for each bus including bus unit#
b. Beginning and ending balance of tire quantities on-hand c. Rolling tires on equipment including spares
d. Tires removed from service
e. Provide tire mileage for each type of tire in the fleet f. Monthly report on all tire misalignments and air pressure checks and adjustments
21.2 The Contractor shall retain throughout the term of the Contract and for three (3) years thereafter, all tire change summaries and invoicing documentation and shall make the records available for inspection upon NTS’ request. The Contractor shall make available to NTS, upon request, any reports or statistics they have available.
21.3 The Contractor shall make available to NTS, upon request, any other reports or statistics the Contractor should have available such as average tire mileage by ‘type’ of tire, mileage history, history of tires’ bus and wheel position, tires removed from service by type, etc.
22. Invoice. NTS will provide a monthly report listing individual bus numbers and total miles operated per month, including buses with zero (0) miles operated, by the 1 5th of the following month. Contractor shall submit monthly invoices showing for each tire type the activity during the previous calendar month as follows:
1. Contractor shall provide record mileage traveled by NTS buses on the Contractor’s tires (Original or Retread), tire size or group, tire rate, # of wheel positions, vehicle rate, and vehicle miles billed.
2. The service dates for each calendar month with the service rate per the contract.
23. Option Agreement to Run-Out Remaining Tires.
23.1 The City’s current Lease Agreement has a thirty six (36) mo nth “run-out” option available by providing written thirty (30) calendar days notice prior to the original expiration to further extend the Lease Agreement and continue to use all tires furnished by the incumbent Contractor. In the event a new Contractor is selected pursuant to this solicitation, and the “run- out” option exercised, the new Contractor shall be required to furnish all tire equipment, tools, supplies, and maintain the services required on previous Contractors’ tires for the thirty six (36) month “run-out” period.
23.2 Contractor shall maintain the previous Contractors’ tires pursuant to the OEM specifications until the run -out transition is complete; while simultaneously phasing in the new Contractors’ tires.
23.3 The rate or rates per tire in effect during thirty six (36) month period shall be the rate or rates in effect for the six (6) month period immediately preceding the commencement date of thirty six (36) month period.
EXHIBIT A
23.4 It is understood that the City shall continuously use tires insofar as practical on its highest mileage runs until such tires are rendered permanently unfit for service during thirty six (36) month period.
23.5 Upon the expiration of the thirty six (36) month period, the City shall pay for any used mileage remaining in such tires (tires supplied by the Contractor pursuant to the contract) at the rate set forth in this Section. The amount of the remaining mileage shall be computed in accordance with Section 17 titled “Damage, Lost, and Stolen Tires”.
23.6 The City will acquire each such used tire as is, and Contractor make no warranties as to the merchantability, condition or fitness for continued use of such tires.
24. Disposition of Tires at Termination . The City’s current Lease Agreement has a thirty - six (36) month “Run -Out” Option Agreement available by providing written thirty (30) calendar days notice prior to the original expiration to further extend the Lease Agreement and continue to use all tires furnished by the incumbent Contractor. In the event a new Contractor is selected pursuant to this solicitation, and the “run -out” option exercised, the new Contractor shall be required to furnish all tire equipment, tools, supplies, and maintain the service s required on previous Contractors’ tires for the thirty six (36) month “run-out” period.
24.1 Upon the expiration of said contract period, the City reserves the right to exercise the following options if a new contract is awarded to a Contractor other than the incumbent Contractor.
Option 1 – Tire Buy Out
a. NTS shall acquire ownership and title to each such used tire as is upon full payment, and Contractor makes no warranties as to the condition or fitness for continued use of such tires. Any payment for tires and tubes required to be purchased by NTS under this or any other provision of this Contract shall be made within thirty days after date of invoice covering the purchase thereof.
b. NTS shall pay any unused mileage remaining on such tires (tires supplied by Contractor pursuant to the Contract) at the rate in effect for those tires. The amount of the remaining mileage shall be computed in accordance with Section 1 7 titled “Damage, Lost, and Stolen Tires”.
Option 2 – Run-Out
c. In the event that a Contract is awarded to a Contractor other than the incumbent Contractor, NTS may exercise the “run -out” option via Run -Out Agreement. All terms, conditions and provisions of said Contract, as previously amended and extended, shall remai n in full force and effect during said run -out period, except that Contractor shall be relieved of any requirements to furnish NTS with new tires service or equipment during said run-out period.
d. NTS shall continuously use such tires insofar as practicable in its regular service until such tires are rendered permanently unfit for service during said run -out period.
e. Upon the expiration of the thirty six (36) month period, the City shall pay for any used mileage remaining in such tires (tires supplied by the Contractor pursuant to
EXHIBIT A
the contract) at the rate set forth in this Section. The amount of the remaining mileage shall be computed in accordance with Section 14 titled “Damage, Lost, and Stolen Tires” effect for those tires
25. Regulatory Compliance. The Contractor shall be solely responsible for all fees and costs mandated by federal, state, or local governments associated with the acquisition, installation, removal and proper disposal of scrapped tires from NTS premises. Disposal shall be done in accordance with all applicable federal, state, and local laws and regulations. The Contractor shall keep the work area clean, free of grease and grime, loose debris, and clutter free.
EXHIBIT B
EXHIBIT C
INDEMNIFICATION AND HOLD HARMLESS AGREEMENT
AND WAIVER OF SUBROGATION AND CONTRIBUTION
Contract/Agreement/License/Permit No. or description: RFP 24-736 Bus Tire Leasing Services for Norwalk Transit System.
Indemnitor(s): The_Goodyear_Tire_and_Rubber_Company_____________________________________________ (list all names)
To the fullest extent permitted by law, Indemnitor hereby agrees, at its sole cost and expense, to protect, indemnify, and hold harmless the City of Norwalk and its elected officials, officers, attorneys, agents, employees, designated volunteers, successor s, and assigns (collectively “Indemnitees”) from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith (collectively “Liabilities”), to the extent resulting from any wrongful or negligent act, failure to act, error, or omission of Indemnitor or any of its officers, agents, servants, employees, subcontractors, material men, suppliers or their officers, agents, servants or employees, to the extent arising directly, out of, in connection with, resulting from, or related to the above -referenced contract, agreement, license, or permit (the “Agreement”) or the performance or failure to perform any term, provision, covenant, or condition of the Agreement , including this indemnity provision. This indemnity provision shall survive the termination of the Agreement and is in addition to any other rights or remedies which Indemnitees may have under the law. Payment is not required as a condition precedent to a n Indemnitee’s right to recover under this indemnity provision, and an entry of judgment against the Indemnitor shall be conclusive in favor of the Indemnitee’s right to recover under this indemnity provision. Indemnitor shall pay Indemnitees for any attor ney’s fees and costs incurred in enforcing this indemnification provision. Notwithstanding the foregoing, nothing in this instrument shall be construed to encompass (a) Indemnitees’ active negligence or willful misconduct to the limited extent that the underlying Agreement is subject to Civil Code § 2782(a), or (b) the contracting public agency’s active negligence to the limited extent that the underlying Agreement is subject to Civil Code § 2782(b). This indemnity is effective without reference to the exis tence or applicability of any insurance coverages which may have been required under the Agreement or any additional insured endorsements which may extend to Indemnitees.
City agrees to promptly inform Indemnitor in writing of any claim that City believes to be subject to this Indemnification and Hold Harmless Agreement.
In the event there is more than one person or entity named in the Agreement as an Indemnitor, then all obligations, liabilities, covenants and conditions under this instrument shall be joint and several. “Indemnitor”
Print Name: Print Name: ___________________________
Signature:_____________________________ Signature:_____________________________
Title: Title:_________________________________
Date: __ Date: ____
EXHIBIT D
GENERAL TERMS AND CONDITIONS
GC.1 DEFINITIONS
Agreement
Proposer/Vendor/Contactor/
CONTRACTOR/Bidder
Change
City
Contract
Days
Defect
RFP
Notice to Proceed
Proposer
Special Provisions
Specifications
The Contract to be negotiated and entered into
by the City and the successful Proposer for the
work described in this RFP.
Any manufacturer, firm, company or agency
providing services, equipment, software, or
supplies for this RFP.
Additions, deletions or other revisions to the
Work within the general scope of the contract.
The City through issuance of a modification must
direct a change.
The City of Norwalk, a municipal corporation or
Norwalk Transit System (NTS)
The written agreement executed by the City and
the successful Proposer which sets forth the
rights and obligations of the Parties in connection
with the Work, and which includes the Contract
Documents.
Calendar days unless specifically noted
otherwise.
Patent or latent malfunction of failure in
manufacture or design of any component or
subsystem that causes a product to cease
operating or causes it to operate in a degraded
mode.
Request for Proposal
Purchase Order issued from the City to the
successful Proposer specifying the date on
which the Work under the Contract is to be
initiated.
Proposer or Contractor or CONTRACTOR or
Bidder
Contract Document containing requirements that
modify or supplement the General Terms and
Conditions.
EXHIBIT D
Work
Part of the contract documents that adequately
and completely describes the locations,
dimensions, character, properties, requirements
and details of the Work. Contract specifications
include, without limitation, all things described,
referenced, or state d in any Contract document
as a “Specification”,” Statement of Work” or
“Scope of Work”.
Any and all of the labor, material, services,
supervision, tools, machinery, equipment,
supplies, facilities and support used by the
Proposer to generate the results specified,
indicated or implied in the requirements
described in the contract Statement of Work
and/or Specifications.
GC.2 ASSIGNMENT AND SUBCONTRACTORS
Neither this RFP nor any interest herein nor claim hereunder may be assigned by successful Proposer either voluntarily or by operation of law, nor may all or part of this RFP or subsequent agreement be subcontracted by successful Proposer, without the prior written consent of the City of Norwalk. Consent by the City shall not be deemed to relieve successful Proposer of obligations to comply fully with the requirements hereof.
GC.3 SAMPLE AGREEMENT
A form approved by the City Attorney must be executed between the City and the successful Proposer prior to commencement of any work. The City reserves the right to negotiate with a successful Proposer the final provisions or provisions in addition to thos e contained in this RFP. The contents of this RFP, as revised and/or supplemented, and the successful proposal will be incorporated into and become part of the agreement.
GC.4 NOTICE OF LABOR DISPUTE
Whenever Proposer has knowledge that any actual or potential labor dispute may delay the award of this RFP, Proposer shall immediately notify and submit all relevant information to the City of Norwalk. Proposer shall insert the substance of this entire clause in any subcontract hereunder.
GC.5 DISPUTES
NTS is a FTA recipient and Contractor shall adhere to 9 CFR Part 18 FTA Circular 4220.1F 2 CFR 200 Appendix II (A) in regards to disputes.
Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by City’s Executive Director of Regional Transportation. This decision shall be final and conclusive unless within ten (10) days from the date of receipt of its copy, the Contractor mails
EXHIBIT D
or otherwise furnishes a written appeal to City of Norwalk’s City Council. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its possession. The decision of the City Council shall be binding upon the Contractor and the Contractor shall abide by the decision.
Performance During Dispute - Unless otherwise directed by the City, Contractor shall continue performance under this Contract while matters in dispute are being resolved.
Breach of Contract - The successful bidder shall be deemed in breach of contract if the successful bidder: fails to comply with any terms of the contract; fails to cure such noncompliance within five (5) calendar days from the date of written notice from City Utilities or s uch other timeframe, greater than five (5) calendar days, specified in the notice; fails to submit a written response to the notification from City Utilities within five (5) calendar days after the date of the notice.
Force Majeure - The successful bidder shall not be in breach of the contract as long as its default was due to causes beyond reasonable control (force majeure) and occurred without any fault or negligence on the part of both the successful bidder and its subcontractors.
Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others for whose acts he is legally liable, a claim for damages therefore shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage.
Remedies Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the City and the successful Proposer arising out of or relating to the Agreement or any breach thereof, will be decided by arbitration if th e parties mutually agree, or in a court of competent jurisdiction. The parties shall further agree that the proper venue for any court action shall be in the Superior Court for Los Angeles County for state court actions and the United States Distr ict Court for the Central District of California sitting in Los Angeles.
Rights and Remedies of the City The City shall have the following rights in the event that the City deems the Contractor guilty of a breach of any term under the Contract.
1. The right to take over and complete the work or any part thereof as agency for and at the expense of the Contractor, either directly or through other contractors;
2. The right to cancel this Contract as to any or all of the work yet to be performed;
3. The right to specific performance, an injunction or any other appropriate equitable remedy; and
EXHIBIT D
4. The right to money damages.
Rights and Remedies The duties and obligations imposed by the Contract documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the City or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereund er, except as may be specifically agreed in writing.
Fees - All costs, expenses and attorney fees incurred by the Contractor in connection with any appeal, suit or claim regarding a dispute that is brought by the Contractor shall be paid by the Contractor.
GC.6 ASSUMPTION OF RISK OF LOSS
Unless otherwise provided, Proposer shall have title to and bear the risk of loss of or damage to the items purchased hereunder until they are delivered in conformity as outlined in the RFP/RFP at the F.O.B. point specified herein, and upon such delivery Proposer’s responsibility for loss or damage shall cease, except for loss or damage resulting from Proposer’s negligence.
GC.7 WAIVER OF TERMS AND CONDITIONS
The failure of the City or the successful Proposer to enforce one or more of the terms or conditions of the Agreement or to exercise any of its rights or privileges, or the waiver by the City of any breach of such terms or conditions, shall not be construe d as thereafter waiving any such terms, conditions, rights, or privileges, and the same shall continue and remain in force and effect as if no waiver had occurred.
GC.8 INTEREST OF MEMBERS OF THE CITY
The successful Proposer covenants that it presently has no interest and shall not acquire any interest, direct or indirect, in the City or any other interest which would conflict in any manner or degree with the performance of its services hereunder.
The successful Proposer further covenants that in the performance of this Agreement no person having any such interest shall be employed by successful Proposer.
GC.9 TERMINATION FOR DEFAULT
If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the City may terminate this contract for default.
Termination shall be effected by serving a Notice of Termination on the Contractor
EXHIBIT D
setting forth the manner in which the Contractor is in default. The Contractor will be paid only the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract.
If it is later determined by the City that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, the City, after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a Termination for Convenience.
Opportunity to Cure The City, in its sole discretion may, in the case of a termination for breach or default, allow the Contractor [an appropriately short period of time] in which to cure the defect. In such case, the Notice of Termination will state the time period in which cure is permitted and other appropriate conditions If Contractor fails to remedy to City's satisfaction the breach or default of any of the terms, covenants, or conditions of this Contract within [10 days] after receipt by Contractor of written notice from City setting forth the nature of said breach or default, City shall have the right to terminate the contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude City from also pursuing all available remedies against Contractor and its sureties for said breach or default.
Waiver of Remedies for any Breach In the event that City elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this contract, such waiver by City shall not limit City’s remedies for any succeeding breach of that or of any other covenant, term, or condition of this contract.
GC.10 TERMINATION FOR CONVENIENCE
The City may terminate this contract in whole or in part, for the City’s convenience or because of the failure of the Contractor to fulfill the contract obligations. The City shall terminate by delivering to the Contractor a Notice of Termination specifyin g the nature, extent, and effective date of the termination. Upon receipt of the notice, the Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the City ‘s Contracting Officer all da ta, drawings, specifications, reports, estimates, summaries, and other information and materials accumulated in performing this contract, whether completed or in process. City has a royalty -free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, all such data, drawings, specifications, reports, estimates, summaries, and other information and materials. If the termination is for the convenience of the City, the City’s Contracting Officer shall make an equitable adjustment in the c ontract price but shall allow no anticipated profit on unperformed services. If the termination is for failure of the Contractor to fulfill the contract obligations, the City may complete the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by the City. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of City.
GC.11 LIQUIDATED DAMAGES
EXHIBIT D
If applicable, it shall be agreed by the parties to the Agreement that time is of the essence, and in the event of delay in starting the work or the delivery of the equipment, goods, services, and personnel required for project implementation and training or equipment beyond the date set forth in the Agreement, damage will be sustained by the City and that it is or will be impracticable to determine the actual amount of the damage caused by reason of such delay. It is therefore agreed that the successful P roposer will pay to the City the sum of two hundred fifty dollars ($250) for each working days delay in delivery, performance and/or acceptance of the approved work as set forth in the Agreement beyond any timeline or due date, or authorized extension.
These damages shall be deducted from any monies due, or which may thereafter become due, to the successful Proposer under the Agreement or may be recovered by the City through any lawful means.
The successful Proposer will be granted an extension of time and will not be assessed liquidated damages for any portion of the delay in performance which would be excused pursuant to the force majeure provisions of the Agreement, provided that the successful Proposer shall notify the City’s representative in writing of the causes of delay within three (3) business days from the beginning of any such delay.
The successful Proposer shall bear the burden of proof to establish that any delay is subject to the force majeure provisions of the Agreement
GC.12 CANCELLATION OF AGREEMENT
In any of the following cases, the City shall have the right to cancel the Agreement without expense to the City: (1) the successful Proposer is guilty of misrepresentation; (2) the Agreement is obtained by fraud, collusion, conspiracy, or other unlawful means; or (3) the Agreement conflicts with any statutory or constitutional provision of the State of California or the United States. This section shall not be construed to limit the City’s right to terminate the contract for convenience or default, as provided herein.
GC.13 EXCESS REPROCUREMENT LIABILITY
If applicable, Proposer shall be liable to the City of Norwalk for all expenses incurred by the City in reprocuring elsewhere the same or similar items or services offered by the Proposer hereunder, should Proposer fail to perform or be disqualified for fa ilure to meet terms and conditions set forth herein. Such reprocurement expense obligation by Proposer shall be limited to the excess over the price specified herein for such items or services.
GC.14 NON-RESTRICTIVE CLAUSES
Wherever brand, manufacturer or product names are indicated in these specifications, they are included for the purpose of establishing identification and a general description. Wherever such names appear, the term “or approved equal” is deemed to follow. The decision whether a proposed unit is an approved equal will be made by the City. Specifying a brand name in the specification shall not
EXHIBIT D
relieve the successful Proposer, or any subcontractor or supplier, of the responsibility to design and produce a unit which fully meets the performance specifications, the warranty and any other contractual requirements.
Requests for “or approved equal”, clarification of the specifications, and complaints on specifications must be received by the City, in writing, not less than fourteen (14) full days before the Proposal opening date. Any request for an approved equal or complaint concerning the equipment or material specifications must be fully supported with technical data, test results, or other pertinent facts as evidence that the substitute offered is equal to or better than the specification requirement.
Time limitations in this section must be complied with strictly and in no case will an extension of time for performance of this contract be granted because of Contractor’s failure to request a substitution of an alternative item at the times and manner se t forth herein. Furthermore, if a proposed substitution is rejected, Proposer shall be responsible to provide the item or product or work as originally specified at no additional cost to the City. The City has the complete and sole discretion to determine if an item or article is an equal item.
GC.15 INDEMNIFICATION
Successful Proposer shall comply with this section and the language of this section shall be adopted in the agreement:
Contractor shall indemnify, defend and hold harmless City, and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors and assigns in accordance with the Indemnification and Hold Harmless Agreement and Waiver of Subrogation and Contribution attached hereto as Exhibit C. Contractor’s covenant under this Section and Exhibit C shall survive the expiration or termination of this Agreement.
GC.16 INSURANCE
Proposal shall include a statement that the insurance requirements set forth in the contract documents can be obtained and will be carried without reservation or exclusion should Proposer be awarded a contract pursuant to this RFP.
Successful Proposer shall comply with this section and the language of this section shall be adopted in the agreement:
Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, with an insurance company admitted to do business in California, rated “A” or better in the most recent A.M. Best Insurance Rating Guide, and approved by City, a policy or policies of:
(1) broad -form commercial general liability insurance of One Million Dollars ($1,000,000) combined single limit and Two Million Dollars ($2,000,000) aggregate coverage against any injury, death, loss or property damage as a result of wrongful or negligent acts by Contractor, its officers, employees, agents, and independent contractors in performance of work under this Agreement;
EXHIBIT D
(2) Automobile liability insurance, with minimum combined single limits of One Million Dollars ($1,000,000); and
(3) workers’ compensation insurance and employer’s liability insurance with a minimum limit of One Million Dollars ($1,000,000) per accident or the amount required by law, whichever is greater.
City, its officers, employees, attorneys, and designated volunteers shall be named as additional insureds on the policy (ies) as to commercial general liability and automobile liability with respect to liabilities arising out of Contractor’s performance of services under this Agreement.
Each insurance policy required by this Section 17 shall be endorsed as follows: (1) the insurer waives the right of subrogation against City and its officials, officers, employees, agents and representatives; (2) except for professional liability and workers’ compensation policies, the policies are primary and non-contributing with any insurance that may be carried by City; and (3) the policies may not be canceled or materially changed except after thirty (30) calendar days’ prior written notice by insurer to City, unless canceled for non -payment, in which case the insurer shall give ten (10) calendar days’ written notice to City
All insurance coverages shall be confirmed by execution of endorsements required under this Section. CONTRACTOR shall file the endorsements with City on or before the date of commencement of services pursuant to this Agreement, and thereafter maintain current endorsements on file with City. The endorsements are subject to City’s approval. CONTRACTOR shall not cancel, reduce or otherwise modify the insurance policies required by this Section.
GC.17 CERTIFICATE OF NON-COLLUSION
Proposer’s must represent and warrant that all submittals for this work are genuine and not sham or collusive or made in the interest of or on behalf of any person not therein named, and that the Proposer has not, directly or indirectly, induced or solicited any other Proposer to put in a sham Proposal or any other person, firm or corporation to refrain from proposing, and that the Proposer has not in any manner sought by collusion to secure to the Proposer or another Proposer an advantage over any other Proposer.
The Certificate of Non -Collusion must be notarized and submitted separate from proposal electronically through the City of Norwalk PlanetBids online bid portal site:
GC.18 PATENT AND COPYRIGHT INFRINGEMENT
In lieu of any other warranty by the City or the successful Proposer against patent or copyright infringement, statutory or otherwise, it is agreed that successful Proposer shall defend at its own expense any claim or suit against the City on account of an y allegation that any item furnished under this Agreement or the normal use of sale thereof arising out of the performance of this Agreement, infringes on any present existing United States letter patent or copyright and
EXHIBIT D
successful Proposer shall pay all costs and damages finally awarded in any such suit or claim. Provided that successful Proposer is promptly notified in writing of the suit or claim and given authority, information and assistance at the Proposer expense of same.
However, the successful Proposer will not indemnify the City if the suit results from:
(1) City’s alteration of a deliverable, such that said deliverable in its altered form infringes upon any presently existing United States letters patent or copyright; o r (2) the use of a deliverable in combination with other material not provided by the Proposer when such use in combination infringes upon an existing United States letters patent or copyright.
The successful Proposer shall have sole control of the defense of any such claim or suit and all negotiations for settlement thereof. The successful Proposer shall not be obligated to indemnify the City under any settlement made without the Proposer’s consent or in the event the City fails to cooperate fully in the defense of any suit or claim, provided, however, that said defense shall be at the Proposer’s expense. If the use or sale of said item is enjoined as a result of such suit or claim, the Proposer, at no expense to the city, shall obtain for the City the right to use and sell said item, or shall substitute an equivalent item acceptable to the City and extend this patent and copyright indemnity thereto.
GC.19 FORCE MAJEURE
The successful Proposer shall not be liable for any failure to perform if acceptable evidence has been submitted to the City that failure to perform the Agreement was due to causes beyond the control and without the fault or negligence of the successful Pr oposer. Examples of such causes include acts of God, civil disturbances, fire, war, or floods, but does not include labor related incidents such as strikes or work stoppages or unavailability of any product to be supplied to the City.
GC.20 DELIVERY AND SERVICES
The services and/or equipment described herein are to be rendered for the City of Norwalk at 12650 E. Imperial Hwy., Norwalk, CA 90650. Service entrance address is 12735 Civic Center Drive, Norwalk, CA 90650 (Southwest entrance of the building).
GC.21 CONTRACT TERMS AND REQUIREMENTS
The successful Proposer shall deliver and complete all services described in the Scope of Services and agrees to perform such services in accordance with all terms and conditions of the City’s standard Agreement. By submitting a Proposal, the Respondent agrees that it will enter into the Agreement using the attached form with no exceptions to the form of the Agreement.
GC.22 CONFLICTS OF INTEREST
Each Bidder represents and warrants, and if awarded a contract, will covenant, that it presently has no interest and shall not acquire any financial interest, direct
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or indirect, in any City business or any other interest which would conflict in any manner or degree with the performance of the services to be performed. The successful Bidder shall further covenant that in the performance of the Agreement no person having any such interest shall be employed. Successful Bidder further covenants and warrants that successful Bidder and its officers, employees, associates and subcontractors, if any, will comply with all conflict of interest statutes of the State of Californ ia applicable to the performance of services contemplated by this RFP, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090.
During the term of the Contract, successful Bidder a nd its officers, employees, associates and subcontractors shall not, without the prior written approval of the City Manager, perform work for another person or entity for whom successful Bidder is not currently performing work that would require successful Bidder or one of its officers, employees, associates or subcontractors to abstain form a decision under the Contract pursuant to a conflict of interest statute.
GC.23 ORDER OF PRECEDENCE
In the event of any conflict, the order of precedence of the contract documents will be:
The Agreement and any written amendment thereto
Federal Provisions
General Conditions
Scope of Work/Specifications
A modification to this Agreement shall take its precedence from only those specific terms it amends. All other terms and conditions shall remain unchanged.
GC.24 CHANGES
The City may at any time, by written order, and without notice to sureties, if any, make changes within the general scope of this Agreement in any one or more of the following:
1. Drawings, designs or specifications when the supplies to be furnished are to be specially manufactured for the City in accordance with the drawings, designs, or specifications.
2. Method of delivery or packing.
3. Place of delivery.
If any such change causes an increase or decrease in the cost of, causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, the Project Manager shall make an equitable adjustment in the contract price, the delivery schedule, or both, and shall modify the contract.
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The Contractor must assert its right to an adjustment under this clause within thirty (30) days from the date of receipt of the written order. However, if the Project Manager decides that the facts justify it, the Project Manager may receive and act upon a change proposal submitted before final payment of the contract.
If the Contractor’s proposal includes the cost of property made obsolete or excess by the change, the Project Manager shall have the right to prescribe the manner of the disposition of the property.
Failure to agree to any adjustment shall be a dispute under the Disputes clause.
However, nothing in this clause shall excuse the Contractor from proceeding with the contract as changed.
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The City’s General Conditions set forth in RFP 24 -736 Bus Tire Leasing Services are hereby revised as set forth below and are mutually agreed by the City of Norwalk and the Goodyear Tire and Rubber Company (“Contractor”).
1.Contractor’s proposal is subject to mutual agreement of any resulting contract from this procurement.
2. Contractor’s proposal is subject to continued acceptance of Contractor’s combination of primary and self-insurance.
3. Contractor’s proposal is subject to mutual agreement of deferred items from Addendum
1. GC.5 DISPUTES
NTS is a FTA recipient and Contractor shall adhere to 9 CFR Part 18 FTA Circular 4220.1F 2 CFR 200 Appendix II (A) in regards to disputes.
Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by City’s Executive Director of Regional Transportation. This decision shall be final and conclusive unless within ten (10) days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to City of Norwalk’s City Council. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its possession. The decision of the City Council shall be binding upon the Contractor and the Contractor shall abide by the decision unless litigation is thereafter commenced in a court of competent jurisdiction.
Performance During Dispute - Unless otherwise directed by the City, Contractor shall continue performance under this Contract while matters in dispute are being resolved.
Breach of Contract - The successful bidder shall be deemed in breach of contract if the successful bidder: fails to comply with any terms of the contract; fails to cure such noncompliance within five (5) calendar days from the date of written notice from City Utilities or s uch other timeframe, greater than five (5) calendar days, specified in the notice; fails to submit a written response to the notification from City Utilities within five (5) calendar days after the date of the notice.
Force Majeure - The successful bidder shall not be in breach of the contract as long as its default was due to causes beyond reasonable control (force majeure) and occurred without any fault or negligence on the part of both the successful bidder and its subcontractors.
Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his
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employees, agents or others for whose acts he is legally liable, a claim for damages therefore shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage.
Remedies Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the City and the successful Proposer arising out of or relating to the Agreement or any breach thereof, will be decided by arbitration if th e parties mutually agree, or in a court of competent jurisdiction. The parties shall further agree that the proper venue for any court action shall be in the Superior Court for Los Angeles County for state court actions and the United States Distr ict Court for the Central District of California sitting in Los Angeles.
Rights and Remedies of the City The City shall have the following rights in the event that the City deems the Contractor guilty of a breach of any term under the Contract.
1. The right to take over and complete the work or any part thereof as agency for and at the expense of the Contractor, either directly or through other contractors;
2. The right to cancel this Contract as to any or all of the work yet to be performed;
3. The right to specific performance, an injunction or any other appropriate equitable remedy; and
4. The right to money damages.
Rights and Remedies The duties and obligations imposed by the Contract documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the City or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may b e specifically agreed in writing.
Fees - All costs, expenses and attorney fees incurred by the Contractor in connection with any appeal, suit or claim regarding a dispute that is brought by the Contractor shall be paid by the Contractor.
GC.10 TERMINATION FOR CONVENIENCE
The City may terminate this contract in whole or in part, for the City’s convenience or because of the failure of the Contractor to fulfill the contract obligations. The City shall terminate by delivering to the Contractor a Notice of Termination specifyin g the nature, extent, and effective date of the termination. Upon receipt of the notice, the Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the City ‘s Contracting Officer all da ta, drawings, specifications, reports, estimates, summaries, and other information and
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materials accumulated in performing this contract, whether completed or in process.. If the termination is for the convenience of the City, the City’s Contracting Officer shall make an equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services. If the termination is for failure of the Contractor to fulfill the contract obligations, the City may complete the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by the City. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of City.
GC.13 EXCESS REPROCUREMENT LIABILITY
If applicable, Proposer shall be liable to the City of Norwalk for all expenses incurred by the City in reprocuring elsewhere the same or similar items or services offered by the Proposer hereunder, should Proposer fail to perform or be disqualified for fa ilure to meet terms and conditions set forth herein. Such reprocurement expense obligation by Proposer shall be limited to the excess over the price specified herein for such items or services and expressly exclude incidents of force majeure.
GC.15 INDEMNIFICATION
Successful Proposer shall comply with this section and the language of this section shall be adopted in the agreement:
Contractor shall indemnify, defend and hold harmless City, and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors and assigns in accordance with the Indemnification and Hold Harmless Agreement and Waiver of Subrogation and Contribution attached hereto as Exhibit C. Contractor’s covenant under this Section and Exhibit C shall survive the expiration or termination of this Agreement.
Indemnification does not apply to the City’s active negligence or willful misconduct.
GC.16 INSURANCE
Proposal shall include a statement that the insurance requirements set forth in the contract documents can be obtained and will be carried without reservation or exclusion should Proposer be awarded a contract pursuant to this RFP.
Successful Proposer shall comply with this section and the language of this section shall be adopted in the agreement:
Risk Management has approved for this contract that Commercial General Liability Insurance may be covered through self-insured retentions.
Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, with an insurance company admitted to do business
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in California, rated “A” or better in the most recent A.M. Best Insurance Rating Guide, and approved by City,:
(1) broad-form commercial general liability insurance or self-insurance coverage of One Million Dollars ($1,000,000) combined single limit and Two Million Dollars ($2,000,000) aggregate coverage against any injury, death, loss or property damage as a result of wrongful or negligent acts by Contractor, its officers, employees, and agents, in performance of work under this Agreement;
(2) Automobile liability insurance, with minimum combined single limits of One Million Dollars ($1,000,000); and
(3) workers’ compensation insurance and employer’s liability insurance with a minimum limit of One Million Dollars ($1,000,000) per accident or the amount required by law, whichever is greater.
City, its officers, employees, attorneys, and designated volunteers shall be named as additional insureds on the policy (ies) as to commercial general liability and automobile liability with respect to liabilities arising out of Contractor’s performance of services under this Agreement.
Each insurance policy required by this Section 17 shall be endorsed as follows (1) except for professional liability and workers’ compensation policies, the policies are primary and non -contributing with any insurance that may be carried by City; and ( 2) the policies may not be canceled or materially changed per policy provisions unless canceled for non -payment, in which case the insurer shall give ten (10) calendar days’ written notice to City
.
The City’ Risk Management has approved for this contract that specific contract information maybe conveyed on Certificate(s) of insurance in lieu of specific contract policy endorsements.
GC.19 FORCE MAJEURE
The successful Proposer shall not be liable for any failure to perform if acceptable evidence has been submitted to the City that failure to perform the Agreement was due to causes beyond the control and without the fault or negligence of the successful Pr oposer. Examples of such causes include acts of God, civil disturbances, fire, war, strikes and work stoppages or floods.