1 SERVICE AGREEMENT FOR CUMMINS ORIGINAL EQUIPMENT MANUFACTURER (OEM) PARTS AND MINOR REPAIR SERVICES
(City of Norwalk)
THIS SERVICE AGREEMENT (“Agreement”) is dated July 1, 2024 (“Effective Date”), and is between the City of Norwalk, a California municipal corporation (“CITY”) and Cummins, Inc. , a n Indiana corporation (“ CONTRACTOR”). The CONTRACTOR and 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 an independent contractor to provide Cummins OEM parts and minor repair services.
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 Work . CONTRACTOR shall perform the specific work more particularly described in Exhibit A for the Project, and in accordance with the provisions of Invitation for Bid (“IFB”) No.24-763 and all Addenda.
1.2 IFB No.24-763 and Addenda. CONTRACTOR has confirmed receipt of all Addenda amending IFB No. 24-763, and CONTRACTOR, in the performance of all services required under this agreement, shall adhere to IFB No.24-763 and all Addenda provided to CONTRACTOR.
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 work required under this Agreement will be performed by CONTRACTOR or under its supervision, and all personne l engaged in the work shall be qualified to perform such work.
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 Manager (the “City Representative”). For purposes of this Agreement, the Contractor Representative shall be Doug Sperry (the “Contractor Representative”).
ATTACHMENT NO. 1
2 1.5 Time of Performance. CONTRACTOR shall commence the services required under this Agreement immediately upon receipt of a Purchase Order (“PO”) for such services from the City Representative, or his or her designee.
2. Term of Agreement. The term of this Agreement shall be from July 1, 2024 to June 30, 202 7 (“initial term”). CITY may review the CONTRACTOR’s performance under the 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 1st through June 30 th of each year thereafter, unless sooner terminated as provided in Section 13 herein.
3. Compensation.
3.1 As full compensation for CONTRACTOR’s services provided under this Agreement, and subject to the maximum amount of compensation hereafter provided, CITY shall pay CONTRACTOR in accordance with the rates set forth in Exhibit B (“Price Sheet”). CITY shall not pay CONTRACTOR rates higher than those specified in Exhibit B, unless mutually agreed by the City Council and the Contractor Representative.
CITY shall not allow any claims for additional products provided or services performed by CONTRACTOR, unless the City Council or the City Manager, as authorized, authorizes the additional products or services in writing prior to CONTRACTOR’s provision of t he products, performance of the additional services or incurrence of additional expenses. Any additional products or services authorized by the City Council shall be compensated at a rate mutually agreed to by the parties. Any additional services authorized by the City Manager, including pursuant to an extension or amendment of this Agreement, shall be compensated at a rate mutually agreed to by the parties and only if the funds for the additional services are included in the adopted budget.
CITY shall m ake payment for additional services and expenses in accordance with Section 4 of this Agreement.
4. Method of Payment.
4.1 Invoices. CONTRACTOR shall submit to CITY detailed monthly invoices for all services performed and expenses incurred, if any, pursuant to this Agreement during the prior month. CITY shall review invoices and notify CONTRACTOR within ten (10) business days of any disputed amounts. Invoices are subject to approval by the City Representative, or his or her designee.
4.2 Payment. CITY shall pay all undisputed portions of an approved invoice within thirty (30) calendar days after receipt of the invoice. CITY shall not withhold federal payroll, state payroll and other taxes, or other similar deductions from each payment made to CONTRACTOR.
4.3 Audit of Records . Upon CITY providing 24 -hour prior notice, CONTRACTOR shall make all records, invoices, timecards, cost control sheets and other 3 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.
5. Standard of Performance . CONTRACTOR shall perform all services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to CITY.
6. Ownership of Work Product . 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. Wo rk 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.
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 cond uct 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 inde pendent 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 employee 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 or its employees, agents, subcontractors, 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 CONSULTANT shall provide the Services outlined in the Scope of Services directly to CITY; (ii) CONSULTANT maintains a business location at the address listed under Section 13 that is separate and 4 distinct from the CITY; (iii) CONSULTANT contracts with other businesses to provide the same or similar services and maintains a clientele without restriction from the CITY; (iv) CONSULTANT advertises and holds itself out to the public as available to prov ide the same or similar services; (v) unless otherwise specified in this Agreement, CONSULTANT provides its own tools, vehicles, and equipment necessary for performing the Scope of Services; (vi) CONSULTANT 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, CONSULTANT 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. 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 services under this Agreement, including, without limitation, the Political Reform Act (Cal. Gov. Code, § 81000 et seq.) and Government Code Section 1090. During the term of this Agreement, CONTRACTOR shall may perform similar services for other clients, but CONTRACTOR and its officers, employees, associates and 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.
10. Indemnification. 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 as Exhibit C. CONTRACTOR’s covenant under this Section 10 and 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, 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 5 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;
(2) automobile liability insurance, with minimum combined single limit coverage of One Million Dollars ($1,000,000);
(3) workers’ compensation insurance with a minimum limit of One Million Dollars ($1,000,000) per accident or the amount required by law, whichever is greater, unless otherwise agreed to by City Manager or designee in writing.
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 coverages with respect to liabilities arising out of CONTRACTOR’s work under this Agreement.
11.2 Each insurance policy required by this Section 11 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 the workers’ compensation policy, 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, then ten (10) calendar days’ notice shall be given.
11.3 All insurance coverages shall be confirmed by execution of endorsements required under Section 11.2. CONTRACTOR shall file the endorsements with CITY on or before the Effective Date of this Agreement, and thereafter maintain current endorsements on file with City Clerk. The endorsements 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. Either party may terminate this Agreement for any reason without penalty or obligation on thirty (30) calendar days’ written notice to the other party.
CONTRACTOR shall be paid for services satisfactorily rendered to the last working day the Agreement is in effect, and CONTRACTOR shall deliver all materials, reports, documents, notes, or other written materials compiled through the last working day the Agreement is in effect. Neither party shall have any other claim against the other par ty by reason of such termination.
14. Notices. Any notices, consent, request, demand, bill, invoice, report or other communications required by or permitted under this Agreement shall be in writing 6 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: Cummins, Inc.
Attn: Corey Carlson
500 Jackson Street
Columbus, IN 47201
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 shall 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 assign or subcontract all or any portion of this Agreement, unless otherwise approved by CITY.
Any attempted or purported assignment or subcontracting by CONTRACTOR in violation of the provisions of this Section 16 shall be null, void and of no effect. 7 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. CONSULTANT 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. Consultant 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.
20. Non-Waiver of Terms, Rights and Remedies . Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by CITY of any payment to CONTRACTOR constitute or be construed as a waiver by CITY of any breach of covenant, or any default which may then exist on the part of 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.
19. 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 attorneys’ 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 Form . 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. 8 23. Entire Agreement . This Agreement, and any other documents incorporated herein by specific reference, represent 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]
9 The parties, through their respective authorized representatives, are signing this Agreement on the date stated in the introductory clause.
CITY OF NORWALK
a California municipal corporation
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
CUMMINS, INC.
By:
Name:
Title:
By:
Name:
Title:
(Please note, two signatures required
for corporations under Cal. Corp.
Code, § 313, unless corporate
documents authorize only one person
to sign this Agreement on behalf of
the corporation.)
EXHIBIT A
SCOPE OF SERVICES
1. Project Overview and Objective. The City of Norwalk Department of Transportation is seeking bids from qualified firms to provide Original Equipment Manufacturer (OEM) Cummins parts and minor repairs for its fleet of Gillig buses equipped with CNG ISL-G and L9N Cummins engines.
2. Qualifications. All contractors must possess the ability and knowledge to perform minor Cummins engine repairs to a 40ft bus. Please refer to Exhibit J for bus specifications.
2.1 Cummins – Contractor shall be a certified Cummins dealer authorized to sell and/or repair Cummins CNG Engine components.
3. OEM Cummins Parts. All parts are to be Original Equipment Manufacturer (OEM).
No Aftermarket substitutes allowed. This contract will cover, but not limited to the following bus parts:
• Oil Filter
• Temperature sensor
• Lubricating oil filter element
• Ignition coil
• Sparkplug kit
• Spark plug boot
• Spark plug
• Thermostat
• Water pump kit
• Oil pan gasket
• Pressure sensor
• Oxygen sensor
• Flow measurement venturi
• Valve exhaust gas
• Turbo charger speed sensor
• Clamp band
• Position sensor
• Pressure sensor
• Humidity sensor
• Knock sensor
• Ignition module
• Mass airflow sensor
• Air control valve
• Fuel control valve
• Wiring harness
• Rear main seal
EXHIBIT A
• Crank shaft pulley
3.1 Delivery. Contractor shall deliver OEM Cummins parts to the City of Norwalk’s Transportation/Public Services Facility located at 12650 Imperial Hwy.
Norwalk, CA 90650. OEM Cummins parts are to be delivered between 8:00am- 6:00pm Monday through Friday. Parts to be delivered within seven (7) business days unless specified ETA is mutually agreement between the City and Contractor.
3.1.1 Delivery Charges. Any delivery charges, air freight, next day air shall be invoiced on the same invoice as the parts(s). The Fleet Maintenance Manager, or designee must give written approval for such charges.
3.2 Bill of Lading. Bidder will comply with industry standards for packaging and delivery of orders. All parts delivery must be signed by a City employee and accompanied by a Bill of Lading or equivalent.
3.3 The Contractor will perform all packing, shipping, and freight of supplies procured by this IFB.
3.4 Discrepancies related to wrong parts, quantities, or delivery will not be accepted by the City. All costs related to problems caused by Contract will be borne by the Contractor. This includes prepaid shipping for goods that were shipped incorrectly.
3.5 The contractor shall assume all responsibility and risk of loss incident to said deliveries.
3.6 The event the delivery of OEM Cummins parts under the IFB are delayed because of strike, injunctions, government controls, or act of God having a direct effect on the manufacture and delivery of the OEM Cummins parts that could not have reasonably been anticipated by the Contractor, the Contractor shall notify the City immediately.
4. Return Policy. Any OEM Cummins parts that are defective or nonconforming, or not correct due to the Contractor’s error, shall be returned to the Contractor at no charge to the City.
5. Repairs. The contractor shall have the ability and expertise to perform minor repairs on the Cummins CNG ISL-G and L9N engines in accordance with Cummins specifications and requirements. Contractor shall provide furnish all labor, OEM parts, materials, equipment, and supplies. All parts used shall be genuine Cummins parts. No aftermarket parts will be accepted.
EXHIBIT A
5.1 Component Inspection. If any of the parts to be re-used fail their inspection with any type of repair services, the Fleet Maintenance Manager must be notified immediately via email with price quote for the cost of new component(s).
6. Possession of Vehicle. When the City vehicle is in the possession of the Contractor, the Contractor shall securely store the City vehicle and all its ancillary componentry installed in or on the City vehicle at the Contractor’s facility. The Contractor shall be solely responsi ble for the City vehicle and its contents during the Contractor’s possession.
6.1 Accidents/Incidents - Vehicles. The contractor shall immediately notify the City in writing if the City vehicle was involved in an accident or incident. If applicable the City will coordinate any necessary repairs.
6.2 Accidents/Incidents - Personnel. Contractor shall provide to the City a written notification of the personnel that were injured while working on a City vehicle within seven (7) working days of the accident/incident and notice shall include the nature of the injury and treatment performed.
7. Return of Vehicle After Repair. The city shall be responsible for picking up vehicle after completion of repairs. The City shall pick up the vehicle from the Contractor Monday through Friday between the hours of 8:00am-4:00pm.
7.1 CITY shall inspect repaired vehicle utilizing the City’s completed Pre-Inspection Checklist to ensure additional damages were not incurred and/or missing components discovered Contractor’s possession of City vehicle prior to City taking possession of the vehicle from Contractor.
7.2 Should the City determine that there is additional damage and/or missing components from the City vehicle, City shall not accept the vehicle without Contractor’s written acknowledgement on the City’s Pre- Inspection Checklist. A formal written notification from the City to the Contractor shall be provided to the Contractor within seven (7) business days of discovery of additional damage and/or missing components.
7.3 If it is determined that additional damages and/or missing components occurred when the vehicle was in possession of Contractor, the Contractor will be financially responsible for repairing additional damage and/or replacing missing components within thirt y (30) business days from discovery.
8. Additional Repairs and/or parts. Contractor shall submit a written notification to NTS within twenty-four (24) hours of any additional repairs and/or parts needed and provide
EXHIBIT A
a revised estimate within five (5) business days from initial written notification to NTS.
NTS shall provide a change order. The contractor shall not commence additional repairs or procure additional parts without Fleet Manager issued Purchase Order change.
9. Acceptance of Work.
a. All work performed by the Contractor shall be approved by the Fleet Maintenance Manager or designee.
b. Contractor shall record, maintain and be responsible for ensuring that all OEM specifications and procedures are followed during all repairs.
10. Quality of Work. The quality of work shall be in accordance with Cummins procedures and specifications.
11. Warranty. CONTRACTOR shall guarantee the work product against all defects in workmanship or materials. All work performed shall be subject to an unconditional repair warranty of one (1) year on labor and the repair part(s) shall be in accordance with the OEM warranty.
12. Cores. The bid price of cores will not be considered in adjudication of bids. Bidders are responsible for core pick-up at no additional charge to the City. If core is acceptable, Contractor to credit the City within thirty (30) days of receiving core.
13. Regulatory Compliance. Contractor shall comply with all applicable federal, state, local laws and regulations and shall provide all Material Safety Data Sheets (MSDS) if applicable.
EXHIBIT B
EXHIBIT B
EXHIBIT B
EXHIBIT C