MBTA CONTRACT # 18.01 GILLIG
AGREEMENT REGARDING PURCHASE OF TRANSIT VEHICLES.
THIS AGREEMENT is made and entered into on April 5. 2019 between and among GILLIG LLC, a California company, with its principal pla-cg of business located at 451 oLcovery Drive, Livermore, California 94551 ('SELLER"), and MORONGO BASIN TRANSIT AUTHORIry ('MBTA',). SELLER and MBTA may be referred to herein individually as "Party" or collectively as "Parties'"
RECITALS
WHEREAS, MBTA, by its Request for Proposals #18-01, duly advertised for written proposals to be submitted on or before 11:00 a.m. on october 12, 21lgfor the purchase of Heavy Duty Rear engine Transit, Commuter and Trolley Vehicles ('BUSES") on behalf of itself and the Joint Procurement Participants of the CaIACT-MBTA Vehicle Purchasing Cooperative by the MBTA; and WHEREAS, the MBTA',s RFP is attached hereto as Exhibit "A", and is incorporated herein by reference as if set forth in full; and WHEREAS, SELLER submitted a sealed proposal in response to MBTA's Notice lnviting Proposals; and
WHEREAS, after it was determined that SELLER was a successful responsive and responsible proposer; and
WHEREAS, SELLER's proposal in response to MBTA's Notice lnviting Proposals is attached hereto as Exhibit "B", and is incorporated herein by reference as if set forth in full; and
WHEREAS, the MBTA Board of Directors has authorized the staff via Resolution and board action to award contracts and accept SELLER'S proposal through agreement by and between SELLER and MBTA upon the terms and conditions set forth herein; and
WHEREAS, MBTA has fully complied with all federal, state, and local laws governing public procurement process for the purchase of the BUSES; NOW, THEREFORE, incorporating the foregoing recitals herein, for and in consideration of the promises and of the mutual covenants and agreements herein contained, SELLER and MBTA hereby agree as follows:
1. GONTRACT DOCUMENTS. This Agreement, along with all Exhibits referenced herein, and including without limitation, all documents referenced in said Exhibits shall hereinafter be referred to as the "Contract Documents." ln the event of any conflict, the Contract Documents, including specifically RFP #18-01 and any addendums thereto, shall take priority in interpreting the respective rights and obligations of the Parties created by this Agreement. Any contract, agreement, or other document subsequently created by any Party in connection with a purchase order issued pursuant to this Agreement and which changes or othenrise modifies the terms and conditions set forth in the Contract Documents shall not be valid without the prior written approval of both of the Parties to this Agreement.
2. DESCRIPTION OF BUSES PURCHASED. SELLER hereby agrees that it shall sell the BUSES as more particularly described in RFP #18-01 (attached hereto as Exhibit "B") to any and all participants named in the RFP who desire to purchase such BUSES from SELLER. BUSES are to be vehicles with less than 4000 miles and that have never been previously registered.
3. CONTRACT PRICING. SELLER hereby agrees to sell such BUSES as more particularly described in RFP #18-01 (attached hereto as Exhibit "B") under the terms and conditions set forth in RFP #18-01 . 4, DELIVERY. SELLER shall deliver F.O.B. per terms and conditions of MBTA RFP #18-01 Section SP 7.4, 11 and 12 and as proposed.
5. PAYMENT BY COOPERATIVE PARTICIPANTS. SELLER shall
collect payment from CaIACT/MBTA participants within thirty (30) days after the delivery and acceptance of the BUSES by the participant, and a receipt of an invoice thereof, per RFP #18'01 , Section SP 10.
6. NO ASSIGNMENT. Neither this Agreement, nor any interest in it, may be assigned or transferred by any Party without the prior written consent of all of the Parties to this Agreement,
7. NO ATTORNEYS' FEES. lf litigation is required to enforce or interpret the provisions of this Agreement, neither SELLER nor the Cooperative shall be entitled to an award of attorneys' fees or costs, but shall be entitled to any other relief to which it may be entitled by law.
8. MODIFICATION. This Agreement may be modified only in a writing approved by the MBTA Board and signed by all Parties.
9. GOVERNING LAW. The laws of the State of California will govern the validity of this Agreement, its interpretation and performance. Any litigation arising in any way from this Agreement shall be brought in San Bernardino County, California.
10. NO WAIVER OF DEFAULT, The failure of any Party to enforce against another pafty any provision of this Agreement shall not constitute a waiver of that party's right to enforce such a provision at a later time' and shall not serve to vary the terms of this Agreement'
11. FURTHER ASSURANCES. Each t3ny shall execute and deliver such papers,ents, and perform such acts aS are
necessary or rpp.f riate, io implement the terms of this Agreement and the intent of the parties to this Agreement'
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of, arid be binding Jpon, the parties to the contract and their heirs, administrators, executors, personai t"pt"t"ntatives, Successors and assigns' Whenever the context so requires, the masculine gender and includes the feminine and neuter, and the singular number includes thL plural. This Agreement may be executed in any numbei of counterparts, each of which shall be considered as an original and be effective as such.
13. NON-INTEREST. No officer or employee of the MBTA shall hold any interest ;n th;5 4gtre-6t (Crifornia Government Code section 1090)'
14. CORPORATE AUTHORIry. Each individual signing this
AgreementoFuenarotanerrtnyrepresentsandwarrantsthatheorsheis reipectively, duly authorized to sign on behalf of the entity and to bind the entity fully to each and all of the obligations set forth in this Agreement.
15. INDEMNIFICATION. lndemnification will be as per the terms and conditions specified in RFP #18-01 , GC 9'1 .
16. WARRANTY. The BUSES are warranted by SELLER to be new and to be free frorn defects in material and workmanship pursuant to and in accordance with those certain manufacturer's warranties collectively attached hereto as Exhibit "B", and as submitted in response to RFP #18-01 by SELLER and incorporated herein by reference as if set forth in full. During said warranty periods, the BUSES shall maintain structural and functional integrity. The warranty is based on regular operation under operating conditions prevailing in the purchaser's operating area.
17. WARRANTY OF FITNESS. SELLER hereby warrants that the BUSES and all materials furnished shall meet the requirements and conditions of the Contract Documents and shall be fit for the purposes intended. Acceptance of this warranty and acceptance the BUSES and materials to be manufactured or assembled pursuant to the specifications in these Contract Documents shall not waive any warranty, either express or implied.
18. NOTICE. All notices relative to this Agreement shall be given in writing and shall be personally served or sent by certified or registered mail and be effective upon depositing in the United States mail. The Parties shall be addressed as follows, or at any other address designated by proper notice:
19. CONTINGENCY. Contract validity is subject to successful completion of facility and pilot vehicle inspections.
MBTA: Joe Meer
Director of Cooperative Purchasing Programs
Morongo Basin Transit AuthoritY
62405 Verbena Road
Joshua Tree, California 92252
SELLER: JOSEPH POLICARPIO
VICE PRESIDENT
Gillig, LLC
451 Discovery Drive
Livermore, California, 94551
19. EXECUTION. This Agreement is effective upon execution by both Parties. lt is the product of negotiation and all parlies are equally responsible for authorship of this Agreement. Section 1654 of the California Civil Code shall not apply to the interpretation of this Agreement.
lN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.
GILLIG, LLC. Morongo Basin Transit Authority
a
JodMeer. Director of Purchas