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Res 2565 7/1/1980f 4 f RESOLUTION NO.lo5 RESOLUTION AUTHORIZING THE EXECUTION OF A MEMORANDUM OF AGREEMENT WITH THE GOOD- YEAR TIRE AND RUBBER COMPANY TO CONTINUE SUPPLYING TIRES FOR CITY BUSES. WHEREAS, all tires in use on City buses since acquisition of the Transit System have been supplied through lease with the Goodyear Tire and Rubber Company, and WHEREAS, the lease has been determined more economical than initial purchase and subsequent replacement of tires by the City. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF WICHITA FALLS, TEXAS: That certain Memorandum of Agreement and Supplemental Agreement, copies of which are attached hereto, between the City of Wichita Falls and The Good- year Tire and Rubber Company for leasing of bus tires to the City is hereby approved and that the City Manager is authorized to execute the same for the City of Wichita Falls. PASSED AND APPROVED THIS the 1st day of July 1980. A Y O R ATTEST: Gj- City C erk 3-79) MEMORANDUM OF AGREEMENT 1EI1ORANDUM OF AGREEMENT made and entered into at Akron, Ohio this H,f ///L day of V , ( 19 , by and between The City of it Wichita Falls, Texas of Wichita Falls, H Texas hereinafter called "Operator," and THE GOODYEAR IjIRE & RUBBER COMPANY, a corporation of Akron, Ohio, hereinafter called H"Goodyear." WITNESSETH, that: 1 . Goodyear will furnish Operator tires for use on buses for the remuner- ation and under the terms and conditions hereinafter set forth. Except that Operator may use separate and apart from this agreement until unfit for further service tires ii its possession when this agreement becomes effective and not furnished by Goodyear under any H similar mileage contract previously in effect between the parties hereto. Operator agrees to use exclusively tires furnished by Goodyear hereunder on buses operated by Operator in Wichita Falls, Texas and the vicinity thereof. It is understood that in this agreement a tire means a casing, tube and flap for a tube type tire and a casing only for a tubeless tire; and a bus means any vehicle of more than seven passenger carrying capacity, designed for operation on pneumatic tires and used publicly for the transportation of passengers. The number of tires to be furnished hereunder shall be sufficient to keep all of said buses fully equipped and to provide a reserve supply to be mounted on rims and kept in Operator's garage for use in cases of emergency. Buses operating under this agreement shall be equipped with rims of the sizes and types and spaced to conform to the approved standards of The Tire & Rim Association of America, Inc. The parties hereto recognize that in the event that, at the commencement of this contract or subsequently, Goodyear purchases tires from Operator manufactured by a firm other than Goodyear, such tires will be included among the tires leased to Operator hereunder. Operator agrees that Goodyear is not responsible for the design, manufacture or suitability for use of such tires, and Operator agrees to refer all claims, suits or judgments arising out of the use of such tires to the manufacturer thereof, and not to Goodyear. 2. BUS MILEAGE REPORTS AND PAYMENTS AND HNDIVIDUAL TIRE MILEAGE RECORDS Operator shall keep an accurate record of the number of miles covered by each bus during the term hereof and render to Goodyear a report of such bus mileage at the end of each month. Operator shall pay Goodyear on or before the twenty-fifth of each month forr the mileage run on the tires furnished hereunder during the month immediately precedingPg at the rate per bus mile as shown in the schedule attached to this agreement, marked Exhibit "A" and made a part hereof. Such rate is established for Operator's fleet shown in such schedule. A propor- tionate rate and bonus point shall apply to any other buses placed in operation by Operator during the term of this contract requiring a different size and/or construction type of tire. The number of miles covered by each bus shall be ascertained either by means of an instru- ment which will accurately record mileage being maintained by Operator on each bus, or by multiplying the number of trips of each bus by the 1- ii 79) „ I miscellanes number of miles in the route it covers and adding any nuouous, mileage that may be run to and from the routes and in testing instructing men, or otherwise. If the latter method is used, Operator shall furnish Goodyear a schedule of the established routes covered byitsbusesandshalladviseGoodyearofanychangesinsuchroutesorany I; additional routes covered. The instruments and/or mileage records referred. ii to herein shall be open for inspection at all times by Goodyear's repre- sentatives. Operator agrees to supply Goodyear with all information on Ili tire changes and bus mileage requested by Goodyear to enable Goodyear to maintain any record of individual tire mileage kept by Goodyear. 1 i 3. ADDITIONAL BUSES purchase or otherwise I If, during the term hereof, Operator shall acquire by p additional buses, Operator agrees to acquire such buses less tires giving Goodyear notice of such acquisition, and further agrees to arrange to have such buses equipped with Goodyear mileage tires of sufficient car- rying capacity to conform to the approved standards of The Tire & Rim Association of America, Inc. Such tires shall then be included under i equipped with tires furnished by this agreement. If any of such buses equipp a ent at theIgreceiverecepayment Goodyear shall p I be driven overland, y shallGoodyearsh I mileage rate specified herein for such us e of the tires. I,li4. TITLE TO TIRES AND LIENS ON BUSES Title to all tires furnished hereunder shall remain at all times in Good- year, and upon purchase by Operator in accordance with Article 13 hereofshallcontinuetoremaininGoodyearuntilitshallhavereceivedfull payment of all sums owing to it by pOperator under the terms of this I contract. Operator will hold Goodyear harmless against on which any claim n j Goodyear's tires made by any holder of a lien on any buses I Operator uses such tires. Operator agrees to keep Goodyear advised concerning any of such liens and will give Goodyear any details thereof which Goodyear may request. li i15. POSSESSION AND CANCELLATIONOperatorshallbeentitled to possession during the term hereof of all tires furnished hereunder, provided that there is no breach of this agreement on the part of the Operator. If Operator fails to make payment when due, including payment forthwith upon receipt of Goodyear's I statement for the total amount determined by Goodyear in accordance with Article 13 hereof, fails to comply with any other terms or conditions hereof, allows its credit standing to become impaired, makes an assignment for the benefit of creditors, is placed in the hands of a receiver or is adjudicated bankrupt, then, under each or all of the aforesaid conditions, 1 Goodyear shall have the right at its option, without prejudice to any it other rights and remedies, to take immediate possession of all such tires, and to enter Operator's premises and remove said tires, whether or not they are applied on buses, without being deemed guilty of trespass in further obligation so doing, and Goodyear shall such repossession lmofntires shall not relieve under this agreement. Any for the use of the tires furnished I Operator from its obligation to payhereunderaccordingtothetermshereof or from its liability for damages because of any breach hereof. 2-i y 6. TAXES, ET CETERA In addition to the mileage rate effective hereunder the Operator from time to time or at Goodyear's option by way of increase of the mileage rate effective hereunder, shall pay Goodyear an amount to compensate for the current Manufacturers' Excise tax under the U.S. Revenue Act of 1932, , as amended, and for any sales, excise, use, processing or similar tax theuponimposeduth goodsppg sold or service rendered hereunder,or upon the manufacture, sale or delivery thereof, or, whenever any tax, excise, levy, law, or governmental regulation shall have the effect directly or indirectly of increasing the cost of manufacture, sale or delivery of such goods or service. The Operator will pay all property taxes on the tires, making any required listing for taxation in its own name as Bailee. 7. DAMAGE TO PERSONS OR PROPERTY Operator will hold Goodyear harmless against all claims, action or causes of action for damage arising out of the use of or possession of any tires furnished hereunder. 8. CONTINGENCIES Goodyear shall be excused from deliveries or delay in deliveries if such failure to deliver or delay in deliveries shall be caused by war, strikes, lockouts, fires, interruptions of transportation facilities, accidents, inability to obtain merchandise, or other similar causes beyond the control of Goodyear. This agreement is expressly subject to applicable restrictions imposed by any Federal agency or by any other governmental authority. 9. SERVICE Operator agrees to apply to, remove from, and remount on rims or wheels, tires furnished hereunder; and to perform all other tire service, including regrooving and repair of flat tires as required to keep them in proper operating condition. Operator will install and maintain in its garage suitable facilities for the inflation of tires and will keep said tires inflated to conform to the approved standards of The Tire & Rim Association of America, Inc. Operator will determine at all times when tires are to be removed from vehicles. Goodyear shall have the right to make the determination as to the fitness for return to service of a particular tire or tires provided, however, Operator shall not be obliged to use tires which, because of their condition, interfere unreasonably with the use and operation of buses. All tires determined by Goodyear to be permanently unfit for further service shall be returned to Goodyear promptly by the Operator. 3- j 10. USE, CARE AND STORAGE OF 'i :RES Operator agrees to provide a s` fe and suitable place in an enclosed building for the storage of spare tires and tires unfit for further service so that such tires shall not be subject to damage by the elements; to either keep each bus equipped with at least one properly inflated spare tire or provide adequate road service for its fleet; and to pay Goodyear the amount of any damage or loss resulting from accident, fire, improper or negligent use, loss, theft, or fraudulent conversion of said tires, or from the operation of a bus with an underinflated or flat tire thereon. The value of tires for the purpose of determining the amount of any damage or loss under this Article 10 shall be determined by subtracting from the higher amount of either (a) average mileage secured from similar tires (nonretreaded or retreaded, as the case may be) normally and perma- nently removed from service during the twelve-month period immediately preceding the date of such damage or loss, or (b) the applicable current minimum mileage for bonus qualification for nonretreaded or retreaded tires, the mileage run by the particular tire prior to such damage or 1 loss and multiplying the difference, representing unused mileage reduced to bus miles, by the rate then in effect hereunder. 11. SALE OR DISPOSITION OF BUSES j If, during the term hereof, Operator shall sell, or in any manner dispose of any buses, which shall have been equipped with tires supplied hereunder, or if for any reason Operator shall discontinue its business, or discon- tinue the use of any such buses, Operator shall purchase the unused mileage in each tire thereon (including spares) at prices to be computed as set forth in Article 10 thereof, plus the amount of any tax or excise applicable to such sale. 12. LEASED BUSES Operator represents and warrants that it owns outright all buses comprising the fleet operated by it. If during the term of this contract, including any amendments and extensions hereof, Operator acquires the right to operate any buses not owned by it, pursuant to a rental or other arrange- ment with the owner of such buses (herein called "Leased Buses") , Operator agrees (a) to notify Goodyear forthwith of the existence and details of such arrangement, (b) that all Leased Buses will be furnished to Operator by the owner without tires so that they may be operated by Operator equipped with Goodyear's tires supplied under this contract, and (c) to obtain from the owner an agreement acceptable to and for the benefit of Goodyear, whereby the owner acknowledges Goodyear's ownership and right I to possession of all tires supplied by it hereunder and waives any and all rights with respect thereto by virture of their use on Leased Buses or otherwise. Contingent upon obtaining such agreement from the owner of Leased Buses, they shall be subject to all the terms and conditions of this contract to the same extent as buses owned by Operator, and in case Operator surrenders or otherwise loses possession of any of the Leased Buses equipped with tires supplied by Goodyear hereunder, Operator shall purchase each tire thereon (including spares) as provided herein with respect to buses sold by Operator. The term "Leased Buses" shall not include any bus rented or borrowed by Operator for temporary use during a period limited to not more than sixty days. 4- it 1 X13. TERM OF CONTRACT AND DISPOSITION OF TIKES AT TERMINATION 1 This contract shall become effective on the 1 day of July ii 19 80 , and terminate on the 30 day of June 19 85 . At such termination date, unless the parties hereto enter into a new mileage j contract to become effective immediately thereafter, Operator will purchasL 1 and upon submission of statement by Goodyear will pay Goodyear for the 11 unused mileage in each remaining casing and tube furnished for service hereunder at prices to be computed as set forth in Article 10 hereof plus the amount of any tax or excise applicable to such sale. Operator will acquire each such used tire as is, and Goodyear makes no warranties as to the condition or fitness for continued use of such tires. 14. MODIFICATION OF CONTRACT II This contract cannot be altered or modified in any respect unless by writing noted hereon signed by duly authorized representatives of both parties hereto or by special written document signed in like manner. 5. UNIFORM COMMERCIAL CODE FINANCING STATEMENTS 1111 Operator will, upon request, sign such financing statements or continuation statements as may be necessary or desirable to protect Goodyear's interest in the tires leased hereunder. IN WITNESS WHEREOF, the parties hereto have caused these presents to be 4igned in duplicate by their respective duly authorized representatives the ay and year first above written. 1 GJITNESSES: yJ.The City of Wichita Falls, Texas 1 i ( /BY 06(k-OLJWAL`f)I L THE GOOD ' T RE & RUBBER COMPANY a_,.,,`,,) vas BY ..." t.r.. Exe Z ident 1 . -7 J 7_n.-e s F'' ATTEST eC'( c ) r-- Assistant Secretary i 1 5- 1-79) Exhibit "A" I. To contract dated ,Jiff .3 /J', between The City of Wichita i Falls, Texas of Wichita Falls, Texas and THE GOODYEAR TIRE & RUBBER COMPANY. SCHEDULE OF BUSES Number Makes Single of of Tire Size or Dual Buses Buses Model Front Rear Rear Rate Rate per Bus Miles $. - See Supplemental Agreement of same date. Group II Rate 5 Twin TC3 9.00-20 9.00-20 Dual B 2 GMC 3102 9.00-20 9.00-20 Dual B Additional tire sizes in inventory: 8.25-20 Group I Rate 3 Fix FX522 7.00-18 7.00-18 Dual A 8 (3-78) i SUPPLEMENTAL AGREEMENT Akron, Ohio y, .,<, y ,19 80 THE MEMORANDUM OF AGREEMENT dated,c /(; ) ( , 19 80 , by and between The City of Wichita Falls, Texas of Wichita Falls, Texas and THE GOODYEAR TIRE RUBBER COMPANY, of Akron, Ohio, is hereby amended as follows: 1. On all mileage run on and after July 1, 1980 and prior to January 1, 1981 the rates per vehicle mile shall be as follows: 01207 - A 6-wheel Group I 7.00-18 01250 - B 6-wheel Group II 9.00-20 Such rates shall hereinafter be referred to as Basic Rates. On January 1, 1981 and on the first day of each July and January thereafter during the term of this agreement, the mileage rate effective during the next ensuing six-month period shall be determined by a computation as hereinafter prescribed. a. The average daily closing spot market price per pound for 1 smoked ribbed rubber sheets, on the Commodity Exchange, Inc. , New York City, shall be determined for the six calendar months immediately preceding the computation date, and for each one cent or fraction thereof that such average is over or under 73 per pound, the Basic Rate shall be increased or decreased, as the case may be, by . 27 b. The average cost to Goodyear per pound of high tenacity nylon tire yarn shall be determined for the six calendar months immediately preceding the computation date, and for each one cent or fraction therof that such average is over or under $ 1.27 per pound, the Basic Rate shall be increased or decreased, as the case may be, by . 06 c. With respect to any period during which the price for such rubber or nylon tire yarn shall be fixed under order of any governmental agency such fixed price shall be substituted in the computation or computations for the prices above mentioned. d. If the average hourly wage rate as hereinafter defined for the preceding six-month period shall be more or less than $ 11.837 per hour, the Basic Rates shall be increased or decreased by adding to or subtracting from the Basic Rates the per vehicle mile factor, multiplied by the number of cents that the average hourly wage rate is above or below the base wage rate of 11 .837 per hour. The per vehicle mile factor shall be determined by dividing the following by the preceding six- month average mileage of tires permanently removed from service from those vehicles. Group I $ .38 Group II $1.02 1- 1 In the event no tires are permanently removed from service during the preceding six month period, then the per bus mile factor shall be determined by dividing by''the following: 50,000 Group I 65,000 Group II The average hourly wage rate shall be the annual average hourly rate of factory employes in the Tire and Tube Division of Goodyear's factories, including all applicable public or private employe benefits. 2. BONUS ACCOUNTINGS On January 1, 1981 and at the end of each six-month period thereafter bonus accountings on Goodyear tires shall be made as follows: ii Casings removed from service under Article 10 or 11 of said MEMORANDUM OF AGREEMENT shall not be included in such accountings or computationshereinaftersetforth. Should the average mileage delivered by all other casings furnishedhereunder, which have been permanently removed from service during thesix-month period immediately preceding accounting date, exceed 50,000 miles Group I or 65,n01) Group IIit for nonrecapped casings or XXX miles for recapped casings, then, with respect to any tires removed from service, Goodyear shall issue a credit memorandum to Operator in an amount equal to 50% of the current rate less service per vehicle mile for all miles operated in excess of the above mileage requirements. With the exceptions herein specifically enumera d, all the terms and Iprovisions of said MEMORANDUM OF AGREEMENT dated IJ t, / , , ;.' F' 19 80 shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed in duplicate by their respective duly authorized representatives thedayandyearfirstabovewritten. WITNESSES: THE CIT OF WICHITA FELLS TEXAS LCcj t (["BY 1,11111111" THE GOOD • &. • . RUBBER COMPANY BY r ., Exec ic- ident C- i _ J .. ATTEST Assistant Secretary 2- I • 76)u 1iu 1 This Option pheLl conptitw,o ami become a part of the Memorandum of Agreement dated f with Supplemental Agreement thereto of same date, by"and ,between The City of Wichita Falls, Texas of Wichita Falls, Texas Operator") and The Goodyear Tire & Rubber Company Goodyear"), as such Memorandum of Agreement and Supplemental Agreement may have been further amended or extended from time to time. 1. Notwithstanding any provision to the contrary set forth in said Memorandum of Agreement and Supplemental Agreement, as extended and amended, Goodyear hereby grants to Operator the following option: a) Upon the expiration of the term of the Memorandum of Agreement and Supplemental Agreement, as extended and amended, Operator has the right to further extend said Memorandum of Agreement and Supplemental Agreement and continue to use all tires furnished by Goodyear under such Agreements in Operator's possession on the expiration date for a period of 36 months from said expiration date. b) All terms, conditions and provisions of said Memorandum of Agreement and Supplemental Agreement, as previously amended and extended, shall remain in full force and effect during said 36-month period, except that Goodyear shall be relieved of any requirement to furnish Operator with tires during said 36-month period unless requested by Operator and agreed to by Goodyear. c) The rate or rates per bus mile in effect during such 36-month period shall be the rate or rates in effect for the six-month period immediately preceding the commencement date of such 36-month period. d) It is understood that Operator shall continuously use such tires insofar as practicable on its highest mileage runs until such tires are rendered permanently unfit for service during said 36-month period. e) Upon the expiration of said 36-month period, Operator shall pay for any then unused mileage remaining in such tires (tires supplied by Goodyear pursuant to the Memorandum of Agreement) at the rate set forth in Paragraph 1(c) above. Operator will acquire each such used tire as is, and Goodyear makes no warranties as to the condition or fitness for continued use of such tires. The amount of the unused mileage shall be deter- mined by subtracting from the average mileage secured from similar tires (nonrecapped or recapped, as the case may be) normally and permanently removed from service during the six-month period immediately preceding the expiration of the 36-month period, the mileage run by the particular tire prior to the expiration date of the 36-month period. 1- 3-79) 1I' 2. The option granted hereirPis exercisable by Operator upon thirty 1 30) days' notice prior to the expiration date of the Memorandum of Agreement and Supplemental Agreement, as extended and amended. Such notice of Operator's exercise of this option must be in writing and sent, certified mail, to: The Goodyear Tire & Rubber Company 1144 East Market Street Akron, Ohio 44316 Attn: Manager, Mileage Sales IN WITNESS WHEREOF, Goodyear has caused these presents to be signed by its duly authorized representatives on the '4 _ day of ;,_ ,,,,&3 19 p=' , although it is mutually agreed that this option shall be effective as of the effective date of any current supplement, amendment, or extension between these parties. THE GOO` RE RUBBER COMPANY r BY tr , e!!_. E c :.V ' resident ATTEST Z, - ( c,--ti 1 Assistant Secretary I 1 I I i