Loading...
HomeMy WebLinkAboutResolution - 2010-R0513 - Rip Griffin Truck Service Delivery - 10/14/2010Resolution No. 2010-RO513 October 14, 2010 Item No. 5.31 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Contract No. 9737 for the purchase and delivery of bulk unleaded gasoline and bulk diesel fuel, per RFP 10 -108 -MA, by and between the City of Lubbock and Rip Griffin Truck Service Center, Inc., and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on October 14, 2010 TOM MARTIN, MAYOR ATTEST: Garza, City Secre arr APPROVED AS TO CONTENT: ie Mark earw od, ChInformation Officer, Assistant City Manager APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vw-ccdocs'RES.Contract-Rip Griffin September 9, 2010 Rip Griffiri..gVr- Travel Centers 4710 4' Street Lubbock TX 79416 Phone (806) 795-8785 • Fax (806) 795-6574 CONTRACT OPTION Resolution No. 2010—RO' FIXED PRICE BULK FUEL CONTRACT Fuel Purchaser: City of Lubbock Address: 1625 13`" Street Lubbock TX 79401 Telephone No.: (806) 775-2165 Fax No: (806) 775-2164 Contact Person: Victor Kilman, Director of Purchasing and Contract Management In response to your purchase inquiry of. July 16, 2010, Rip Griffin Truck Service Center, Inc ("RGTSC") is pleased to submit this Quotation, which will be valid through September 30, 2010 (the "Outside Acceptance Date"). Your execution below and return of the same to us, on or before the Outside Acceptance Date, shall indicate your agreement to the terms and conditions of this Quotation and the Provisions of Agreement, attached hereto as Exhibit A and incorporated herein by this reference (collectively, the "Agreement"). Quantity Product Price (EXCLUDING TAXES) Delivery Location See Exhibit B attached hereto and incorporated herein by reference. TERM OF AGREEMENT: January 1, 2011 through December 31, 2012 (the "Term") PAYMENT TERMS: Net 10 Days without discount GENERAL PROVISIONS: 1. Effective Date. The "Effective Date" of this Agreement shall be the date deliveries commence, notwithstanding the date of execution by the parties. 2. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and can only be revised or amended in writing, signed by both parties. 3. Tests required by the City for specification compliance shall be provided by a third party certified laboratory mutually agreed by both parties. 4. We will not be responsible for any discrepancies or variances that may occur between the invoiced fuel volume and the City's recorded fuel volume due to the fact we do not have care, custody or control of the facility. 5. Prices are based on the average net pricing of OPIS closing Benchmark File of at 6:00 p.m. on July 30, 2010 6. In compliance with the City of Lubbock RFP 10 -108 -MA we will not accept a partial bid, we will only agree on an "all or nothing" bid. 7. Any delivery of 500 gallons or less per tank will be billed $100.00 per hour round trip. Thank you for this opportunity to submit a quote on your fuel product needs. FUEL PURCHASER: RGTSC: CITY OF LUBBOCK A Texas Home—Rule City By: TOM MARTIN Its: Mayor Date: October 14 , 201 0 RIP GRIFFIN TRUCK SERVICE CENTER, INC T s Corporate By: Mark In Its: President Date: September 8,20 10 Approved as to Content: 4 , y Mark Yearwoo , ChidP71nfG—Ilation Officer Assistant C' ger as to Form: Assistant City Attorney _.___ EXHIBIT A Resolution No. 2010-RO513 PROVISIONS OF AGREEMENT The following terms and conditions are incorporated into and form an integral part of the Quotation to which they are attached, with the same being collectively referred to as the "Agreement". as provided therein. 1. PURCHASE ORDER LANGUAGE. All purchase orders utilized under this Agreement must contain the following language: "This purchase order is issued as acceptance of RGTSC's Quotation dated August 04, 2010 and of all the term and conditions thereof, including but not limited to the "Provisions of Agreement" attached thereto (collectively, the "Agreement"). The Agreement shall control over any purchase order, delivery sheet or other document used by Fuel Purchaser, regardless of whether or not such document is signed by an employee of RGTSC." 2. PRICE ADJUSTMENTS. In the event fuel prices are to be determined by reference to an index, the price for each product shall be that first published on the date of delivery. Fuel Purchaser acknowledges that the prices of product sold under this Agreement, if stated in a dollar and cents figure, are based upon consideration of several factors and, as such, are subject to increase or decrease by Seller, in its sole discretion, at any time during the Term of this Agreement, without prior written notice to Fuel Purchaser. In the event any increase in price is unacceptable to Fuel Purchaser, Fuel Purchaser may elect to immediately discontinue future purchases hereunder, only as to the product or products for which the price was increased; provided that, Fuel Purchaser timely makes such election in accordance with any requirement of RGTSC in such regard, it being understood that Fuel Purchaser may discontinue the purchase of other products hereunder and/or terminate this Agreement only upon thirty (30) days prior written notice to Seller. 3. TAXES. Fuel Purchaser shall be responsible for any and all taxes arising from or related to the transactions contemplated by this Agreement, including but not limited to, all domestic and foreign taxes and duties now or hereafter imposed directly or indirectly: (i) on fuel products purchased by Fuel Purchaser hereunder and (ii) on the production, manufacture, transportation, purchase, sale, use or handling of such fuel products, of any material contained in such fuel products, or of any material from which such fuel products are wholly or partly refined or manufactured. Upon receipt of any invoice, bill or assessment related to such taxes or duties, Fuel Purchaser shall promptly and timely pay the same. 4. INDEMNITY. To the extent permitted by applicable law, Fuel Purchaser hereby agrees to defend, indemnify and hold harmless RGTSC, its parent, subsidiaries, affiliates and related companies, and the partners, officers, directors, members, employees and representatives of any of the foregoing, from and against any and all liabilities, claims, liens, damages, fines or penalties, losses, judgments, costs and expenses (including attorneys fees and court costs), of whatever kind or nature and in any manner directly or indirectly arising out of, in connection with or resulting from (i) any breach of this Agreement or the performance of its obligations under this Agreement by Fuel Purchaser, an employee of Fuel Purchaser or anyone acting under Fuel Purchaser's direction or control or on its behalf, (ii) the negligence (whether active or passive) of Fuel Purchaser, an employee of Fuel Purchaser or anyone acting under Fuel Purchaser's direction or control or on its behalf, and (iii) the willful misconduct of Fuel Purchaser, an employee of Fuel Purchaser or anyone acting under Fuel Purchaser's direction or control or on its behalf, it being understood that Fuel Purchaser's obligations hereunder shall not apply to liabilities caused by the sole or gross negligence or willful misconduct of the indemnified party. RGTSC may participate in any investigation or defense of any claim or action hereunder and may, at its option, notwithstanding the foregoing indemnity, elect to conduct any investigation or litigation regarding a claim for which it is indemnified hereunder through counsel of its own choosing and expense. This indemnification shall survive the expiration or termination of this Agreement. 5. MANNER OF PAYMENT; DEFAULT IN PAYMENT. All payments hereunder shall be made by Fuel Purchaser in U.S. dollars, without discount, deduction or offset of any kind, and in accordance with the other terms of this Agreement. If at any time, in RGTSC's opinion, Fuel Purchaser's creditworthiness becomes impaired or otherwise unsatisfactory, RGTSC may require that Fuel Purchaser (i) make only cash payments for products hereunder and/or (ii) provide such security, as RGTSC determines necessary or desirable, for Fuel Purchaser's payment and performance under this Agreement. Upon Fuel Purchaser's failure to timely pay any amount due to RGTSC hereunder, such amount shall (i) accrue interest at the rate of eighteen percent (18%) per annum and (ii) be subject to a late charge equal to ten percent (10%) of the outstanding sum due. The accrual of interest on such amounts and such late charge shall not prejudice any other remedies available to RGTSC under this Agreement or applicable law. 6. RATABLE LIFTING. If the term of this Agreement extends beyond one (1) calendar month, the following terms and conditions shall apply: Lifting; Volume Tolerance: Fuel Purchaser shall lift all monthly quantities of fuel purchased under this Agreement by the end of each calendar month, on a ratable basis (i.e. with the monthly volume being lifted in approximately equal amounts each day of a calendar month, as practical). In any event (i) during each week of the Term, Fuel Purchaser shall lift no more than one hundred ten percent (I10%) and no less than ninety percent (90%) of the applicable monthly contract volume ("MCV"); and (ii) during each calendar month of the Term, the actual monthly volume ("AMV") of fuel lifted by Fuel Purchaser shall be within five percent (5%) of the applicable MCV. Lifting Above MCV. In the event Fuel Purchaser lifts more than one hundred ten percent (11006) of the MCV for any calendar month of the Term, Fuel Purchaser shall pay to RGTSC an amount equal to the fixed price excluding tax per gallon times a five percent fee. Fixed pricing reflected herein in Exhibit B which is attached hereto and incorporated herein by reference. Underlifting of MCV. In the event Fuel Purchaser lifts less than ninety percent (90%) of the MCV for any calendar month of the Term, Fuel Purchaser shall pay to RGTSC an amount equal to the fixed price excluding tax per gallon times a five percent fee. Fixed pricing reflected herein in Exhibit B which is attached hereto and incorporated herein by reference. 7. CAPACITY — ABILITY TO PERFORM. If RGTSC determines, in its sole discretion, that its ability to perform under this Agreement is significantly impaired or impractical, as to one or more products, for any reason whatsoever, upon written notice to Fuel Purchaser, RGTSC shall be relieved of any and all obligations hereunder (as to such product or products). In such event, RGTSC shall not be liable for any claims, damages or liabilities resulting from or in any way related to a delay in delivery, or non-delivery, of product to Fuel Purchaser. Nothing in this Section 1 I shall be construed to extend the Term of this Agreement or to relieve Fuel Purchaser of its obligation to (i) pay for product actually delivered or (ii) otherwise perform under this Agreement. 8. FORCE MAJEURE. RGTSC's failure to perform any term or condition of this Agreement as a result of conditions beyond RGTSC's reasonable control, including, but not limited to, Acts of God, natural disaster or severe weather conditions, war, strikes, riots, picketing or other labor troubles or disputes, malicious mischief, civil commotion, the inability to procure materials, shortages, government restrictions, power failures, the damage, destruction or malfunction of any network facilities or servers, performance failures of third parties upon which RGTSC may rely in its performance hereunder, and the total or partial failure of transportation facilities customarily available to RGTSC, shall not be deemed a breach of this Agreement. 9. LIMITED WARRANTY AND LIMITATION OF DAMAGES. BEYOND THE BASIC DESCRIPTION OF THE PRODUCT BEING SOLD TO FUEL PURCHASER UNDER THIS AGREEMENT, RGTSC MAKES NO WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, CONDITION, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT BY OR ANY OTHER MATTER RELATING TO THE PRODUCT. FUEL PURCHASER'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS LIMITED WARRANTY SHALL BE REPLACEMENT OF THE NONCONFORMING PRODUCT. IN ANY EVENT, RGTSC SHALL NOT HAVE ANY RESPONSIBILITY TO FUEL PURCHASER FOR INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO, LOSS OF BUSINESS OR ANTICIPATED PROFITS, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SALE, PURCHASE, USE, PERFORMANCE OR NONCONFORMANCE OF PRODUCT HEREUNDER. TO THE EXTENT PERMITTED BY LAW, THIS DISCLAIMER OF LIABILITY WILL NOT BE AFFECTED OR IMPAIRED IF THE REMEDY PROVIDED HEREUNDER SHALL FAIL OF ITS ESSENTIAL PURPOSE. 10. CLAIMS; REOUIRED NOTICE. Fuel Purchaser must notify RGTSC in writing of any claim for breach of the limited warranty provided in this Agreement within two (2) business days after delivery of the product at issue, it being agreed that Fuel Purchaser's failure to provide timely written notice shall constitute Fuel Purchaser's waiver of any such claim. Fuel Purchaser shall allow RGTSC reasonable opportunity to inspect the product at issue; provided that, if delivery of product is made in equipment furnished by RGTSC, notice of any claim and the reasonable opportunity to inspect shall be given prior to such product being unloaded. Fuel Purchaser shall immediately notify RGTSC in writing if any equipment used to deliver product is leaking or is otherwise not in good condition and repair. 11. NOTICE. All notices or other communication herein required or permitted shall be in writing and given by personal delivery or sent by (i) registered or certified mail, return receipt requested, postage prepaid, (ii) facsimile or (iii) nationally recognized overnight courier service, addressed to the respective party as set forth on the first page of the Agreement (unless written notice of change thereof is provided). Notice shall be deemed given on the earlier of (i) actual receipt, (ii) three (3) business days after deposit in the U.S. Mail, (iii) the date of facsimile delivery/receipt confirmation, or (iv) the first business day after deposit with an overnight courier. Any notice or communication not received because of change of address, without notice to the other party thereof, or refusal to accept delivery, shall be deemed received on the date of attempted personal delivery or on the date, as indicated above, for other permitted methods of delivery. 12. MISCELLANEOUS. This Agreement and the legal relations between the parties shall be governed by the laws of the State of Texas without giving effect to any conflict of law provision (whether of the State of Texas or any other jurisdiction) that would cause the application of the law of any other jurisdiction. No waiver by RGTSC of any breach or default of any provision of this Agreement shall waive any subsequent breach or default of the same or any other provision. Fuel Purchaser may assign its rights under this Agreement only upon the prior written approval of RGTSC and, notwithstanding any such assignment, Fuel Purchaser shall not be released from its obligations hereunder, absent RGTSC's written agreement to the contrary. This Agreement may be executed in one or more counterparts, and by facsimile, all of which counterparts shall be considered one and the same agreement. In any action to enforce or defend this Agreement, the prevailing party shall be entitled to an award of its reasonable attorneys' fees and costs associated therewith. RFP 10 -108 -MA, Bulk Unleaded Gasoline & Bulk Diesel Fuel Resolution No. 2010—RO513 EXHIBIT B PRICE PROPOSAL UNLEADED TRANSPORT LOAD (6,000 gallons or more) 86 Octane 87 Octane Offeror must indicate whether product is Branded or Unbranded. If Branded, please indicate product type Unbranded Category 1 Average net price per gallon published in the OPIS Daily Report for Lubbock, Texas, on July 30, 2010 OPIS Benchmark for fuel 2.3163 delivery beginning January 1, 2011. 2.2233 Cateeory 2 Firm Fixed Price Differential (margin, freight, delivery, storage, carrying costs, and all other expenses) per gallon. Itemize in the space below. Total Category 2 .0930 Category 3 Total Base Price per Gallon SUM OF CATEGORIES 1 AND 2 2.3163 Category 4 Firm Fixed Carry Cost/Hedge Cost % Catep-ory 5 Firm Price per Gallon CATEGORY 3 MULTIPLIED BY CATEGORY 4 2.3163 Category 6 All federal, state and local mandated & applicable fees, costs, taxes per gallon. Itemize in the space below. Total Category 6 Total Delivered Firm Price per Gallon of Unleaded Transport Load SUM OF CATEGORIES 5 AND 6 Indicate the number of annual renewal options offered and if the above prices are to remain firm and fixed for each renewal option: 1 Offeror's Initials RFP 10 -108 -MA, Bulk Unleaded Gasoline & Bulk Diesel Fuel PRICE PROPOSAL NO.2 DYED DIESEL TRANSPORT LOAD (6.000 gallons or more) 40 Centane Offeror must indicate whether product is Branded or Unbranded. Unbranded If Branded, please indicate product type Average net price per gallon published in the OPIS Daily Report for Lubbock, Texas, on July 30, 2010 OPIS Benchmark for fuel delivery beginning January 1, 2011. 2.3229 Cateeory 2 Firm Fixed Price Differential (margin, freight, delivery, storage, carrying costs, and all other expenses) per gallon. Itemize in the space below. Total Category 2 .1049 Category 3 Total Base Price per Gallon SUM OF CATEGORIES 1 AND 2 2.4278 Category 4 Firm Fixed Carry Cost/Hedge Cost % Category 5 Firm Price per Gallon CATEGORY 3 MULTIPLIED BY CATEGORY 4 2.4278 Category 6 All federal, state and local mandated & applicable fees, costs, taxes per gallon. Itemize in the space below. Total Category 6 Total Delivered Firm Price per Gallon of Unleaded Transport Load SUM OF CATEGORIES 5 AND 6 Indicate the number of annual renewal options offered and if the above prices are to remain firm and fixed for each renewal option: 1 RFP 10 -108 -MA, Bulk Unleaded Gasoline & Bulk Diesel Fuel PRICE PROPOSAL NO.2 CLEAR ULS DIESEL TRANSPORT LOAD (6.000 gallons or morel 40 Centane Offeror must indicate whether product is Branded or Unbranded. Unbranded If Branded, please indicate product type Average net price per gallon published in the OPIS Daily Report for Lubbock, Texas, on July 30, 2010 OPIS Benchmark for fuel delivery beginning January 1, 2011. 1 2.3229 Category 2 Firm Fixed Price Differential (margin, freight, delivery, storage, carrying costs, and all other expenses) per gallon. Itemize in the space below. Total Category 2 .1049 Category 3 Total Base Price per Gallon SUM OF CATEGORIES 1 AND 2 2.4278 Category 4 Firm Fixed Carry Cost/Hedge Cost % Category 5 Firm Price per Gallon CATEGORY 3 MULTIPLIED BY CATEGORY 4 2.4278 Category 6 All federal, state and local mandated & applicable fees, costs, taxes per gallon. Itemize in the space below. Total Category 6 Total Delivered Firm Price per Gallon of Unleaded Transport Load SUM OF CATEGORIES 5 AND 6 Indicate the number of annual renewal options offered and if the above prices are to remain firm and fixed for each renewal option: