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HomeMy WebLinkAboutA9148 - DOWNS ENERGY CONTRACT ABSTRACT Contract Company Name: Company Contact: Summary of Services: Contract Price: Funding Source: Contract Term: Downs Energy Michael J. Downs Fuel and Ultra Low Diesel Fuel $2,625,000 5106560-50180 and 5106560-50181 5 years Contract Administration Lead Department: Contract Administrator: Facilities and Maintenance Daniel Martinez Contract Approvals Council/City Manager Approval Date: Minute Order/Resolution Number: Agreement Number: TBD Contract Compliance Exhibits: Signatures: Insurance: Bonds: Business License: √ √ √ n/a √ Contract prepared by: Kim Baker Submitted on: 6.7.2022 By: Kim Baker DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 COOPERATIVE PURCHASE OF FUEL AGREEMENT NO. A9148 This Cooperative Purchase of Fuel] Agreement (“Agreement”) is entered into by and between the City of Palm Springs, a California charter city and municipal corporation (“City”) and Downs Energy, a California corporation (“Contractor”). City and Contractor are sometimes individually referred to as “Party” or collectively as “Parties” in this Agreement. 1. Background. a. This Agreement is made and entered into in reference to the competitively solicited County of Riverside Contract No. PSA-0004074 with Contractor)] (“Cooperative Agreement”). b. The City desires to purchase and have delivered fuel and ultra-low sulfur diesel fuel attached hereto as Attachment “A”, the content of which is incorporated by reference to this Agreement as if fully set out here in its entirety. c. Contractor desires to perform said services on the terms and conditions set forth in this Agreement. 2. Term. The term of this Agreement is five years beginning on the date provided in the Notice to Proceed for the City’s Procurement and Contracting Department. 3. Compensation and Payment. This Agreement is for an amount of $525,000 annually, not to exceed $2,625,000 over the Term, subject to approved amendments and changes. All pricing must be in accordance with the attached Quote, as shown as Attachment “B”, the content of which is incorporated by reference into this Agreement as if fully set out here in its entirety. a. No price increases will be permitted during the first year of this Agreement (If applicable). All price decreases (for example, if Contractor offers lower prices to another governmental entity) will automatically be extended to the City. The City requires written proof satisfactory to City of cost increases prior to any approved price adjustment. After the first year of the award, a minimum of 30-days advance notice in writing is required to be considered and approved by City. No retroactive price adjustments will be considered. Any price increases must be stated in a written amendment to this Agreement. The net dollar amount of profit will remain first during the period o the Agreement. Annual increases shall not exceed the Consumer Price Index-All Consumers, All Items – Greater Los Angeles, Riverside and Orange County areas and be subject to satisfactory performance review by the City and approved (if needed) for budget funding by the City Council. DocuSign Envelope ID: 64C013B7-481E-498B-8179-7E1DF17B920CDocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 4. Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City. 5. Insurance. Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Attachment "C", incorporated herein by reference. If no insurance is required Attachment “C” will reflect that there are no requirements. 6. Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (Contractor’s employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct committed by Contractor, its officers, employees, representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. DocuSign Envelope ID: 64C013B7-481E-498B-8179-7E1DF17B920CDocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 7. Notice. Any notice required under this Agreement must be given by fax, hand delivery, or certified mail, postage prepaid, and is deemed received on the day faxed, or hand delivered or on the third day after postmark if sent by certified mail. Notice must be sent as follows: IF TO THE CITY: IF TO THE CONTRACTOR: City of Palm Springs DOWNS ENERGY Attn: Daniel Martinez Attn: Michael J. Downs Title: Fleet Maintenance Manager Title: President Address: 459 N. Civic Drive Address: 1095 Montecito Drive Palm Springs, CA 92262 Corona, CA 92879 Phone: 760.322.8348 Phone:888.810.3835 8. Compliance with Law. Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with this Agreement. 9. Changes. In the event any change or changes in the work is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into: A. To provide for revisions or modifications to documents, work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional work not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession. 10. Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor. Where termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages DocuSign Envelope ID: 64C013B7-481E-498B-8179-7E1DF17B920CDocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 or compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor, who shall be liable for the full cost of the City's corrective action. Contractor may not terminate this Agreement except for cause, upon 30 days written notice to City. 11. Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. 12. Entire Agreement. This Agreement, along with the Cooperative Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement and supersedes all prior negotiations, arrangements, agreements and understandings, either oral or written between the parties. In the event of conflict or inconsistency between this Agreement and the Cooperative Agreement, this terms and conditions in this Agreement shall prevail. [Signature Page Follows] DocuSign Envelope ID: 64C013B7-481E-498B-8179-7E1DF17B920CDocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 SIGNATURE PAGE TO COOPERATIVE PURCHASE OF FUEL AGREEMENT BETWEEN THE CITY OF PALM SPRINGS AND DOWNS ENERGY IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. CONTRACTOR: By: _____________________________ By: _____________________________ Signature Signature (2nd signature required for Corporation) Date: ___________________________ Date: ___________________________ CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: _______ Item No. ________ APPROVED AS TO FORM: ATTEST: By: _____________________________ By: _____________________________ City Attorney City Clerk APPROVED: By: _____________________________ Date: ____________________________ City Manager – over $50,000 Deputy/Assistant City Manager – up to $50,000 Director – up to $25,000 Manager – up to $5,000 DocuSign Envelope ID: 64C013B7-481E-498B-8179-7E1DF17B920C 6/23/20226/23/2022 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 6/23/2022 1Q6/16/2022 ATTACHMENT A SCOPE OF WORK DocuSign Envelope ID: 64C013B7-481E-498B-8179-7E1DF17B920CDocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 DocuSign Envelope ID: 64C013B7-481E-498B-8179-7E1DF17B920CDocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 DocuSign Envelope ID: 64C013B7-481E-498B-8179-7E1DF17B920CDocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 ATTACHMENT B QUOTE / PRICING DocuSign Envelope ID: 64C013B7-481E-498B-8179-7E1DF17B920CDocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 ATTACHMENT C INSURANCE REQUIREMENTS INSURANCE 1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor’s performance under this Agreement. Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement. Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers. 2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows: 1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate; 2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence; 3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is: _________ required ____X____ is not required; 4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form. 3. Primary Insurance. For any claims related to this Agreement, Contractor’s insurance coverage shall be primary with respect to the City and its DocuSign Envelope ID: 64C013B7-481E-498B-8179-7E1DF17B920CDocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and contribution it may have against City, its elected officials, officers, employees, agents, and volunteers. 4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Contractor provides claims made professional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Contractor’s services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy. 5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City. 6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). B. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). C. "Should any of the above-described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail DocuSign Envelope ID: 64C013B7-481E-498B-8179-7E1DF17B920CDocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them. 7. Deductibles and Self-Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Certificates of Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Contractor guarantees payment of all deductibles and self-insured retentions. 8. Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability. DocuSign Envelope ID: 64C013B7-481E-498B-8179-7E1DF17B920CDocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME: CONTACT (A/C, No): FAX E-MAIL ADDRESS: PRODUCER (A/C, No, Ext): PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT ER OTH- STATUTE PER LIMITS(MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) POLICY EFF POLICY NUMBERTYPE OF INSURANCELTR INSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY X 09/01/21X 63052614 63052614 X 1,000,000 X 1,000,00009/01/22BAP550190902 A Excluded 1095 Montecito Drive 16535 1,000,000 09/01/22 1,000,000 09/01/21X 09/01/22 X Cancellation is amended to include the certificate holder for 30 days notice of cancellation. Liability, Auto Liability & Work Comp policies when required by written contract. 1,000,000 Waiver of Subrogation applies to City of Palm Springs, its officials, employees and agents on General Liability & Auto Liability on a Primary & Non-Contributory basis when required by written contract. City of Palm Springs, its officials, employees and agents are included as Additional Insureds on General XX Des Moines, IA 50306-9207 2,000,000 Downs Fuel Transport, Inc Downs Energy GLO550190802 PO Box 9207 09/01/22 City of Palm Springs X Holmes Murphy & Assoc - WDM 1,000,000 5,000,000 300,000 09/01/21 5,000,000 MCS90 WC550190702 CA9948 Corona, CA 92879 X 1-800-247-7756 A A X B Palm Springs, CA 92262 09/01/21 21*RENMA2100055-300456*04 3200 E Tahquitz Canyon Way 2,000,000 Underwriters at Lloyds London - AIIN #: ZURICH AMER INS CO 08/27/2021 ssteinbachwdsm USA DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 CITY COUNCIL STAFF REPORT DATE: JUNE 16, 2022 CONSENT CALENDAR SUBJECT: APPROVAL OF CONTRACT PURCHASE AGREEMENTS WITH SC COMMERCIAL, LLC., AND DOWNS ENERGY IN A COMBINED AMOUNT NOT TO EXCEED $4,025,000 FROM: Justin Clifton, City Manager BY: Maintenance & Facilities Department SUMMARY: Approval of these fuel contracts will allow the City to enter into agreements for products and services for cost effective and timely purchase and delivery of gasoline, and diesel fuel. RECOMMENDATION: 1. In accordance with Palm Springs Municipal Code Section 7.09.010, “Cooperative Purchasing Programs,” award a Contract Purchase Agreement (Attachment 1), for SC Commercial, LLC for delivery of fuel and ultra-low sulfur diesel fuel in an amount not-to-exceed $1,400,000 for a five-year term, subject to extension at the approval of City Council, at the cooperative unit pricing offered under the County of Riverside agreement #PSA-0004078. 2. In accordance with Palm Springs Municipal Code Section 7.09.010, “Cooperative Purchasing Programs,” award a Contract Purchase Agreement (Attachment 1) for Downs Energy for delivery of fuel and ultra-low sulfur diesel fuel in an amount not-to- exceed $2,625,000 through a five-year term, subject to extension at the approval of City Council, at the cooperative unit pricing offered under the County of Riverside agreement #PSA-00004074. 3. Authorize the City Manager to execute all necessary documents. STAFF ANALYSIS: The Maintenance and Facilities Department oversees the ordering and management of the gasoline and diesel fuel needs for the City’s fleet inventory. Due to the relatively small volume of fuel that is purchased, the City benefits by participating in the bulk fuel contract of a much larger agency. The City has participated in the County of Riverside’s bulk fuel Item 1Q - 1 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 City Council Staff Report June 16, 2022 -- Page 2 Award Fuel Purchasing Contracts – Fleet Operations contract since 2004. The County recently issued a new solicitation for fuel and contracts were awarded in March 2022, effective April 1, 2022, and continuing through March 31, 2027. The County’s bid process resulted in a contract awarded to two vendors: SC Commercial, LLC and Downs Energy. The County’s contracts include provisions that allow the awarded vendors to extend the same contract pricing to other public agencies. The Procurement and Contracting Manager has validated the competitive bid process with Riverside County, the piggyback pricing provision, and concurred that the pricing leveraged under the purchasing power of the County agreement would likely be less than what we could obtain independently. As such, pursuant to the provisions of the Procurement Ordinance, 7.09.010, the City Council may authorize the acquisition of gasoline purchasing and delivery, under this cooperative pricing afforded through the Riverside County agreements. The City has expended $601,918.19 on fuel purchasing and delivery fees from July 1, 2021, through March 2022. Therefore, Staff recommends utilizing the County’s procurement to award two contracts for fuel to Downs Energy and SoCo Group, Inc. as the best option for the City. ENVIRONMENTAL IMPACT: The requested City Council action is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The requested action is to approve contracts for the above mentioned services, and is exempt from CEQA pursuant to Section 15378(b), in that a “Project” does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment. ALIGNMENT WITH STRATEGIC PLANNING: This item enables activities aligned with Council strategic priorities in Quality of Life and Community Infrastructure. FISCAL IMPACT: The recommended five-year contract awards with SC Commercial LLC, and Downs Energy would be effective April 1, 2022, at a combined cost not to exceed $4,025,000. Sufficient funds are available in the current fiscal year in Fleet Accounts 5106560-50180 and 5106560-5018, and funds will be budgeted as part of the Fiscal Year 2022-23 budget and forthcoming budget years. Item 1Q - 2 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 City Council Staff Report June 16, 2022 -- Page 3 Award Fuel Purchasing Contracts – Fleet Operations REVIEWED BY: Procurement Manager: Kim Baker Assistant City Manager: Teresa Gallavan City Manager: Justin Clifton ATTACHMENTS: 1.Contract Services Agreements for SC Commercial, LLC, and Downs Energy Item 1Q - 3 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 ATTACHMENT 1 Item 1Q - 4 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 COOPERATIVE PURCHASE OF FUEL AGREEMENT NO. #### This Cooperative Purchase of Fuel] Agreement (“Agreement”) is entered into by and between the City of Palm Springs, a California charter city and municipal corporation (“City”) and Downs Energy, a California corporation (“Contractor”). City and Contractor are sometimes individually referred to as “Party” or collectively as “Parties” in this Agreement. 1. Background. a. This Agreement is made and entered into in reference to the competitively solicited County of Riverside Contract No. PSA-0004074 with Contractor)] (“Cooperative Agreement”). b. The City desires to purchase and have delivered fuel and ultra-low sulfur diesel fuel attached hereto as Attachment “A”, the content of which is incorporated by reference to this Agreement as if fully set out here in its entirety. c. Contractor desires to perform said services on the terms and conditions set forth in this Agreement. 2. Term. The term of this Agreement is five years beginning on the date provided in the Notice to Proceed for the City’s Procurement and Contracting Department. 3. Compensation and Payment. This Agreement is for an amount not to exceed $2,625,000, subject to approved amendments and changes. All pricing must be in accordance with the attached Quote, as shown as Attachment “B”, the content of which is incorporated by reference into this Agreement as if fully set out here in its entirety. 4. Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City. 5. Insurance. Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Attachment "C", incorporated herein by reference. If no insurance is required Attachment “C” will reflect that there are no requirements. 6. Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, Item 1Q - 5 11111 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (Contractor’s employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct committed by Contractor, its officers, employees, representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. 7. Notice. Any notice required under this Agreement must be given by fax, hand delivery, or certified mail, postage prepaid, and is deemed received on the day faxed, or hand delivered or on the third day after postmark if sent by certified mail. Notice must be sent as follows: IF TO THE CITY: IF TO THE CONTRACTOR: City of Palm Springs DOWNS ENERGY Attn: Daniel Martinez Attn: Michael J. Downs Title: Fleet Maintenance Manager Title: President Address: 459 N. Civic Drive Address: 1095 Montecito Drive Palm Springs, CA 92262 Corona, CA 92879 Phone: 760.322.8348 Phone:888.810.3835 8. Compliance with Law. Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with this Agreement. 9. Changes. In the event any change or changes in the work is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into: Item 1Q - 6 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 A. To provide for revisions or modifications to documents, work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional work not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession. 10. Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor. Where termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor, who shall be liable for the full cost of the City's corrective action. Contractor may not terminate this Agreement except for cause, upon 30 days written notice to City. 11. Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting 12. Entire Agreement. This Agreement, along with the Cooperative Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement and supersedes all prior negotiations, arrangements, agreements and understandings, either oral or written between the parties. In the event of conflict or Item 1Q - 7 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 inconsistency between this Agreement and the Cooperative Agreement, this terms and conditions in this Agreement shall prevail. [Signature Page Follows] Item 1Q - 8 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 SIGNATURE PAGE TO COOPERATIVE PURCHASE OF FUEL AGREEMENT BETWEEN THE CITY OF PALM SPRINGS AND DOWNS ENERGY IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. CONTRACTOR: By: _____________________________ By: _____________________________ Signature Signature (2nd signature required for Corporation) Date: ___________________________ Date: ___________________________ CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: _______ Item No. ________ APPROVED AS TO FORM: ATTEST: By: _____________________________ By: _____________________________ City Attorney City Clerk APPROVED: By: _____________________________ Date: ____________________________ City Manager – over $50,000 Deputy/Assistant City Manager – up to $50,000 Director – up to $25,000 Manager – up to $5,000 Item 1Q - 9 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 ATTACHMENT A SCOPE OF WORK Item 1Q - 10 DocuSign Envelope ID: 36D85D29-42BE-4661-A134-AB7D98CDFDB8 1.0 Piicing/Reporting EXHIBIT A SCOPE OF SERVICES Contract ID # PSA-0004074 1.1 The price for Unleaded 87 Octane (Unleaded Fuel with 10% Ethanol) shall be based on the 10 :00 AM EST Colton OPIS Daily Unbranded Rack Average Price with CAR on the day of delivery, plus vendor quote adjustments (i.e. 10 :00 AM Colton OPIS Unbranded daily average with CAR + a fixed differential + freight for that site). All products must meet the CARB specifications . 1.2 The price for the Ultra Low Sulfur Diesel (U.L.S.D.), 15 PPM Sulfur Content, shall be based on the 10:00 AM EST Colton OPIS Daily Unbranded Rack Average Price with CAR on the day of delivery, plus vendor quote adjustments (i.e. 10:00 AM Colton OPIS Unbranded daily average with CAR + a fixed differential + freight for that site). All products must meet the CARB specifications . 1.3 The 10:00 AM EST Colton OPIS Daily Unbranded Rack Average Price with CAR plus the site differential will total the composite price . The composite price multiplied by the estimated annual gallons equals the extended total dollar amount per location. The COUNTY will pay all applicable Sales Taxes, CA Oil Spill Surcharges, Diesel Fuel Use Tax (if applicable) and any taxes that are to be paid. Freight will be billed as priced per individual location in the attached Exhibit B of this Agreement. 1.4 The location differentials attached will be part of this Agreement. Official copies of the 10:00 AM EST Colton OPIS daily unbranded rack average with CAR pricing shall accompany each invoice throughout the period of the contract. One Delivery -One Invoice. 1.5 The County may add new fueling sites or reduce locations throughout the duration of this Agreement. 1.6 Reporting Requirements: CONTRACTOR shall at a minimum accumulate usage on a per- gallon and total sales basis for each department and location . Reports shall be submitted semi- annually listing department, location , sales by gallons , description (unleaded or ultra-low sulfur diesel), and total dollar expenditures. The report shall be submitted within 60 days following the close of the calendar period to the Riverside County Purchasing Depa11ment. Prompt and accurate reporting is an essential part of this Agreement. Ad-hoc reports may be requested by the COUNTY on an as needed basis . RFP# or BOS Agenda/Date or SSJ# Form #11 6-31 0 -Dated 3/21/2019 Page 19 of33 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 Item 1Q - 11 DocuSign Envelope ID: 36D85D2S-42BE-4661-A134-AB7D98CDFDB8 Contract ID # PSA-0004074 2.0 Delivery of Fuel 2 .1 With the exception of weekends and holidays, fuel shall be delivered to a specified point in the County of Riverside within 24 hours from the placement of the order. County Observed Holidays: HOLIDAY DAY OBSERVED HOLIDAY DAY OBSERVED * New Year's Day January 1 Martin Luther King Jr's Birthday Third Monday in January Lincoln's Birthday Second Tuesday in February Washington 's Birthday Third Monday in February Memorial Day Last Monday in May Independence Day July4 Labor Day First Monday in September Columbus Day Second Monday in October Veterans' Day November 12 *Thanksgiving Day Fourth Thursday in November * Following Thanksgiving Friday following the fourth Thursday in November *Christmas Day December25 * Note: • Thanksgiving Day, which shall be the fourth Thursday Ill November unless otherwise appointed. • Friday following Thanksgiving Day. • December 24 and 31 when they fall on Monday. • December 26 and January 2, when they fall on Fr iday. • Friday proceeding January 1, February 12, July 4, November 11 or December 25, when such date falls on Saturday, the Monday following such date when such date falls on a Sunday. 2 .2 Fuel delivery shall be made complete as ordered, no partial orders accepted unless mutually agreed upon. 2 .3 CONTRACTOR shall provide a 24-hour customer support telephone number and services for responding to all requests/orders for fuel, including telephone coverage on weekdays during normal business hours as well as 24-hour access phone number for after hours, weekends, holidays and emergency situations. RFP# or BOS Agenda/Date or SSJ# Form #11 6-310 -Dated 3/21 /2019 Page 20 of 33 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 Item 1Q - 12 DocuSign Envelope ID: 36D85D2S-42BE-4661-A134-AB7D98CDFDB8 Contract ID # PSA-0004074 2.4 CONTRACTOR shall provide a delivery metered ticket for each delivery of fuel, and the metered ticket must be signed and dated, and provided to COUNTY at delivery. 2.5 Delivery truck driver shall stick each tank with a fuel tank gauge stick prior to offloading to insure that adequate fuel storage is available to accept the entire shipment without spillage. Readings shall be taken by the driver prior to unloading fuel and after unloading fuel and shall be recorded on the delivery receipts. Each delivery truck must be equipped with a stick. Driver shall sign the delivery ticket at the time and place of delivery. 2 .6 The COUNTY requires "zero leakage" standard for fuel transfer operations. The CONTRACTOR shall provide necessary equipment and proper training of delivery personnel to prevent spillage or minimize the chance of spillage during connection and disconnection of hoses and during the transfer of fuel. The CONTRACTOR will likewise ensure that all equipment, tools and procedures used are in compliance with all applicable specification and regulations governing such operations . 2 .7 In the event of leakage or spillage, it shall be the responsibility of the CONTRACTOR to perform immediate containment, clean up, disposal and restoration activities as necessary in accordance with applicable State of California laws and regulations and subject to the COUNTY 's satisfaction. All material associated with such clean up shall be removed by the CONTRACTOR. 2.8 CONTRACTOR shall provide all necessary delivery devices to make delivery to each site as required. 2 .9 CONTRACTOR shall ensure that the transport units can accommodate the delivery logistics at every location prior to dispatching those units. Some locations have above-ground or underground storage tanks . 2 .10 The COUNTY reserves the right to specify in said orders whether the deliveries are required in tank wagon or truck/trailer loads . Orders must be accepted for truck/trailer split product loads (unleaded/diesel). Split ordered deli very gallons will be considered total gallons ordered. 2 .11 Deliveries shall be made by owned or contract motor carriers. Carriage vehicles shall be fully equipped, in good mechanical condition and appearance, always bearing the correct place card identification of fuel being delivered. Hoses and all coupler fittings shall be tight when in use . Product that leaks from hoses or coupler connections shall be cleaned up and removed by CONTRACTOR, including product in spill containers. RFP# or BOS Agenda/Date or SS J# Form #116-310 -Dated 3/21 /2019 Page 21 of 33 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 ATTACHMENT B QUOTE / PRICING Item 1Q - 13 Downs Energy Line Unit of Unit Item# Type Name Description Quantity Measure Price Extended Price Group Non -County Facility City of Palm Springs -425 Differential -for Unleaded Tank size (2) at P9.1 Item N . Civic Drive Palm 10,000 gallons 71326.00 GAL-Gallon $ 3 .1665 3.1665 $ 225,853 .78 City of Palm Springs -425 Freight -for Unleaded Tank size (2) at P9.2 Item N . Civic Drive Palm 10,000 gallons 71326.00 GAL-Gallon $ 4,878.04 0.0684 $ 4,878.04 Total: $ 230,731.82 City of Palm Springs -425 Differential -for Diesel Tank size (1) at 5 ,000 P9.3 Item N . Civic Drive Palm gallons each 10118.00 GAL-Gallon $ 3 .2620 3.2620 $ 33,004.92 City of Palm Springs -425 Freight -for Diesel Tank size (1) at 5,000 P9.4 Item N . Civic Drive Palm gallons each 10118.00 GAL-Gallon $ 860.03 0.0850 $ 860.03 Total: $ 33,864.95 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 ATTACHMENT C INSURANCE REQUIREMENTS INSURANCE 1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor’s performance under this Agreement. Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement. Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers. 2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows: 1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate; 2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence; 3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is: _________ required ____X____ is not required; 4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form. 3. Primary Insurance. For any claims related to this Agreement, Contractor’s insurance coverage shall be primary with respect to the City and its Item 1Q - 14 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and contribution it may have against City, its elected officials, officers, employees, agents, and volunteers. 4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Contractor provides claims made professional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Contractor’s services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy. 5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City. 6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). B. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). C. "Should any of the above-described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail Item 1Q - 15 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them. 7. Deductibles and Self-Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Certificates of Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Contractor guarantees payment of all deductibles and self-insured retentions. 8. Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability. Item 1Q - 16 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 COOPERATIVE PURCHASE OF FUEL AGREEMENT NO. #### This Cooperative Purchase of Fuel] Agreement (“Agreement”) is entered into by and between the City of Palm Springs, a California charter city and municipal corporation (“City”) and SC Commercial, LLC, a Delaware limited liability company (“Contractor”). City and Contractor are sometimes individually referred to as “Party” or collectively as “Parties” in this Agreement. 1. Background. a. This Agreement is made and entered into in reference to the competitively solicited County of Riverside Contract No. PSA-0004078 with Contractor)] (“Cooperative Agreement”). b. The City desires to purchase and have delivered fuel and ultra-low sulfur diesel fuel attached hereto as Attachment “A”, the content of which is incorporated by reference to this Agreement as if fully set out here in its entirety. c. Contractor desires to perform said services on the terms and conditions set forth in this Agreement. 2. Term. The term of this Agreement is five years beginning on the date provided in the Notice to Proceed for the City’s Procurement and Contracting Department. 3. Compensation and Payment. This Agreement is for an amount not to exceed $1,400,000, subject to approved amendments and changes. All pricing must be in accordance with the attached Quote, as shown as Attachment “B”, the content of which is incorporated by reference into this Agreement as if fully set out here in its entirety. 4. Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City. 5. Insurance. Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Attachment "C", incorporated herein by reference. If no insurance is required Attachment “C” will reflect that there are no requirements. 6. Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, Item 1Q - 17 11111 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (Contractor’s employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct committed by Contractor, its officers, employees, representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. 7. Notice. Any notice required under this Agreement must be given by fax, hand delivery, or certified mail, postage prepaid, and is deemed received on the day faxed, or hand delivered or on the third day after postmark if sent by certified mail. Notice must be sent as follows: IF TO THE CITY: IF TO THE CONTRACTOR: City of Palm Springs SC Commercial, LLC Attn: Daniel Martinez Attn: Robert W. Bollar Title: Fleet Maintenance Manager Title: Corporate Secretary and Vice President Address: 459 N. Civic Drive Address: 1800 W. Katella Ave. Ste 400 Palm Springs, CA 92262 Orange, CA 92867 Phone: 760.322.8348 Phone: 714.744.7140 8. Compliance with Law. Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with this Agreement. 9. Changes. In the event any change or changes in the work is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into: A. To provide for revisions or modifications to documents, work product, or Work, when required by the enactment or revision of any subsequent law; or Item 1Q - 18 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 B. To provide for additional work not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession. 10. Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor. Where termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor, who shall be liable for the full cost of the City's corrective action. Contractor may not terminate this Agreement except for cause, upon 30 days written notice to City. 11. Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting 12. Entire Agreement. This Agreement, along with the Cooperative Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement and supersedes all prior negotiations, arrangements, agreements and understandings, either oral or written between the parties. In the event of conflict or inconsistency between this Agreement and the Cooperative Agreement, this terms and conditions in this Agreement shall prevail. [Signature Page Follows] Item 1Q - 19 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 Item 1Q - 20 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 SIGNATURE PAGE TO COOPERATIVE PURCHASE OF FUEL AGREEMENT BETWEEN THE CITY OF PALM SPRINGS AND SC COMMERCIAL, LLC IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. CONTRACTOR: By: _____________________________ By: _____________________________ Signature Signature (2nd signature required for Corporation) Date: ___________________________ Date: ___________________________ CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: _______ Item No. ________ APPROVED AS TO FORM: ATTEST: By: _____________________________ By: _____________________________ City Attorney City Clerk APPROVED: By: _____________________________ Date: ____________________________ City Manager – over $50,000 Deputy/Assistant City Manager – up to $50,000 Director – up to $25,000 Manager – up to $5,000 Item 1Q - 21 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 ATTACHMENT A SCOPE OF WORK Item 1Q - 22 DocuSign Envelope ID: 32CFB103-E4 B3-4AEE-9A93-DDFB4098 D049 1.0 Piicing/Reporting EXHIBIT A SCOPE OF SERVICES Contract ID # PSA-0004078 1.1 The price for Unleaded 87 Octane (Unleaded Fuel with 10% Ethanol) shall be based on the 10 :00 AM EST Colton OPIS Daily Unbranded Rack Average Price with CAR on the day of delivery, plus vendor quote adjustments (i.e. 10:00 AM EST Colton OPIS Unbranded daily average with CAR + a fixed differential + freight for that site). All products must meet the CARB specifications. 1.2 The price for the Ultra Low Sulfur Diesel (U.L.S.D.), 15 PPM Sulfur Content, shall be based on the 10:00 AM EST Colton OPIS Daily Unbranded Rack Average Price with CAR on the day of delivery, plus vendor quote adjustments (i .e. 10:00 AM EST Colton OPIS Unbranded daily average with CAR + a fixed differential + freight for that site). All products must meet the CARB specifications. 1.3 The 10:00 AM EST Colton OPIS Daily Unbranded Rack Average Price with CAR plus the site differential will total the composite price . T11e composite price multiplied by the estimated annual gallons equals the extended total dollar amount per location. The COUNTY will pay all applicable Sales Taxes, CA Oil Spill Surcharges, Diesel Fuel Use Tax (if applicable) and any taxes that are to be paid. Freight will be billed as priced per individual location in the attached Exhibit B of this Agreement. 1.4 The location differentials attached will be part of this Agreement. Official copies of the 10:00 AM Colton OPIS daily unbranded rack average with CAR pricing shall accompany each invoice throughout the period of the contract. One Delivery -One Invoice. 1.5 The County may add new fueling sites or reduce locations throughout the duration of this Agreement. 1.6 Reporting Requirements: CONTRACTOR shall at a minimum accumulate usage on a per- gallon and total sales basis for each department and location. Reports shall be submitted semi- annually listing department, location, sales by gallons, description (unleaded or ultra-low sulfur diesel), and total dollar expenditures. The report shall be submitted within 60 days following the close of the calendar period to the Riverside County Purchasing Department. Prompt and accurate reporting is an essential part of this Agreement. Ad-hoc reports may be requested by the COUNTY on an as needed basis. RFP# or BOS Agenda/Date or SS J# Form #116-310 -Dated 3/21/2019 Page 18 of32 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 Item 1Q - 23 DocuSign Envelope ID: 32CFB1 Q:,-E4 B:,-4AEE-9A93-DDFB4098 D049 Contract ID # PSA-0004078 2.0 Delivery of Fuel 2 .1 With the exception of weekends and holidays, fuel shall be delivered to a specified point in the County of Riverside within 24 hours from the placement of the order. County Observed Holidays: HOLIDAY DAY OBSERVED HOLIDAY DAY OBSERVED * New Year's Day January 1 Martin Luther King Jr's Birthday Third Monday in January Lincoln's Birthday Second Tuesday in February Washington 's Birthday Third Monday in February Memorial Day Last Monday in May Independence Day July4 Labor Day First Monday in September Columbus Day Second Monday in October Veterans' Day November 12 *Thanksgiving Day Fourth Thursday in November * Following Thanksgiving Friday following the fourth Thursday in Novembe1 *Christmas Day December25 * Note: • Thanksgiving Day, which shall be the fourth Thursday Ill November unless otherwise appointed. • Friday following Thanksgiving Day. • December 24 and 31 when they fall on Monday. • December 26 and January 2, when they fall on Friday. • Friday proceeding January 1, February 12, July 4, November 11 or December 25, when such date falls on Saturday, the Monday following such date when such date falls on a Sunday. 2 .2 Fuel delivery shall be made complete as ordered, no partial orders accepted unless mutually agreed upon. 2 .3 CONTRACTOR shall provide a 24-hour customer support telephone number and services for responding to all requests/orders for fuel, including telephone coverage on weekdays during normal business hours as well as 24-hour access phone number for after hours, weekends, holidays and emergency situations. RFP# or BOS Agenda/Date or SSJ# Form #11 6-310 -Dated 3/21 /2019 Page 19 of32 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 Item 1Q - 24 DocuSign Envelope ID: 32CFB1 Q:,-E4 B:,-4AEE-9A93-DDFB4098 D049 Contract ID # PSA-0004078 2.4 CONTRACTOR shall provide a delivery metered ticket for each delivery of fuel, and the metered ticket must be signed and dated, and provided to COUNTY at delivery. 2.5 Delivery truck driver shall stick each tank with a fuel tank gauge stick prior to offloading to insure that adequate fuel storage is available to accept the entire shipment without spillage. Readings shall be taken by the driver prior to unloading fuel and after unloading fuel and shall be recorded on the delivery receipts. Each delivery truck must be equipped with a stick. Driver shall sign the delivery ticket at the time and place of delivery. 2 .6 The COUNTY requires "zero leakage" standard for fuel transfer operations . The CONTRACTOR shall provide necessary equipment and proper training of delivery personnel to prevent spillage or minimize the chance of spillage during connection and disconnection of hoses and during the transfer of fuel. The CONTRACTOR will likewise ensure that all equipment, tools and procedures used are in compliance with all applicable specification and regulations governing such operations . 2 .7 In the event of leakage or spillage, it shall be the responsibility of the CONTRACTOR to perform immediate containment, clean up, disposal and restoration activities as necessary in accordance with applicable State of California laws and regulations and subject to the COUNTY 's satisfaction. All material associated with such clean up shall be removed by the CONTRACTOR. 2.8 CONTRACTOR shall provide all necessary delivery devices to make delivery to each site as required. 2 .9 CONTRACTOR shall ensure that the transport units can accommodate the delivery logistics at every location prior to dispatching those units. Some locations have above-ground or underground storage tanks . 2 .10 The COUNTY reserves the right to specify in said orders whether the deliveries are required in tank wagon or truck/trailer loads . Orders must be accepted for truck/trailer split product loads (unleaded/diesel). Split ordered deli very gallons will be considered total gallons ordered. 2 .11 Deliveries shall be made by owned or contract motor carriers. Carriage vehicles shall be fully equipped, in good mechanical condition and appearance, always bearing the correct place card identification of fuel being delivered. Hoses and all coupler fittings shall be tight when in use . Product that leaks from hoses or coupler connections shall be cleaned up and removed by CONTRACTOR, including product in spill containers. RFP# or BOS Agenda/Date or SS J# Form #116-310 -Dated 3/21 /20 19 Page 20 of 32 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 ATTACHMENT B QUOTE / PRICING Item 1Q - 25 SC Fuels Line Extended Extended Item# Type Name Description Quantity Unit Price Price Cost+ S% per Comments Group Non -County Facility City of Palm Springs -Differential -for Unleaded 425 N. Civic Drive Tank size (2) at 10,000 P9.1 Item Pa lm Springs, CA g allon s 71326.00 3.3315 $ 237 ,622.57 C ity o f Pa lm Springs -Fre i g ht -for Unlea d e d 4 2 5 N . Civic Drive T a nk s ize (2) a t 10,000 Frei g ht= 0 .045 x 6636, fl at rate P9.2 Item Pa lm Springs, CA ga llons 713 2 6 .00 0 .0450 $ 3 ,209.67 $3 00 per d e livery Total : $ 240,832.24 $ 252,873 .85 C ity o f Pa lm Springs -Diffe rentia l -for Di esel 4 2 5 N . Civic Drive T a nk s ize (1) a t 5 ,000 P9.3 Item Pa lm Springs, CA ga llons each 10118.00 3.3 670 $ 34,067.31 C ity of Pa lm Springs -Frei g ht -for Diese l T a nk 4 2 5 N. Civic Drive size (1) at 5 ,000 g allons Frei g ht= 0 .212 x 1415, fl a t rate P9.4 Item Palm Spring s, CA e ach 10118.00 0.2120 $ 2 ,145.02 $300 per delivery Total: $ 36,212.32 $ 38,022.94 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 ATTACHMENT C INSURANCE REQUIREMENTS INSURANCE 1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor’s performance under this Agreement. Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement. Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers. 2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows: 1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate; 2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence; 3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is: _________ required _____X___ is not required; 4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form. 3. Primary Insurance. For any claims related to this Agreement, Contractor’s insurance coverage shall be primary with respect to the City and its Item 1Q - 26 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and contribution it may have against City, its elected officials, officers, employees, agents, and volunteers. 4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Contractor provides claims made professional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Contractor’s services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy. 5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City. 6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). B. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). C. "Should any of the above-described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail Item 1Q - 27 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910 such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them. 7. Deductibles and Self-Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Certificates of Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Contractor guarantees payment of all deductibles and self-insured retentions. 8. Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability. Item 1Q - 28 DocuSign Envelope ID: 93AABAC4-F7F8-4894-BBCA-D27AD8C5E910