HomeMy WebLinkAboutPR 13008:PURCHASE PROPANE BUSESINTEROFFICE MEMORANDUM
TO:
FROM:
SUBJECT:
DATE:
P.R. NO. 13008 -AGREEMENT FOR ASSIGNMENT OF BUS OPTIONS
01/20/05
RECOMMENDATION:
I recommend that Proposed Resolution No. 13008 be approved. This Resolution would
authorize the agreement with E1 Monte, Califomia for the use of their options for the
purchase of ten (10) propane powered Iow floor buses.
BACKGROUND:
The City received funding from FTA for the purchase often (10) new transit vehicles.
BUDGETARY/FISCAL EFFECT:
None
STAFFING/EMPLOYEE EFFECT:
None
SUMMARY:
I recommend that Proposed Resolution No.13008 be approved.
P.R. No. 13008
01/20/05 DLW
RESOLUTION NO.
A RESOLUTION AUTHORIZING EXECUTION OF AN
AGREEMENT WITH THE CITY OF EL MONTE
CALIFORNIA FOR THE PARTIAL ASSIGNMENT OF
OPTIONS FOR THE PURCHASE OF TEN PROPANE
POWERED TRANSIT BUSES
W/tEREAS, the City of Port Arthur did request from the City of E1 Monte, California the partial
assignment of purchase options for the purchase of ten (10) propane powered transit vehicles; now;
therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR:
THAT the City Manager is hereby authorized to execute an agreement with the City of El Monte
California for the partial assignment of purchase options for ten (10) propane powered low floor
transit buses, a copy of said agreement being attached hereto as Exhibit "A".
THAT a copy of the caption of this Resolution be spread upon the Minutes of the City Council.
READ, ADOPTED AND APPROVED this day of February, A.D., 2005,at a Regular
Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES:
MAYOR
COUNCILMEMBERS:
NOES:
P.I~ NO. 13008
01/20/05
Page 2 of 2
ATTEST:
Mayor
City Secretary
APPROVED AS TO FORM:
City Attorney
APPROVED FOR ADMINISTRATION:
City Manager
E i~r~ ~o~r of F l~ 'anning~f~
EXHIBIT "A"
AGREEMENT FOR PARTIAL ASSIGNMENT OF PURCHASE OPTION
REQUEST FOR PROPOSAL NO. 85285: BUSWEST - LOW FLOOR TRANSIT BUSES
THIS AGREMEENT FOR PARTIAL ASSIGNMENT OF PURCHASE OPTION (hereinafter, the
"Agxeement') is made and entered into as of the day of _, 2005 by and
between the CITY OF EL MONTE, a municipal corporation organi:,ed under the laws of the State of California with
its address at 11333 Valley Boulevard, El Monte, California 91731 ("Assignor"), and the CITY OF PORT
ARTHUR, a municipal corporation organized under the laws of the State of Texas with its address at 444 4a Street,
Port Arthur, Texas ("Assignee"). For the purposes of this Agreement, Assignor and Assignee may be referred to
collectively as the Parties. The capitalized term "Party" may refer to either Assignor or Assignee interchangeably.
RECITALS
WHEREAS, Assignor, a California municipal corporation, initiated a request for proposals, to wit City of
El Monte Request for Proposal No. 85285, for the acquisition of low floor transit buses; and
WHEREAS, Assignor pursuant to the aforementioned request for proposals selected the proposal of Los
Angeles Freightliner doing business as "BusWest" (hereinafter referred to as "BusWest"); and
WHEREAS, under the aforementioned request for proposal, Assignor has agreed to purchase a minimum
of slx (6) low floor buses with the added option to purchase as many as thirty-six (36) such vehicles in its sole
discretion; and
WHEREAS, under the terms of the request for proposal, Assignor is authorized to assign any portion of its
right to purchase either the base quantity of six buses or the option quantity in excess of six buses; and
WHEREAS, Assignor has now detennined that it has no need to purchase the full option quantity of buses;
and
WHEREAS, Assignor as a courtesy to Assignee has agreed to assign a portion of its option rights to
Assignor at no monetary cost or expense to Assignee.
WHEREAS, at its regular meeting of May 4, 2004, the El Monte City Council approved the proposal of
BusWest which proposal authorized the assignment conteneplated herein under Section 38.
AGREEMENT
NOW, THEREFORE, inconsideration of the promises and mutual agreement contained herein and for other
valuable consideration, the Parties hereto do hereby agree as follows:
1. Assignor's Interests. The Parties acknowledge, understand and agree that Assignor has the right
to puxchase a minimum of six (6) and a maximum of (36) low floor transit buses from BusWest as set forth in City
of E1 Monte Request for Proposal No. 85285. A true and correct photo copy set of the aforementioned request for
proposal (hereinaRer, the "RFP") shall be made available to Assignee upon request. For the purposes of this
Agreement and within the meaning of the RFP, the mimmum purchase requirement of six (6) buses shall be referred
to as the "Base Order Quantity" while the discretionary purchase quantity of buses which Assignor may, but is not
required to, purchase in excess of six but not exceeding thirty-six (36) shall be referred to as the "Option Quantity."
Pursuant to Section 38 of the RFP, Assignor is authorized to assign its right to a portion of the Option Quantity to
other govermnental agencies.
2. Assignment. Assignor, does hereby assign and transfer a portion of its fight and interest ia the
Option Quantity to Assignee subject to the terms of the RFP. That portion of the option Quantity hereby assigned
to Assignee shall consist, and solely consist, of the right to purchase up to ten (10) low floor transit buses as such
vehicles are described and made available for purchase under the RFP. Assignee's exercise of these option rights
shall be subject to the terms and conditions of the RFP, except as otherwise provided in this Agreement. Nothing in
this Agreement shall be interpreted as an assignment or Ixansfer of any portion of Assignor's interest in the Base
Order Quantity or its interest in the remaining portion of the Option Quantity which will consist of the retained right
to purchase twenty (20) low floor buses from BusWest.
3. Release. The Parties fiu-ther incorporate by reference that certain December 17, 2004 Release
executed by Assignee in relation to the above referenced assignment. A true and correct copy of the Release is
attached hereto as Attachinent "A'. Acknowledging the fact that the instant assignment is conferred at no cost or
expense to Assignee, Assignee, without limiting in any way the Release set forth in Attachment "A", further agrees
to indemnify, defend and hold Assignor free and harmless from any claims, suits, causes of action, damages,
liabilities or losses arising out of BnsWest's negligent or intentional failure to fulfill its duties or obligations under
the purchase options assigned to Assignee. Assignee further acknowledge, understands and agrees (a) that Assignor
makes no warranties, representations, covenants or agreements as to the design, construction, maintenance or
suitability of any vehicles purchased by Assignee pursuant to the option which is hereby assigned to Assignee; (b)
Assignor shall not be held liable or responsible by Assignee for any design or construction defects or deficiencies
for any of the vehicles purchased by Assignee; and (c) Assignee's designated representatives have had the
opporttmity to review the RFP, understand its terms and conditions and have satisfied themselves as to its suitability
for Assignee's purposes.
4. Notice to BusWest. The Parties agree that BusWest shall be provided written notice of this
Ag~ement and the assignment granted hereunder within thirty (30) days from the effective date of this Agreement.
It is further understood and agreed that as between by the Parties that as between any two simultaneous orders
placed by Assignor or Assignee at any give time, priority shall be given to placing Assignor's orders fa'st and such
order of preference shall be communicated to BnsWest in writing.
S. Authority to Execute. Each individual and entity executing this Agreement hereby represents
attd warrants that he, she or it has the capacity set for~ on the signature page hereof with full power and authority to
bind the Party on whose behalf, he, she or it is executing this Agreement to the terms hereof.
6. Notices. All notices, demands, request and notices under this Agreement by either party shall be
hand-delivered or sent by United States Mail, registered or certified postage prepaid and addressed to the parties as
follows:
ASSIGNOR:
City of E1 Monte
Con~xxanity Services Department
Transportation Services Division
3629 Cypress Avenue,
El Monte, CA. 91731-2798
Attn: Deborah Moraza
Transit Services Manager
Phone: 626 580-2217
Fax: 626 580-2238
ASSIGNEE:
City of Port Arthur
Transit Department
P.O. Box 1089
Por~ Arthur, TX 77641-1089
Atto: TomKestranek, Transit Manager
Phone: (409) 983-8115
Fax: (409) 983-8291
BUSWEST:
BusWest
12940 Firestone Boulevard
Santa Fe Springs, CA 90670
Am: Brent Phillips
Conunercial Sales Mgr.
Phone: (800) 458-9199
Phone: (562) 404 8700
Fax: (562) 404-1883
Notices, demands and requests served in the above manner shall be considered sufficiently given or served for all
purposes under this Agreement at the time the notice, demand or request is hand-delivered or posumrked to the
addresses shown above.
7. Attachments. All attachments to this Agreement are incorporated herein by reference and shall
be of the same force and effect as if set forth in full herein.
8. Severability. In the event any portion of this Agreement shall be declared by any court of
competent jurisdiction to be invalid, illegal~ or unenforceable, such portion shall be severed from the Agreement,
and the remaining parts hereof shall remain in full force and effect as fully as though such invalid, illegal, or
unenforceable portion had never been part of the Agreement, provided the remaining Agreement can be reasonably
and eqnitably enforced.
2
9. Interpretation. The terms of this Agreement shall be construed in accordance with the plain
meaning of the language nscd and shall not be construed for or against any Party by reason of the anthorslfip of this
Agreement. The section headings used in this Agreement arc for purposes of convenience only, and shall not be
construed to limit or extended the meaning of this Agreement.
10, Governing Law; Venue. This Agreement shall be governed and interpreted in accordance with
the laws of the State of California. In the event of htigation over the interpretation or enforcement of this
Agreement, venue shall be in thc Superior Court of thc County of Los Angeles, State of Cahfomia.
11. Attorneys Fees. If any Party to this Agreement is requh-ed to initiate or defend litigation in any
way connected with this Agreement, the prevailing party in such litigation, in addition to any other relief which may
be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees from the non-prevailing party.
12. Binding on Successors. Subject to the limitations set forth herein, the Agreement shall be
binding upon and inure to the benefit of thc successors and assigns of the respective Parties hereto.
13. Counterparts. This Agreement shall be executed in three (3) original counterparts. Two of thc
original counterparts shall be retained by Assignor and one shall be retained by Assignee.
14. Entire Agreement. This Agreement constitutes the entire Agreement between the Parties hereto,
and no addition or modification of any terms or provisions shall be effective ualess set forth in writing, signed by
both Assignor and Assignee.
15. Effective Date. For the purposes of this Agreement, the effective date shall be the date upon
which all of the Parties have duly executed this Agreement - a date which shall be the fncst date to appear on page
one of this Agreement.
IN YVITNESS HEREOF. the parties have executed this Agreement as of the day and year first written
above.
ASSIGNOR: CITY OF EL MONTE
ASSIGNEE: CITY OF PORT ARTHUR
By:_
Juan D. Mireles, City Manager
Date:
By:
Steve Fitzgthbons. City Manager
Date:
Transportation Service~.hfanager
Tom Kestranek. Transit Manager
Date:
Date:
APPROVED AS TO FORM:
By:_
E. Clarke Moseley, City Attomey
"A~ACflMEN~
RELEASE
Port Arthnr Tramit, do~ lm'~by remise, vr, le.a.m, for~v~r dimg~, atxl in&mrdfi~ The
City of El Mor~te, its assigns, executors, and admini~haiora from $11 a~ons, causes 61
md ~ ~11 ~it~ d~t~, dues. ~am of money, ae~'ounu, mrlro~, no~ (or boad~)4
RFPNo. 85285.
In the presenc~ oE