AMENDMENT NO.: 2

Bulk Fuel, Gasoline & Diesel

State Term Contract No.: 405-000-10-1

This Amendment No.2(“Amendment”), effective as ofJuly 1, 2016, to the Bulk Fuel, Gasoline & Diesel,, State Term Contract No.405-000-10-1 (“Contract”), between the State of Florida, Department of Management Services (“Department”) andL.V. Hiers., Inc.(“Contractor”) are collectively referred to herein as the “Parties.” All capitalized terms used herein shall have the meaning assigned to them in the Contract, unless otherwise defined herein.

WHEREAS the Department awarded the above referenced Contract to provide bulk fuel, gasoline and diesel to all State of Florida agencies and institutions; and

WHEREAS the Parties agreedthat the Contract may be amended by mutual agreement as provided in section 4.42 “Modification of Terms” of the contract and

WHEREAS the Parties agree to renewthe contract as provided in section 4.26 and 5.2 of State Term Contract No. 405-000-10-1 and

THEREFORE, in consideration of the mutual promises contained below, and other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, the Parties agree to the following:

I. Contract Amendment.
a. The Contract is amended to delete sections 2.19, 5.6 and 6.1 of the Contract in their entirety and replace with the following sections:

2.19Access to Public Records

(1) If, under this Contract, the Contractor is providing services, the Department may unilaterally cancel the Contract for refusal by the Contractor to allow access to all public records, including documents, papers, letters, or other material made or received by the Contractor in conjunction with the Contract, unless the records are exempt from s. 24(a) of Art. I of the State Constitution and section 119.07(1), Florida Statutes.

(2) If, under this Contract, the Contractor is providing services and is acting on behalf of a public agency as provided by section 119.0701(1)(b), Florida Statutes, the Contractor shall:

(a) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service.

(b) Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law.

(c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law.

(d) Meet all requirements for retaining public records and transfer, at no cost, to the public agency all public records in possession of the Contractor upon termination of the Contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the public agency in a format that is compatible with the information technology systems of the public agency.

Protection of Trade Secrets or Other Confidential Information

(1) If the Contractor considers any portion of materials made or received in the course of performing the Contract (“contract-related materials”) to be trade secret under section 812.081, Florida Statutes, or otherwise confidential under Florida or federal law, the Contractor must clearly designate that portion of the materials as “confidential” when submitted to the Department.

(2) If the Department receives a public records request for contract-related materials designated by the Contractor as “confidential,” the Department will provide only the portions of the contract-related materials not designated as “confidential.” If the requester asserts a right to examine contract-related materials designated as “confidential,” the Department will notify the Contractor. The Contractor will be responsible for responding to and resolving all claims for access to contract-related materials it has designated “confidential.”

(3) If the Department is served with a request for discovery of contract-related materials designated “confidential,” the Department will promptly notify the Contractor about the request. The Contractor will be responsible for filing, the appropriate motion or objection in response to the request for discovery. The Department will provide materials designated “confidential” only if the Contractor fails to take appropriate action, within timeframes established by statute and court rule, to protect the materials designated as “confidential” from disclosure.

(4) The Contractor shall protect, defend, and indemnify the Department for claims, costs, fines, and attorney’s fees arising from or relating to its designation of contract-related materials as “confidential.”

Retention of Records

Contractor shall retain sufficient documentation to substantiate claims for payment under the Contract, and all other records made in relation to the Contract, for five (5) years after expiration or termination of the Contract.

5.6Sales Summary Reports

In addition to the MFMP Transaction Fee reporting requirements, the Contractor agrees to submit a Quarterly Sales Report on a quarterly basis to the DMS Contract Manager. Quarterly Reporting periods should coincide with the contract term and should begin the quarter following contract execution. Reports are due thirty (30) calendar days after the end of the reporting period. The following minimum data shall be reported by the Contractor to the Department on a quarterly basis:

  • The report shall be in MS Excel (version 2003 or later)
  • Contractor’s name
  • Reporting period
  • Format shall include columns for the following information:
  • State Agency Name or Eligible User Name
  • Type of fuel
  • Number of gallons
  • Total dollar value of purchases

Failure to provide quarterly reports, including no sales, within thirty (30) calendar days following the end of each Contract year may result in the Contractor being found in default and the subsequent cancellation of the Contract by State Purchasing.

Contractor shall report to the Department its Contract-associated spend with both certified and non-certified minority business enterprises (CMBE and MBE’s). Reports must include the period covered; the name, minority code, and Federal Employer Identification Number of each MBE utilized during the period; commodities and services provided by the (C)MBE; and the amount paid to each (C)MBE on behalf of each purchasing agency ordering under the terms of this Contract.

Submission of Contract Sales Summaries is the responsibility of the Contractor, without prompting or notification by the Purchasing Analyst. The Contractor will submit the completed Contract Sales Summary forms by email to the Contract Manager. The Department shall distribute, in electronic format, the Contract Sales Summary forms to be used by the awarded Contractor upon Contract signature.

In addition, the Department may require additional Contract sales information such as: copies of purchase orders or ad hoc sales reports. The Contractor shall submit these specific ad hoc requests within the specified amount of time as requested by the Department.

6.1 Definitions:The Parties agree that capitalized terms shall have the meaning ascribed below:

“Biodiesel” shall mean an alternative Fuel consisting of an ultra low sulfur no. 2 diesel fuel and a requested blend of soybean oil.

“BQ-9000®” a cooperative and voluntary program for the accreditation of producers and marketers of biodiesel fuel created by the National Biodiesel Accreditation Program.

“DTN FastRacks Averages” shall mean the fuel pricing service provided by the Data Transmission Network, an industry benchmark for pricing Fuel and other commodities. This Contract shall use the daily rack averages as established by the DTN FastRacks Averages. Fuel prices are listed for terminals by regions in reports called PAD Reports. The State of Florida uses terminals listed in the PAD 1 Report (DTN Fastracks). Fuel terminals are more particularly detailed in section 6.08.

“Fuel” shall mean any Fuel product obtained through this Contract. Fuel product shall include unleaded E10 gasoline, Ultra Low Sulfur no. 2 diesel, Ultra Low Sulfur no. 2 off road, dyed diesel and biodiesel to be delivered to State and Customer facilities as defined in section 6.09.

“Markup” shall mean the Contractor’s price to cover all costs associated with providing Fuel to State and Customer facilities as more particularly detailed in section 6.10. Markup will mean both positive and negative numbers. Markups may differ based on where the Fuel is obtained according to the Fuel terminals and actual type of Fuel ordered. Markup for Fuel shall be on a price per gallon basis. The Contractor shall assess no other fees associated with the delivery of Fuel except as more particularly detailed in section 6.12.

“Pump off charge” shall mean the allowable fee as described in section 6.12 to cover the Contractor’s operating costs to dispense the fuel from the Transport Delivery truck to the customer’s above ground tank(s).

“Transport Delivery” shall mean a delivery by a transport truck with a minimum delivery of 8,000 gallons for gasoline, 7,200 gallons for diesel and 7,200 gallons for a combination load of gasoline and diesel.

  1. The Contract is further amended to add the following sections:
  1. Subcontractors

The Contractor shall not subcontract any work under the Contract without prior written consent of the Department. The Contractor is fully responsible for satisfactory completion of all subcontracted work. The Department supports diversity in its procurements and contracts, and requests that Contractors offer subcontracting opportunities to certified woman-, veteran-, and minority-owned small businesses. The Contractor may contact the OSD at for information on certified business enterprises available for subcontracting opportunities.

  1. Cooperation with the Inspector General

Pursuant to section 20.055(5), Florida Statutes, contractor and any subcontractors understand and will comply with their duty to cooperate with the inspector general in any investigation, audit, inspection, review, or hearing.

II. Contract Renewal. Pursuant to sections 4.26 and 5.2 of the State Term Contract, the State Term Contract No. 405-000-10-1 is renewed for a period of three (3) yearsat the same terms and conditions including the current pricing structure and markup, with a new contract expiration date of June 30, 2019.

III. Conflict. To the extent any of the terms of this Amendment conflict with the terms of the Contract, the terms of this Amendment shall control.

IV. Warrant of Authority. Each person signing this Amendment warrants that he or she is duly authorized to do so and to bind the respective party.

V. Effect. Unless otherwise modified by this Amendment, all terms and conditions contained in the Contract shall continue in full force and effect.

State of Florida,
Department of Management Services / Contractor:
L.V. Hiers., Inc.
By: ______ / By: ______
Name: Ben Wolf / Name:
Title: Chief of Staff / Title:
Date: / Date:

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