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HomeMy WebLinkAboutResolution - 2011-R0096 - Contract - DACO Fire Equipment - Protective Bunker Gear For LFD - 02/24/2011Resolution No. 2011—R0046 February 24, 2011 Item No. 5.22 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Contract No. 10044 for annual pricing of protective bunker gear for Lubbock Fire Department, per ITB 11-018-RH, by and between the City of Lubbock and DACO Fire Equipment, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on February 24, 2011 TOM MARTIN, MAYOR ATTEST: Rebecch Garza, City Secretary APPROVED AS TO CONTENT: -;;� 4-� Mike Kemp, FireChief Chad Weaver, Assistant City Attorney vw:ccdocs/RES.Contract-DACO Fire Equipment February 7, 2011 m city of Lubbock TEXAS TO: PURCHASE ORDER DACO FIRE SAFETY EQUIPMENT 201 AVENUE R P.O. BOX 5006 LUBBOCK Texas 79408 5006 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCIe, TX 79457 Ordered 01/23/2013 Freight Requested 04/08/2013 Taken By Delivery PER SALAZAR_R REQ 41144 SHIP TO: CONTRACT # 10049 Page - 1 Date - 01/23/2013 Order Number 10007607 000 OP Branch/Plant 5619 CITY OF LUBBOCK CENTRAL FIRE STATION COMPLEX RAUL SALAZAR 1515 EAST URSULINE LUBBOCK Texas 79401 D GAMBOA Description/Supplier Item Ordered Unit Cost UM Extension Request Date Bunker Coat 56.000 1,090.0000 EA 61,040.00 04/08/2013 Bunker Pant 56.000 697.0000 EA 39,032.00 04/08/2013 Suspenders 56.000 52.0000 EA 2,912.00 04/08/2013 Total Order Terms NET 30 DAYS 102,984.00 This purchase order encumbers funds in the amount of $102,984.00.50 and is awarded to Daco Fire Safety Equipment., of Lubbock, Texas. The fallowing is incorporated into and made part of this purchase order by reference: ITB # 11-018-RH, Contract # 10049. Resolution # 2011 -R0096. CITY OF LUBBOCK: ATTEST: KAREN GIBSON, MAYOR PRO TEM Re ecca 3arza, City Secretary TERMS ANIS CONDITIONS IMPORTANT. READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e.g, box I of 4 boxes, and (d) the number of the container bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common carriers and any applicable specifications. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the goods under reservation and no tender of a bill of lading will operate as a tender of goods. 3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like. Ira tender is made which does not fully conform, this shall constitute a breach and Seller shall not have the right to substitute a conforming tender, provided, where the time for performance has not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a cuuforrning tender within the contract time but not afterward. 5. INVOICES & PAYMENTS. a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase release atter each delivery. Invoices shall indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice. Mail To: Accounts Payable, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457. Payment shall not be due until the above instruments are submitted after delivery. 6. GRATUITIES. The Buyer may, by written notice to the Seller, cancel this contract without liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Seller, or any agent or representative of the Seller, to any officer or employee of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract. in the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUIPMENT. If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Seller for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shalt become the property of the Buyer and to the extent feasible shall be identified by the Seller as such. 8. WARRANTY -PRICE. a. The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current process an orders by others forproducts of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase. In the event Seller breaches this warranty, the prices of the items shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may caucul this contract without liability to Seller for breach or Seller's actual expense. b. The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona fide employees of bona fide established commercialor selling agencies maintained by the Seller for the purpose of securing business. For breach of vitiation of this warranty the Buyer shall have the right in addition to any other right of rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee. 9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the goods famished will conform to the specification, drawings, and descriptions listed in the bid invitation, and to the sample(s) furnished by the Seller, if any. In the event of a conflict or between the specifications, drawings, and descriptions, the specifications shall govern. Notwithstanding any provisions contained in the contractual agreement, the Seller represents and warrants fault -free performance and fault -free result in the processing date and date related data (including, but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, individually or in combination, as the case may be from the effective date of this Contract. The obligations contained herein apply to products and services provided by the Seller, its sub - Seller or any durd party involved in the creation or development of the products and services to be delivered to the City of Lubbock under this Contract. Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its rights under the law and under this Contract including, but not limited to, its right pertaining to termination or default. The warranties contained herein are separate and discrete from any other warranties specified in this Contract, and are not subject to any disclaimer of warranty, implied or expressed, or limitation of the Seller's liability which may be specified in this Contract, its appendices, its schedules, its annexes or any document incorporated in this Contract by reference. W. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of Labor under the Occupational Safety and Health Act of 1970. In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at the Seller's expense. In the event Seller fails to make the appropriate correction within a reasonable time, correction made by Buyer will be at the Seller's. expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for sale Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached In this agreement will give rise to the rightful claim of any third person by way of infringement of the like. Buyer makes no warranty that the production of goods according to the specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for indemnification in the event that Seller is sued on the grounds of infringement of the like. If Seller is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement. If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be not. and void 12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them. 13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law or equity. 14. TERMINATION. The performance of work under this order may be terminated in whole, or in part by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such right or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13, herein. 15. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting if the Fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence said party is unable to prevent. 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph.. 17. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim at right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. 18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as part of his bid, is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement. Whenever a term defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control. L9. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Where ever the term "Uniform Commercial Code' is used it shall be construed as meaning the Uniform Commercial Code as adopted in the State of Texas as effective and in force on the date of this agreement, 20. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his intent to perform. In the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the contract. 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, costs and expenses, which may in amywise, accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees, or of the subSeller or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and, if any judgm ers shall be tendered against the Buyer in any such action, the Seller shall, at its own expenses, satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Buyer m herein provided. 22. TIME. h is hereby expressly agreed and understood that time is of the essence for the performance of this contract, and failure by contract to meet the time specifications of this agreement will cause Seller to be in default of this agreement. 23. MBE, The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request, minority and women business enterprises will be afforded equi d opportunities to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex or natural origin in consideration for an award. 24. NON -ARBITRATION. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. 25. RIGHT TO AUDIT. At any time during the term of the contract, or thereafter, the City, or a duly authorized audit representative of the City or the State of Texas, at its expense and at reasonable times, reserves the right to audit Contractor's records and books relevant to all services provided to the City under this Contract. In the event such an audit by the City reveals any exon or overpayments by the City, Contractor shall refund the City the full amount of such overpayments within thirty (30) days of such audit findings, or the City, at its option, reserves the right to deduct such amounts owing the City from any payments due Contractor. Rev. 0212012 Resolution No. 2011-80096 City of Lubbock Contract For Protective Bunker Gear for Lubbock Fire Department -Annual Pricing ITB #11-018-RH Contract No. 10049 THIS CONTRACT, made and entered into this 24`x' day of February 2011, pursuant to a resolution heretofore adopted by the City of Lubbock, Texas, by and between the City of Lubbock ("City"), and DACO Fire Equipment ("Contractor"). WITNESSETH: WHEREAS, the City of Lubbock duly advertised for bids for Protective Bunker Gear for Lubbock Fire Department -Annual Pricing and bids were received and duly opened as required by law; and WHEREAS, after careful consideration of the bid submitted by Contractor, the City of Lubbock has heretofore adopted a resolution authorizing the acceptance of such bid, and the execution, in the name of the City of Lubbock a contract with said Contractor covering the purchase and delivery of the said Protective Bunker Gear for Lubbock Fire Department. NOW, THEREFORE, in consideration of the mutual agreement contained herein, as well as the financial consideration hereinafter referred to, the parties hereby covenant and agree as follows: 1. In accordance with City's specifications and Contractor's bid, copies of which specifications and bid are attached hereto and made part hereof, Contractor will provide to the City the Protective Bunker Gear specifically referred to as Item(s) No. 1-3 more particularly described in the bid submitted by the Contractor or in the specifications attached hereto. Z. The contract shall be for a term of one year, said date of term beginning upon City Council date of formal approval. The City and Contractor may, upon written mutual consent, extend the contract for two additional one-year periods. The rates may be adjusted upward or downward at this time at a percentage not to exceed the effective change in the Consumer Price Index (CPI) or Product Price Index (PPT), whichever is most appropriate for the specific contract for the previous 12 -months. At the City's discretion, the effective change rate shall be based on either the local or national index average rate for all items. If agreement cannot be reached, the contract is terminated at the end of the current contract period. 3. The City promises and agrees to employ, and does employ, the Contractor to cause to be done the work provided for in this Contract and to complete and finish the same according to the attached specifications, offer, and terms and conditions contained herein. The Contractor shall perform the work according to the procedure outlined in the specifications and Invitation to Bid attached hereto and incorporated herein. 1 1-01 &-RH Protective Bunker Gear -Annual Pricing Contract 4. Contractor shall at all times be an independent Contractor and not an agent or representative of City with regard to performance of the Services. Contractor shall not represent that it is, or hold itself out as, an agent or representative of City. h -i no event shall Contractor be authorized to enter into any agreement or undertaking for or on behalf of City. 5. Neither the City nor the Contractor shall assign, transfer or encumber any rights, duties or interests accruing from this Contract without the written consent of the other. 6. This Contract consists of the following documents set forth herein; Invitation to Bid #11- 018-RH, General Conditions, Specifications, and the Bid Form. 7. At any time during the term of the contract , or thereafter, the City, or a duly authorized audit representative of the City or State of Texas, as its expense and at reasonable times, reserves the right to audit Contractor's records and books relevant to all services provided to the City under this Contract. In the event such an audit by the City reveals any errors or overpayments by the City, Contractor shall refund the City the full amount of such overpayments within thirty (30) days of such audit findings, or the City, at its option, reserves the right to deduct such amounts owing the City from any payments due Contractor. IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed the day and year first above written. Executed in triplicate. CITY OF LUBBOCK: Tom Martin, Mayor ATTEST: _R -Q�� 4 . - Rebecc Garza, City Secretary APPROVED AS TO CONTENT: Mike Kemp, Fire Chief APP V A'S TQ FORM: Assistant City Attomey I 1-018-Rii Pmtective Bunker Gear -Annual Pricing Contract CONTRAC .Authorized Representative Address City, State, Zip ITB #11-018-RH, Protective Bunker Gear for Lubbock Fire Department BID FORM Resolution No. 2011—R0096 City of Lubbock, TX Purchasing and Contract Management Protective Bunker Gear for Lubbock Fire Department -Annual Pricing ITB 11-018-RH In compliance with the Invitation to Bid #11-018-RH, the undersigned Bidder having examined the Invitation to Bid and Specifications, and being familiar with the conditions to be met, hereby submits the following Bid for furnishing the material, equipment, labor and everything necessary for providing the items listed below and agrees to deliver said items at the locations and for the prices set forth on this form. The Invitation to Bid #11-018-RH is by reference incorporated in this contract. The Bid Form must be completed in blue or black ink or by typewriter. *PRICE: F.O.B. City of Lubbock Parts Department **Days After Receipt of Order (ARO) Unless otherwise specified herein, the City may award the bid either item -by -item or on an all -or -none basis for anv item or croup of items shown on the Bid Form. PAYMENT TERMS AND DISCOUNTS -Bidder offers a prompt payment discount of 0 %, net 30 calendar days. Discounts will not be considered in determining low bid. Unless otherwise indicated on the Bid Form, payment terms will be NET THIRTY DAYS. The City will pay the successful bidder within thirty days after the receipt of a correct invoice or after the date of acceptance, whichever event occurs later. Discounts for prompt payment requiring payment by the City within a stipulated number of days will be interpreted as applying within the stipulated number of calendar days after the date of receipt by the City of a correct invoice or after the date of acceptance that meets contract requirements, whichever event occurs later. Discounts for payment in less than ten days will not be considered. MOST FAVOURED PRICING: The Bidder certifies that the price quoted is not in excess of the lowest price charged anyone else, including its most favoured customer, for like quality and quantity of the products/services; does not include an element of profit on the sale in excess of that normally obtained by the Bidder on the sale of products/services of like quality and quantity; and does not include any provision for discounts to selling agents. If at any time during the contract period, the supplier should sell or offer for sale to any other customer, an equal or less quantity of similar contract products of like or better quality, at a lower net price(s) than provided herein, supplier agrees to notify the City and sell same product(s) at the lower price(s) on all deliveries made during the period in which such lower price(s) is effective. INTERLOCAL PURCHASING (optional): The City desires to make available to other local govcrnmental entities of the State of Texas, by mutual agreement with the successful bidder, and properly authorized interlocal purchasing agreements as provided for by the Interlocal Cooperation Act (Chapter 791, Government Code), the right to purchase the same services, at the prices quoted, for the period of this contract. Each bidder shall indicate on the Bid Form in the space provided below if he/she will honor Political Subdivision orders in addition to orders from the City of Lubbock. Should these other governmental entities decide to participate in this contract, would you (the bidder) agree that all terms, conditions, specifications, and pricing would apply? 11-018-RH 4 Approx. Unit Of Unit Price* Bid Extended Delivery Item QTY Measure Description Cost Days a. b. C. d. e. = b x e ARO * * 135 Protective Coat, as specified herein. 65-70 1. (More EA $1,090.00 $147,150.40 or Less) 135 Protective Trousers, as specified 65-70 2. (More EA herein. $697..00 $94,095.00 or Less) 135 Protective Suspenders, as specified 65-70 3. (More EA herein $52.00 $7,020.00 or Less) Total bid items 1, 2 and 3: Total per set price. $1,839.00 $248,265.00 *PRICE: F.O.B. City of Lubbock Parts Department **Days After Receipt of Order (ARO) Unless otherwise specified herein, the City may award the bid either item -by -item or on an all -or -none basis for anv item or croup of items shown on the Bid Form. PAYMENT TERMS AND DISCOUNTS -Bidder offers a prompt payment discount of 0 %, net 30 calendar days. Discounts will not be considered in determining low bid. Unless otherwise indicated on the Bid Form, payment terms will be NET THIRTY DAYS. The City will pay the successful bidder within thirty days after the receipt of a correct invoice or after the date of acceptance, whichever event occurs later. Discounts for prompt payment requiring payment by the City within a stipulated number of days will be interpreted as applying within the stipulated number of calendar days after the date of receipt by the City of a correct invoice or after the date of acceptance that meets contract requirements, whichever event occurs later. Discounts for payment in less than ten days will not be considered. MOST FAVOURED PRICING: The Bidder certifies that the price quoted is not in excess of the lowest price charged anyone else, including its most favoured customer, for like quality and quantity of the products/services; does not include an element of profit on the sale in excess of that normally obtained by the Bidder on the sale of products/services of like quality and quantity; and does not include any provision for discounts to selling agents. If at any time during the contract period, the supplier should sell or offer for sale to any other customer, an equal or less quantity of similar contract products of like or better quality, at a lower net price(s) than provided herein, supplier agrees to notify the City and sell same product(s) at the lower price(s) on all deliveries made during the period in which such lower price(s) is effective. INTERLOCAL PURCHASING (optional): The City desires to make available to other local govcrnmental entities of the State of Texas, by mutual agreement with the successful bidder, and properly authorized interlocal purchasing agreements as provided for by the Interlocal Cooperation Act (Chapter 791, Government Code), the right to purchase the same services, at the prices quoted, for the period of this contract. Each bidder shall indicate on the Bid Form in the space provided below if he/she will honor Political Subdivision orders in addition to orders from the City of Lubbock. Should these other governmental entities decide to participate in this contract, would you (the bidder) agree that all terms, conditions, specifications, and pricing would apply? 11-018-RH 4 ITB #11-018-RH, Protective Bunker Gear for Lubbock Fire Department Other governmental entities that might have interests in this contract are Frenship Independent School District, Lubbock Housing Authority, Lubbock County, Lubbock County Hospital District, Lubbock independent School District, South Plains Association of Governments, City of Texarkana, Texas Tech University, West Texas Municipal Power Agency, Lynn County, and City of Wolfforth. YES X NO • If you (the bidder) checked YES, the following will apply: • Governmental entities utilizing Interlocal Agreements for Cooperative Purchasing with the City of Lubbock will be eligible, but not obligated, to purchase materials/services under the contract(s) awarded as a result of this solicitation. All purchases by governmental entities other than the City of Lubbock will be billed directly to that governmental entity and paid by that governmental entity. City of Lubbock will not be responsible for another governmental entity's debts. Each governmental entity will order their own materials/service as needed. THIS BID IS SUBMITTED BY DACO FIRE EQUIPMENT a corporation organized under the laws of the State of _TEXAS as or a partnership consisting of Firm: DACO FIRE EQUIPMENT_ of the City of Address: 201 AVER City: LUBBOCK State: TX Zip 79415 or an individual trading M BE Woman Black American Native American Firm: Hispanic American Asian Pacific Other (Specify) American By Authorized Representative - must sign by hand Officer Name and Title: GARRETT DOBry EIER SALES Please Print Business Telephone Number 806-763-0808 FAX: 806-763-9151 FOR CITY USE ONLY Bid Form Item Number(s) Awarded to Above Named Firm/Indivi Date of Award by City Council (for bids over ;25,+700): Date P.O./Contract Issued: LABEL THE OUTSIDE OF YOUR SEALED BID WITH THE ITB NUMBER, THE CLOSING DATE AND TIME, AND YOUR COMPANY NAME AND ADDRESS. 11.018-RH ITB 1111 -018 -RFP, Protective Bunker Gear for Lubbock Fore Department Resolution No. 2011—ROO96 II. GENERAL. CONDITIONS **** PLEASE READ CAREFULLY **** These General Conditions apply to all bids and become a part of the terms and conditions of any bid submitted. The City shall mean the City of Lubbock. uantities: The quantities appearing in this Invitation to Bid are approximate only and the City reserves the right to increase, decrease or delete any or all items. If the quantities of materials to be furnished are increased, such increase shall be paid for according to the unit prices established for the item. In making its bid hereunder, the Seller expressly recognizes the rights of the City provided herein, and further recognizes that the Seller shall have no claims against the City for anticipated profits for the quantities called for, diminished or deleted. 2 Product Guarantee: Seller guarantees equipment or product offered will meet or exceed specifications identified in this bid invitation. The Seller shall, upon request, replace any equipment or product proved to be defective and make any and all adjustments necessary without any expense to the City. If at any time, the equipment or product cannot satisfactorily meet the requirements of the specifications, the Seller shall upon written request from the City, promptly remove such equipment or product without any further expense to the City. At the City's request, Seller will provide evidence sufficient to demonstrate such equipment or product meets the foregoing. 3 Invoices: Seller shall submit separate invoices, in duplicate, on each purchase order or purchase release after each delivery. Invoices shall indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, shall be attached to the invoice. Mail to Accounts Payable, City of Lubbock, P.O. Box 2000, Lubbock, Texas 79457. Payment shall not be due unless and until the Seller shall not be in default under the terms of the contract, and until the above instruments are submitted after delivery. CITY MAY MAKE PAYMENTS FOR PURCHASES UNDER THIS CONTRACT USING THE CITY'S MASTERCARD PURCHASING CARD (PCAR.D). THE SELLER AGREES TO ACCEPT PCARD PAYMENTS WITHOUT ANY ADDITIONS OR SURCHARGES. 4 Delivery Delay: When delivery delay can be foreseen, the Seller shall give prior notice to the Purchasing Manager, who shall have the right to extend the delivery date if reasons for delay appear acceptable. The Seller must keep the Purchasing Manager informed at all times of the status of the order. Default in any manner under the contract, including, but not limited to default on promised delivery, without acceptable reasons, or failure to meet specifications hereunder authorizes the Purchasing Manager to purchase goods elsewhere and charge any increase in cost and handling to the defaulting Seller, and/or exercise any and all rights available to it by law, equity and/or under the terms of the contract. Every effort will be made by the Purchasing Office to locate the goods at the same or better price as than originally contracted. 5 No Warranty By The City Against Infringements: As part of the contract for sale, Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to the contract will give rise to the rightful claim of any third person by way of infringement of the like. The City makes no warranty that the production of goods according to the specification will not give rise to such a claim, and in no event shall The City be liable to Seller for indemnification in the event that Seller is sued on the grounds of infringement or the like. If Seller is of the opinion that an infringement or the like will result, he will notify the City to this effect in writing within two weeks after the signing of the contract. If the City does not receive notice and is subsequently held liable for the infringement or the like, Seller will save The City harmless. If Seller in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void. 6 Gratuities: The City may, by written notice to the Seller, cancel the contract or purchase order without liability to Seller if it is determined by the City that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Seller, or any agent or representative of the Seller, to any officer or employee of the City of Lubbock with a view toward securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities. 7 Warranty -Price: a. The price to be paid by the City shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current prices on orders by other parties for products of the kind and specification covered by the contract for similar quantities under similar or like conditions and methods of purchase. In the event Seller breaches 11 -018 -RFI 14 ITB #11-018-81-1, Protective Bunker Gear for Lubbock Fire Department this warranty, the prices of the items shall be reduced to the Seller's current prices on orders by other, or in the alternative. The City may cancel the contract without liability to Seller for breach or Seller's actual expenses. b. The Seller warrants that no person or selling agency has been employed or retained to solicit or secure the contract upon an agreement or understanding for commission, percentage brokerage, or contingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Seiler for the purpose of securing business. For breach or violation of this warranty the City shall have the right in addition to any other right or rights to cancel the contract without liability and to deduct from the Contract price, or otherwise recover the full amount of such claimed commission, percentage, brokerage, or contingent fee. 8 Cancellation: The City shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof including warranties of Seller or if the Seller becomes insolvent and/or files bankruptcy or has bankruptcy filed against it. Such right to cancellation is in addition to and not in lieu of any other remedies which the City may have in law, equity or hereunder. 9 Material Safety Data Sheets: Seller shall provide the City of Lubbock with current Material Safety Data Sheets (MSDS) for each chemical defined as hazardous under the Texas Hazard Communication Act (every chemical bearing any manner of warning label on the container) to comply with provisions of the Texas Hazard Communication Act, Title 6, Subchapter D, Chapter 502, Texas Health and Safety Code Ann. (This Act is corollary to (?SHA Standard 29 CRF 1910.1200, which is generally known as the Right to Know Law.) 10 Termination: The contract or purchase order may be terminated in whole, or in part by the City. Termination hereunder shall be effected by the delivery to the Seller of a "Notice of Termination" specifying the extent to which the contract or purchase order is terminated and the date upon which such termination becomes effective. In the event of said termination, in whole or in part, provided that Seller shall not be in default under the Contract, the Seller shall be entitled to payment only for goods actually delivered, and/or services actually performed under and in compliance with the terms of the contract or purchase order. I I Force Maieure: Neither party shall be held responsible for losses or damages hereunder, if the fulfillment of any terms of provisions of the contract is delayed or prevented by strike, walkouts, acts of God, or public enemy, fire, or flood. 12 Assignment -Delegation: No right or interest in the contract shall be assigned or delegation of any obligation made by Seller without the written permission of the City. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph. 13 Waiver: No claim or right arising out of a breach of the contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. 14 Interpretation -Parole Evidence: This writing, plus any specifications for bids and performance provided by the City in its advertisement for bids and any other document provided by Seller as part of his bid, is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement. Whenever a term defined by the Uniform Commercial Code is used in the contract, the definition contained in the Code is to control. 15 Applicable Law: The Contract shall be governed by the Uniform Commercial Code. Wherever the term "Uniform Commercial Code" is used, it shall be construed as meaning the Uniform Commercial Code as adopted in the State of Texas as effective and in force on the date of the contract, 16 Ri_ ht To Assurance: Whenever one party to the contract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of this intent to perform. In the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 17 Indemnification. Seller shall indemnify, defend, keep and save harmless the City, its agents, officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, costs and expenses, which may in anywise arise or accrue against the City in consequence of the granting of the contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees,. or of the subcontractor or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom or incurred in connection therewith, and, if any judgment shall be rendered against the City in any such action, the 11-01S-RH 15 ITB #11.018 -PH, Protective Bunker Gear for Lubbock Firs Department Seller shall, at its own expenses, satisfy discharge the same, Seller expressly understands and agrees that any bond required by the contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City as herein provided. 18 Nonappropriatipn: All funds for payment by the City under this contract are subject to the availability of an annual appropriation for this purpose by the City. In the event of nonappropriation of funds by the City Council of the City of Lubbock for the goods or services provided under the contract, the City will terminate the contract, without termination charge or other liability, on the last day of the then -current fiscal year or when the appropriation made for the then - current year for the goods or services covered by this contract is spent, whichever event occurs first. If at any time funds are not appropriated for the continuance of this contract, cancellation shall be accepted by the. Seller on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this contract beyond the date of termination. 19 Time: It is hereby expressly agreed and understood that time is of the essence for the performance of the contract, and failure by Seller to meet the time specifications of the contract will cause Seller to be in default of the contract. 20 Silence of Specification: The apparent silence of specifications as to any detail, or the apparent omission from it of a detailed description concerning any point, shall be regarded as meaning that only the best commercial products and practices are to prevail and that only material and workmanship of the finest quality are to be used. All interpretations of the specifications in this bid shall be made on the basis of this statement. The items furnished under this contract shall be new, unused, of the latest product in production to commercial trade, and shall be of the highest quality as to materials used and workmanship. Manufacturer furnishing these shall be experienced in design and. construction of such items and shall be an established supplier of the item bid. 21 Environmental Stewardship The City of Lubbock is fully committed to environmental excellence. It is the policy of the City to demonstrate sound environmental performance by controlling and mitigating the environmental impact of City activities, operations, and services. This commitment extends to the procurement and contracting process. Contractors and suppliers selected to provide services and materials to the City are required to uphold an equally high standard. To that end all contractors and suppliers hired by the City agree to maintain full compliance with any and all applicable environmental regulations. In addition, contractors and suppliers agree to implement whatever processes and procedures necessary to reduce and eliminate pollution and wastes and conserve natural resources while under contract with the City. To the greatest extent possible, while still delivering the highest quality service or material, City contractors and suppliers, as well as any sub- contractors under their supervision, will: • minimize waste and pollution generation; • conserve natural resources and energy; • minimize the use of hazardous materials by choosing the least toxic - yet effective - materials and products; • use the highest available post -consumer content materials and products; • recycle and/or reuse as much as is possible, waste materials; and • incorporate into project design energy efficient fixtures, appliances and mechanical equipment. 22 The City Right to Audit At any time during the term of the contract, or thereafter, the City, or a duly authorized audit representative of the City or the State of Texas, at its expense and at reasonable times, reserves the right to audit Contractor's records and books relevant to all services provided to the City under this Contract. In the event such an audit by the City reveals any errors or overpayments by the City, Contractor shall refund the City the full amount of such overpayments within thirty (30) days of such audit findings, or the City, at its option, reserves the right to deduct such amounts owing the City from any payments due Contractor. 11.018-RH 16 TO: ity of bbokFE PURCHASE ORDER DACO FIRE SAFETY EQUIPMENT PO BOX 5006 LUBBOCK Texas 79408 5006 SHIP TO: Page - 1 Date - 03/28/2011 Order Number 10002008 000 OP Branch/Plant 5619 CITY OF LUBBOCK CENTRAL FIRE STATION COMPLEX RAULSALAZAR 1515 EAST URSULINE LUBBOCK Texas 79401 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY: ma"az" ji - Ordered 03/28/2011 Freight Requested 06/17/2011 Taken By R HOLDER Delivery PER R SALAZAR REQ 36962 ITB 11-018 RH CONTRACT 10049 Description/Supplier Item Ordered Unit Cost UM Extension Request Date Protective Coat 53.000 1,090,0000 EA 57,770.00 06/17/2011 Protective Pant 53.000 697.0000 EA 36,941.00 06/17/20I 1 Protective Suspenders 53.000 52.0000 EA 2,756.00 06/17/2011 Total Order Terms NET 30 DAYS 97,467.00 This purchase order encumbers funds in the amount of $97,467.00, for a bid awarded to DACO Fire Safety Equipment, of Lubbock, Texas on February 24th, 2411, in accordance with Resolution No. 2011-ROO96. The following is incorporated into and made part of this purchase order by letter of ratification of Resolution No. 2011-R0096. CITY OF LUBBOCK ATTEST: r Tom Martin, Mayor Rebecc Garza, City Secretary TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common carriers and any applicable specifications.. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED, Seller is not authorized to ship the goods under reservation and no tender of a bill of lading will operate as a tender of goods. 3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must fully comply withal] provisions of this contract as to time of delivery, quality and the like. If a tender is made which does not fully conform, this shall constitute a breach and Seller shall not have the right to substitute a conforming tender, provided, where the time for performance has not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming tender within the contract time but not afterward. S. INVOICES & PAYMENTS. a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase reicaw after each delivery. invoices shall indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice. Mail To: Accounts Payable, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457, Payment shall not be due until the above instruments are submitted after delivery. 6. GRATUITIES. The Buyer may, by written notice to the Seller, cancel this contract without liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Seller, or any agent or representative of the Seller, to any officer or employee of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract. In the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled., in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUIPMENT. If the price stated on the face hereof includes the cost of any special tooting or special test equipment fabricated or required by Seller for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Seller as such. 8. WARRANTY -PRICE. a. The price to be paid by the Buyer shall be that contained in Seller's bid which Seiler warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase. In the event Seller breaches this warranty, the prices of the. items shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense. b. The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Seller for the purpose of securing business. For breach of viciation of this warranty the Buyer shall have the right in addition to any other right of rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee. 9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the goods furnished will conform to the specification, drawings, and descriptions listed in the bid invitation, and to the sample(s) furnished by the Seller, if any. In the event of a conflict or between the specifications, drawings, and descriptions, the specifications shall govern. Notwithstanding any provisions contained in the contractual agreement, the Seller represents and warrants fault -free performance and fault-frcc result in the processing date and date related data (including, but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, individually or in combination, as the case may be from the effective date of this Contract, Also, the Seller warrants the ycar2000 calculations will be recognized and accommodated and will not, in any way, result in hardware, software or firmware failure. The City of Lubbock, at its sole option, may require the Seller, at any time, to demonstrate the procedures it intends to follow in order to comply with all the obligations contained herein. The obligations contained herein apply to products and services provided by the Seller, its sub -Seller or any third party involved in the creation or development of the products and services to be delivered to the City of Lubbock under this Contract. Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its rights under the law and under this Contract including, but not limited to, its right pertaining to termination or default. The warranties contained herein are separate and discrete from any other warranties specified in this Contract, and are not subject to any disclaimer of warranty, implied or expressed, or limitation of the Seller's liability which may be specified in this Contract, its appendices, its schedules, its annexes or any document incorporated in this Contract by reference. 10SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of Labor under the Occupational Safety and Health Act of 1470. In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at the Seller's expense.. In the event Seller fails to make the appropriate correction within a reasonable time, correction made by Buyer will be at the Seller's expense. l l . NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part cf this contract for sale Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim of any third person by way of infringement of the like. Buyer makes no warranty that the production of goods according to the specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for indemnification in the event that Seller is sued on the grounds of infringement of the like. If Seller is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement, If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void. 12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them. 13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof including warranties Of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any ather remedies which Buyer may have in law or equity. 14. TERMINATION. The performance of work under this order may be terminated in whole, or in part by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such right or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13, herein. 15. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the patty whose performance is interfered with, and which by the exercise of reasonable diligence said party is unable to prevent. 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph. 17. WAIVER. No claim or rightarising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. 18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as part of his bid, is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement. Whenever a term defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control. 19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Where ever the term "Uniform Commercial Code" is used, it shall be construed as meaning the Uniform Commercial Code as adoptcd in the State of texas aseffective and in force on the date of this agreement. 20. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his intent to perform. In the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the contract. 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employees,. against all injuries, deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seiler or its employees, or of the subSeller or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges or attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and, if any judgment shall be rendered against the Buyer in any such action, the Seller shall, at its own expenses. satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limit the responsibility w indemnify, keep and save harmless and defend the Buyer as herein provided. 22. TIME, It is hereby expressly agreed and understood that time is of the essence for the performance of this contract, and failure by contract to meet the time specifications of this agreement will cause Seller to be in default of this agreement. 23. MBE. The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request, minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against an the grounds of race, color, sex or natural origin in consideration for an award. Rev. 08/2005 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK. TX 79457 Ordered 06/21/2011 Freight Requested 09/09/2011 Taken By Delivery PER R SALAZAR REQ 37614 Page - 1 Date - 06/21/2011 Order Number 10002790 000 OP Branch/Plant 5619 SHIP TO: CITY OF LUBBOCK CENTRAL FIRE STATION COMPLEX RAUL SALAZAR 1515 EAST URSULINE LUBBOCK Texas 79401 BY: ITB 11-018-RH R HOLDER Description/Supplier Item Ordered Unit Cost UM Extension Request Date Bunker Coat 62.000 1,090.0000 EA 67,580.00 09/09/2011 Bunker Pant 62.000 697.0000 EA 43,214.00 09/09/2011 Suspenders 62.000 52.0000 EA 3,224.00 09/09/2011 Total Order Terms NET 30 DAYS 114,018.00 This purchase order encumbers funds in the amount of $114,018.00, for a bid awarded to DACO Fire Safety Equipment, of Lubbock, Texas on February 24, 2011, in accordance with Resolution No. 2011-80096. The following is incorporated into and made part of this purchase order by letter of ratification of Resolution No. 2011- R0096. CITY OF LUBBOCK ATTEST: Tom Martin, Mayor Reb&ea Garza, City Secreta TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently narked as follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common carriers and any applicable specifications. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the goods under reservation and no tender of a bill of lading will operate as a tender of goods. 3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER Every tender of delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like. If a tender is [Wade which does not fully conform, this shall constitute a breach and Seller shall not have the right to substitute a conforming tender, provided., where the time for performance has not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming tender within the contract time but not afterward. 5. INVOICES & PAYMENTS. a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase release after each delivery. Invoices shall indicate the porch= order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the hill of lading, and the freight waybill when applicable, should be attached to the invoice. Mail To: Accounts Payable, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457. Payment shall not be due until the above instruments are submitted after delivery. G. GRATUITIES. The Buyer may, by written notice to the Seller, cancel this contract without liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Seller, or any agent or representative of the Seller, to any officer or employee of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or dee making of any determinationswith respect to the performing of such a contract. In the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUIPMENT. If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Seller for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the Buyer and to the extent feasible shall he identified by the Seller as such. 8. WARRANTY -PRICE. a. The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase. In the event Seller breaches this warranty, the prices of the items shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense. b_ The Seller warmms that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Seller for the purpose of securing business. For breach of vitiation of this warranty the Buyer shall have the right in addition to any other right of rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee. 9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the goods furnished will conform to the specification, drawings, and descriptions listed in the bid invitation, and to the sample(s) furnished by the Seller, if any. In the event of a conflict or between the specifications, drawings, and descriptions, the specifications shall govern. Notwithstanding any provisions contained in the contractual agreement, the Seller represents and warrants fauh-Gee performance and fault -free result in the processing date and date related data (including, but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, individually or in combination, as the case may be from the effective date of this Contract. Also, the Seller warrants the ycm2000 calculations will be recognized and accommodated and will not, in any way, result in hardware, software or firmware failure. The City of Lubbock, at its sole option, may require the Seller, at any time, to demonstrate the procedures it intends to follow in order to comply with all the obligations contained herein. The obligations contained herein apply to products and services provided by the Seller, its sub -Seller or any third party involved in the creation or development of the products and services to be delivered to the City of Lubbock under this Contract. Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its rights under the law and under this Contract including, but not limited to, its right pertaining to termination or default. The warranties contained hercia are separate and discrete from any other warranties specified in this Contract, and are not subject to any disclaimer of warranty, implied or expressed, or limitation of the Seller's liability which may be specified in this Contract, its appendices, its schedules, its annexes or any document incorporated in this Contract by reference. 10. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of Labor under the Occupational Safety and Health Act of 1970. In the event the product does not conform to OSHA standards, Buyer may return the product for correction or rc*ocmcnt at the Seller's expense. In the event Seller fails to make the appropriate correction within a reasonable time, correction made by Buyer will be at the Sellers expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for sale Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim of any third person byway of infringement of the like. Buyer makes no warranty that the production of goods according to the specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for indemnification in the event that Seller is sued on the grounds of infringement of the like. if Seller is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement. If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the production of the goods in accordance with the spedfrcarions will result in infringement or the like, the contract shall be null and void 12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them. 13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law or equity. 14. TERMINATION. The performance of work under this order maybe terminated in whole, Orin part by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such right or termination is in addition to and not in lieuof the rights of Buyer set forth in Clause 13, herein. 15. FORCE MAIEURE. Neither party shall be held responsible for losses, resulting if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence said party is unable to prevent. 15. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written permission of the Buyer, Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph. 17. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. 18, INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as part of his bid is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement. Whenever a term defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control. 19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Where ever the term "Uniform Commercial Code" is used, it shall be construed as meaning the Uniform Commercial Code as adopted in dee State of Texas as effective and in force on the date of this agreement. 20. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his intent to perform. in the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the contract. 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees, or of the subSeller or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and, if any judgment shall be tendered against the Buyer in any such action, the Seller shall, at its own expenses, satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Buyer as herein provided. 22. TIME. It is hereby expressly agreed and understood that time is of the essence for the performance of this contract, and failure by contract to meet the time specifications of this agreement will cause Seller to be in default of this agreement. 23. MBE. The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request, minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex or natural origin in consideration for an award. Rev. 0812005 AWAI of 4C� PURCHASE ORDER fllUblot** TEXAS TO: DACO FIRE SAFETY EQUIPMENT PO BOX 5006 LUBBOCK Texas 79408 5006 Page - 1 Date - 10/05/2011 Order Number 10004049 000 OP Branch/Plant 5619 SHIP TO: CITY OF LUBBOCK CENTRAL FIRE STATION COMPLEX RAULSALAZAR 1515 EAST URSULINE LUBBOCK Texas 79401 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2000 LUBBOCK, TX 74457 BY: M Alv=&_Oirxtor rchasing& Contract Management Ordered 10/05/2011 Freight Requested 12/15/2011 Taken By Delivery PER SALAZAR_R REQ 38360 _ Description/Supplier Item Bunker Coat Bunker Pant Suspenders Tenns NET 30 DAYS D GAMBOA CONTRACT # 10049 Ordered Unit Cost_ UM Extension Request Date 16.000 1,090.0000 EA 17,440.00 12/15/2011 16.000 697.0000 EA 11,152.00 12/15/2011 16.000 52.0000 EA 832.00 12/15/2011 Tota! Order 29,424.00 This purchase order encumbers funds in the amount of $29,424.00, for a bid awarded to DACO Fire Equipment of Lubbock, Texas, on February 24, 2011, in accordance with Resolution No. 2011-R0096. The following are incorporated into and made part of this purchase order by letter of ratification or Resolution No. 2011-110096. CITY OF LUBBOCK Tom Martin, Mayor ATTEST: Rebe a Garza, City Secreta TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly andpermanently marked as follows (a) Seller's name and address, (b) Consignees acme, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing slip. Seller shall beat cost of packaging. unless otherwise provided Goods shall be suitably packed to secure lowest transportation costs ad to conform with requirements of common carden and any applicable specifications. Buyer's count or weight shall be final and conclusive on shipments nut accompanied by packing lista. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seiler is not authorized m ship the goods under reservation and no tender of a bill of lading will operate as a tender of goods. 3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall nut pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods most fully comply with all provisions of thin contract as to time of delivery, quality and the like. If a tender is made which doe not fully conform, this shall constitute a breach and Seller shall not have the right to substitute a conforming leader, provided where the time far performance has not yet expired the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming raider within the contract time but not afterward. J. INVOICES & PAYMENTS. a. Seiler shall submit separate invaiam in duplicate, one each purchase Order or purchase rclease after each delivery. Invoices shall indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and trimspotiation charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice. Mail To: Accounts Payable, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457. Payment said not he due until the above instruments are submitted after delivery. 6. GRATUI'I IF..S. The Buyer may, by written notice to the Seller, cancel this contract without liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Seiler, or any agent or representative of the Seiler, to say officer or employee of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract. In the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Sella in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUIPMENT. If the price stated on the face hereof includes the cost of any special tooling or special teat equipment fabricated or required by Seller for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Slier as such. S. WARRANTY -PRICE. a, The price to be paid by the Buyer shall be that contained in Seller's bid which Sella warrants to be no higher than Seller's current process eco orders by others for products of the kind and specification covered by this agreement for similar quaannrs under similar of like conditions and methods of pwchasa In the event Seller breaches this warranty, the prices of the items shall be reduced to the Selter's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense. b. The Seiler warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona fide employees of boat fide established commercial or selling agencies maintained by the Sella for the purpose of securing business. For breach of vitiation of this warranty the Buyer shell have the right in addition to any other Tight of rights to earned this contract without liability and to deduct from erre conttatt price, or otherwise recover without liability and to deduct from the contract prier„ or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee. 9.. WARRANTY -PRODUCT. Seiler shall not limit or exclude say implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the goods furnished will conform to the specification, drawings, and descriptions luted in the bid invitation, and to the sample(s) furbished by the Seller, if any. lathe avant of a conflict or between the specifications, drawings, and descriptions, the specifications shall govern. Norwithstnndfng any provisions contained in the contractual agreement, the Seiler represents and warrants fault -free performance and fault -free result in the processing date and dale related data (including, but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contact, individually or in combination, as the can may be from the effective dam of this Contract. Also, the Seller warrents the year2000 calculations will be recognized and accommodated and ,will not, in any way, result in hardware, software or firmware failure. The City of Lubbock. is in sole option, may require the Seller, at any time, to demonstrate the ptocohrra it intents to follow in order to comply with all the obligations combined herein. The obligations contained herein apply to products and services provided by the Seller, is subSeBer or any third party involved in the creation or development of the products and services to be delivered to the City of Lubbock under this Connect. Failure to comply with my of the obligations cootained herein, may result in the City of Lubbock availing itself of any of its rights under the law and under the Contract including, but not limited to, its right pertaining to termination or default. The warranties contained herein am separate and discrete from any other warranties specified in this Contract, and are mot subject to my disclaimer of wiurmly, implied or expressed or limitation of the Seller's liability which may be specified in this Contract, its appendices, its schedules, is annexes or coy document incorporated in this Contact by reference. lo. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of Labor under the Occupational Safety and Health Act of 1970. In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at the Seller's expense. In the event Seller fails to make the appropriate correction within a reasonable time, correcdoa merle by Buyer will be at the Seller's expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for sale Seiler agraa to uncertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim of any third person by way of infringement of the like. Buyer makes no warranty that the production of goods according to the specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for iedemoification in ilia event that Seller is suedon the grounds of infringement of the like. If Sella is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement. If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void, 12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them. 13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the undelivered portion of Ibis order if Seller breaches any of the teras hereof including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of my other remedies which Buyer may have in law or equity. 14. TERMINATION. The performance of work undar this order may be terminated in whole, or in part by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Tarminatica' specifying the extent to which performance of work under the Order is terminated and the daft upon which such termination becomes effective. Such right or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13. herein. 15. FORCE MAJEURE. Neither party shall be held responsible for (ossa, resulting if the fulfillment of any terns of provisions of this contract is delayed or prevented by any cause not within rhe contrat of the party whose performance is interfered with, and which by the exercise of rensansble diligence said party is unable to prevent. 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective far all purpose unless mads in conformity with this paragraph, 17. WA[V ER. No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved pmry. 18. INTERPRETATION -PA ROLE EVIDENCE. This writing, plus my specifications for bids and performance provided by Buyer is its advertisement for bids, and any other documents provided by Seller as pan of his bid, is Intended by the parties as a final expression of their agreement and intended also as a complete and cxclusive statement of the terms of their agrtmcnt Whenever a term defined by the Uniform Commercial Code is coed in this agreement, the definition contained in the Code is to control. L9. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Where ever the term "uniform Commercial Code" is used, it shall be construed as meaning erre Uniform Commercial Code as adapted in the State of Texas as effective and in force on the date of this agreement 20. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to question the other parry's intent to perform he may demand that the other parry give written assuruase of his intent to perform. In the event that a demand is made and no assurance is given within five (5) days, the demanding perry may treat this failure as an anticipatory repudiation orthe comb -ad. 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and cenployccs, against all injuries, deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged of determined that the act was caused through negligence or omission of the Seller or its employees, or of the subSeller or assignee or is employees, if say, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all coats and other expenses arising therefrom of incurred in connection therewith, and if anyj udgment shall be rendered against the Buyer in any such action, the Seller shall, at is own expenses, satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Buyer as herein provided 22. TINIT, It is hereby expressly agreed and understood that time is of the essence far the performance of this contract, and failure by Contract tO meet the time specifications of this agreement will cause Seller to be in default Of this agreement. 23. MBE. The City of Lubbock hereby norifics all bidden that in regard to any contract enured into pursuant to this request, minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, scx or natural origin in comideration for an award. Rev. 08/2005 14t city of 16bokTE PURCHASE ORDER TO: DACO FIRE SAFETY EQUIPMENT PO BOX 5006 LUBBOCK Texas 79408 5006 Page - I Date - 10/19/2011 Order Number 10004101 000 OP Branch/Plant 5619 SHIP TO: CITY OF LUBBOCK CENTRAL FIRE STATION COMPLEX RAULSALAZAR 1515 EAST URSULINE LUBBOCK Texas 79401 INVOICE TO: CITY OFLUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY: "A1D.,W.,.NCP chasing& Contract Management - Ordered 10/19/2011 Freight Requested 12/27/2011 Taken By Delivery PER SALAZAR R REQ 38482 Description/Supplier Item Bunker Coat Bunker Pant Suspenders Terms NET 30 DAYS D GAMBOA CONTRACT # 10049 Ordered Unit Cost UM Extension Request Date 57.000 1,090.0000 EA 62,130.00 12/27/2011 57,000 697.0000 EA 39,729.00 12/27/2011 57.000 52.0000 EA 2,964.00 12/27/2011 Total Order 104,823.00 This purchase order encumbers funds in the amount of $104,823.00, for a bid awarded to DACO Fire Equipment of Lubbock, Texas, on February 24, 2011, in accordance with Resolution No. 2091-110096. The following are incorporated into and made part of this purchase order by letter of ratification or Resolution No. 2011-R0096. CITY OF LUBBOCK TEST: � Tom Martin, Mayor Re ecca Garza, City Sect to TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common carriers and any applicable specifications. Buyers count or weight shall he final and conclusive on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the goods under reservation and no tender of a bill of lading will operate as a tender of goods. 1 TITLE AND RISK OF IHSS. The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and lakes possession of the goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like. If a tender is made which does not fully conform, this shall constitute a breach and Seller shall not have the right to substitute a conforming tender, provided,. where the time for performance has not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming tender within the contract time but not afterward. 5. INVOICES & PAYMENTS. a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase release after each delivery. Invoices shall indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, should he attached to the invoice. Mail To: Accounts Payable, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457. Payment shall not be due until the above instruments are submitted after delivery. 6. GRATUITIES. The Buyer may, by written notice to the Seller, cancel this contract without Liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Seller, or any agent or representative of the Seller, to any officer or employee of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract. In the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUIPMENT. If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Seller for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Seller as such. S. WARRANTY -PRICE. a. The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions andmethods of purchase. In the event Seller breaches this warranty, the prices of the items shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Selier for breach or Seller's actual expense. b. The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage. brokerage, or contingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Setter for the purpose of securing business. For breach of vieiation of this warranty the Buyer shall have the right in addition to any other right of rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee. 9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any attempt to do so &ban reader this contract voidable at the option of the Buyer. Seller warrants that the goods furnished will conform to the specification, drawings, and descriptions listed in the bid invitation, and to the sample(s) famished by the Seller, if any. In the event o€a conflict or between the specifications, drawings, and descriptions. the specifications shall govern. Notwithstanding any provisions contained in the contractual agreement, the Seller represents and warrants fault-frte performance and fault -free result in the processing date and date related data (including, but not Limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, individually or in combination, as the case may be from the effective date of this Contract. Also, the Seller warrants the year2000 calculations will be recognized and accommodated and will not, in any way, result in hardware, software or Firmware failure. The City of Lubbock, at its sole option, may require the Seller, at any time, to demonstrate the procedures it intends to follow in order to comply with all the obligations contained herein. The obligations contained herein apply to products and services provided by the Seller, its sub -Seller or any third party involved in the creation or development of the products and services to be delivered to the City of Lubbock under this Contract. Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its rights under the law and under this Contract including, but not limited to, its right pertaining to termination or default. The warranties contained herein are separate and discrete from any other warranties specified in this Contract, and arc not subject to any disclaimer of warranty, implied or expressed, or limitation of the Seller's liability which may be specified in this Contract, its appendices, its sche"es, its annexes or any document incorporated in this Contract by reference. to. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of Labor under the occupational Safety and Health Act of 1970. In the event the product does not conform to OSHA standards. Buyer may return the product for correction or replacement at the Seller's expense. In the event Seller fails to make the appropriate correction within a reasonable time, correction made by Buyer will he at the Seller's expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for sale Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim of any third person by way of infringement of the like. Buyer makes no warranty that the production of goods according to the specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for indemnification in the event that Seller is sued on the grounds of infringement of the like. If Seller is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement. If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless. If Seller in good Faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void. 12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them. 13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law or equity. 14. TERMINATION. The performance of work under this order may be terminated in whole, or in pari by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination' specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective, Such right or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13, herein. 15. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligeace said party is unable to prevent. 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be. assigned or delegation of any obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph. 17. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. 18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as part of his bid, is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement. Whenever a term defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control. 19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Where ever the term "Uniform Commercial Codd' is used, it shall be construed as meaning the Uniform Commercial Code as adopted in the State of Texas as effective and in force on the date of this agreement. 20. RIGHT TO ASSURANCE, Whenever one party to this contract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his intent to perform. In the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the coattail. 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits, Liabilities. judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees, or of the subSeller or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and, if any judgment shall be rendered against die Buyer in any such action, the Seller shall, at its own expenses, satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shalt in no way limit the responsibility to indemnify, keep and save harmless and defend the Buyer as herein provided. 22. TIME. It is hereby expressly agreed and understood that time is of the essence for the performance of this contract, and failure by contract to meet the time specifications of this agreement will cause Seller to be in default of this agreement. 23. MBE. The City of Lubbock hereby notifies an bidders that in regard to any contract entered into pursuant to this request, minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex or nanual origin in consideration for an award. Rev. 0812005 city of lubbock T I X A S PURCHASE ORDER TO, DACO FIRE SAFETY EQUIP 201 AVENUE R LUBBOCK Texas 79408 5006 Page - I Date - 02/21/2012 Order Number 10004889 000 OP Branch/Plant 5619 SHIP TO: CITY OF LUBBOCK CENTRAL FIRE STATION COMPLEX RAUL SALAZAR 1515 EAST URSULINE LUBBOCK Texas 79401 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2400 L.UBBOCK'rX 79457 BV; Requested 03/21/2012 Taken By D GAMBOA Delivery PER SALAZAR_ R REQ 39184 CONTRACT # 10049 Description/Supplier Item Ordered Unit Cast UM Extension Request Date Bunker Coat 20.000 1,090.0000 EA 21,800.00 03121/2012 . Bunker Pant 21.000 697.0000 EA 14,637.00 03/21/2012 Suspenders 21.000 52.0000 EA 1,092.00 03/21/2012 Terms NET 30 DAYS Total Order 37,529.00 This purchase order encumbers funds in the amount of $37,529.00, for a bid awarded to DACO Fire Equipment of Lubbock, Texas, on February 24, 2011, in accordance with Resolution No. 2011-80096. The following are Incorporated into and made part of this purchase order by letter of ratification or Resolution No. 2011-80096. CITY OF LUBBOCK o�rtin, Mayor ATTEST: Reba a Garza, City Secretary 'rERNIS :SND CONDITIONS IMPORTANT: READCAREFULLY STANDARD TERNIS AND CONDITIONS CiTY OF LU BBOCK, TEXAS Seller and Buyer agree as follows: 1 SELLER TO PACKAGE GOODS Sella will package goods in accordance with yood commercial practice Each shipping container shall be clearly and pernutnenlly marked as follows (a) Seller's name and address, (b) Consignee's name. address and purchase order or purchase release number and the supply agreement number of applicable, 4c) Container number and total number of containers. e g box I of 4 boxes, and id) the number of the container hearing the packing slip Seller shall bear cost of packaging unless ntha iseprovided Goods shall be suitably packed to secure lowest Iranspurtalrun costs and to cooform with requirements of common camera acrd any applicable specifications Buyer's count or weight shall be final and conclusive an shipments not accompanied by packing Iists 2 SHIPMENT UNDER RESERVATION PROHIBITED Sella is not authorized to ship the goods under reservation and no tender of a bill of lading will operate as a tender of goods. 3 TITLE AND RISK OF LOSS The Crile and risk of loss of the goods shall not pan to Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery 4 NO REPLACEMENT OF DEFECTIVE TENDER Every tender of delivery of goods must fully comply with all provisions of this contract as to twine of delivery. quality and the like ire tender is made which does not fully conform, this shall conunute a breach and Seller shall not have the right to substitute a conforming tender, provided, where the time for performance has not yet expired, the Seiler may reasonably notify Buyer of his intention to cure and may then make a conforming tender within the contract time but not afterward, 5 INVOICES $ PAYMENTS a Seller shall submit separate invoices, in duplicate. one each purchase order or purchase release after each delivery. Invoicin shall indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, if arty, shall be listed separately A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice Mad To. Accounts Payable, City of Lubbock, P O Box 2000, Lubbock, Tetras 74457 Payment shall not be due until the above matmments are submitted after delivery 6 GRATUITIES. The Buyer may, by writers notice to the Sella, cancel this contract without liability to Seller if it is determined by Buyerthat gruff hies, in the form of emawinenen4 gifts or otherwise, were offered or given by the Seller, or wry agar or representative of the Seiler, to any officer or employee of the City of Lubbock vOth a view to secunng a contract or securing favorable Ireanunt with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract. In the event this contract is canceled by Buyer pursuant to this provision. Buyer shall be enntled, in addition to arty other rights acrd remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities. 7 SPECIAL TOOLS & TEST EQUIPMENT If the price stated on the face hereof includes the case of any special tooling or special Leet equipment fabricated or required by Seiler for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Sella as such, g WARRANTY -PRICE. a The price to be paid by the Buyer shall be that curtained in Seller's bid which Seiler warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions end methods of purchase. In the event Seller breaches this warranty, the prices of the items shall be reduced to the Seller's current pnoea on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense. b The Seller warrants that no person or selling agency has been employed or retained to wheat or secure this contract upon an egreemem m understanding for commisaian, percentage, brokerage, or contingent fee excepting bona fere employees of bons fide established commercial or selling agencies maintained by the Seller for the purpose of securing business For breach of viciation of this warranty the Buyer shall have the now in addition to any other right of rights to cancel them contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct From the contract price, or otherwise recover the full amount of such commission, percentage. brokerage or contingent fee 9 WARRANTY -PRODUCT Sella dull not limit or exclude Ory implied w wilts and any attempt to do so shall render this contract voidable at the option of the Buyer Seller warrants that the goods furnished will conform to the specification, drawings, and descriptions hsrod in the bid invitation, end to the sample(s) fu nislnd by the Seiler. 'fairy In the event of s conflict or between the specifications, drawings, and desenptions, the specifications shall govern Noriviehstandmg any provision contained in the contactual agreement, the Seller represents and warrants fault -free performance and fault -free result in the processing dale and date related data (including, but not limited to calculating, comparing and sequencing) of all hardware, wftwate and firmware products delivered and services provided under this Contract, individually or in combination, as the case may be from the effective date of this Contract The obligations contained beret apply to products and services provided by the Seller, its sub• Seller or any third party involved to the creation or development of the products and services to be delivered to the City of Lubbock under this Contract. Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its rights under the law endunder this Contract including, but out limited to, its right pertaining to terminatnn or default The warranties contained herein we separate and discrete from any other warranties specified in this Contreet and we not subject to ary disclaimer of warranty. implied or expressed, or limitation of the Sella'% liability which may he specified in this Contract, its appendices, its schedules, its annexes or any document incorporated in this Contract by reference 10 SAFETY WARRANTY Seller warrants that the product sold to the Buyer shall conform to the standards promulgated try the U S Department of I abor under the Occupational Safety and health Act of 1070 In the event the product does no coalform to OSHA standar$ Buyer may return the product for correction sir replacement as the Seller's expense In the event Seller fails to male the appropriate owrection vsohin a reasonable time, confection made by Buyer will be at the Seller's expense II NO WARRANTY BY BUYER AGAINST INFRINGEMENTS As purl of this contract for side Seller agree$ to &Wdalam whether Yaods manufactured in accordance with the 4mcnfrcasnuns attached to this agreement will give rise to the rightful clam of any third person by way of infringement of the like Buyer makes no warranty that the production of goods according to the specification will not give nse to such a claim, and in no event shall Buyer he liable to Seller far Indemnification in the event that Seller is sued on the grounds of infringement of the like If Sella is of the opinion that an Infringement or the like will result, he will notify the Buyer to this effect in wtlhng within two weeks after the signing of this agreement. If Buyer does not receive notice and is subsequently held liable for the nnfnrtgemem or the like, Sella will save Buyer harmless If Sella in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void. 12 RIGHT OF INSPECTION Buyer shall have the right to mspect the goods at delt%my before accepting them 13 CANCELLATION Buyer shall have the right to cancei for default all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof including waranites of Sella or if the Seller becomes msolvem or commits acts of bankruptcy Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may hava in law or equity 14 TERMINATION rhe performance of wurk under this order maybe terminated in whole, or in parr by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Sella of a "Norte of Termination' specufymg the extent to which performance of work under the Order is terminated and the date upon which vic-.h termination becomes effective. Such right or termination is un addition to and not in lieu of the rights of Buyer set forth in Clauus 13, herein. 15 FORCE MAJEURE. Neither party shall be held responsible for losses, cesu(ting if the fulfillmern of any terms of provtsom of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence said party is unable to prevent Ib. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be anigned or delegation of any Obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall he wholly void and totally ineffi ctme for all purpose unless made in conformity with this paragraph_ 17. WAIVER. No clam or right arising out of a breach of this contract can be discharged in whole or to pal by a waiver or rawricianon of the claim or right unless the waiver or renunciation is supported try consideration and is in writing signed by the aggrieved petty. lg. INTERPRETATION -PAROLE EVIDENCE This writing, plus any specifications for bids and performance provided by Buyer In ns advettisetrCM for bids, and any other documents provided by Seller as pert of his but is intended by the parties as a final expression of their agreement and intended also as e complete and exclusive statement of the terms of their agreement. Whenever a term defined by the Uniform Commercial Code is used in this agreement, the def niuon contained in the Cede is to control 19 APPLICABLE LAW This agreement shall be governed by the Uniform Commercial Code. Where ever the term "Uniform Commercial Coda' is used it shall be construed as mewing the Uniform Commercial Code as adopted in the State of Texas se effective and in force on the date of this agreement. 20. RIGHT TO ASSURANCE. • Whenever one perry to this contract in good faith has reason to question the other party's intent to perform he may demand that the other parry give written assurance of his intent to perform In the event that a demand is made and no assurance is given within five (5), days, the demanding party may treat this failure as an anticipatory repudiation of the contract. 21 INDEMNIFICATION Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employees, against all Injuries, deaths, ion, damages. claims. patent clamms, suns, liabilities, )udgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the gaoling of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees, or of the subSeller or assignee or its employee, if Ory, and the Seller shalt, at her own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arisingtherefrom of incurred in connection therewith, aid, if any judgment shall be rendered against the Buyer in any such action, the Seller shall, at its own expenses, satisfy and discharge the sane Seller expressly understands and agrees that pray bond required by this contract, or otherwise provided by Seller, shall in no way limit the reapex+sibility to indemnify, keep and save hrrtnien and defend the Buyer as herein provided 22 TIME. [t is hereby expressly agreed and understood that time it of the essence for the performance of this contract, and failure by contract to meal the time specifications of this agreement —11 cause Sella to be in default of this agreement 23 MBE The City of Lubbock hereby notifies all bidders that in regard to any contract entered Into pursuant to this request, minority and women tsuuness enterprises will be affrnded equal opportumlies to submit bids in response to this invitation and will not be discriminated aganst on the grounds of race, color, sex or natural ongm in consideratton for an award 24 NON -ARBITRATION The City reserves the rightto exercise any right or remedy to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdition Funher, the City shall not be subject to any arbitration process prior to exercising its unrestricted Tight to seek judicial remedy The remedies set forth herein we cumulative and not esOuuve, and may he exercised concurm ly To the extent of any conflict between this provision and another provision in, er related to. this document, this provision shall control 25 RIGHT TO AUDIT At any time during the term of the contract. or thereufter, the Cit% or ■ duly authorized audit representative of rhe City or the State of Texas, at its expense +rid at reasonable rimes, reserves the right to audit Contractor's records and books relevant iii all services provided to the City under this Contract In the es ent such an audit M the Cin . ,:.ds any exon, Or overpayments by rbe (*Try. ComcactOr shall refund the C+ty il'e full ai, ,if such overpayments within thirty 1301 clays of such audit findings, or the t iry..it div Trusses the right to deduct such arnounts awing the City from any pavmenis lire (�+iur.r t.a Rea 02l2012 city of lubbock TEXAS TO PURCHASE ORDER DACO FIRE SAFETY EQUIPMENT 201 AVENUE R LUBBOCK Texas 79408 5006 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 Ordered 04/16/2012 Freight Requested 07/13/2012 Taken By Delivery PER SALAZAR R REQ 39529 SHIP TO: BY: CONTRACT # 10049 Page - 1 Date - 04/16/2012 Order Number 10005377 000 OP Branch/Plant 5619 CITY OF LUBBOCK CENTRAL FIRE STATION COMPLEX RAULSALAZAR 1515 EAST URSULINE LUBBOCK Texas 79401 D GAMBOA Description/Supplier Item Ordered Unit Cost UM Extension Request Date Bunker Coat 52.000 1,090.0000 EA 56,680.00 07/13/2012 Bunker Pant 52.000 697.0000 EA 36,244.00 07/13/2012 Suspenders 52.000 52.0000 EA 2,704.00 07/13/2012 Total Order Terms NET 30 DAYS 95,628.00 This purchase order encumbers funds in the amount of $95,628.00 awarded to DACO Fire Safety Equipment, of Lubbock, Texas, on February 24, 2011. The following is incorporated into and made part of this purchase order by letter of ratification of Resolution No. 2011-ROO96. CITY OF LUBBOCK Tom Martin, Mayor ATTEST: Web cca Garza, City Secretary TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS, Seller will package goods in accordance with good commercial practice. Each +hipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable. (c) Container number and total number of containers, e.g. box I of 4 boxes, and (d) the number of the container bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided Goods shall be suitably packed to secure lowest tranvponation costs and to conform with requirements of common carriers and any applicable specifications. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the goods under reservation and no tender of a bill of lading will operate as a tender of goods. 3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods ,hall not pass 10 Buyer until Buyer actually receives and takes possession of the goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must fully comply with all provisions of this contract as to time of delivery. quality and the like. If a tender is made which does no fully conform. this shall constitute a breach and Seller shall not have the right to substitute a conforming tender, provided where the time for performance has no yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming tender within the contract time but not afterward. S. INVOICES & PAYMENTS. a. Seller shall submit separate invoices, in duplicate, one each purchase Lader or purchase release after each delivery. Invoices shall indicate the purchase order of purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, if any, shall be listedseparately. A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice. Mail To: Accounts Payable, City of Lubbock, P. O. Box 2000. Lubbock, Texas 79457, Payment shall not be due until the above instruments are submitted after delivery. 6. GRATUITIES. The Buyer may. by written notice to the Seller, cancel this contract without liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gifts Or otherwise. were offered or given by the Seller, or any agent or representative of the Seller. to any officer or employee of the City of Lubbock with a view to securing a cout`act or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the perfuming of such a contract In the event this contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUIPMENT. If the price smled on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Seiler for the purpose of filling this order, such special tooling cquipment and any process sheets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Seller as such. g, WARRANTY -PRICE. a The price to be paid by to Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase. In the event Seller breaches this warranty, tbe prices of the items shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense. b. The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, percentage. brokerage. or contingent fee excepting bona ride employees of bona tide established commercial or selling agencies maintained by the Seller for the purpose of securing business. For breach of vhciation of this warranty the Buyershail have the right in addition to any other right of rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee. 9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the goods furnished will conform to the specification, drawings, and descriptions listed in the bid invitation, and to to sample(s) furnished by the Seller, if any. in die event of a conflict or between the specifications, drawings, and descriptions, the specifications shall govern. Notwidtstanding any provisions contained in the contractual agreement the Seller represents and warrants fault -free performance and fault -free result in the processing dale and dart related data (including. but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract. individually of in combination, as the case may be from the effective date of this Contract. The obligations contained herein apply to products and services provided by the Seller, its sub - Seller or any third party involved in the creation or development of the products and services to be delivered to to City of Lubbock under this Contract. Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its tights under the law and under dais Contract including, but not Limited to, its right pertaining to termination or default. The warranties contained herein are separate and discrete from any other warranties specified in this Contract, and are nil subject to any disclaimer of warranty, implied or expressed or limitation of the Seller's liability which may be specified in this Contract its appendices, its schedules, its annexes or any document incorporated in this Contract by reference. 10. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of Labor under the Occupational Safety and Health Act of 1970, in tine event the product ones nor conform to OSHA standards. Buyer may return the product for correction or replacement at the Seller's espmse. in the event Seller fails to nuke the appropriate correction within a reasonable time, correction made by Buyer will be at the Seller's expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS, As part of this contract for We Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim of any third penin by way of infringertem of the like. Buyer makes no warranty that the production of goods according to tie specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for indemnification in the event that Seller is sued on the grounds of infringement of the like. If Seller is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement. If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the production of the gook in accordance with the specifications will result in infringement or the like. the contract shall be null and void. 12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them. 13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof including wan -miles of Seller or if the Seller becomes insolvent of summits acts of bankruptcy. Such right of cancellation is in addition to and no in lieu of any other remedies which Buyer may have in law or equity. l4. TERMINATION. The performance of work under this order may be terminated in whole, or in part by the Buyer in accordame with this provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such right or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13. herein. 15. FORCE MA7EURE. Neither party shall be held responsible for losses. resulting if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the parry whose performance is interfered with, and which by the exercise of reasonable diligence said party is unable to prevent. 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation made by Seiler without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph. 17. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole OF in part by a waiver or renunciation of the claim OF right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. L& INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any otter documents provided by Seller as part of his bid, is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement. Whenever a term defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control. l9. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Where ever the term "Uniform Commercial Code" is use& it shall be construed as meaning the Uniform Commercial Code as adopted in the State of Texas as effective and in farce on the date of this agreement 20, RIGHi TO ASSURANCE, Whenever one party to this contract in good faith has reason to question the other parry's intent to perform he may demand that the other party give written assurance of his intent to perform. In the event that a demand is made and no assurance is given within five (5) days, the demanding party may treat this failure m an anticipatory repudiation of the contract. 21. INDEMNIFICATION. Seller shali indemnify, keep and save harmless the Buyer, its agents, officials and employees. against all injuries. deaths, lass, damages, claims. patent claims, suits, liabilities. judgments. costs, and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom. whether or no it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees, or of the subSeller or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay ail charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith. and if any judgment shall be rendered against to Buyer in any such action. the Seller shall. at its own expenses, satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Buyer as herein provided. 22. TIME. it is hereby expressly agreed and understood that time is of the essence for the performance of this contract. and failure by contract to meet the time specifications of this agreement will cause Seller to be in default of this agreement. 23. MBE. The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request minority and women business enterprises will be afforded equal opportunities m submit bids in response to tris invitation and will not be discriminated against on the grounds of rate, color, sex or natural origin in consideration for an award. 24. NON-ARBrTRATION. The City reserves the right to exercise any right or remedy available to it by law, contract. equity, or otherwise, including without limitation, the right to seek any and all forma of relief in a coup of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extern of any conflict between this provision and another provision in, or related to, this document this provision shall control. 25. RIGHT TO AUDIT. At any time during the term of the contract or thereafter. ilhe City, or a duly authorized audit represenmtive of the City of the State of Texas. at its exlvnse and at reasthoabk times, reserves the right to audit Contractor's records and books relevant to all .services provided to the City under this Contract. In the Hent such an audit by the City reveals any errors or overpayments by the City. Connector shall refund the City the full .'mono' 01 such overpayments within thirty (30) days of such audit findings. or the City, at its option. reserves the right to deduct such amounts owing die City from any payments due Contractor. Rev. 0212012 . R Cl6`0& Lubb TEXAS TO: PURCHASE ORDER DACO FIRE SAFETY EQUIPMENT 201 AVENUE R P.O. BOX 5006 LUBBOCK Texas 79408 5006 Page - 1 Date - 08/2212012 Order Number 10006540 000 OP SHIP TO: Branch/Plant 5619 CITY OF LUBBOCK CENTRAL FIRE STATION COMPLEX RAUL SALAZAR 1515 EAST URSULINE LUBBOCK Texas 79401 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY: oe Marta varez, Di for of R4fhasing & Contract Management Ordered 08122/2012 Freight Requested 10/22/2012 Taken By Delivery PER SALAZAR R REQ 40354 Description/Supplier Item Bunker Coat Bunker Pant Suspenders Terms NET 30 DAYS D GAMBOA CONTRACT # 10049 Ordered Unit Cost UM Extension Request Date 65.000 1,090.0000 EA 70,850.00 10/22/2012 65.000 697.0000 EA 45,305.00 10/22/2012 65.000 52.0000 EA 3,380.00 10/22/2012 Total Order 119,535.00 This purchase order encumbers funds in the amount of $ 119,535.00 awarded to DACO Fire Safety Equipment, of Lubbock, Texas, on 8-22-2012. The following is incorporated into and made part of this purchase order by Resolution No. 2011-ROO96. CITY OF LUBBOCK GI C. Robertson, Mayor ATTEST: _'0 , 0, " - t!�: ft,ebecca Garza, City S cre ry TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: i. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with gond commercial practice. Each shipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consignee's name. address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e.g. box I of 4 boxes, and (d) the number of the container bearing the packing :clip. Seller shall bear cost of packaging unless otherwise provided Goads shall be suitably packed to seeure lowest transportation cost% and to conform with requirements of common carriers and any applicable ipecifrcations. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the goods under reservation and no tender of a bill of lading will operate as a tender of goods. 3. TfilE AND RISK OF LOSS. The title and risk of loss of the goad% shall not pass to Buyer until Buyer actually receives and takes possession of the goods at die point or points of delivery. 4, NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like. if a tender is made which does not fully conform, this shall constitute a breach and Seiler shall not have the right to substitute a conforming tender. provided, where the time for performance has not yet expired the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming tender within the contract time but not afterward 5. INVOICES & PAYMENTS. a. Seller shall submit ieparate invoices, in duplicate. one each purchase order or purchase release after each delivery. Invoices shall indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, should be attached to the invoice. Mail To; Accounts Payable. City of Lubbock. P. O. Box 2000, Lubbock, Texas 79457. Payment shall not be due until the above instruments are submitted after delivery. 6. GRATUITIES. The Buyer may, by written notice to the Seller. cancel this contract without liability to Seller if it Ls determined by Buyer that gratuities, in the form of entertainment gifts or otherwise, were offered or given by the Seller, or any agent or representative of the Seller, to any officer or employee of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract. In the event ibis contract is canceled by Buyer pursuant to this provision, Buyer shall be entitled in addition to any other rights and remedies. to recover or withhold the amount of the cost incurred by Seller in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUIPMENT. If the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Seller for the purpose of filling this order, such special tooling equipment and any process sbeets related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Seller as such. 8. WARRANTY -PRICE. a. The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase. In the event Seller breaches this warranty, the prices of the items shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's. actual expense. b. The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement w understanding for commission, percentage, brokerage, or contingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Seiler for the purpose of securing business. For !Reach of vitiation of this warranty the Buyer %hall have the right in addition to any other right of rights to cancel this contract without liability and to deduct from the contract price. or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee. 9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the goods furnished will conform to the specification, ohawing%, and descriptions listed in the bid invitation, and to the sample(s) famished by the Seller, if any. in the event of a conflict or between the specifications, drawings, and descriptions. the specifications shall govern. Notwithstanding any provisions contained in the contractual agreemen4 the Seller represents and warrants fault -free performance and Fault -free result in the processing dare and date related data (including. but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract individually of in combination, as the case may be from the effective date of this Contract. Also, the Seller warrants the year2000 calculations will be recognized and accommodated and will not in any way. result in hardware, software or firmware failure. The City of Lubbock, at its sole option, may require the Seller. at any time. to demonstrate the procedures it intends to follow in order to comply with all ole obligations contained herein. Tice obligations contained herein apply to products and services provided by the Seller, its sub -Seller or any third parry involved in the creation or development or the products and -services to be delivered to the City of Lubbock under this Contract Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself of any of its rights under the law and under this Contract including, but not limited to, its right pertaining to termination or default. The warranties contained herein are separate and discrete from any other warranties specified in this Contract and are not subject to any disclaimer of warranty, implied or expressed or limitation of the Seller's liability which may be specified in this Contract its appendices. its schedules, its annexes or any document incorporated in this Contract by reference. 10. SAF'ET'Y WARRANTY. Seller warrant% that the product sold to the Buyer ihahl conform to the standards promulgated by the U. S. Department of Labor under the Occupational Safety and Health Act of 1970. In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at the Seller's expense. In the event Seller fails to make the appropriate correction within a reasonable tithe, correction made by Buyer will be at the Seller's expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As pati of this contract for +ale Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to dee rightful claim of any third person by way of infringement of the like. Buyer makes no warranty that the production of goods according to the specification will not give rise to such a claim, and in no event .shall Buyer be liable to Seller for indemnification in the event that Seller is stied on the grounds of infringement of the like. If Seller is of the opinion that an infringement or the like will result, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement. If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the production of the good% in accordance with the specifications will result in infringement or the like, the contract shall be null and void. 12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them. 13. CANCELLATION. Buyer shall have tine right to cancel for default all or any part of the undelivered portioo of this order if Seller breaches any of the terms hereof including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law or equity. 14. TERMINATION. The performance of work under this order may be terminated in whole, or in part by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such right or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13, herein. 15. FORCE MAJEURE. Neither parry shall be held responsible for losses, resulting if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the parry whose performance is interfered with. and which by the exercise of reasonable diligence said parry is unable to prevent 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph. 17. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and Ls in writing signed by the aggrieved party. 18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as part of his bid is intended by the partiesas a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement. Whenever a term defined by the Uniform Commercial Code is used in this agreement the definition contained in the Code L9 to control. N. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Cook. Where ever the tetra"Uniform Commercial Code" is used it shall be construed as meaning the Uniform Commercial Code as adopted in the State of Texas a% effective and in force on the date of this agreement 20. RIGHT TD ASSURANCE. Whenever one party to this contract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his intent to perform. In the event that a demand is made and no assurance is given within five (5) days. the demanding party may treat this failure as an anticipatory repudiation of the contract. 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents. officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, costs and expenses, which may in anywise accrete against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom, whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees, or of the subSeller or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and if any judgment shall be rendered against the Buyer in any such action, the Seller shall, at its own expenses, satisfy and discharge tate same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Buyer as herein provided. 22. TiME. It is hereby expressly agreed and understood that time is of the essence for the performance of this contract and failure by contract to meet the time specifications of this agreement will cause Seller to be in default of itis agreement. 23. MBE, The City of Lubbock hereby notifies all bidders that in regard to any context entered into pursuant to this request minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex or natural origin in consideration for an award. 24. ARBITRATION. The City reserves the right to exercise any right or remedy to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all fors of relief in a coon of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document this provision shall control. Rev. 02/2012 5 �^��^city of lubbock PURCHASE ORDER TEXAS DACO FIRE SAFETY EQUIPMENT 201 AVENUE R P.O. BOX 5006 LUBBOCK Texas 79408 5006 INVOICE "ro: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 SHIP TO: BY Page - I Date - 10/07/2013 Order Number 10010077 000 OP BranchlPlant C;A t a CITY OF LUBBOCK CENTRAL FIRE STATION COMPLEX RAULSALAZAR 1515 EAST URSULINE LUBBOCK Texas 79401 Ordered 10/03/2013 Freight Requested 12/31/2013 Taken By D GAMBOA Delivery PER SALAZAR R REQ 42581 CONTRACT # 10049 Description/Supplier Iters Ordered_ Unit Cost _ Um Extension _ Request Date SUP -OTHER CLOTHING SUPPLIES 51.000 - - - 697.0000 EA - -- —35,547.00 12/31/2013 Bunker Pant SUP -OTHER CLOTHING SUPPLIES 51.000 Suspenders SUP -OTHER CLOTHING SUPPLIES 51,000 Bunker Coat Terms NET 30 DAYS 52.0000 EA 2,65100 12/31/2013 1,090.0000 EA 55,590.00 12/31/2013 TutalOrder 93,789.00 This purchase order encumbers funds in the amount of $93,789 awarded to Daco Fire and Safety Equipment, from Lubbock, Texas on October 24, 2013. The following is incorporated into and made part of this purchase order by reference: ITB 1I- 018 -11H, Price quotation dated January 7, 2011 from Daco Fire and Safety Equipment, from Lubbock, Texas Resolution 4 2011-110096. CITY OF LUBBOCK ATTEST! Rebecca Garza, City tr ary TERNIS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERtNIS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: t. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good cornmacLd practice. Each shipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and thesupply agreement numba if applicable, (c) Container number and total number of cuntainers, e.g. box l of 4 boxes, and (it) the number of the container hearing the packing stip. Seller shall bear cost of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common carriers and any applicable specifications- Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the goods under reservation and no tender of a bill of lading will operate as a tender of goads. 3. TITLE AND RISK OF LOSS. The title and risk of loss of the goads small not pass to Buyer until Bdyi actually receives and takes possession of the goods at the point or points of delivery. 4. NO REPLACEMENT OF DEFECTIVE TENDER- Every lender of delivery of goods must rally comply with all provisions of this contract as to time of delivery, quality and the like. If a tender is made which does not fully conform, this shall constitute a breach and Selter shall not have the right to substitute a conforming lender, provides, where the time for performance has not yet expired, the Sclter may reasonably notify Buyer of his intention to cure and may then matte a conforming tender within the contract time but not afterward. S. INVOICES & PAYMENTS. a. Seller shalt submit separate invoices, in duplicate, one each purchase order or purchase release after each delivery. invoices shall indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, If any, shalt be listed separately. A copy of the bill of lading, and the freight waybill when applicable. should be attached to the invoice. Mail To: Accounts Payable, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457. Payment shall not be due until the above instmmnetts are submitted after delivery. 6. GRATUITIES. The Buyer may, by written notice to the Seller, caned this contract without liability to Siler if it is determined by Buyer that gratuities, in the form of entertainment gifts or otherwise, were offered or given by the Seller, or any agent or representative of the Seller, to any officer or employee of the City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract. In the even this oormad is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in additionto any other rights and remedies, to recover or withhold the amount of the cost inured by Seller in providing such gratuities. 7. SPECIAL TOOLS & TEST EQUIPMENT. if the price stated on the face hereof includes the cost of any special tooling or special test equipment fabricated or required by Seiler for the purpose of Filling this order, such special toolingequipment and any process sheds related thereto shall become the property of the Buyer and to the extent feasible shall be identified by the Seller as such. S. WARRANTY -PRICE. a. The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase. In the even Seller breaches this warranty, the prices of the items shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense. b. The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission, pcmemaga% brokerage, or contingent fte excepting bona Ode employees of bona fide established commercial or selling agencies maintained by the Seller for the purpose of securing business. For breach of vitiation of this warranty the Buyer shall have the right in addition to any other nghd of rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the roll amount of such commission, percentage, brokerage or contingent Tea 9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any attempt to do so shall tender this contract voidable at the option of the Buyer. Seller warrants that the goods Tarnished will conform to the Speeifncation, drawings, and descriptions listed in the bid invitation, and to the sample($) furnished by the Stilts, if any. In the event of a conflict or between the specifications, drawings, and descriptions. the specifications shall govern. Notwithstanding any provisions contained in the contractual agreement, the Seller represents and warrants rauh-free performance and fault -free result in the processing data and date related data (including, but not limited to calculating, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, individually or in combination, as the case may be from the effective date of this Contract. The obligations contained herein apply to products and services provided by the Seller, its sub - Seller or any third party involved in the creation or development of the products and services to be delivered to the City of Lubbock under this Contract Failure to comply with any of the ohligations contained herein may mull in the City of Lubbock availing itself of any of its rights under the law and under this Contract including, but not limited to, its right pertaining to termination or default the warranties contained herein are separate and discrete from any other warranties specified in this Contract, and ata not subject to any disclaimer of warranty, implied or expressed or limtauon of this Seller's liability which may be specified in this Contract, its appendices, its schedules, its annexes of any documest incorporated in this Contract by reference. 10. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U. S. Department of labor under the Occupational Safety and Health Act of 1970. In the event the product does net conform to OSHA standards, Buyer may return the product fix correction of replacement al the Seller's expense. In the event Seller fails to make the appropriate correction within a reasonable time, Correction made by Buyer will be it the Seller's expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As pad of this contract for Sale Seller agrees to asceiain whether goods manufactured in accordance with the specifications attached to this agre mad will give rise to the rightful claim of any third person by way of infringement of the like. Buyer makes no warranty that the production of goods according to the specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for indemnification in the evens that Seller is sued on the grounds of infringement of the like. If Seller is of the opinion that an infringement or the like will remit, he will notify the Buyer to this effect in writing within two weeks after the signing of this agreement. If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless. if Seller in good faith ascertains the production of the goods in accordance with the specifications will mull in infringement or the like. the contract shall be mill and void. 12. RIGHT OF INSPECTION. Buyer shall have thin right to inspect the goods as delivery before accepting theta 13. CANCELLATION. Buyer shall have the right to cancel for default all or any pad of the undelivered portion of this order if Seller breaches any of the terms better including warranties of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in Iia of any other remedies which Buyer may have in law or equity. 14. TERMINATION. The performance of work miter this order may be bvrninased in whole. or in part by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Temonaiori' specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such rigid w termination is in addition to and not in lieu of the rights Of Buyer set forth in Clause 13, herein. 13. FORCE MAJEURE. Neither party shalt be held responsible for losses, resulting if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence said party is tamable to prevent. 16. ASSIGNMENT-DELEOATION. No right or interest in this contract shall be assigned or delegation of any obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this paragraph. 17. WAIVER. No claim or right arising out of a breacb of this contract can be discharged in whole or in pad by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. 15. INTERPRETATION -PAROLE EVIDENCE- This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as part of his bid, is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terns of their agreement Whenever a term defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control. 19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Where ever the term "Unifomn Commercial Code" is used, it shall be constmed as meaning the Uniform Commercial Code as adopted in the State of Texas as effective and in farce on the date of this agreement. 20. RIGHT TO ASSURANCE Whenever one party to this wntract in good faith has reason to quntion the other party's intent to perform he may demand that the other party give written assurance of his intent to perform In the event that a demand is trade and no assurance is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the contract. 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, officials and employees, against all injuries, deaths, loss, damages, claims, patens claims, suits, liabilities. Judtpnmts, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom whether or not it shall be alleged or determined that the act was caused through negligence or omission of the Seller or its employees, or of the sub5eller or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, arA irany judgment shall be tendered against the Buyer in any such action, the Seller shall, as its own expenses, satisfy and discharge the same Seller expressly understands and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the Buyer as herein provided 22. TIME. It is hereby expressly agreed and understood that time is of the essence for the perfarrnance of this contract, and. failure by contract to meet the time specifications of this agTeare rt will cause Seller to be in default of this agreement. 23. MBE The City of Lubbock hereby notifres ail bidders that in regard to any contract entered into pursuant to this request, minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be dischininatod against on the grounds of race, color, sex or natural origin in consideration for an award. 24. NON•ARBfTRATION. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including withotd limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall nos be subject to airy arbitration process prior to exercising its unsestricted right to seek judicial remedy. The remedies set forh herein aro cumulative and rix exclusivt and may be exercised concurrently. To the extent of any conflict between this provision and another pmvision is or related to, this document, this provision shall control. 25. RIGHT TO AUDIT. Al any time during the term of the contract, or thereafter, the City, or a duly authorized audit representative of the City or the State of Texas, at its expense and at reasonable limes, reserves the right to audit Contractors records and books relevant to all services provided to the City under this Contract. In the event such an audit by the City reveals any eras or overpayments by the City, Contractor shall refund the City the ftdl amount or such overpayments within thirty (20) days of such audit findings, or the City, at its option, resemes the right to deduct such amounts awing the City from any payments due Contractor. Rev. 4212012