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HomeMy WebLinkAboutResolution - 2009-R0439 - Contract - West Texas Paving - Secondary Asphalt Materials - 10/20/2009Resolution No. 2009—RO439 October 20, 2009 Item No. 5.9 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Contract No. 9228 for Secondary Asphalt Materials per ITB 09-090-FO, by and between the City of Lubbock and West Texas Paving of Lubbock, Texas, 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 this 20th day of October , 2009. TOM MARTIN, MAYOR ATTEST: City Secretary APPROVED AS TO CONTENT: LrsCia Reed, P.E. ief Operations Officer AS TO FORM: WeaveY, Assistant City Attorney ccdocs/IZES.Contract- West Texas Paving Ober 5, 2009 r Resolution No. 2009—RO439 CITY OF LUBBOCK CONTRACT FOR SERVICES For Secondary Asphalt Materials -Annual Pricing ITB #09-090-170 THIS CONTRACT, made and entered into this 20th day of October, 2009, pursuant to a resolution heretofore adopted by the City of Lubbock, Texas, by and between the City of Lubbock ("City"), and West Texas Paving Incorporated ("Contractor"). WITNESSETH: WHEREAS, the City of Lubbock duly advertised for bids for Secondary Asphalt Materials -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 service of the said Secondary Asphalt Materials. 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 Secondary Asphalt Materials specifically referred to as a Secondary Supplier for Item(s) No. 1, 2, 3, 6, 7 and more particularly described in the bid submitted by the Contractor or in the specifications attached hereto. 2. 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 (PPI), 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. 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. In 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 #09-090-FO, General Conditions, Specifications, and the Bid Form. 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 �WA44 Tom Martin, Mayor ATTEST: RebecN Garza, City Secretary APPROVED AS TO CONTENT: rn". &J - Marsha Reed, Chief Operations Officer APP VE S TO F RM: Assistant City Attorney CONTRACTOR BY Aut 'zed R re ntative Addr ss `— F ity of 416bcko rEzdt TO: PURCHASE ORDER WEST TEXAS PAVING INC PO BOX 64187 LUBBOCK Texas 79464 SHIP TO: INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY. Ordered 06/18/2010 Freight Requested 06/28/2010 Taken By Delivery REQ 35066 PER J GONZALES ITB-09-090-FO Page - 1 Date - 06/23/2010 Order Number 10000287 000 OP CITY OF LUBBOCK STREET DEPARTMENT 502 N I-27 LUBBOCK Texas 79403 Description/Supplier Item Ordered UM Unit Cost UM 969 TYPE D HOT MIX 1,810.250 EA 72.0000 EA WITH DELIVERY 1,810.250 EA 10.0000 EA Total Order Terms NET DUE ON RECEIPT DOSS Extension Request Date 130,338.00 06/28/2010 18,102.50 06/28/2010 148,440.50 This purchase order encumbers funds in the amount of $148,440.50 for a bid awarded to West Texas Paving, Inc. of Lubbock, Texas, on October 20, 2009, in accordance with Resolution No. 2009-R0439. The following are incorporated into and made part of this purchase order by letter of ratification or Resolution No. 2009-R0439. CITY OF LUBBOCK ATTEST: Tom Martin, Mayo ebe 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 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. 1. 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 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 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. T 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. 8. WARRAN"rY-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 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 riot 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. Indic 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. 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 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 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 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 Mall 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 cormnits 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 terns 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 or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. 18. rNTERPRETATION-PAROLE EVIDENCE. This writing, plus any specifications forbids 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 a6nvcment. 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 govemed by the Uniform Commercial Code. Where ever the term "Uniform Commercial Code" is used, it shall be conspired 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 demauding 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 shalh at his own expense, appear, defend and pay all charges of attomeys 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 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 an the grounds of race, color, sex or natural origin in consideration for an award. Rev. 08/20005 1ubV6' & TEXAS TO: PURCHASE ORDER WEST TEXAS PAVING INC PO BOX 64187 LUBBOCK Texas 79464 SHIP TO: Page - Date - Order Number 1 07/01/2010 10000340 000 OP CITY OF LUBBOCK STREET DEPARTMENT 502 N I-27 LUBBOCK Texas 79403 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOC'K.TX79457 BY: _ (� Ordered 06/29/2010 Freight Requested 07/09/2010 Taken By Delivery REQ 35171 PER A VALDEZ ITB-09-090-FO _ Description/Supplier Item Ordered UM Unit Cost UM INV980 640,820 EA 72.0000 EA INV980 TYPE D HTMX DELIVERY OF MATERIAL Terms NET DUE ON RECEIPT 640.820 EA 10.0000 EA DDOSS Extension Request Date 46,139.04 07/09/2010 6,408.20 07/09/2010 TwW Qrder 52,547.24 THIS PURCHASE ORDER RATIFIES THE PURCHASE OF PREVIOUSLY ORDERED GOODS/SERVICES THAT WERE PROVIDED WITHOUT PRIOR WRITTEN AUTHORIZATION. FOR FUTURE ORDERS, ENSURE PROPER PURCHASE AUTHORIZATION IS OBTAINED IN ADVANCE. THE CITY OF LUBBOCK IS UNDER NO OBLIGATION TO PAY FOR GOODS/SERVICES DELIVERED WITHOUT PRIOR PROPER AUTHORIZATION. This purchase order encumbers funds in the amount of $52,547.24 for a bid awarded to West Texas Paving, Inc. of Lubbock, Texas, on October 20, 2009, in accordance with Resolution No. 2009-R0439. The following are incorporated into and made part of this purchase order by letter of ratififation or Resolution No. 2009-R0439. CITY gF LUBBO K ATT /I L Floyd Price, Mayor Pro Tem e ecca Ga ity Secre ary 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 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 ofthis 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 w ithin 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 ofthe 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 at 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 ofthe 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 at 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 ofthe 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 acrual 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 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 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. Also, the Seller warrants the year2000 calculations will be recognized and accommodated and w ill 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 lime, 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 ofthe 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. 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 trade 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 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 ofthe 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 ail or any part of the undelivered portion of this order if Seller breaches any ofthe 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, or in part by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery ofthe Seller of a "Notice ofTermination" 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 ifthe 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 trade by Seller without the written permission ofthe Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless trade 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 ofthe 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 "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 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, patent claims, suits, liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence ofthe 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 ofthe 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 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. 08/2005 01. lubcity TO: PURCHASE ORDER WEST TEXAS PAVING INC PO BOX 64187 LUBBOCK Texas 79464 SHIP TO: INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY: Page - Date - Order Number 1 07/14/2010 10000383 000 OP CITY OF LUBBOCK STREET DEPARTMENT 502 N I-27 LUBBOCK Texas 79403 Ordered 07/09/2010 Freight Requested 07/16/2010 Taken By Dtlivery REQ 35304 PER A VALDEZ ITB-09-090-FO Description/Supplier Itern Ordered UM Unit Cost UM INV 976 724,860 EA 72.0000 EA TYPE D HTMX Total Order Terms NET DUE ON RECEIPT DDOSS Extension Request Date 52,189.92 07/16/2010 52,189.92 This purchase order encumbers funds in the amount of $52,189.92 for a bid awarded to West Texas Paving, Inc. of Lubbock, Texas, on October 20, 2009, in accordance with Resolution No. 2009-110439. The following are incorporated into and made part of this purchase order by letter of ratification or Resolution No. 2009-110439. CITY UBBOCK Floyd Price, Mayor Pro Tem 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 lap 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 cast 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 hill 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 lender 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 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 fulling 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 he 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 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 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. 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 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 tabor 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 snake 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 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 agmccment. 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 shnll 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 Leto inated 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 w ithin 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 w ithout 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 tern defined by the Uniform Conunercial Code is used in this agmeemen4 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 the State of Texas as effective and in force on the hate of this agreement. 10. 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 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 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, colon, sex or natural origin in consideration for an award. Rev. 08/2005 lubb" Zf k TO: PURCHASE ORDER WEST TEXAS PAVING INC PO BOX 64187 LUBBOCK Texas 79464 Page - Date - Order Number 1 07/22/2010 10000441 000 OP SHIP TO: Branch/Plant 4531 CITY OF LUBBOCK STREET DEPARTMENT 502 N I-27 LUBBOCK Texas 79403 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY: Ordered 07/19/2010 Freight Requested 07/26/2010 Taken By Delivery REQ 35359,35373 & 35392 09-090-FO Description/Supplier Item Inv 992 Type D Hot Mix Inv 992 Asphalt Black Base Inv 998 Type D Hot Mix Inv 998 Delivery Inv 1008 Type D Hot Mix Inv 1008 Delivery Terms NET DUE ON RECEIPT PER 7GONZALES Ordered UM Unit Cost UM 224.180 TN 72.0000 EA 690.460 TN 60.0000 EA 643.180 TN 72.0000 EA 643.180 TN 10.0000 EA 877.870 TN 72.0000 EA 877.870 TN 10.0000 EA Total Order DDOSS Extension Request __Date 16,140.96 07/26/2010 41,427.60 07/26/2010 46,308.96 07/26/2010 6,431.80 07/26/2010 63,206,64 07/26/2010 8,778.70 07/26/2010 182,294.66 This purchase order encumbers funds in the amount of $182,294.66 for a bid awarded to West Texas Paving, Inc. of Lubbock, Texas, on October 20, 2009, in accordance with Resolution No. 2009-R0439. The following are Incorporated into and made part of this purchase order by letter of ratification or Resolution No. 2009-R0439. CITY OF LUBBOCK ATTEST: �l�. - - Tom Martin, Mayor Re ecc Garza, City Secretary TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS 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 commercial practice. Each shipping container shall be clearly and permanently marked as follows (a) Sellers 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 requiremtents 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 lender 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 ofdclivery oFgaods must fully comply with all provisions of this contract as to time of delivery, quality and the like. If a tender is trade 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. Seiler 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 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 cr 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 orally special tooling or specrul lest 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 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 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 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 shal I 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 limn or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Seiler 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 -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. Aiso, 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 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 docurmnt 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 rot correction or replacement at the Seller's expense. In the event Seller fails to stake 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 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 ofihe 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 ofwork 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 el%etive. Such right or termination is in addition to and not in lieu critic 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 clans or right arising out of a breach of this contract can be discharged ill whole or in pan 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 tern 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 he governed by the Unifiorr 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, iiabilities, 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 assigner or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of altomcys 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 .came 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 perfurmunce 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 atTurded 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. 08/2005 4 lubbock I11AS TO: PURCHASE ORDER WEST TEXAS PAVING INC PO BOX 64187 LUBBOCK Texas 79464 Page - Date - Order Number 1 07/20/2010 10000437 000 OP SHIP TO: Branch/Plant 4531 CITY OF LUBBOCK STREET DEPARTMENT 502 N I-27 LU 3BOCK Texas 79403 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY: Ordered 07/16/2010 Freight Requested 07/26/2010 Taken By Delivery REQ 35294 PER J GONZALES 09-090-FO Description/Supplier Item Inv 984 Type D Hot Mix Inv 984 Delivery Terms NET DUE ON RECEIPT Ordered UM 962.930 EA 962.930 EA DDOSS Unit Cost UM Extension Request Date 72,0000 EA 69,330.96 07/26/2010 10.0000 EA 9,629.30 07/26/2010 Total Order 78,960.26 This purchase order encumbers funds in the amount of $78,960.26 for a bid awarded to West Texas Paving, Inc. of Lubbock, Texas, on October 20, 2009, in accordance with Resolution No. 2009-R0439. The following are incorporated into and made part of this purchase order by letter of ratification or Resolution No. 2009-110439. CITY OF LUBBOCK ATTEST: Tom Martin, Mayor Rebtca 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 Jai Seller's name and address, Ib) 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 l of 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. Ka 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 conformting 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 fisted 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. 0. 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 C ity of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the snaking 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 m 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 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 comingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintainedby the Seller for the purpose of securing business. For breach of vitiation of this warranty the Bayer 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 £mnware products delivered and services provided wider 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 are not subject to any disclaimer of warranty, implied at 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 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. IL 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 Seiler 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 terns 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 at law or equity. 14. TERMINATION. The performance of work under this order may he 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 o€ 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 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 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 ofthe Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all purpose unless made in conformity with this pamp;raph. 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 perlbrmance 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 them agreement. Whenever a term defined by die 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. When: 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 be may demand that the other parry give wnren 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 Bunting 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 ounission 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, ifany 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 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 Bounds of race, color, sex or natural origin in consideration for an award. Rev. 08/2005 0 V�� lubIa TEXAS TO: PURCHASE ORDER WEST TEXAS PAVING INC PO BOX 64187 LUBBOCK Texas 79464 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 Ordered 07/23/2010 Requested 08/02/2010 Delivery REQ 35405 and 35410 09-090-FO Freight Taken By Page - I Date - 07/26/2010 Order Number 10000472 000 OP SHIP TO: Branch/Plant 4531 CITY OF LUBBOCK STREET DEPARTMENT 502 N I-27 LUBBOCK Texas 79403 BY: PER J GONZALES Description/Supplier Item Ordered UM Unit Cost UM Inv 1010 Type D Hot Mix 1,179.910 TN 72.0000 EA Inv 1010 Delivery 1,179.910 TN 10.0000 EA Inv 1018 Type D Hot Mix 767,850 TN 72.0000 TN Inv 1018 Delivery 767,850 TN 10.0000 EA Total Order Terms NET DUE ON RECEIPT DDOSS Extension Request Date 84,953.52 08/02/2010 11,799.10 08/02/2010 55,285.20 08/02/2010 7,678.50 08/02/2010 159,71632 This purchase order encumbers funds in the amount of $159,716.32 for a bid awarded to West Texas Paving, Inc. of Lubbock, Texas, on October 20, 2009, in accordance with Resolution No. 2009-R0439. The following are incorporated into and made part of this purchase order by letter of ratification or Resolution No. 2009-R0439. CITY OF LUBBOCK Tom Martin, Mayor ATTEE 5 ebec a 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 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 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 trade 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 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. 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 bereof 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. 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 or understanding for commission, percentage, brokerage, or contingent fee excepting bona tide 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 govem. Notwithstanding any provisions contained in the contractual agreement, the Seiler represents and warrants fault-frce 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 Contrail. 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 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 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 to this agreement will give rise to the rightful claim of any thud 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 goads 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 maybe 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 are 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 ofthe 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 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 fmal 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. M APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Cade. 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 parry's intent to perform he may demand that the other party give written assurance of bis 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 ofthis 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. 08/2005 lubcity TO: PURCHASE ORDER WEST TEXAS PAVING INC PO BOX 64187 LUBBOCK Texas 79464 SHIP TO: INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY: Ordered 08/09/2010 Freight Requested 08/09/2010 Taken By Delivery PER J GONZALES REQ 35512 ITB # 09-090-FO Description/Supplier Item Type D Hot Mix Invoice 1036 Delivery Invoice 1036 Terms NET DUE ON RECEIPT ITB 09-090-FO Ordered UM 392.660 EA 392.660 EA Page - Date - Order Number Branch/Plant 1 08/10/2010 10000560 000 OP 4531 CITY OF LUBBOCK STREET DEPARTMENT 502 N I-27 LUBBOCK Texas 79403 Unit Cost UM 72,0000 EA 10.0000 EA Total Order R HOLDER Extension _ Request Date 28,271.52 08/09/2010 3,926.60 08/09/2010 32,198.12 This purchase order encumbers funds in the amount of $32,198.12 for a bid awarded to West Texas Paving, Incorporated, of Lubbock, TX, on October 20, 2009, in accordance with Resolution No. 2009-R0439. The following are incorporated into and made part of this purchase order by letter of ratification or Resolution No. 2009-110439. CITY OF LUBBOCK ATTEST: .�'yrry tr' Tam Martin, Mayor Tebeka Garza, City Sec e ary TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Sailer and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with broad 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 he 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 fists. '_. SHIPMENT UNDER RESERVATION PROHIBITED. Seiler 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 ofthe goods shall not pass to Buyer until Buyer actually receives and takes possession of the goads 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 shad( 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 cur"nd may then make a conforming tender within the contract time but nut 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 [he 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 2D00, 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 dt TEST EQUIPMENT. If the price stated on the face herecl-includcs the cost of any special tooling or .special test equipment fabricated or required by Seller for the purpose of tilling 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 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 fill I amount of such commission, percentage, brokerage or contingent fee. �. 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) 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 agreement, the Seiler represents and warrants fault -free performance and fault -free result in the processing date and dale related data Iincluding, but not limited to calculating, comparing and sequencing) of all hardware, soRware 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 accunmmodated and %flit not, In any way, result in hardware, software or firmware failure. The City of Lubbock, at its sale option, may require the Seller, at any time, to demonstrate the prnccdures 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 tinder 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 lenainuNoa 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 w hich may be specifed in this Contract, its appendices, its schedules, its annexes or any document incorporated in this Contract by reference. 10. SAFETY WARRANTY. Seiler 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 produce does not conform to OSHA standarls, 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, correcoon 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 to this agreement will give rise to the rightful claim of any thud 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 Selter is of the opinion that an infringement or the like will result. he will notify the Buyer to this effect in writing within Iwo 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 accor larece 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 terns 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 or 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 [he 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 ofany obligation made by Seller without time written permission ofthe 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. Nu claim or right arising out of a breach of this contract can he discharged in whole or in pan 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 Ific Uttifcnm Cuminiocial Cudc 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 Commem ial 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 anywise accrue against the Buyer in consequence of the granting of this Contract OF 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 casts and other expenses arising therefrom of incurred in connection therewith, and, if any judgment shall he 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 [his contract, or otherwise provided by Seller, shall in no way hint the responsibility to indemnifv, 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 [he performance of this contract, and failure by contract to meet the time specifications of this agreement will cause Seller to be in default of (his 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 bibs in respunse to this invitation and will nut be discriminated against on the grounds of race, color, sex or natural origin in consideration for an award. Rev. 08/2005 A 40t 1ubcity PURCHASE ORDER TO: WEST TEXAS PAVING INC PO BOX 64187 LUBBOCK Texas 79464 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 Page - I Date - 07/18/2011 Order Number 91500020 000 OP Branch/Plant 92248 SHIP TO: CITY OF LUBBOCK STREET DEPARTMENT 502 N I-27 LUBBOCK Texas 79403 BY: Ordered 07/18/2011 Freight 4 Requested 07/18/2011 "Taken By L Delivery PER COPELAND K REQ 37802 CONTRACT # 9228 Description/Supplier Item Ordered Unit Cost UM 1457 302,700 86.0000 EA TYPE D HOT MIX -DELIVERED Terms NET DUE ON RECEIPT D GAMBOA Extension Request Date 26,032.20 07/18/2011 Total Order 26,032.20 This purchase order encumbers funds in the amount of $26,032.20. to West Texas Paving, of Lubbock, Texas. The following is incorporated into and made part of this purchase order by reference: ITB 09-090-FO contract ## 9228. Resolution# 2009-110439. CITY OF LUBBOCK ATTEST: / A*W 0 .1 Tom Martin, Mayor Re ecc 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 corm acial practice. Fach 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 c:anainem e.g_ box I of 4 boxes, and (d) the number of the container bearing the packing slip. Sella shall bear cost of packaging unless otherwise provided Goads shall be suitably packed to secure lowest transportation costs and to conform with rcquirtnicrits 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 ofa bill of lading will operate as a tender of goods. 3. TITLE AND RISK OF [ASS. The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goads 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 tilce. 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 ofhis intention to cure and may then make a conforming tender within the contract time but not afterward 5. INVOICES & PAYMENTS. a. Sella 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 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 Sella if it is determined by Buyer that gratuities, in the form of entertaitmrent, gifts or otherwise, were offered or given by the Seller, or any agent of 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 Sella 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 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 altemative. 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 due 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. WARRAN"rY-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. Sella 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 Sella, if any. In the event ofa 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 -Ere perfortance and fault -free result in the processing date and date related data (including, but not limited to calculating. comparing and sequencing) of all hardwart, 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, mutt 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 warantics 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 Ad 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 Chia contract for sale Seller agrees to asc-ertain 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 infringemmaut of the like. Buyer mattes 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 lake 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 end 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 specificaitions. will result in unf ri ngement or the like, the contract shall be oull and void l2. 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 past of the undelivered portion of this order if Seller breaches any of the tares 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 no in lieu of any alter remedies which Buyer may have in law or equity. 14. 2 ERMINATION. 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 effectedby the deliveryof the Seiler ofa "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 1.1, herein. 15. FORCE MAIF.URE. Neither party shall be held responsible for losses, resulting if the fulfillment of any tams 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 Seller without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and mtally ineffective for all purpose unless made in conformity with this paragraph. 17. WAIVER. No claim or right arising out ofa breach of this contract can be discharged in whole min part by a waiver or renunciation of the claim or right unless the waiver or [enunciation 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 past 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 mncaning the Uniform Commercial Coda 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 context in good faith has reason to question the other party's intent to perform he may demand that the other perry give written assurance of his intent to perform. In the event that a dcuand is trade and no assui ance is given within five (5) days, the demanding party may meat 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 dial 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 connectm therewith, and, if any judgment shall be rendered against the Buyer in any such action, the Seller shall, at its own expanses, 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 perfor mane of this contract, and failure by contract to men 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.08/2005 Jun 09 11 11-33aa West Tmxw Paving * �t May I0, 2011 City of Lubbock Purchasing Dept. 1625 13" Street Lubbock, Texas 79401 RE. Materials Quolu We hereby propose to furnish the following: 800 863 3550 p.1 Resolution No. 2011—RO439 1. TxDOT Type B (Black Baw) $64.00 per ton 2. TxDOT Type C $79.00 per ton I TxDOT Type D $76.00 per ton 4. TxDOT Type C DELIVERED S89.00 per ton 5. TxDOT Type D DELIVERED S86.00 per ton 6. TxDOT Typo C With Latex S79.00 per ion 7. TxDOT Type; D With Latex $76.00 per ton 8. TxDOT Typo With Latex DELIVI RFI) S89.00 per ton 9. `fXDOT Type D With Latex DELIVERED $86.00 per ton 10. UPM Cold Mix $ 110.00 per ton Prior verbal notice is required at least 24 hours in advance of purchase. Thank you, I)arreli J P. 4. Box 64187 • Lubbock.TX 79464 Business: (806) 863-3550 • Mobile: (806) 441.4843 PURCHASE ORDER Idbock TEXAS TO: WEST TEXAS PAVING INC PO BOX 64187 LUBBOCK Texas 79464 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 Ordered 07/18/2011 Freight Requested 07/18/2011 Taken By Delivery PER COPELAND K REQ 37800 Page - I Date - 07/18/2011 Order Number 91500019 000 OP Braneb/Plant 92248 SHIP TO: CITY OF LUBBOCK STREET DEPARTMENT 502 N I-27 LUBBOCK Texas 79403 BY: CONTRACT # 9228 D GAMBOA Description/Supplier Item Ordered Unit Cost UM Extension — Request Date 1460 385.620 86.0000 EA 33,163.32 07/18/2011 TYPE D HOT MIX -DELIVERED Total Order Terms NET DUE ON RECEIPT 33,163.32 This purchase order encumbers funds in the amount of $33,163.22. to West Texas Paving, of Lubbock, Texas. The following is incorporated into and made part of this purchase order by reference: ITB 09-090-FO contract # 9228. Resolution# 2009-R0439. CITY OF LUBBOCK ATTEST: Tom Vartin, Vayor Rebecc Garza, City Secretary TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Sailer 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 ofcommon carom 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 no yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then snake 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 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 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 them 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 alterative. 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 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, n, 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. Scher 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 wan -ants fault -free performance and fault -free result in the processing date and date related data I 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 Sella 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 Sella, 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-Scller or any third patty 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. 10. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shalt 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 cinfbrm to OSHA standards, Buyer may return the product for correction or replacement at the Seller's experim. to the event Seller fails to make the appropriate correction within a reasonable time, correction trade 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 to this agmtment 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 Buya 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 Low or equity. 14. TERMINATION. The performance of work under this order maybe terminated in whole, ur in par 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. ASSIGNMFNT-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 Seiler 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. 19. INTERPRETATJON-PAROLE EVIDENCE., Thu writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as par of his bid is intended by the parties as a fatal expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement. Whenever a tern 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 shalt 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 agreemem. 20. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has mason to question the outer party's intent to perform be may demand that the other party give written assurance of his intent to perfbrrm. In the event that a demand is made and no astsima ace is given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of t he 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 anomeys 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 trot 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. 08/2005 Jun 09 11 11:33a Wed Tmas Paving 808 863 3650 P.1 Resolution No. 2011—RO439 r -- -— _ - May 10, 2011 City of Lubbock Purchasing Dcpt. 1625 13" Street Lubbock., Texas 79401 RE: Materials Quou; We hereby propose to furnish the following., 1. TxDOT Type B (Black Base) W.00 per ton 2. TXDOT Type C $79.00 per ton 3. TxD JT'fype D $76.00 per ton 4. TxDOT Type C DELIVFRr-D S89.00 per ton 5. TxDOT Type D DELIV ERE 586.00 per ton b. TxDOT Type C: With Latex S79.00 per ion 7. TxDOT 'I'vpc� D Wi Lh Latex $76.00 per ton 8. TxDOT Type C Witb Latex DEL1VEA D 589.00 per ton 9. ,NDOT Type D With Latex DELIVERFD $86.00 per ton 10. UPM Cold ,mix $110.00 per ton Prior verbal notice is required at least 24 hours i;t advance of purchase. Thank you, 1 1 j srrrll i P. Q. Box 64187 • Lubbock,TX 79464 Business: (806) 863-3550 - klobile; (806) 441-0$43 city 0 .; lubbo& TEXAS TO: PURCIIASE ORDER WEST TEXAS PAVING INC PO BOX 64187 LUBBOCK Texas 79464 SHIP TO: Page - 1 Date - 08/01/2011 Order Number 91500026 000 OP Branch/Plant 92248 CITY OF LUBBOCK FLEET SERVICES 204 MUNICIPAL DRIVE LUBBOCK Texas 79404 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2900 LUBBOCK, TX 79457 BY: kt'amv Ordered 08/01/2011 Freight Requested 08/01/2011 Taken By C ISAACS DeRva y PER COPELA,ND K REQ 37962 ITB 09-090-FO Desctip#iOn/Supplier Item_ quest Dte Ordered Unit Cost UM Extension Rea 1485 647.910 86.0000 EA 55,720.26 08/01/2011 TYPE D HOT MIX -DELIVERED T�talDrd�c Terns NET DUE ON RECEIPT 55,720.26 This purchase order encumbers funds in the amount of $55,720.26, for a bid awarded to West Texas Paving, Incorporated of Lubbock, Texas, on October 20, 2009, in accordance with Resolution No. 2009-110439. The following are incorporated into and made part of this purchase order by letter of ratification or Resolution No. 2009-110439. CITY OF LUBBOCK ATTEST: Tom Martin, Mayor Rebec1ca 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 pemautendy marked a follows (a) Sella's mete and address, (b) Consignee's rule, address and purchase order or purchase rele"e number and the supply agreement number if applicable, (c) Container number and total number of oontaiiers, e.g. box I of 4 boxes, and (d) the number of the container bearing the packing this. Sella shall bear cost of packaging unless otherwise provided Goods shell be suitably packed to acetate lowest transportation coats and to conform with requirennenis of comet oe carriers aid arty applbeeblo specifeationa. Buyer's count OF weight shall be foul and conclusive on shipments not aao llosaW by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBTTBL). Sella is not authorized to slip the goods under resmvation and no tender of a bill of lading will operate on a tender of goods, 3. TITLE AND RISK OF LOSS. The title mod risk of loss of the goods shall not pass to Buyer until Buyer acttully 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 goads must fully comply with all provisions of thin contract"to doe of dclivay, quality and the like. If ■ tender is made which does not fully conform, this shell constitute a breach ad Seller shall not have the right to substitute a conforming tend, provided, whoa the time for performance has not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make it conforming tender within the contract time but not afterward 5. INVOICES g PAYMENTS. a Seiler shall submit seperau invoices. in duplicatik one each purchase order or purchase release after each delivery. Invoices shall indicate the purchase order or purchase release number and the supply agreentern number if applicable. Invoices shall be itemized and transportation charges, if any, shah be Bated separately, A copy of the bill of lading and the freight waybill when applicable, should be -dialed to the invoice. Mail To: Accounts Payable, City of Lubbock P. O. Bea 2000, Lubbock Texas 79457. Payment 3W not be due until the above instruments as 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 Sella, 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 tha performing of such a contract. in the event this contract is canceled by Buyer pursuant to this provision, Buys 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 & T ES I EQUIPMENT. If the price stag on the face hereof includes the coat of any special tooling or gpecui tat equipment fabricated or requited by Seller for the purpose of filling this Order, such special tooling equip neat and any process sheets related [below shall become the property of the Buyer and to the extent feasible shall be identified by the Sella" such. 8. WARRANTY-PRICB. a. The price to be paid by the Buyer shell be that contained in Seiler's bid which Seller warrants to be no higher then Seller's current process on orders by otters for products of the kind and specification covered by this agtowrz+d for similar quantities under similar of like conditions and rratbods of purchase. In the even Seiler breaches this warranty. the prices of the iteeu 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 breech or Seller's actual expense. b. The Seller warrants thst no person or selling agency has been employed or retained to solicit or secvoe thha cvrnin et upon sn egeeement or understanding for co its pereennge, brokerages or contingent fee excepting bona fide coWleyeea of bona fide established commercial or selling agencies n ainWvAd by the Seiler for the purpose of securing business. For breach of viciation of this warty the Buyer it" have die right in addition to any other right of rights to cancel this eon without lability and to deduct thorn the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full otroun of such commission, paeantmga, brokerage or contingent fee. 9. WARRANTY -PRODUCT. Sella shall not limit or exclude any implied warranties and any attempt to do so shall tender that contract voidable at the option of the Buyer. Seller warrants that the goods furnished will conform to the specification, dawings, and descriptions listed in the bid invitatlai, and to the sample(s) furnished by the Seller, if any. in the event of a conflict or between the specifications, drawings, end descriptions, the specifications shall govern. Notwithstanding any provisions contained in oho controctuei agreement, the Sella represents and warrants fault -flea performance and fault -free result in the processing date and date related data (including, but not limited to calculaling compering and sequencing) of all hardware, software and ftmiwsre products delivered and services provided tinder this Contra" individually or in oombiradion, as the can may be from the effective date of this Contract Also, the Seller wersants the yesirM calculatoos will be recognized end accommodated and will not, in any way, result In bardivare, software or Brmwaro failure. The City of Lubbock, at its sole option, may require the Sailor, st any time, to demonstrate that procedures it intends to follow in order to comply with all the obligations contained herein, The obligations contained herein apply to products turd services provided by the Seller, its sub -Seller or arty 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 Lary of the obligations contained herein, may reswt 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 defeulL The warranties contained herein are separate and discrete frmn any other warranties specified in this Contract, and are not subject to any disclaimer of warranty, impled or expressed, or [imitation of the Sella's liability which may be specified in this Contact, 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 replacomenl at the Seller's expense. In the event Seiler 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 put of this contract for sale Seller agrees to ascertain whether goods manufaennted in accordance with the specifications attached to this agreement will give rise to the rightful claim if 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 shell Buyer be liable to Seller for indemnification in the event that Sella is sued on the grounds of infringement of the like. If Seller is of the opinion that in 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 field liable for the infriagenieait or the like. Seller will save Buyer harmless, If Scllcr in good faith ascertains the production of the goods in accordance with the specifications will result in infringement or the like, the contract shell 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 pan of the undelivered portion of this order if Seller breaches any of the terms hereof including warranties of Seller or if the Seller bacon= insolvent or commits sets 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 that 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 tight or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13, herein. 15. FORCE MA]EURE. Neither party shall be held responsible for losses, resulting if the fulfillment of any tams of provisions of this contract is delayed or prevented by any cause not within the control of the party whose perfomnsnae 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 contact shall be assigned or delegation of any obligation made by Sella without the written permission of the Buyer. Any atrempled assignine nt or delegation by Seller shall be wholly void and totally ineffective for all purpose unless [Wade in conformity with this paragraph. 0. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole or in part by a waiver OF remuciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. 19. ]NTERPRETATiON-PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertiwrnent for bids, and any other documents provided by Seller "pat of his bid, is intended by the parties as a final expression of their agreement and intended also an a completa end 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 stall be governed by the Uniform Commercial Code. Where ever the term "Uniform Commercial Code" is used, it shall be construed as meaning the Uniform Commacial Code as adopted in the State of Tax" as effective and in force on the data of this sgteenrent 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 [nude and no assurance is given within Eve (5) dryer, the demanding parry 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, low, 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 the Buyer in duty such action, the Seller steal I, at its own expenses, satisfy and discharge the some 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 harrrileu and defend the Buyer as herein provided. 22. TIME. It is hereby expressly agreed end understood that time is of the essence for the performance of thin dontnck and failure by contract to meet the time specifications of lhis agreement will cause Seller to be in default of this agreemenL 23. MBE. The City of Lubbock hereby notifies all bidden that in regard to any contract entered into pursuant to this request, minority and worsen 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 natual origin in consideration for an award. Rev. 08/2005