HomeMy WebLinkAboutResolution - 2003-R0229 - Purchase Order For Self-Contained Breathing Apparatus Units - Wayest Safety, Inc - 06/12/2003Resolution No. 2003—RO229
June 12, 2003
Item No. 42
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, a Purchase Order for self-
contained breathing apparatus units, equipment & parts, by and between the City of
Lubbock and Wayest Safety, Inc. of Forney, Texas, and related documents. Said
Purchase Order 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
12th day of June , 2003.
GAL, MAYOR
ATTEST:
Sztkx"cl� ,
Rebecca Garza, City Secretary
APPROVED AS TO CONTENT:
\16ct�, KAIA4��
Victor Kilman, Pulchasing Manager
APPROVED AS TO FORM:
City Attorney
gsxcdocs/Purchase Order-Wayest Safety Inc.res
June 2, 2003
s z Y
Resolution
No. 2003-RO229
City of Lubbock
Page -
1
i� PURCHASE
ORDER
Date -
6/02/03
Order No. _
Brn/Plt
243769.000
OP
3511
r(
TO:
SHIP TO:
DOOLEY TACKABERRY
CITY OF LUBBOCK
1515 W 13TH STREET
CENTRAL FIRE
STATION COMPLEX
DEER PARK TX 77536
RAUL SALAZAR
LUBBOCK TX 79401
Ordered - 06/02/03 Freight
- FOB Destination Frt Prepaid
Requested - 09/04/03 Placed By
- BRUCE MACNAIR
775-2163
Special Ins Reference ITB#058-03/BM Call
------------------------------------------------------------------------------
806-775-3176 for Del.
Instr.
--------
Description / Supplier Item
---------------
Ordered
UM
-----------------
Unit Cost
UM Extension
-------------------
Req. Dt
-------- -
---------------------------
EBSS Components, PN;804335-
120.000
EA
123.7000
EA
14,844.00
09/04/03
E-Z Flow Hose, PN;804337-01
120.000
EA
67.2000
EA
8,064.00
09/04/03
RIT Pak, PN;805446-208
4.000
EA
701.4000
EA
2,805.60
09/04/03
SE Pak Alert, PN;805179-02
6.000
EA
398.3000
EA
2,389.80
09/04/03
Cyl.&Valve Assembly804721-0
40.000
EA
526.0000
EA
21,040.00
09/04/03
Phillips Screw,PN;10007462
30.000
EA
1.0500
EA
31.50
09/04/03
Retention Assembly,804421-0
3.000
EA
55.3500
EA
166.05
09/04/03
Cylinder Latch,804423-01
2.000
EA
17.1000
EA
34.20
09/04/03
Voice Mitter,804564-01
1.000
EA
238.0500
EA
238.05
09/04/03
Pak Alert, 805796-00
1.000
EA
446.3500
EA
446.35
09/04/03
Valve Seat&Plug,36713-00
1.000
EA
4.2500
EA
4.25
09/04/03
Valve 0-ring,37082-01
10.000
EA
1.1000
EA
11.00
09/04/03
0-ring,55810-00
20.000
EA
1.3000
EA
26.00
09/04/03
0-ring,58652-00
120.000
EA
1.2500
EA
150.00
09/04/03
Retaining Screw,10000113
3.000
EA
4.2500
EA
12.75
09/04/03
Thrust Washer,10005375
10.000
EA
1.4500
EA
14.50
09/04/03
Backup Ring,18071-02
79.000
EA
.4000
EA
31.60
09/04/03
0-ring,18099-00
30.000
EA
1.9500
EA
58.50
09/04/03
Gaugeline Pin(2),33481-107
10.000
EA
.9000
EA
9.00
09/04/03
Thrust Washer(.030),3502-02
10.000
EA
.9500
EA
9.50
09/04/03
Spacer,3504-01
10.000
EA
2.7000
EA
27.00
09/04/03
Gauge Ring, 10008501
2.000
EA
4.2500
EA
8.50
09/04/03
Nipple Gasket,57264-00
70.000
EA
2.0000
EA
140.00
09/04/03
Backup Ring,18071-01
9.000
EA
.4000
EA
3.60
09/04/03
Standard Manifold,802221-02
1.000
EA
76.7000
EA
76.70
09/04/03
Check Valve,802295-01
5.000
EA
13.7000
EA
68.50
09/04/03
0-ring, 55810-00
50.000
EA
1.3000
EA
65.00
09/04/03
Gauge Assembly,804092-02
4.000
EA
74.7000
EA
298.80
09/04/03
Transfer Valve,804334-01
3.000
EA
14.8000
EA
44.40
09/04/03
Purge Knob,10005218
1.000
EA
3.8000
EA
3.80
09/04/03
Latch,10005229
10.000
EA
1.1000
EA
11.00
09/04/03
Gasket,10005368
40.000
EA
5.0000
EA
200.00
09/04/03
1000250
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 carvers 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 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 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 wan -ants that no person or selling agency has been employed or retained to
solicit or secure this contract upon an agreement or understanding for commission, percentage,
brokerage, or contingent fee excepting bona fide employees of bona fide established
commercial or selling agencies maintained by the Seller for the purpose of securing business.
For breach of viciation of this warranty the Buyer shall have the right in addition to any other
right of rights to cancel this contract without liability and to deduct from the contract price, or
otherwise recover without liability and to deduct from the contract price, or otherwise recover
the full amount of such commission, percentage, brokerage or contingent fee.
9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any
attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants
that the goods 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 parry
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 lice. 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 hamiless. If Seller in good faith ascertains the
production of the goods in accordance with the specifications will result in infringement or the
like, the contract shall be null and void.
12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before
accepting them.
13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the
undelivered portion of this order if Seller breaches any of the terms hereof including warranties
of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of
cancellation is in addition to and not in lieu of any other remedies which Buyer may have in
law or equity.
14. TERMINATION. The performance of work under this order may be terminated in whole, or in
part by the Buyer in accordance with this provision. Termination of work hereunder shall be
effected by the delivery of the Seller of a `Notice of Termination" specifying the extent to
which performance of work under the order is terminated and the date upon which such
termination becomes effective. Such right or termination is in addition to and not in lieu of the
rights of Buyer set forth in Clause 13, herein.
15. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting if the
fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not
within the control of the party whose performance is interfered with, and which by the exercise
of reasonable diligence said party is unable to prevent.
16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or
delegation of any obligation made by Seller without the written permission of the Buyer. Any
attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all
purpose unless made in conformity with this paragraph.
17. WAIVER No claim or right arising out of a breach of this contract can be discharged in whole
or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is
supported by consideration and is in writing signed by the aggrieved patty.
18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and
performance provided by Buyer in its advertisement for bids, and any other documents
provided by Seller as part of his bid, is intended by the parties as a final expression of their
agreement and intended also as a complete and exclusive statement of the terms of their
agreement. Whenever a term defined by the Uniform Commercial Code is used in this
agreement, the definition contained in the Code is to control.
19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code.
Where ever the term "Uniform Commercial Code' is used, it shall be construed as meaning the
Uniform Commercial Code as adopted in the State of Texas as effective and in force on the
date of this agreement.
20. RIGHT TO ASSURANCE. Whenever one patty to this contract in good faith has reason to
question the other parry's intent to perform he may demand that the other party give written
assurance of his intent to perform. In the event that a demand is made and no assurance is
given within five (5) days, the demanding party may treat this failure 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, color, sex or natural origin in consideration for an award.
1000250
T Y
° City of
Lubbock
Page -
2
�i� PURCHASE
ORDER
Date -
6/02/03
Order No.
243769-000
OP
jr
_
Brn/Plt
3511
TO:
SHIP TO:
DOOLEY TACKABERRY
CITY OF LUBBOCK
1515 W 13TH STREET
CENTRAL FIRE STATION COMPLEX
DEER PARK TX 77536
RAUL SALAZAR
LUBBOCK TX 79401
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
Ordered - 06/02/03 Freight
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- FOB Destination Frt Prepaid
- - - - - - - - - - - -
- - - - - - --------
Requested - 09/04/03 Placed By
- BRUCE MACNAIR
775-2163
Special Ins Reference ITB#058-03/BM
---------------------------------------
Call
---------------------------------------
806-775-3176 for Del. Instr.
--------
Description / Supplier Item
Ordered
UM
--
Unit Cost
---------------
UM Extension
-------------------
Req. Dt
-------- -
------------------------------------------
Retaining P1ate,10007874
4.000
EA
2.0500
EA
8.20
09/04/03
Shroud,10008416
5.000
EA
5.7500
EA
28.75
09/04/03
Regulator Latch,10008532
1.000
EA
2.4500
EA
2.45
09/04/03
Instruction P1ate,10008583
12.000
EA
1.9000
EA
22.80
09/04/03
0-ring,10010667
50.000
EA
1.0000
EA
50.00
09/04/03
0-ring,18002-00
23.000
EA
1.8500
EA
42.55
09/04/03
0-ring,18070-00
4.000
EA
1.7000
EA
6.80
09/04/03
Spring Pin,33481-007
10.000
EA
.9000
EA
9.00
09/04/03
DemandValve Piston,802210-0
1.000
EA
16.5000
EA
16.50
09/04/03
Vibralert,802865-01
2.000
EA
125.7500
EA
251.50
09/04/03
Purge System,803351-01
4.000
EA
5.9000
EA
23.60
09/04/03
EZ Flow Dia.,803792-01
25.000
EA
48.9000
EA
1,222.50
09/04/03
EZ Flow Cover,804110-01
5.000
EA
33.2000
EA
166.00
09/04/03
Inhalation Val., 10005603
1.000
EA
1.0000
EA
1.00
09/04/03
Mounting Kit,26977-01
1.000
EA
6.9000
EA
6.90
09/04/03
Inhalation Val.,804015-01
19.000
EA
3.1500
EA
59.85
09/04/03
Small AV Mask,804019-01
1.000
EA
142.9500
EA
142.95
09/04/03
Temple Strap,804178-01
2.000
EA
10.6000
EA
21.20
09/04/03
AntiRotation Washer
20.000
EA
.5500
EA
11.00
09/04/03
Self Locking Nut,PN;1000746
20.000
EA
.9500
EA
19.00
09/04/03
Total
Order
-------------------------------------------------------------------------------------
Terms NET 30
53,446.50
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 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 he final and conclusive on shipments not accompanied by packing lists.
2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the
goods under reservation and no tender of a bill of lading will operate as a tender of goods.
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 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 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 fide employees of bona fide established
commercial or selling agencies maintained by the Seller for the purpose of securing business.
For breach of viciation of this warranty the Buyer shall have the right in addition to any other
right of rights to cancel this contract without liability and to deduct from the contract price, or
otherwise recover without liability and to deduct from the contract price, or otherwise recover
the full amount of such commission, percentage, brokerage or contingent fee.
9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any
attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants
that the goods furnished will conform to the specification, drawings, and descriptions listed in
the bid invitation, and to the sample(s) 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 Seller represents
and wan -ants 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 shall Buyer be
liable to Seller for indemnification in the event that Seller is sued on the grounds of
infringement of the like. If Seller is of the opinion that an infringement or the like will result,
he will notify the Buyer to this effect in writing within two weeks after the signing of this
agreement. If Buyer does not receive notice and is subsequently held liable for the
infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the
production of the goods in accordance with the specifications will result in infringement or the
like, the contract shall be null and void
12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before
accepting them.
13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the
undelivered portion of this order if Seller breaches any of the terms hereof including warranties
of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of
cancellation is in addition to and not in lieu of any other remedies which Buyer may have in
law or equity.
14. TERMINATION. The performance of work under this order may be terminated in whole, or in
part by the Buyer in accordance with this provision. Termination of work hereunder shall be
effected by the delivery of the Seller of a `Notice of Termination" specifying the extent to
which performance of work under the order is terminated and the date upon which such
termination becomes effective. Such right or termination is in addition to and not in lieu of the
rights of Buyer set forth in Clause 13, herein.
15. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting if the
fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not
within the control of the party whose performance is interfered with, and which by the exercise
of reasonable diligence said party is unable to prevent.
16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or
delegation of any obligation made by Seller without the written permission of the Buyer. Any
attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all
purpose unless made in conformity with this paragraph.
17. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole
or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is
supported by consideration and is in writing signed by the aggrieved party.
18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and
performance provided by Buyer in its advertisement for bids, and any other documents
provided by Seller as part of his bid, is intended by the parties as a final expression of their
agreement and intended also as a complete and exclusive statement of the terms of their
agreement. Whenever a term defined by the Uniform Commercial Code is used in this
agreement, the definition contained in the Code is to control-
19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code.
Where ever the term "Uniform Commercial Code" is used, it shall be construed as meaning the
Uniform Commercial Code as adopted in 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 his intent to perform. In the event that a demand is made and no assurance is
given within five (5) days, 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, 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, color, sex or natural origin in consideration for an award.
1000250
t Y o City of Lubbock Page - 3
P U R C H A S E ORDER Date - 6/02/03
Order No. - 243769-000 OP
(l 1� Brn/Plt - 3511
TO:
DOOLEY TACKABERRY
1515 W 13TH STREET
DEER PARK TX 77536
SHIP TO:
CITY OF LUBBOCK
CENTRAL FIRE STATION COMPLEX
RAUL SALAZAR
LUBBOCK TX 79401
------------------------------------------------------------------------------------------------------------
Ordered - 06/02/03 Freight - FOB Destination Frt Prepaid
Requested - 09/04/03 Placed By - BRUCE MACNAIR 775-2163
Special jns ----- Reference ITB#058-03/BM----Call 806-775-3176 for Del. -Instr.
-----------------------------------------------------------------------------------
Description / Supplier Item Ordered UM Unit Cost UM Extension Req. Dt
------------------------------------------------------------------------------------------------------------
This purchase order encumbers funds in the amount of $53,446.50 for the purchase of self-contained breathing
apparatus equipment and parts, awarded to Dooley Tackaberry, on June 12, 2003, in accordance with your
response to ITB#058-03/BM, Self -Contained Breathing Apparatus Units, Equipment and Parts. The following are
incorporated into and made part of this purchase order by reference: Bid submitted by your firm including the Bid
Form, Specifications, and General Conditions of ITB#058-03/BM.
CITY OF&U,ISBOCK
ATTEST:
ayor Rebecca Garza, City Secreta
APPROVED AS TO FORM:
Attor
Total Order
----------------------------------------------------------------------------------------------------------
Terms NET 30 53,446.50
1000250
TERMS AND CONDITIONS
IMPORTANT: READ CAREFULLY
STANDARD TERMS AND CONDITIONS
CITY OF LUBBOCK, TEXAS
Seller and Buyer agree as follows:
1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good
commercial practice. Each shipping container shall be clearly and permanently marked as
follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or
purchase release number and the supply agreement number if applicable, (c) Container number
and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container
bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods
shall be suitably packed to secure lowest transportation costs and to conform with
requirements of common carriers and any applicable specifications. Buyer's count or weight
shall be final and conclusive on shipments not accompanied by packing lists.
2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the
goods under reservation and no tender of a bill of lading will operate as a tender of goods.
3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer
until Buyer actually receives and takes possession of the goods at the point or points of
delivery.
4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must
fully comply with all provisions of this contract as to time of delivery, quality and the like. If a
tender is made which does not fully conform, this shall constitute a breach and Seller shall not
have the right to substitute a conforming tender, provided, where the time for performance has
not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then
make a conforming tender within the contract time but not afterward.
5. INVOICES & PAYMENTS.
a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase
release after each delivery. Invoices shall indicate the purchase order or purchase release
number and the supply agreement number if applicable. Invoices shall be itemized and
transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the
freight waybill when applicable, should 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 than Seller's current process on orders by others for products of the
kind and specification covered by this agreement for similar quantities under similar of like
conditions and methods of purchase. In the event Seller breaches this warranty, the prices of
the items shall be reduced to the Seller's current prices on orders by others, or in the
alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's
actual expense.
b. The Seller warrants that no person or selling agency has been employed or retained to
solicit or secure this contract upon an agreement or understanding for commission, percentage,
brokerage, or contingent fee excepting bona fide employees of bona fide established
commercial or selling agencies maintained by the Seller for the purpose of securing business.
For breach of viciation of this warranty the Buyer shall have the right in addition to any other
right of rights to cancel this contract without liability and to deduct from the contract price, or
otherwise recover without liability and to deduct from the contract price, or otherwise recover
the full amount of such commission, percentage, brokerage or contingent fee.
9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any
attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants
that the goods furnished will conform to the specification, drawings, and descriptions listed in
the bid invitation, and to the sample(s) furnished by the Seller, if any. In the event of a conflict
or between the specifications, drawings, and descriptions, the specifications shall govern.
Notwithstanding any provisions contained in the contractual agreement, the Seller represents
and warrants fault -free performance and fault -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 maybe 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
by way of infringement of the like. Buyer makes no warranty that the production of goods
according to the specification will not give rise to such a claim, and in no event shall Buyer be
liable to Seller for indemnification in the event that Seller is sued on the grounds of
infringement of the like. If Seller is of the opinion that an infringement or the like will result,
he will notify the Buyer to this effect in writing within two weeks after the signing of this
agreement. If Buyer does not receive notice and is subsequently held liable for the
infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the
production of the goods in accordance with the specifications will result in infringement or the
like, the contract shall be null and void.
12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before
accepting them.
13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the
undelivered portion of this order if Seller breaches any of the terms hereof including warranties
of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of
cancellation is in addition to and not in lieu of any other remedies which Buyer may have in
law or equity.
14. TERMINATION. The performance of work under this order may be terminated in whole, or in
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 Terunation" 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 MAIEURE. Neither party shall be held responsible for losses, resulting if the
fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not
within the control of the party whose performance is interfered with, and which by the exercise
of reasonable diligence said party is unable to prevent.
16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or
delegation of any obligation made by Seller without the written permission of the Buyer. Any
attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all
purpose unless made in conformity with this paragraph.
17. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole
or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is
supported by consideration and is in writing signed by the aggrieved party.
18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and
performance provided by Buyer in its advertisement for bids, and any other documents
provided by Seller as part of his bid, is intended by the parties as a final expression of their
agreement and intended also as a complete and exclusive statement of the terms of their
agreement. Whenever a term defined by the Uniform Commercial Code is used in this
agreement, the definition contained in the Code is to control.
19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code.
Where ever the term "Uniform Commercial 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 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
1_� 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, color, sex or natural origin in consideration for an award.
1000250
s 'r Y o Resolution No. 2003-RO229
City of Lubbock Page - 1
PURCHASE ORDER Date - 7/07/03
Order No. _ 243769-000 OP
Brn/Plt 3511
TO: SHIP TO:
DOOLEY TACKABERRY CITY OF LUBBOCK
1515 W 13TH STREET CENTRAL FIRE STATION COMPLEX
DEER PARK TX 77536 RAUL SALAZAR
LUBBOCK TX 79401
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//%%%/ �//f % /// %� /rj� f`l ! /r�% /%/�.wn.:3 r.•lJr:;r:.,.rrr..... r.: �•.::::r.<•r/r;ro-::rr:,,{.. r.../J,>%.. h...::t�;..er;.>.+.....t.:ti.,.......,......a...��ti.�\....\\ � .\.\\�\. �\���
Ordered - 06/02/03 Freight FOB Destination Frt Prepaid
Requested - 09/04/03 Placed By - BRUCE MACNAIR 775-2163
Special Ins Reference ITB#058-03/BM Call 806-775-3176 for Del. Instr.
Description / Supplier Item Ordered UM Unit Cost UM Extension Req. Dt
EBSS Components, PN;804335- 120.000 EA 123.7000 EA 14,844.00 09/04/03
E-Z Flow Hose, PN;804337-01 120.000 EA 67.2000 EA 8,064.00 09/04/03
RIT Pak, PN;805446-208 4.000 EA 701.4000 EA 2,805.60 09/04/03
SE Pak Alert, PN;805796-001 7.000 EA 398.3000 EA 2,788.10 09/04/03
Cyl.&Valve Assembly804721-0 40.000 EA 526.0000 EA 21,040.00 09/04/03
Phillips Screw,PN;10007462 30.000 EA 1.0500 EA 31.50 09/04/03
Retention Assembly,804421-0 3.000 EA 55.3500 EA 166.05 09/04/03
Cylinder Latch,804423-01 2.000 EA 17.1000 EA 34.20 09/04/03
Voice Mitter,804564-01 1.000 EA 238.0500 EA 238.05 09/04/03
Valve Seat&Plug,36713-00 1.000 EA 4.2500 EA 4.25 09/04/03
Valve 0-ring,37082-01 10.000 EA 1.1000 EA 11.00 09/04/03
0-ring,55810-00 20.000 EA 1.3000 EA 26.00 09/04/03
0-ring,58652-00 120.000 EA 1.2500 EA 150.00 09/04/03
Retaining Screw,10000113 3.000 EA 4.2500 EA 12.75 09/04/03
Thrust Washer,10005375 10.000 EA 1.4500 EA 14.50 09/04/03
Backup Ring,18071-02 79.000 EA .4000 EA 31.60 09/04/03
0-ring,18099-00 30.000 EA 1.9500 EA 58.50 09/04/03
Gaugeline Pin(2),33481-107 10.000 EA .9000 EA 9.00 09/04/03
Thrust Washer(.030),3502-02 10.000 EA .9500 EA 9.50 09/04/03
Spacer,3504-01 10.000 EA 2.7000 EA 27.00 09/04/03
Gauge Ring, 10008501 2.000 EA 4.2500 EA 8.50 09/04/03
Nipple Gasket,57264-00 70.000 EA 2.0000 EA 140.00 09/04/03
Backup Ring,18071-01 9.000 EA .4000 EA 3.60 09/04/03
Standard Manifold,802221-02 1.000 EA 76.7000 EA 76.70 09/04/03
Check Valve,802295-01 5.000 EA 13.7000 EA 68.50 09/04/03
0-ring, 55810-00 50.000 EA 1.3000 EA 65.00 09/04/03
Gauge Assembly,804092-02 4.000 EA 74.7000 EA 298.80 09/04/03
Transfer Valve,804334-01 3.000 EA 14.8000 EA 44.40 09/04/03
Purge Knob,10005218 1.000 EA 3.8000 EA 3.80 09/04/03
Latch,10005229 10.000 EA 1.1000 EA 11.00 09/04/03
Gasket,10005368 40.000 EA 5.0000 EA 200.00 09/04/03
Retaining P1ate,10007874 4.000 EA 2.0500 EA 8.20 09/04/03
1000250
TERMS AND CONDITIONS
IMPORTANT: READ CAREFULLY
STANDARD TERMS AND CONDITIONS
CITY OF LUBBOCK, TEXAS
Seller and Buyer agree as follows:
1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good
commercial practice. Each shipping container shall be clearly and permanently marked as
follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or
purchase release number and the supply agreement number if applicable, (c) Container number
and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container
bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods
shall be suitably packed to secure lowest transportation costs and to conform with
requirements of common carriers and any applicable specifications. Buyer's count or weight
shall be final and conclusive on shipments not accompanied by packing lists.
2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the
goods under reservation and no tender of a bill of lading will operate as a tender of goods.
3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer
until Buyer actually receives and takes possession of the goods at the point or points of
delivery.
4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must
fully comply with all provisions of this contract as to time of delivery, quality and the like. If a
tender is made which does not fully conform, this shall constitute a breach and Seller shall not
have the right to substitute a conforming tender, provided, where the time for performance has
not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then
make a conforming tender within the contract time but not afterward.
5. INVOICES & PAYMENTS.
a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase
release after each delivery. Invoices shall indicate the purchase order or purchase release
number and the supply agreement number if applicable. Invoices shall be itemized and
transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the
freight waybill when applicable, should 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 than Seller's current process on orders by others for products of the
kind and specification covered by this agreement for similar quantities under similar of like
conditions and methods of purchase. In the event Seller breaches this warranty, the prices of
the items shall be reduced to the Seller's current prices on orders by others, or in the
alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's
actual expense.
b. The Seller warrants that no person or selling agency has been employed or retained to
solicit or secure this contract upon an agreement or understanding for commission, percentage,
brokerage, or contingent fee excepting bona fide employees of bona fide established
commercial or selling agencies maintained by the Seller for the purpose of securing business.
For breach of viciation of this warranty the Buyer shall have the right in addition to any other
right of rights to cancel this contract without liability and to deduct from the contract price, or
otherwise recover without liability and to deduct from the contract price, or otherwise recover
the full amount of such commission, percentage, brokerage or contingent fee.
9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any
attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants
that the goods furnished will conform to the specification, drawings, and descriptions listed in
the bid invitation, and to the sample(s) 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 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 shall Buyer be
liable to Seller for indemnification in the event that Seller is sued on the grounds of
infringement of the like. If Seller is of the opinion that an infringement or the like will result,
he will notify the Buyer to this effect in writing within two weeks after the signing of this
agreement. If Buyer does not receive notice and is subsequently held liable for the
infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the
production of the goods in accordance with the specifications will result in infringement or the
like, the contract shall be null and void.
12. RIGHT OF INSPECTION. Buyer _shall have the right to inspect the goods at delivery before
accepting them.
13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the
undelivered portion of this order if Seller breaches any of the terms hereof including warranties
of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of
cancellation is in addition to and not in lieu of any other remedies which Buyer may have in
law or equity.
14. TERMINATION. The performance of work under this order may be terminated in whole, or in
part by the Buyer in accordance with this provision. Termination of work hereunder shall be
effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to
which performance of work under the order is terminated and the date upon which such
termination becomes effective. Such right or termination is in addition to and not in lieu of the
rights of Buyer set forth in Clause 13, herein.
15. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting if the
fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not
within the control of the party whose performance is interfered with, and which by the exercise
of reasonable diligence said party is unable to prevent.
16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or
delegation of any obligation made by Seller without the written permission of the Buyer. Any
attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all
purpose unless made in conformity with this paragraph.
17. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole
or in part by a waiver or renunciation of the claim 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 par 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 [Weaning 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 patty 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, color, sex or natural origin in consideration for an award.
1000250
1 � Y O
City of Lubbock
PURCHASE ORDER
TO:
DOOLEY TACKABERRY
1515 W 13TH STREET
DEER PARK TX 77536
Page
Date
Order No.
Brn/Plt
SHIP TO:
2
7/07/03
243769-000 OP
3511
CITY OF LUBBOCK
CENTRAL FIRE STATION COMPLEX
RAUL SALAZAR
LUBBOCK TX 79401
-----------------------------------------------------------------------------------
Ordered - 06/02/03 Freight - FOB Destination Frt Prepaid
Requested - 09/04/03 Placed By - BRUCE MACNAIR 775-2163
Special Ins Reference ITB#058-03/BM Call 806-775-3176 for Del. Instr.
Description / Supplier Item
Ordered
UM
Unit Cost
UM
Extension
Req. Dt
Shroud,10008416
5.000
EA
5.7500
EA
28.75
09/04/03
Regulator Latch,10008532
1.000
EA
2.4500
EA
2.45
09/04/03
Instruction P1ate,10008583
12.000
EA
1.9000
EA
22.80
09/04/03
O-ring,10010667
50.000
EA
1.0000
EA
50.00
09/04/03
0-ring,18002-00
23.000
EA
1.8500
EA
42.55
09/04/03
0-ring,18070-00
4.000
EA
1.7000
EA
6.80
09/04/03
Spring Pin,33481-007
10.000
EA
.9000
EA
9.00
09/04/03
DemandValve Piston,802210-0
1.000
EA
16.5000
EA
16.50
09/04/03
Vibralert,802865-01
2.000
EA
125.7500
EA
251.50
09/04/03
Purge System,803351-01
4.000
EA
5.9000
EA
23.60
09/04/03
EZ Flow Dia.,803792-01
25.000
EA
48.9000
EA
1,222.50
09/04/03
EZ Flow Cover,804110-01
5.000
EA
33.2000
EA
166.00
09/04/03
Inhalation Val., 10005603
1.000
EA
1.0000
EA
1.00
09/04/03
Mounting Kit,26977-01
1.000
EA
6.9000
EA
6.90
09/04/03
Inhalation Val.,804015-01
19.000
EA
3.1500
EA
59.85
09/04/03
Small AV Mask,804019-01
1.000
EA
142.9500
EA
142.95
09/04/03
Temple Strap,804178-01
2.000
EA
10.6000
EA
21.20
09/04/03
AntiRotation Washer
20.000
EA
.5500
EA
11.00
09/04/03
Self Locking Nut,PN;1000746
20.000
EA
.9500
EA
19.00
09/04/03
This is a REVISED / REPRINTED purchase
order:
Line item four is increased
from six each to
seven each and
line item ten is deleted. This is an overall
reduction in
Total Order from $53,446.50
to $53,398.45.
Total Order
-------------------------------------------------------------------------------------
Terms NET 30 53,398.45
1000250
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 of this contract as to time of delivery, quality and the like. If a
tender is made which does not fully conform, this shall constitute a breach and Seller shall not
have the right to substitute a conforming tender, provided, where the time for performance has
not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then
make a conforming tender within the contract time but not afterward.
5. INVOICES & PAYMENTS.
a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase
release after each delivery. Invoices shall indicate the purchase order or purchase release
number and the supply agreement number if applicable. Invoices shall be itemized and
transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the
freight waybill when applicable, should 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 Seiler,
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 than Seller's current process on orders by others for products of the
kind and specification covered by this agreement for similar quantities under similar of like
conditions and methods of purchase. In the event Seller breaches this warranty, the prices of
the items shall be reduced to the Seller's current prices on orders by others, or in the
alternative. Buyer may cancel this contract without liability to Seller for breach or Seller's
actual expense.
b. The Seller warrants that no person or selling agency has been employed or retained to
solicit or secure this contract upon an agreement or understanding for commission, percentage,
brokerage, or contingent fee excepting bona fide employees of bona fide established
commercial or selling agencies maintained by the Seller for the purpose of securing business.
For breach of viciation of this warranty the Buyer shall have the right in addition to any other
right of rights to cancel this contract without liability and to deduct from the contract price, or
otherwise recover without liability and to deduct from the contract price, or otherwise recover
the full amount of such commission, percentage, brokerage or contingent fee.
9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any
attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants
that the goods furnished will conform to the specification, drawings, and descriptions listed in
the bid invitation, and to the sample(s) furnished by the Seller, if any. In the event of a conflict
or between the specifications, drawings, and descriptions, the specifications shall govern.
Notwithstanding any provisions contained in the contractual agreement, the Seller represents
and warrants fault -free performance and fault -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 ofthis Contract.
Also, the Seller warrants the year2000 calculations will be recognized and accommodated and
will not, in any way, result in hardware, software or firrnware 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
by way of infringement of the like. Buyer makes no warranty that the production of goods
according to the specification will not give rise to such a claim, and in no event shall Buyer be
liable to Seller for indemnification in the event that Seller is sued on the grounds of
infringement of the like. If Seller is of the opinion that an infringement or the like will result,
he will notify the Buyer to this effect in writing within two weeks after the signing of this
agreement. If Buyer does not receive notice and is subsequently held liable for the
infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the
production of the goods in accordance with the specifications will result in infringement or the
like, the contract shall be null and void.
12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before
accepting them.
13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the
undelivered portion of this order if Seller breaches any of the terms hereof including warranties
of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of
cancellation is in addition to and not in lieu of any other remedies which Buyer may have in
law or equity.
14. TERMINATION. The performance of work under this order may be terminated in whole, or in
part by the Buyer in accordance with this provision. Termination of work hereunder shall be
effected by the delivery of the Seller of a "Notice of Termination' specifying the extent to
which performance of work under the order is terminated and the date upon which such
termination becomes effective. Such right or termination is in addition to and not in lieu of the
rights of Buyer set forth in Clause 13, herein.
15. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting if the
fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not
within the control of the party whose performance is interfered with, and which by the exercise
of reasonable diligence said party is unable to prevent.
16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or
delegation of any obligation made by Seller without the written permission of the Buyer. Any
attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all
purpose unless made in conformity with this paragraph.
17. WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole
or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is
supported by consideration and is in writing signed by the aggrieved party.
18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and
performance provided by Buyer in its advertisement for bids, and any other documents
provided by Seller as part of his bid, is intended by the parties as a final expression of their
agreement and intended also as a complete and exclusive statement of the terms of their
agreement. Whenever a term defined by the Uniform Commercial Code is used in this
agreement, the definition contained in the Code is to control.
19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code.
Where ever the term "Uniform Commercial Code" is used, it shall be construed as meaning the
Uniform Commercial Code as adopted in 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 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, color, sex or natural origin in consideration for an award.
1000250
A. Y u City of Lubbock Page - 3
/ PURCHASE ORDER Date - 7/07/03
Order No. - 243769-000 OP
(� 11 Brn/Plt - 3511
kill
DOOLEY TACKABERRY
1515 W 13TH STREET
DEER PARK TX 77536
SHIP TO:
CITY OF LUBBOCK
CENTRAL FIRE STATION COMPLEX
RAULSALAZAR
LUBBOCK TX 79401
------------------------------------------------------------------------------------------------------------
Ordered - 06/02/03 Freight - FOB Destination Frt Prepaid
Requested - 09/04/03 Placed By - BRUCE MACNAIR 775-2163
Special Ins Reference ITB#058_03/BM____Call 806_775_3176 for Del. Instr__
Description / Supplier Item Ordered UM Unit Cost UM Extension Req. Dt
This purchase order encumbers funds in the amount of $53,398.45 for the purchase of self-contained breathing
apparatus equipment and parts, awarded to Dooley Tackaberry, on June 12, 2003, in accordance with your
response to ITB#058-03/BM, Self -Contained Breathing Apparatus Units, Equipment and Parts. The following are
incorporated into and made part of this purchase order by reference: Bid submitted by your firm including the Bid
Form, Specifications, and General Conditions of ITB#058-03/BM.
CITY OF LUBBO K ATTEST:
Marc McDouga , May r elbecca. Garza, City Secretary
APPROVED AS TO FORM:
-- f / ) ,7197,4 �% q� r
Attorne
ITerms NET 30
Total Order
53,398.45
1000250
TERMS AND CONDITIONS
IMPORTANT: READ CAREFULLY
STANDARD TERMS AND CONDITIONS
CITY OF LUBBOCK, TEXAS
Seller and Buyer agree as follows:
1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good
commercial practice. Each shipping container shall be clearly and permanently marked as
follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or
purchase release number and the supply agreement number if applicable, (c) Container number
and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container
bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods
shall be suitably packed to secure lowest transportation costs and to conform with
requirements of common carriers and any applicable specifications. Buyer's count or weight
shall be final and conclusive on shipments not accompanied by packing lists.
2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the
goods under reservation and no tender of a bill of lading will operate as a tender of goods.
3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer
until Buyer actually receives and takes possession of the goods at the point or points of
delivery.
4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must
fully comply with all provisions of this contract as to time of delivery, quality and the like. If a
tender is made which does not fully conform, this shall constitute a breach and Seller shall not
have the right to substitute a conforming tender, provided, where the time for performance has
not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then
make a conforming tender within the contract time but not afterward.
5. INVOICES & PAYMENTS.
a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase
release after each delivery. Invoices shall indicate the purchase order or purchase release
number and the supply agreement number if applicable. Invoices shall be itemized and
transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the
freight waybill when applicable, should 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 Seiler,
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 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. Seiler warrants
that the goods furnished will conform to the specification, drawings,pnd 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 yeaf2000 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 shall Buyer be
liable to Seller for indemnification in the event that Seller is sued on the grounds of
infringement of the like. If Seller is of the opinion that an infringement or the like will result,
he will notify the Buyer to this effect in writing within two weeks after the signing of this
agreement. If Buyer does not receive notice and is subsequently held liable for the
infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the
production of the goods in accordance with the specifications will result in infringement or the
like, the contract shall be null and void.
12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goods at delivery before
accepting them.
13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the
undelivered portion of this order if Seller breaches any of the terms hereof including warranties
of Seller or if the Seller becomes insolvent or commits acts of bankruptcy. Such right of
cancellation is in addition to and not in lieu of any other remedies which Buyer may have in
law or equity.
14. TERMINATION. The performance of work under this order may be terminated in whole, or in
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 ternimation is in addition to and not in lieu of the
rights of Buyer set forth in Clause 13, herein.
15. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting if the
fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not
within the control of the party whose performance is interfered with, and which by the exercise
of reasonable diligence said party is unable to prevent.
16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or
delegation of any obligation trade 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 parry.
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 be governed by the Uniform Commercial Code.
Where ever the tern "Uniform Commercial Code" is used, it shall be construed as meaning the
Uniform Commercial Code as adopted in the State of Texas as effective and in force on the
date of this agreement.
20. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to
question the other party's intent to perform he may demand that the other party give written
assurance of his intent to perform. In the event that a demand is made and no assurance is
given within five (5) days, the demanding party may treat this failure as an anticipatory
repudiation of the contract.
21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents,
officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits,
liabilities, judgments, costs and expenses, which may in 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, color, sex or natural origin in consideration for an award.
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