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HomeMy WebLinkAboutResolution - 2012-R0114 - PO - Agh2onholdings - Sorghum Sundangrass Hybrid - 03_29_2012Resolution No. 2012—RO114 March 29, 2012 Item No. 5.10 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Purchase Order No. 23101338 for the purchase of Sorghum Sundangrass Hybrid as per ITB 12-10516-TL, by and between the City of Lubbock and AGH2O Holdings of Round Rock, 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 on March 29, 2012 TOM MARTIN, MAYOR ATTEST: Rebe ca Garza, City Secretary APPROVED AS TO CONTENT: Marshaeed, f, t51ef Operations Officer APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vwxcdocs(RES.AGH2O Holdings-PurchaseOrd February 29, 2012 A`,\ "*lubcityck TEXAS PURCHASE ORDER TO: AGH2O HOLDINGS, LLC 3817 BENT BROOK DRIVE ROUND ROCK Texas 78664-6261 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 Ordered 02/27/2012 Freight Requested 04/29/2012 Taken By Delivery PER B WELCH REQ 38925 Description/Supplier item Sorghum Sundangrass Hybrid Terms 1%10, NET 30 Page - I Date - 03/09/2012 Order Number 23101338 000 OP Branch/Plant 6415 SHIP TO: CITY OF LUBBOCK LAND APPLICATION SITE 1/2 MILE E LOOP 289 ON S SIDE 19TH S1 4602 ECR 6700 LUBBOCK Texas 79403 BY ITB 12-10516-TL Ordered Unit Cost UM Extension Request Date 80,000.000 .6600 LB 52,800.00 04/29/2012 Total Order 52,800.00 This purchase order encumbers funds in the amount of $52,800.00, for the purchase of Sorghum Sundangrass Hybrid Seed awarded on March 29, 2012, to AHG20 Holdings, LLC of Round Rock, Texas, in accordance with AHG20 Holdings' response to ITB No. 12-1051E-TL. The following is incorporated into and made part of this purchase order by reference: Bid submitted by your firm in response to City of Lubbock ITB No. 12-10516-TL. Resolution No. 2012—RO114 CITY OF LUBBOCK ATTEST: Tom kfartin, Mayor Rebe ca Garza, City Secretary TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERNIS 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 folluws (a) Seller's name and address, Ili) 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. host I of 4 boxes, and (d) the number of the conwalcr hearing 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 PROIIIBITED. Seller is not authorized to ship the goods under reservation and no tender of a bill of lading will operas as a tender of goods. 3. rlTLE AND RISK OF LOSS. The tide and risk of lass 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 titre of delivery, quality and the like. If a tender is made which does not fully conform, this shall constitute a breach and Wier shall not have the nght to substitute a conforming tender, provided where the time far performance has not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming 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 auached to the invoice. Mail To: Accounts Payable" City of Lubbock, P. 0, Box 2000, Lubbock, Texas 79457. Payment shall not be due until the above ins«tmients 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 emertainment, 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 inspect 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 lest equipment fabricated or required by Seller for the purpose of filling this order, such special tooling equipment and any process shmu related thereto shall become the property of the Buyer and to the extern feasible shall be identified by the Seller as such. H. 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 theirs shall he reduced to the Seller's current prices on orders by othm, 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 salicit or secure this contract upon an agreement Or understanding for ctmmhiasicm. percentage, brokerage, or contingent fee excepting bona fide employees of boma fide established commercial or selling agencies maintained by the Seller for the purpose of securing business. For breach of viciatirin 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, Sella shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Sella warrants that the goods furnished will conform to the specification, drawings, and descriptions listed in the bid invitation, and 10 the samplers) furnished by the Seller, if any. In the event of a conflict or between the specifications, drewmgs, and descriptions, the specifications shall govern. Notwithstanding any provisions contained in die contractual agreement, the Seller represents and warrants fault free perfortmence and fault -free resull in the processing date and date related data (including, but not limited to o:alcu(aling, comparing and sequencing) of all hardware, software and firmware products delivered and services provided under this Contract, individuality or in combination, as the can may be from the effective date of this Contract. The obligations contained herein apply to products and services provided by the Seller, its mill 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, is right pertaining to termination or default. The warantiei 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 schedule%, 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 I lealth Act of 1970. In the event the product does not conform to OSIIA standards, Buyer may return the product for correction or replacement at the Seller's expensein the event Seiler fails to make the appropriate correction within a reasonable time, co r cuun made by Buyer will be at the Shccr's expense. 11, `40 WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for sale Seller agrees to ascertain whether goads 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 Aumnty 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 Iwo weeks after the signing of this agmmenl. If Buyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer harmless. If Seiler in good faith ascertains the production of the goods in accordance with the specifications will result in infnngement 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. 13CANCELLATION. Buyer shall have the right to cancel for defauh all or any part of the undelivered portion of this order if Seller breaches any of the terms hereof including warranties of Seiler or if the Seller becomes insolvent m 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 tight or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13. herein. I3. FORCE MAJEURE. Neither parry shall be held responsible for losses, resulting if the fulfillment of any terms of provisions of this comuact 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 wnuen petmission of the Buyer. Any aucmpted assignment or delegation by &dlcr 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 he 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 pan 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 tenets 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 IAW. 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. RIOIIT 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 writnn 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 neat this failure as an anticipatory repudiation of the contract. 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Bryn, its agcma, Officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, costs and expert", which may in anywise accrue against the Buyer in consequence of the granting of this Contract or which may anywise result therefrom whether tin nor it shall be alleged or determined that the act was caused through negligence or omission of the Seller m its employe", 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 undmutimis 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 m be in default of this agreement. 23, MBE_ The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against an the grounds of race, color, sex or natural origin in consideration for an award. 24. NON -ARBITRATION. The City nmserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without imitation, the right to seek any and all forms of relief in a corm of competent jurisdiction. Fur.her, the City shall rot be subject 10 any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies tit forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in. or related to, this documenL this provision shall control. 25. RIGHT TO AUDIT. At any litre during the term of the contract, or thereafter. the City, tar a duly authorized audit representative of the City or the State of Texas, at is expense and at reasonable times, reserves the right to audit Contractors records and books relevant to all services provided to the City under this Contract. In the event such an audit by the City reveals any errors or overpayments by the City, Contractor shall refund the City the full amount Of vuch overpayments within thirty (30) days of such audit Findings. or the City, at it Option, reserves the right to deduct such amounts owing the City from any payments due Contractor. Rev, 02/2012