HomeMy WebLinkAboutResolution - 2013-R0166 - PO - Lubbock Truck Sales Inc.- Refuse Collection Cab And Chassis - 05/23/2013Resolution No. 2013-RO166
May 23, 2013
Item No. 5.17
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. 31014904 for the
purchase of refuse collection cab and chassis as per ITB 13-11280-DT, by and between
the City of Lubbock and Lubbock Truck Sales, Inc., 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 May _2=_ 2013
GLE VETSON,
AC.R MAYOR
ATTEST:
Reb k
ca Garza, City Secret
APPROVED AS TO CONTE
VM
Scott Snider, Assistant City Manager
Community Services
APPROVED AS TO FORM:
Chad Weaver, Assistant City Attorney
vw:ccdocs/RES.Lubbock Truck Sales-PurchaseOrd
May 8, 2013
4 hibbo&
TEXAS
TO:
PURCHASE ORDER
LUBBOCK TRUCK SALES INC
1801 E SLATON HWY
LUBBOCK Texas 79404
INVOICE TO: CITY OF LUBBOCK
ACCOUNTSPAYABLE
P.O. BOX 2000
LUBBOCK, TX 79457
SHIP TO:
Page - 1
Date - 06/27/2013
Order Number 31014904 000 OP
Branch/Plant 3526
CITY OF LUBBOCK
FLEET SERVICES
206 MUNICIPAL DRIVE
LUBBOCK Texas 79403
Ordered 05/23/2013 Freight
Requested 09/19/2013 Taken By D.TORRES
Delivery PER M.TREVINO/REQ 40879 ITB 13-11280-DT
Description/Supplier Item Ordered Unit Cost UM
Refuse Collection Cab -Chassis 32.000 73,714.0000 EA
Spec 8762-LH
Terms NET 10 EOM
Extension Request Date
2,358,848.00 09/19/2013
Total Order
............_
REVISED PURCHASE ORDER
2,358,848.00
This purchase order encumbers funds in the amount of $2,358,848 for a purchase order awarded to
Lubbock Truck Sales, Inc. of Lubbock, Texas on May 23, 2013. The following is incorporated into and
made part of this purchase order by Resolution No. 2013-RO166.
CITY OF LU BOCK ATTEST:
Glen bertson, Mayor Rebec a Garza, City Secretary
TERMS AND CONDITIONS
IMPORTANT: READ CAREFULLY
STANDARD TERMS AND CONDITIONS
CITY OF LUBBOCK, TEXAS
Seller and Buyer agree as follows:
1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good
commercial practice. Each shipping container shall be clearly and permanently marked as
follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or
purchase release number and the supply agreement number if applicable, (c) Container number
and total number of containers, e.g, box I of 4 boxes, and (d) the number of the container
bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods
shall be suitably packed to secure lowest transportation costs and to conform with requirements
of common carriers and any applicable specifications. Buyer's count or weight shall be final
and conclusive on shipments not accompanied by packing lists.
2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the
goods under reservation and no tender of a bill of lading will operate as a tender of goods.
3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer
until Buyer actually receives and takes possession of the goods at the point or points of
delivery.
4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must
fully comply with all provisions of this contract as to time of delivery, quality and the like. Ira
tender is made which does not fully conform, this shall constitute a breach and Seller shall not
have the right to substitute a conforming tender, provided, where the time for performance has
not yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then
make a 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 instnunents 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 vitiation of this warranty the Buyer shall have the right in addition to
any other right of rights to cancel this contract without liability and to deduct from the contract
price, or otherwise recover without liability and to deduct from the contract price, or otherwise
recover the full amount of such commission, percentage, brokerage or contingent fee.
9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any
attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants
that the goods furnished will conform to the specification, drawings, and descriptions listed in
the bid invitation, and to the sample(s) famished by the Seller, if any. In the event of a conflict
or between the specifications, drawings, and descriptions, the specifications shall govem.
Notwithstanding any provisions contained in the contractual agreement, the 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 dale of this Contract.
The obligations contained herein apply to products and services provided by the Seller, its sub -
Seller or any third party involved in the creation or development of the products and services to
be delivered to the City of Lubbock under this Contract. Failure to comply with any of the
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 perfomumce 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 thew
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
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.
24. NON -ARBITRATION. The City reserves the right to exercise any right or remedy available to
it by law, contract, equity, or otherwise, including without limitation, the right to seek any and
all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to
any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The
remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently.
To the extent of any conflict between this provision and another provision in, or related to, this
document, this provision shall control.
25. RIGHT TO AUDIT. At any time during the term of the contract, or thereafter, the City, or a
duly authorized audit representative of the City or the State of Texas, at its expense and at
reasonable times, reserves the right to audit Contractor's records and books relevant to all
services provided to the City under this Contract. In the event such an audit by the City reveals
any errors or overpayments by the City, Contractor shall refund the City the full amount of
such overpayments within thirty (30) days of such audit findings, or the City, at its option,
reserves the right to deduct such amounts owing the City from any payments due Contractor.
Rev. 02/2012
City of Lubbock, Texas
Purchasing and Contract Management
Refuse Collection Cab and Chassis
BID FORM
In compliance with the Invitation to Bid 13-11280-DT, the undersigned Bidder having examined the Invitation to Bid and
Specifications, and being familiar with the conditions to be met, hereby submits the following Bid for furnishing the material,
equipment, labor and everything necessary for providing the items listed below and agrees to deliver said items at the locations and for
the prices set forth on this form. A bid will be subject to being considered irregular and may be rejected if it shows omissions.
alterations of form, conditional alternate bids, additions or alternates in lieu of the items specified, if the unit prices are obviously
unbalanced (either in excess of or below reasonably expected values), or irregularities of any kind. The Invitation to Bid 13-11280-DT
is by reference incorporated in this contract. The Bid Form must be completed in blue or black ink or by typewriter.
Unit
Delivery
ITEM
QTY
of
DESCRIPTION
UNIT PRICE*
EXTENDED
(Days)
(+�)
Measure
BID
COST
ARO**
Left Hand Drive, Tandem Drive Rear
$2, 358 , 848
I.
32
1$—
Each
Axle, Diesel Powered, 56,000 lb GVWR,
00
$
����
to -VD
Refuse Collection Cab and Chassis, per
S ecitication No. 8762-LH
Extended WarranLy pgr e if
I
Eachf
IbRZ
71—
R
Model Year, Brand Name and Model Number:
201 `4 FW&A-r1AN&Pfu2,1Dk
*PRICE: F.O.B. Destination, Freight Pre -Paid and Allowed
**ARO - After Receipt of Order
Unless otherwise specified herein, the City may award the bid either item -by -item or on an all -or -none basis for any item or
group of items shown on the bid.
PAYMENT TERMS AND DISCOUNTS -Bidder offers a prompt payment discount of —V%, net J— calendar days. Unless
otherwise indicated on the Bid Form, payment terms will be NET THIRTY DAYS. The City will pay the successful bidder within
thirty days after the receipt of a correct invoice or after the date of acceptance, whichever event occurs later. Discounts for prompt
payment requiring payment by the City within a stipulated number of days will be interpreted as applying within the stipulated number
of calendar days after the date of receipt by the City of a correct invoice or after the date of acceptance that meets contract
requirements, whichever event occurs later. Discounts for payment in less than ten days will not be considered.
MOST FAVOURED PRICING: The Bidder certifies that the price quoted is not in excess of the lowest price charged anyone else,
including its most favoured customer, for like quality and quantity of the products/services; does not include an element of profit on
the sale in excess of that normally obtained by the Bidder on the sale of products/services of like quality and quantity; and does not
include any provision for discounts to selling agents. If at any time during the contract period, the supplier should sell or offer for sale
to any other customer, an equal or less quantity of similar contract products of like or better quality, at a lower net price(s) than
provided herein, supplier agrees to notify the City and sell same product(s) at the lower price(s) on all deliveries made during the
period in which such lower price(s) is effective.
INTERLOCAL PURCHASING (optional): The City desires to make available to other local governmental entities of the State of
Texas, by mutual agreement with the successful bidder, and properly authorized interlocal purchasing agreements as provided for by
the Interlocal Cooperation Act (Chapter 791, Government Code), the right to purchase the same services, at the prices quoted, for the
period of this contract. Each bidder shall indicate on the Bid Form in the space provided below if he/she will honor Political
Subdivision orders in addition to orders from the City of Lubbock. Should these other governmental entities decide to participate in
this contract, would you (the bidder) agree that all terms, conditions, specifications, and pricing would apply?
Other governmental entities that might have interests in this contract are Frenship Independent School District, Lubbock
Housing Authority, Lubbock County, Lubbock County Hospital District, Lubbock Independent School District, South Plains
Association of Governments, City of Texarkana, Texas Tech University, West Texas Municipal Power Agency, Lynn County,
and City of Wolfforth.
YES NO
• If you (the bidder) checked YES, the following will apply:
QPurchaseit3id Ducs/13-1 128o-DT Refuse Cab & Chassis
• Governmental entities utilizing Interlocal Agreements for Cooperative Purchasing with the City of Lubbock will be eligible,
but not obligated, to purchase materials/services under the contract(s) awarded as a result of this solicitation. All purchases by
governmental entities other than the City of Lubbock will be billed directly to that governmental entity and paid by that
governmental entity. City of Lubbock will not be responsible for another governmental entity's debts. Each governmental
entity will order their own materials/service as needed.
THIS BID IS SUBMITTED BYIQtjJ a corporation organized under the laws of the State of
or a partnership consisting of
or individual
y _ of the City of --tow
Address: 1901 E. SL14TW 14"
City:—")3 State: zip
Bidder acknowledges receipt of the following addenda:
Addenda No. ��
DateA LZqb)
Addenda No.
_ Date
Addenda No.
Date
Addenda No.
Date
M/WBE Firm:
Woman I I Black American I I Native American
Hispanic American I I Asian Pacific Americi I Other (Specify)
trading as
Any entity or person that manufactures, distributes, converts new motor vehicles (or represents an entity that manufactures,
distributes, or converts new motor vehicles) or is in the business of buying, exchanging, or selling new motor vehicles is required
under the Tex. Occ. Code. Chapter 2301 to be licensed by Motor Vehicle Division of the Texas Department of Transportation. In
order for a bid to be in compliance with the Motor Vehicle Commission Code, the bidder must hold and provide all applicable current
valid licenses issued by the State of Texas:
1. Name and Manufacture's License No.
2. Name and Converter's License No.
3. Name and Representative's License No.
4. Nam WAand Franchise Dealer's License No. M3
General Distingukhin& No. (Franchised TX dealer)
By. Date:
AuthorJeprerentative - must sign by hand
Officer Name and Title: ffi tr 5 a&y
Please Print b '16
Business Telephone Number. 8��-77 —10-q FAX: f®J►-7yf-12f/0
E-mail Address:�b6VAold" M00 •el"
RETURN COMPLETED & SIGNED BID FORM ALONG WITH CITY OF LUBBOCK SPECIFICATIONS.
LABEL THE OUTSIDE OF YOUR SEALED BID WITH THE ITB NUMBER, THE CLOSING DATE AND TIME, AND
YOUR COMPANY NAME AND ADDRESS.
City of Lubbock, Texas
OTurchase/Bid Docs/13-112amyr Refuse Cah & Chassis
U. GENERAL CONDITIONS
**** PLEASE READ CAREFULLY ****
These General Conditions apply to all bids and become a part of the terms and conditions of any bid submitted. The City shall mean the City
of Lubbock.
£` : The quantities appearing in this Invitation to Bid are approximate only and the City reserves the right to increase, decrease
or delete any or all items. If the quantities of materials to be furnished are increased, such increase shall be paid for according to the unit
prices established for the item. In making its bid hereunder, the Seller expressly recognizes the rights of the City provided herein, and
further recognizes that the Seller shall have no claims against the City for anticipated profits for the quantities called for, diminished or
deleted.
2 Product Guarantee: Seller guarantees equipment or product offered will meet or exceed specifications identified in this bid invitation.
The Seller shall, upon request, replace any equipment or product proved to be defective and make any and all adjustments necessary
without any expense to the City. If at any time, the equipment or product cannot satisfactorily meet the requirements of the
specifications, the Seller shall upon written request from the City, promptly remove such equipment or product without any further
expense to the City. At the City's request, Seller will provide evidence sufficient to demonstrate such equipment or product meets the
foregoing.
3 Invoices: Seller shall submit separate invoices, in duplicate, on each purchase order or purchase release after each delivery. Invoices
shall indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized
and transportation charges, if any, shall be listed separately. A copy of the bill of lading, and the freight waybill when applicable, shall
be attached to the invoice. Mail to Accounts Payable, City of Lubbock, P.O. Box 2000, Lubbock, Texas 79457. Payment shall not be
due unless and until the Seller shall not be in default under the terms of the contract, and until the above instruments are submitted after
delivery. CITY MAY MAKE PAYMENTS FOR PURCHASES UNDER THIS CONTRACT USING THE CITY'S MASTERCARD
PURCHASING CARD (PCARD). THE SELLER AGREES TO ACCEPT PCARD PAYMENTS WITHOUT ANY ADDITIONS OR
SURCHARGES.
4 Delivery Delay When delivery delay can be foreseen, the Seller shall give prior notice to the Purchasing Director, who shall have the
right to extend the delivery date if reasons for delay appear acceptable. The Seller must keep the Purchasing Director informed at all
times of the status of the order.
5 Damage Assessment: Default in any manner under the contract, including, but not limited to default on promised delivery, without
acceptable reasons, or failure to meet specifications hereunder authorizes the Purchasing Director to purchase goods elsewhere and
charge any increase in cost and handling to the defaulting Seller, and/or exercise any and all rights available to it by law, equity and/or
under the terms of the contract. Every effort will be made by the Purchasing Office to locate the goods at the same or better price as
than originally contracted.
6 Late Delivery Fee: The City will also have the option to charge the vendor a fee of $50.00 per vehicle per day for late delivery. Late fee
applies when vendor has not requested and received prior written permission and approval from the ordering entity to make delivery
after the number of days established by the contract or the purchase.
7 Packaging: 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. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists.
8 Delivery Time: Deliveries will be accepted only during receiving hours: 9:00 A.M. - 3:30 P.M., Monday through Friday, except on City
holidays, at the designated location.
9 Damage: The City assumes no liability for goods delivered in damaged or unacceptable condition. The Seller must handle all claims
with carriers, and in case of damaged goods, shall ship replacement goods immediately upon notification by the City.
10 No Warranty By The City Against Infringements: As part of the contract for sale, Seller agrees to ascertain whether goods manufactured
in accordance with the specifications attached to the contract will give rise to the rightful claim of any third person by way of
infringement of the like. The City makes no warranty that the production of goods according to the specification will not give rise to
such a claim, and in no event shall The City be liable to Seller for indemnification in the event that Seller is sued on the grounds of
infringement or the like. If Seller is of the opinion that an infringement or the like will result, he will notify the City to this effect in
writing within two weeks after the signing of the contract. If the City does not receive notice and is subsequently held liable for the
infringement or the like, Seller will save The City harmless. If Seller in good faith ascertains the production of the goods in accordance
with the specifications will result in infringement or the like, the contract shall be null and void.
11 Material Safety Data Sheets: Seller shall provide the City of Lubbock with current Material Safety Data Sheets (MSDS) for each
chemical defined as hazardous under the Texas Hazard Communication Act (every chemical bearing any manner of warning label on the
container) to comply with provisions of the Texas Hazard Communication Act, Title 6, Subchapter D, Chapter 502, Texas Health and
Safety Code Ann. (This Act is corollary to OSHA Standard 29 CRF 1910.1200, which is generally known as the Right to Know Law.)
12 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.
13 Title & Risk Of Loss: The title and risk of loss of the goods shall not pass to the City until the City actually receives and takes
possession of the goods at the point or points of delivery as provided herein.
14 No Replacement of Defective Tender: Every tender of delivery of goods must fully comply with all provisions of the 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 of the contract 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 the City of his intention to cure and may then make a conforming tender within the Contract time but not
afterward.
15 Gratuities: The City may, by written notice to the Seller, cancel the contract or purchase order without liability to Seller if it is
determined by the City that gratuities, in the form of entertainment, gifts or otherwise, were offered or given by the Seller, or any agent
or representative of the Seller, to any officer or employee of the City of Lubbock with a view toward securing a contract or securing
favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of
such a contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any
other rights and remedies, to recover or withhold the amount of the cost incurred by Seller in providing such gratuities.
16 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 filing this order, such special tooling or equipment and any process sheets related
thereto shall become the property of the City and to the extent feasible shall be identified by the Seller as such.
17 Non -Arbitration: The City reserves the right to exercise any right or remedy to it by law, contract, equity, or otherwise, including without
limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any
arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not
exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related
to, this document, this provision shall control.
18 Warranty -Price: a. The price to be paid by the City shall be that contained in Seller's bid which Seller warrants to be no higher than
Seller's current prices on orders by other parties for products of the kind and specification covered by the contract for similar quantities
under similar or like conditions and methods of purchase. In the event Seller breaches this warranty, the prices of the items shall be
reduced to the Seller's current prices on orders by other, or in the alternative. The City may cancel the contract without liability to Seller
for breach or Seller's actual expenses. b. The Seller warrants that no person or selling agency has been employed or retained to solicit or
secure the contract upon an agreement or understanding for commission, percentage brokerage, or contingent fee excepting bona fide
employees of bona fide established commercial or selling agencies maintained by the Seller for the purpose of securing business. For
breach or violation of this warranty the City shall have the right in addition to any other right or rights to cancel the contract without
liability and to deduct from the Contract price, or otherwise recover the full amount of such claimed commission, percentage, brokerage,
or contingent fee.
19 Safety Warranty Seller warrants that the product sold to the City shall conform to the standards promulgated by the U. S. Department of
Labor under the Occupational Safety and Health Act of 1970 and/or any other governmental agency standards or regulations. In the
event the product does not conform to each OSHA or other standards, Seller shall be in default hereunder, and the City may exercise and
of the remedy provided for herein, including but not limited to return of 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 the City will be at the Seller's
expense
20 Right of Inspection: The City shall have the right to inspect the goods at delivery before accepting them.
21 Vendor retrieval of Vehicles: Vendor shall remove noncompliant vehicles (s) form City premises within five working days after
receiving written notification from the ordering entity. If vehicle is mot removed by vendor within the five working days time frame, the
city may arrange for vehicles to be removed and secured by a local towing and storage facility. Vendor will be responsible for payment
of all related towing and storage charges. The City will not be responsible for payment of all related towing and storage charges. The
City will not be responsible for liable for damage or loss of noncompliant vechiles with remain on City premises, or which are removed
by towing company, five working days after vendor is notification.
22 Cancellation: The City shall have the right to cancel for default all or any part of the undelivered portion of this order if Seller breaches
any of the terms hereof including warranties of Seller or if the Seller becomes insolvent and/or files bankruptcy or has bankruptcy filed
against it. Such right to cancellation is in addition to and not in lieu of any other remedies which the City may have in law, equity or
hereunder.
23 Termination: the City may terminate the contract or purchase order in whole, or in part. Termination hereunder shall be effected by the
delivery to the Seller of a "Notice of Termination" specifying the extent to which the contract or purchase order is terminated and the
date upon which such termination becomes effective. In the event of said termination, in whole or in part, provided that Seller shall not
be in default under the Contract, the Seller shall be entitled to payment only for goods actually delivered, and/or services actually
performed under and in compliance with the terms of the contract or purchase order.
24 Force Maieure: Neither party shall be held responsible for losses or damages hereunder, if the fulfillment of any terms of provisions of
the contract is delayed or prevented by strike, walkouts, acts of God, or public enemy, fire, or flood.
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25 Assignment -Delegation: No right or interest in the contract shall be assigned or delegation of any obligation made by Seller without the
written permission of the City. Any attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all
purposes unless made in conformity with this paragraph.
26 Waiver: No claim or right arising out of a breach of the contract can be discharged in whole or in part by a waiver or renunciation of the
claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party.
27 Interpretation -Parole Evidence: This writing, plus any specifications for bids and performance provided by the City in its advertisement
for bids and any other document provided by Seller as part of his bid, is intended by the parties as a final expression of their agreement
and is intended also as a complete and exclusive statement of the terms of their agreement. Whenever a term defined by the Uniform
Commercial Code is used in the contract, the definition contained in the Code is to control.
28 Applicable Law: The Contract shall be governed by the Uniform Commercial Code. Wherever the term "Uniform Commercial Code" is
used, it shall be construed as meaning the Uniform Commercial Code as adopted in the State of Texas as effective and in force on the
date of the contract.
29 Right To Assurance: Whenever one party to the contract in good faith has reason to question the other party's intent to perform he may
demand that the other party give written assurance of this intent to perform. In the event that a demand is made and no assurance is
given within five (5) days, the demanding party may treat this failure as an anticipatory repudiation of the Contract.
30 Indemnification: Seller shall indemnify, defend, keep and save harmless the City, its agents, officials and employees, against all injuries,
deaths, loss, damages, claims, patent claims, suits, liabilities, judgments, costs and expenses, which may in anywise arise or accrue
against the City in consequence of the granting of the contract or which may anywise result there from, whether or not it shall be alleged
or determined that the act was caused through negligence or omission of the Seller or its employees, or of the subcontractor or assignee
or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other
expenses arising there from or incurred in connection therewith, and, if any judgment shall be rendered against the City in any such
action, the Seller shall, at its own expenses, satisfy discharge the same. Seller expressly understands and agrees that any bond required
by the contract, or otherwise provided by Seller, shall in no way limit the responsibility to indemnify, keep and save harmless and defend
the City as herein provided.
31 Nonappropriation: All funds for payment by the City under this contract are subject to the availability of an annual appropriation for this
purpose by the City. In the event of nonappropriation of funds by the City Council of the City of Lubbock for the goods or services
provided under the contract, the City will terminate the contract, without termination charge or other liability, on the last day of the then -
current fiscal year or when the appropriation made for the then -current year for the goods or services covered by this contract is spent,
whichever event occurs first. If at any time funds are not appropriated for the continuance of this contract, cancellation shall be accepted
by the Seller on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be
obligated under this contract beyond the date of termination.
32 Time: It is hereby expressly agreed and understood that time is of the essence for the performance of the contract, and failure by Seller
to meet the time specifications of the contract will cause Seller to be in default of the contract.
33 Silence of Specification: The apparent silence of specifications as to any detail, or the apparent omission from it of a detailed description
concerning any point, shall be regarded as meaning that only the best commercial products and practices are to prevail and that only
material and workmanship of the finest quality are to be used. All interpretations of the specifications in this bid shall be made on the
basis of this statement. The items furnished under this contract shall be new, unused, of the latest product in production to commercial
trade, and shall be of the highest quality as to materials used and workmanship. Manufacturer furnishing these shall be experienced in
design and construction of such items and shall be an established supplier of the item bid.
34 Environmental Stewardship
The City of Lubbock is fully committed to environmental excellence. It is the policy of the City to demonstrate sound environmental
performance by controlling and mitigating the environmental impact of City activities, operations, and services. This commitment
extends to the procurement and contracting process. Contractors and suppliers selected to provide services and materials to the City are
required to uphold an equally high standard. To that end all contractors and suppliers hired by the City agree to maintain full compliance
with any and all applicable environmental regulations. In addition, contractors and suppliers agree to implement whatever processes and
procedures necessary to reduce and eliminate pollution and wastes and conserve natural resources while under contract with the City. To
the greatest extent possible, while still delivering the highest quality service or material, City contractors and suppliers, as well as any
sub -contractors under their supervision, will:
• minimize waste and pollution generation;
• conserve natural resources and energy;
• minimize the use of hazardous materials by choosing the least toxic - yet effective - materials and products;
• use the highest available post -consumer content materials and products;
• recycle and/or reuse as much as is possible, waste materials; and
• incorporate into project design energy efficient fixtures, appliances and mechanical equipment.
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35 The City Right to Audit
At any time during the term of the contract, or thereafter, the City, or a duly authorized audit representative of the City or the State
of Texas, at its expense and at reasonable times, reserves the right to audit Contractor's records and books relevant to all services
provided to the City under this Contract. In the event such an audit by the City reveals any errors or overpayments by the City,
Contractor shall refund the City the full amount of such overpayments within thirty (30) days of such audit findings, or the City, at
its option, reserves the right to deduct such amounts owing the City from any payments due Contractor.
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