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HomeMy WebLinkAboutResolution - 2008-R0448 - Purchase Order Of Heavy Equipment - Equipment Southwest, Inc. - 11/20/2008Resolution No. 2008-RO448 November 20, 2008 Item No. 5.14 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 the purchase of Various Heavy Equipment as per ITB -08 -084 -MA, by and between the City of Lubbock and Equipment Southwest Inc. of Irving, 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 20th day of November , 2008. TOM MARTIN, MAYOR ATTEST: - QA'0'�� Rebe a Garza, City Secretary APPROVED AS TO CONTENT: Marq Yearw , Assi tant City Manager Chie Information Officer APPROVED S TO FORM: Chad Weaver, Assistant City Attorney vw/ccdocs/Chad/Resolutions/RES-Equipment Southwest, Inc.-PurchaseOrd November 11, 2008 T0: P U R C H A S E 0 R D E R EQUIPMENT SOUTHWEST INC 425 S LOOP 12 IRVING TX 75060 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 SHIP T0: BY: Page - Date - Order No. - Brn/Plt - CITY OF LUBBOCK AUTO PARTS WAREHOUSE 204 MUNICIPAL DRIVE LUBBOCK TX 79404 1 11/10/08 339111 000 OP 3511 --------------------------------------------------------------------------- Ordered - 11/10/08 Freight - FOB Destination Frt Prepaid Requested - 02/28/09 Taken By - VASKO, TOM Delivery - BID 08 -084 -MA Various Heavy Equipment ---------------------------------------....................................... Description / Supplier Ite 12 Yard Body with Hydraulic Hoist, Warren FL -651 S8712 Ordered UM Unit Cost UM ----------- ------------- -- 1.000 EA 25,612.5000 EA Extension 25,612.50 Req. Dt 02/28/09 This purchase order encumbers funds in the amount of $25,612.50 for the purchase of 12 Yard Body with Hydraulic Hoist awarded to Equipment Southwest, Inc. of Irving, TX on November 20, 2008 in accordance with your response to BID# 08 -084 -MA, Various Heavy Equipment. The following is 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 BID# 08 -084 -MA. Resolution# 2008—RO448 CITY OF LUBBOC/wK ATTEST: �. A 0 , f5� Tom Martin, Mayor Rebecc Garza, City Secretary ToQ Order ------------------------------------------------------------------------------------- Terms NET 30 25,612.50 TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and "or agree as follows: i 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) Seder's name and address, (b) Consignees name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, a S. box I of 4 boxes, and (d) the number of the container Fearing 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 trot 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 LASS. The title and risk of foss 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 ofdelivery of goods must fully comply with all provsionis of this contract as to time oedelivery, 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 sepamteby. 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 ager delivery. 6. GRATUITIES, The Buyer may, by written notice to the Seller, cancel this contract without liability to Seller if it is detenn red 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 contractor 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 sac 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 he that contained in Seller's bid which Seller warrants to be no higher than Sellers current process on orders by others for products of the kind and specification covered by [his agreement for similar quantities under similar of like cmditions and methods or 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 fo solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona tide employees of bona fide established commercial or selling agencies maintained by the Seller for the purpose of securing business. For breach of viciauon of this warranty the Buyer shall have the right in addition to arty 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 samples) furnished bay the Seller, if arty, In the event of s conflict or between true speciications, drawings, and descriptions, the specifications shall govem. Notwithstanding any provisions contained in the contractual agreement, the Seiler represents and warrants fault -free performance and fault -free result in the processing date and date related data (including, but not limited to calculating, comparing and sequencing) of alt hardware, software and firmware products delivered and services provided under this Contract, individually of in combination, as the case may be from the effective date of this Contract Also, the Seller warrants the year -2000 calculations will be recognized and accommodated and will not, in any way, result :n hardware, software or firmware failure. The Cry of Lubbock- at its ;'rte option, may require the Seiler, at miy i e. to deencrnstrate ifte priced res a mends to follow tit order to comply withal! the obligations contained herein. -rhe obligationscontained herein apply to products and semces provided by the Seller, its sub -Seller or any third party involved in the creation or development of the products and sen ices to be delivered to the City cf Lubbock :order this Contract. Failure to comply with any of the obligations contained !:erein, may result in the 0y of Lubbock availing aselfof 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 f'rom:my other warranties specified m this Contract, and are not subject to any disclaimer of warranty, implied or expressed, or limitation of the Seller's lability ,.vhich may be specified in this Contract, its appendices, its schedules, its annexes or Any document mcnrporated est this Contract by reference. 10. SAFETY WARRANTY. Seller warrants that the product sold to the Suver shall conform to the standards promulgated by the U. S. Department of Labor under the Occupational Safetv and Iletith Act of t')70 In the event the product does not con%rm to OSHA standards, Buyer may return the product for correction or replacement at the Seller's expense. In the event Seller fads to make the appropriate correction within a reasonable time, correction made by Buyer wilt be at the Seller's expense. 11, No WARRANTY BY BUYFR AGAINST INFRINGEMENTS. As partofthis contract for sale Seller agrees to ascertain whether goahs manufaclured in accordance with :he specifications attached to this agreement will give rise to the rightful claim ofant, third pe rum by way of infringement of the like Buyer makes no warranty that the poxhcuon ofgoods according to the specification will not give rise to such a claim, and in on event ihall Buyer he liable to Seiler for indemnification on the event that Seller is stied on the grounds of infringement of the like. If Seller is of the opinion that an infringement or the like will result. he well 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. Seiler will save Buyer harmless. If Seller in good faith ascertains the production ofthe goods in accordance with the specifications will result in infringement or the like, the contract shall be null and void. 12. RIGHT OF INSPECTION. Buyer shall have the right to inspect the goads at delivery hefore accepting them. 13. CANCELLATION Buyer shatl 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 iresolvent or commits acts of bankruptcy. Such rightof cancellation is in additon 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 pad by the Buyer in accordance with this provision. Termination of work hereunder shall bac 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 m addition to and not in lieu of the rights of Buyer set forth in Clause 13, herein. 15. FORCE MAIEURE. Neither party .shalt be held responsible for losses, resulting ifthe fulfillment of any terms of provisions of this contract is delayed or prevented byany cause not within the control of fhe 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 i breach ofthis contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver of renunciation is supported by consideration and is in writing signed by the aggrieved party. 18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications fit bids and performance provided by Buyer in its advertisement for bids, and any other documents provided by Seiler as part of his bid, is intended by the parties its a final expression of their agreement and intended also as a complete and exclusive itatemem of the terms of their agreement. Whenever a term defined by the [!ndum Commercial Code is used ❑t this agreement, the definition contained in the Code is to control. 19, APPLICABLELAW. 'this agreement shall be govemed by the Uniform Commercial Cale. Where ever the term "Uniform Commercial Cute" us used, it shall he construed its 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 o£the contract, 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents. ollicials.md employees, against all injuries, deaths, loss, damages, clauns, patent claims, suns, liabilities, judgments, costs and expenses, which may m arrywise accrue against the Buyer in consequence of the granting of this Contract or which may :mywiw result theretirm, whviher or not it shall be alleged or determined that the act was caused through negligence or omission of the Seiler or its employees, or of the subSeller or assignee or its employees, d'.tny, and the Seller shall, at his own expense, appear, defend and pay all charges orittorteys and all costs and other expenses arising therefrom of incurred in connection t tcrexvi th, and, if arty pudlgrnent ,hall be rendered against the Buyer in Any such action, the Seller shall, at its own experses. satisfy and discharge the same Seller expressly understands and agrees that any bond reriurcd by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to ^:kmrrh,. keep sod save harnlcs. and defend the Buyer as hmin pro. .ded. _1, riklF. It is hereby expressly agreed and unoferstood that lime is of the essence for!he performance of this contract, .rod fit hire by contract to meet the tune specifications of thus agreement will cause Seller to be in default of this agreement. 23. %IBE. The City of Lubbock hereby notifies all bidders that in regard to anv contact entered join pursuant to this request, minority and women business erterpnses will he atl::rded equal opportunities to submit bids in response to this imitation and will not he discnmoiated against an the grounds of race, color, sex or natural origin in consideration I'or an awardd Rev. OW2005