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HomeMy WebLinkAboutResolution - 2013-R0101 - PO - John Deere Company - Cab Tractor - 03/28/2013Resolution No. 2013-ROIOI March 28, 2013 Item No. 5.15 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. 25100370 for the purchase of Cab Tractor with Flex -Wing Rotary Cutter, as per Buy Board 373-11, by and between the City of Lubbock and John Deere Company, 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 28. 2013 ATTEST: Rcl, ca Garza, City Secretary AP`PRO/VED,AS TO CONTE T. Scott Snider, Assistant City Manager Community Services APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney v ccdocs/RES.John Deere Co-PwchaseOrd March 8, 2013 ;luWock PURCHASE ORDER TEXAS lU JOHN DEERE COMPANY AG & TURF CBD & GOVT SALES 2000 JOHN DEERE RUN CARY North Carolina 27513 INVOICETO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK,TX 79457 SHIP TO: Page - 1 Date - 03/07/2013 Order Number 25100370 000 OP CITY OF LUBBOCK FLEET SERVICES 204 MUNICIPAL DRIVE LUBBOCK Texas 79404 Ordered 03/07/2013 Freight Requested 03/07/2013 Taken By D.TORRES 1 Delivery PER M.TREVINO/REQ 41431 BUY BOARD 373-11 Description/Supplier Item Ordered Unit Cost UM Extension Request Date 6140 M Cab Tractor 1.000 82,778.5400 EA 82,778.54 06/27/2013 CX 15 Flex -Wing Rotary Cutter 1.000 16,490.6600 EA 16,490.66 06/27/2013 Total Order Terms NET 30 DAYS 99,269.20 This purchase order encumbers (funds in the amount of $99,269.20 awarded to John Deere Company of Lubbock, Texas on March 28, 2013. The following is incorporated into and made part of this purchase order by reference: Price Quotation 7668037 dated March 8, 2013 from John Deere Company of Lubbock, Texas and Buy Board Contract 373-11. Resolution# 2013-RO101 CITY OF LUBB0,CK 1" Glen C. Roberts n, Mayor ATTEST Rebe ca 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. Seiler 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 bi[I of lading will operate as a tenderof goods. 3. TITLE AND RISK OF LOSS. The title and risk of lou 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 pedormance his 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. 3. 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, camel 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, at 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 aspect 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 sh canceled by Buyer pursuant to this provision. Buyer all 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 dor cost of any special tooling or special test equipment fabricated at required by Seller for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall became the property of the Buyer and to the extent feasible shall be identified by the Seller as such. S. WARRANTY -PRICE. a. The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like conditions and methods of purchase. In the event Seller breaches this wsrmnty. the prices of the item shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contras 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 contras 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 wammies and any attempt to do so shall render this contract voidable at the apron 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 Sella, if any. In the event of 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 date of this Cantors. The obligations contained herein apply to products and services provided by the Seller, its sub - Seiler or any third party involved in the creation or development of the pnmh= and services to be delivered to the City of Lubbock under this Contract. Failure to comply with any of the obligations contained herein, msy.roult in the City of Lubbock availing itself of any of its rights under the law and under this 61—M30 jincluding, but not limited to, its right pertaining to termination or default. The waranlfes conaiacd herein are separate and discrete from any other warranties spet5ified ja this rLontract end are not subject to any disclaimer of warranty, implied of expresse4e6r limitation dT-tbe-Seller's liability which may be specified in this Contract, its apputdica, its schedules, fis annexes -or any document incorporated in this Contract by refcweme. - " 10. SAFETYWARRANIY. Seller warrants that doe product sold to the Buyer shall conform to the standards promulgated by the U. S. Depanmeat of Later under the Occupational Safety and Ilealtu Act of'1970. In the event the product dor nostwororm to OSHA standards, Buyer may mum the product for correction or mplacemew at the Seller's expense. In the event Seller fails IQ milt the appropriate correction within•a reasonable lime, correction made by Buyer will be at the Sella's expense. 11. NO WAUANTYRy BUYER AGAINS INFRINGEMETITS. As pan of this contract for sale Seller�,agmcs.lei-aacaiairt, Amilter goods' manufactured in accordance with the specifhcationsXttached to this agreement will Ove 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 Seiler for indannifiestion 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 can for default all or any pan of the undelivered portion of this order if Seller breaches any of the terra 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 nes 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 pan 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 im ninated and the date upon which such termination becomes elective. 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 '.WEURF- Neither party shall be held responsible for losses, resulting if the fulfilbnem of any tents of provisions of ibis 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 parry 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 pan by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. Is. INTERPRLTATION-PAROLE EVIDENCE This writing, plus any specifications forbids and performance provided by Buyer is its advertisement far 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 terms of their agreement. Whenever a term definal by Iho 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 effecdve and In fora on the date of this agreement. 20. RIGHT TO ASSURANCE Whenever one party to this contras in good faith has reason to question the ahs party's intent to perform he may demand that the other party give written assurance of his imam to pectora In the event that a demand is made and no assurance is given within five (5) days, the demanding pity 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, claim, patent claims, suits. liabilities, judgments, costs and expenses, which may in anywise aecnre against the Buyer In consequence of the granting of this Contract or which may anywise result therefrom, whether or nes 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 cape.ue. appear, defend and pay all charges of attomeys and all cows and cher expenses arising themftom of incurred in cmuxtdon dwn,witm, mrd, if any judgment shall be rendered agahtst the Buyer in any such actio. the Seller shall. at its own expenses. satisfy and discharge the same Seller expressly urtdentands and agrees that any band required by this conuack 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 notifles all bidders that in regard to any contract entered into prcrsuant to this request, maturity and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will nes be discriminated against on the grounds of race. color. sex or natural origin in eatsidernion 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 i. or related to, this document. this provision shall antral. 25. RIGHT TO AUDIT. At any «rax 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 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 mors 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 awing the City from any payments due Contractor. Rev. 0212012