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HomeMy WebLinkAboutResolution - 2012-R0278 - PO - Forman's Pickup Pals Inc.- Trucks - 07/12/2012Resolution No. 2012-RO278 July 12, 2012 Item No. 5.15.G RESOLUTION 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 cecute for and on behalf of the City of Lubbock, Purchase Order No. 31010880 for the .irchase of medium and heavy duty trucks as per ITB 12-10593-RH, by and between the ity of Lubbock and Forman's Pickup Pals, Inc., and related documents. Said Purchase rder is attached hereto and incorporated in this resolution as if fully set forth herein and fall be included in the minutes of the City Council. by the City Council on July 12, 2012 eF TSON,MAYOR TTEST: Garza, City Secretary AS TO C Snider, Assistant City Manager nunity Services AS TO FORM. 04� Weaver, Assistant City Attorney cdocs/RES.Forman's Pickup Pals, Inc.-PurchascOrd 27, 2012 lubcboityck IMS 1,0: PURCHASE ORDER FORMANS PICK UP PALS INC 6810 WAYBE AVENUE LUBBOCK Texas 79424 SHIP 1"O: INVOICETO., CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOC 200 LLaBOCK rX79457 BY Page - I Date - 06/28/2012 Order Number 31010880 000 OP Branch/Plant 3526 CITY OF LUBBOCK FLEET SERVICES 206 MUNICIPAL DRIVE LUBBOCK Texas 79403 Ordered 06/28/2012 Freight Requested 05/15/2013 Taken By Delivery REQ 39595 M TREVINO ITB 12-10593-RH Description/supplier Item Ordered—Unit Cost UM Utility Service Body w/Crane 3.000 36,784.5000 EA Spec 6741 -UB Terms NET DUE ON RECEIPT R HOLDER. Extension Request Date 110,353.50 05/15/2013 Total Order 110,353.50 This purchase order encumbers funds in the amount of $110,353.50, for the purchase of a utility bodies on July 12, 2012 to Forman's Pick Up Pals, Incorporated, of Lubbock, Texas in accordance with Forman's Fick Up Pals response to ITB# 12- 10593-RH. 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# 12-10593-11H. Resolution# 2012–RO278 CITY OF LUBBOCK V oop �tll ,/'I Glen C. rtson, yor ATTEST: Rebee a Garza, City Secretary CERNIS ;AND CONDITIONS IMPORTANT; READCAREFULLY STANDARD TERIMS AND CONDITIONS CITY OF LURROCF,'fErf.AS Seller and Buyer agree as follows: 1, SELLER TO PACKAGE GOODS, Seller will package gads in accordance with good commercial practice. Fitch 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, c & box I of 4 boxes, and id) the number of the container hearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods ,hall he suitably packed to secure lowest transportation costs and to conform with requirements of common carrias and any applicable specifications. Buyer's count or weight ,hall be final and conclusive on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is no aurhonzed to ship the gate under reservation and no tender of a bill of lading will operate as a lender of goods. 3. TITLE :AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer unit] Buyer actually receives and takes possession of the goods at the point or points of delivery. 4, NO REPLACESIENT OF DEFECTIVE TENDER. Every tender of delivery of goats must fully comply with all provisions of this contract as to time of Oielivery, 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 snake a conforming tender within the contract time but not afterward S. INVOICES dt 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. Marl To: Accounts Payable. City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457. Payment shall no be due until the above instruments are submitted after delivery. 6. GRATUITIES. The Buyer may, by written notice to the Sella, cancel this contract without liability to Seller if it is determined by Buyer that gratuities, in the form of entenainment, gifts or otherwise, were offered of 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 snaking of any determinations with respect to the performing of such a contract In the event this contraict 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 lk TEST EQUIPMENT. if the price stated on the face hereof includes the cost of any special tooling or specie] 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. 9. 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, OF in the alternative. Buyer may cancel this contract without liability to Sella for Meech of Sella's actual expense. Is. The Seller waratits that no person or selling agency has been employed or retained to solicit or secure this contract upon an agtxemrnt or understanding for commission, percentage, brokerage, of contingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Sella for the purpose of securing business. For breach of viciation of this warranty the Buyer shall have the right in addition to any other right of rights to cancel this contract without liability and to deduct from the contract price, or otherwise recover without liability and to deduct from the contract price, or otherwise recover the full amount of such cotmnission, pereentage, brokerage or contingent fee. S. WARRANTY•PRODUCf. Seller shall not limit or exclude any implied warranties and any attempt to do so shall tender Ibis contract voidable at the option of the Buyer. Seller warrants that the goods flmished will conform to the specification, drawings, and descriptions listed in the bid invitation., and to the samplelsl funished by the Sella, 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 dale related data (including, but not limited to calculating, comparing and scqucmingl of all hardware, software and firmware products delivered ,md services provided under this Contract, individually or in combination, as the case may be from the effective date of this Contract. The obligations contained herein apply to products and services provided by the Sella, 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 arc separate and discrete from any other warranties specified to 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 m this Contract, its appendices, its schedules, its annexes or any document incorporated an this Contract by reference. 10. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall unfonn to the standards promulgated by the U. S. Department of labor under the Occupational Safety and pdealth Act of 1970. in the event the product don not conform to OSHA standards, Buyer may return the product for conation or replaccinent at the Seller's expense. In the event Seller fails to make the appropriate correction within a reasonable time, correction made by Buyer w ill be at the Seller's expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGENIENTS. As part of this contract for sak Seller agrettz to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim of any third perm by way of infringement of the like. Buyer rakes no warranty that the prxhrctmn of gunk according to the specification will not give rise to such a claim, and in no evem shall Buyer he liable to Seller for mdetnmfication 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 elTect in writing within two weeks atler 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 Scller 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 gaxb at delivery before accepting them. 13. CANCELLATION. Buyer shall have the right to cancel for default all or :my part of the undelivered portion of this order if Seller breaches any of the terns hereof including waranties of Seller or if the Seller becomes insolvent or commds 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 ser equity. 14, TERMINATION. The performance of work under this Order may he terminated in whole, orin part by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Such right or termination is in addition to and not in lieu of the rights of Buyer set forth in Clause 13, herein. IS. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting if the fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence said parry is unable to prevem. 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation made fry 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 dischargeel 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. 111. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advenisement for bids, and any other documents provided by Seller as part of his bid, is intended by the paries as a final expression of their agrecmnent and, intended also as a complete and exclusive statement of the term 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 Coco" is used, it shall be construed as meaning the I Iniforin Commercial Code as adapted in the State of Texas as effective and in force on the date of this agreement. 20. RiGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his intent to perform. In the event that a demand is trade and no assurance is given within rive 45) days, the demanding party may treat this failure as an anticipatory repudiation of the contract. 21. INDEMNIFICATION. Seller shall indennrtfl r, 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 inay it anywise accrue against the Buyer m consequence of the granling 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 of its employees, or of the subSeLler or assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pry all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and if any judgment shall be tendered against the Buyer in any such action, the Seller shall, at its own expenses, satisfy and discharge the same Seller expressly understand% and agrees that any bond required by this contract, or otherwise provided by Sella, shall in no way limit the responsibility to indemnify, keep and save harness and defend the Buyeras hemm provided. 12. 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 mea the time specifications of this agreement will cause Seller to be in default of this agreement. 23. NI BE. 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 he discrimmated against in the !pounds of race, color, sex or natural origin in consideration for an award 24. NON-ARBITRAf1ON. Ilse 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 foam of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitratton process prior to exercising its unrestricted not to seek judicial remedy. The remedies ser forth herein are cumulative and not exclusive. and may be exercised concurrently. To the extent ofany conflict between this provision and another provision in. or related to, this document, this provision shall control. 23. RIGHT TO Ali DIT. 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 ConoWicr's records and book£ relevant to :ill 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, err the City, at its oprtiOm, reserves the right to .educt such amounts owing the Pity from any payments due Contractor. Rev. 0212012