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HomeMy WebLinkAboutResolution - 2012-R0451 - PO - Randall Reed's Prestige Ford - Vans - 11/29/2012Resolution No. 2012—RO451 November 29, 2012 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 is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Purchase Order No. 31012866 for the purchase of light duty vans as per ITB 13-11009-RH, by and between the City of Lubbock and Randall Reed's Prestige Ford of Garland, Texas, and related documents. Said Purchase Order is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on November 29, 2012 ATTEST: Beba Garza, City Seer cary° APPROVED AS TO Scott Snider, Assistant City Manager Community Services APPROVE Chad Weaver, Assistant City Attorney vwxcdocs/RES.Randall Reed's-PurchaseOrd November 12, 2012 DATE January 28, 2012 TO Rebecca Garza, City Secretary FROM Marta Alvarez, Director of Purchasing and Contract Mana CC: Pam Moon, Executive Director of Finance SUBJECT ITB 13-11109-RH, Light Duty Vehicles Randall Reed's Prestige Ford was awarded purchase order 31012866 in the amount of $56,794, at the November 29, 2012 City Council meeting. On December 17, 2012, the vendor notified the Purchasing Department that he had submitted the wrong specifications and bid pricing and could not comply with the purchase order. Attached are two purchase orders for the above referenced bid. Randall Reed's Prestige Ford purchase order has been Revised/Corrected for the new amount of $35,144. Also, attached is a purchase order in the amount of $23,759, to Scoggin-Dickey Chevy -Buick who was the second lowest bidder for a Chevy Express 2500 Twelve Passenger van. Legal has advised that since each individual purchase order does not exceed $50,000, no Council action is required. Attachment ITB 13-11009-RH, Light Duty Vehicles -Group I City of Lubbock, 'Cexas Purchasing and Contract Management Light Duty Vehicles -Group 1 BID FORM In compliance with the Invitation to Bid 13-11009-RH, 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 or form, conditional altemate 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 -11009 -RU is by reference incorporated in this contract. The Bid Fort must be completed in blue or black ink or by typewriter. Unit Delivery of UNIT PRICE* EXTENDED (Days) ITEM QTY Measure DESCRIPTION BID COST ARO*' 1. 2 Each Vi Ton, Full Size, Two Passenger, Cargo n r� Van per Specification No.449 S 1/ 5/ 2 5,�6_1 Model Year, Brand Name and Model Number: 2. 1 Each I/ Tan, Full Size, Twelve Passenger Van S /) �+ $ y� H ITP -11 Specification No.412 �r�� CalModel Year, Brand Name and Model Number: C120113 674��o bk( _121Z)Q�ag�;W *PRICE: F.O.B. Destination, Freight Pre -Paid and Allowed **ARO – After Receipt or 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 — %, net A—:> 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 Page 1 of 1 Marta Alvarez - RE: bid 13-11009-RH From: Marta Alvarez To: Admir Sarac; Robin Holder Subject: RE: bid 13-11009-RH >>> Admir Sarac <ASarac@prestigegarland.com> 12/17/2012 6:12 PM >>> Mrs.. Robin, I made mistake on bid. I mailed you completely wrong spec. And pricing Texas specification requiring some option on vans to be provided whether are standard or optional - There for I am not able to keep my bid pricing. At least it is good that I called you to confirm On cargo van/$830 FOR ADDED OPTIONS -power group, cruise control=17572+830=18402 On 12 passenger van/$1310 for added options -power group, rear A/C, cruise control =21650+1310=22960 I apologize for my mishap. I do understand that you need to go on 2nd lowest bidder to satisfied your minimum requirements. Best regards Happy Holidays Admir Sarac Fleet sales and commercial account Mgr. Randall Reed's Prestige Ford 972 864-6815 direct 214914-0802 mobile 972 864-3606 fax admirs@prestigegarland.com about:btank 1/28/2013 Resolution NO. 2012-80451 bbock ity of PURCHASE. ORDER rO: RANDALL REED'S PRESTIGE FORD 3601 S. SHiI.OH ROAD GARLAND Texas 75044 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. Box 2000 LUBBOCK, Tx 79457 Ordered 11112/2012 Freight Requested 02/15/2013 Taken By Delivery REQ 40676 M TREVINO SHIP TO: ITB 13-11009-RH ['ago 1 Date 11/ 13/2012 Order Number 31012866 000 OP Branch/Plant 3526 CITY OF LUBBOCK FLEET SERVICES 204 MUNICIPAL DRIVE LUBBOCK Texas 79404 R HOLDER Description/Supplier Item Ordered Unit Cost UM Extension Request Bate 20 13 Enal E- 15n Passongor V= 1000 '65"000 F"t Line IM -anceI ed. Spec 412 2013 Ford E-150 Cargo Van 1.000 17,572.0000 EA, 17,572.00 02/1512013 Spec 404 2013 Ford E-150 Cargo Van 1.000 17,572.0000 EA 17,572.00 02/15/2013 Spec 404 'total Order Teims NE"r DUE ON RECEIP"r 56,794.(2/0 This purchase order encumbers funds in the amount of $56,794.00 for the purchase of three vans awarded on November 29, 2012, to Randall Reed's Prestige Ford, of Garland, Texas in accordance with Randall Reed's Prestige Ford's response to ITB# 13-11009-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# 13-11009-RH. Resolution# f%ll. CITY OF LUBBOCK — ZA / GlenVFdlertsotf, Mayor ATTEST: Reb tca Garza, City Se rata TF.R11S AND CONDITIONS IMPORTANT: RF -%D CAREFULLY' STANDARD TERMS AND CONDITIONS CITY OF LUBBOl "TFXA.49 Seller and Buyer agree as follows: I. SELLER TO PACKAGE CMM. Seller will package dards in accordance with good commercial practice. Foch %hipping onlamer shall be clearly and permanemly, marked as follows Ill Seder's name and aJJreas. (b) Consignee's name, &I -bets and purchase order or p rrhass release number Ind the supply agreement number if ariplicable, (e) Container nunher aid lout! number of containers, it box I of 4 boxes, and (d) the number of the container bearing the packing slip, Sella shall beat cost of packaging unless otherwise pros idea Goods shall be suitably packed to recuse lowest Iraaspnrtation Loss and to conform with requirements of common ciancn and any applicable specifscattmo. Buytr's count or weight shall be final ant concltuis a on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not auharizat to ship the MOOLIS utsJa rrservatiuo and no tender of A bill of lading will operate as a trader of goaU. 3. 1 M r AND RISK OF LOSS. The title and risk of loss of the goods shall For pass to Buyer until Buya actually receives and lakes posseasion of the goods at the point or points of delivery. J. NO REPTACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must fully comply wth all provisions or' this contract as to title or delivery, quality and the like. Ira Tender is trade which does aux filly conform, this stall oT)MAitute a breach and Seller rhall not have the nghl to substitute a contemning tadcf, pnnidal, whore the time for performance has not yet expired. the Sella may rte w,Aiiy notify Buyer of his Intention to cure and may then make a confcmning tarda within The contract rims, but rwt alTerward 5. INVOICES d. PAY,LIETNrS, a. Seller All submit separate invoices, in duplicate, one tads pirobasr order or purchase release after each delivery, Invoices shall indicate the purchase order or purchase release number and rhe supply agreement number IT applicable. In%oical shall be itemized and Iransportm ioa charges, if any, shall he listed separately. A copy of The bill of W:ng, and the freight waybill when applicable, should be attached to the invoice. %Tell rat Accounts Payable, City of Lubbock. P. O. Box AM. L ubMtck, Texas 7W57. Payment shall not he due writ the above instruments ve submitted afla delivery, 6, GRATUITIES. -One Buyer may, by wrinen notice to the Seller, camel this contract nithoui liability to Seller if it is determined by Buyer that gratuitiea, in the form of entertainment, gifts or olPxzwise, were offered or given by the Sella. Or any agent or representative of the Seller, to any officer OF employee of the City of Lubbock with a view to securing a ccnmact air securing favorable treatment with respect to the awarding or amending, err the making of my detersinalions with respect to the performing of such a contract. In the event this contract is canceled by Buya pursuant to this provision, Buyer shall be entitled, in addition to say other rights alt remedies,. to recover or withhold The amount of the cont incurred by Sellar in Providing such gratuities. 7, SPECIAL TOCOLS & TEST FQUIPMENT. Tribe prion stated an the face hereof includes the cost of any special looling or speeim test equipment fabricated or required by Seller for the Purpose of filling This Order, such special tooling equiringia and my 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 warrens to be rep higher than Seller's current process On Orden by others for products of the kind and specification covered by this agrcan ird for similar quamritiass unda shrit ar of like c rditiors and methods of purchase. in the merit Sella breaches dols warranty. The prices of the dims shall he reduced to the Sellas current prices net orders by vthm, or in the altemrative. Buyer [nay camel Ibis contract without liability to Sella for breach or Sella's actual expense, b, The Staler warrant that no Person or selling agency Iw been mpluyed or retained to solicit or sm r s this contract upon an agreement or underganding for commission, percentage, brukcmge, OF ocrihngea fro cxcriAmit Mina tide cmployeas of Mea fide tuablishel ourtmrereial or selling agents maintained by The Sella for the purpose of securing husiness For breach of vitiation of This warranty the Ruyax slmall have the Hght in addition to ,my other right of rights to cancel Ibis camtacc without liability and to deduct from the contract Price, or othawian recover wilhod liabdity and To deduct from the conmact price, Or otherwise reeaver the full amount of such commission. percentage, brokctrge or comiogenl Fee. 9, WARRANTY -PRODUCT- Sellar that not limit OF exclude any implied wan-mTTies and any attempt to do so shall render this cdmmxt voiJahte at the option or the Buya. Sella warranas. that the golds furnished will confivm to the !pecificalion, drawings, and descriptions listed In the bid Imitation, and to the rampltCrl fiumistned by the Seller. if any. In the evert of a canflid or between the spticiftcaaismiL Jmuings, and descriptions, the specilicatiom shall gmrsia- NOMithgmd1l any prmlvions; contained in The contractual agreement. the stir" top,sw is end warrants famdi-til Performance and Tuthill Fell in the processing date and date related data (mclud m& hum not limed to calculating, comparing and sequencing) of all hardware, software art firimme products delivered and services provided under this Contract, imelividwily or in caabinatiae, n The case may be roan The effective date of This Contract. The obligations contained herein apply In prrxhcts and serxiccs provided try the Sella, its s. h - Sella or airy third party imoived in the gallon or deselopmeor of the pneduds.ud serviees to Ire delivered to the City of IubM2ck under this Contract. Failure to comply with any of The obligations contained herein, may rtsult in the City of Lubbock mailing itself of Awry of is rights anter the law and under This Cvsaraer including, but not I armed to, is right pertaining to ttnmtnatioa or dtfault. The waranties mmamed herein we separate amt rhscrcte from any other warranties specified stn this Contract, and at not sublect to any disclaimer or wa renty, implied or expressed, or lrmilmon of the Seller's liability which may be ipecifted In the Contract, its appendice", its schedures, its ameees or any decuna7tl requested in this Contract by reference. 10. SAFETY WARRANTY. Sella wasramls that T e product sold no the Buyer shall confgmt to the standards prcxttulgau d by the U. S. Department of Labor+nder the Gacripaional Safety and HeAlIt Art of 1970. M The ctret the prcdua does not crnnfom to OSHA standards, Buyer may mum tM PrM-1 For eoveetlanor repletcriem at the Seller's expense In The event Seller fails to urake the appropriate corectisn atithin a real actable time, cronectim Itnade by Iluya cath be a the Seder's expense 11. VO WARRANTY BY BUYER AGAfNST INFRINGEMENTS. As pan of this central for see Sella agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will Bite rix to The rightful claim of any third person by way of infringement of The like. Buyer makes no wartxnty That the prodm:tion of goods aeawding to the ymific stiora will out give rise to such a claim, and in no eveol shall Buyer he liable to Sella for indvxnniticution In the event Ihat Seller is sued ort she grounds infringement of the like. If Seller is of the opinion that an mfiingamem or The like will result, he will notify the Buyer to this ell in writing within two weeks after the signing of this igrearem. If Buyer dots not receive notice and is subsequently held liable for the infringement or The like, Seller will save Buyer harmless. If Sella in good faith asceagins the Txod+rction of the goods in aceordama with the sptallications will result in infringement or, the like, the contract shall he null and void Q. RIGHT OF INSPECTION. Bayes shall have The right to inspect The goods at delivery before accepting lhent. 13. CANCELLATION. Buya stall have the right to cancel for default all or any part of the undelivered portio[ of this onkr it Seller breaches any of the tees henrof including wwnmies of Sella err if the Seller becomes insolvent or commits acts of bankruptcy, Stroh right of cancellatito is in ,mhditfOa to m d nut in lieu of any other remedies which Buyer may hav a in law or equity, 14. TERMINATION. The performance of work Londa this order may be Imninated in whole, or in part by the Buyer in accordance with this provision Termination of work hereunder shall he effected by the delivery of the Sella of a"'Nonce of Terminators' specrfyrng the extent to which performance of work under the order is laminated std rhe date upon which such termirution becomes effective. Such right or termination is in addition to and nes in lieu of the rights of Buyer set forth in Claws 13, herew. 15. FORCE %fAJF1URE. Neither party shall be held responsible far lesser, resulting if the fbiftllmmt of any turns of provisions of this contract is delayed or prevented by any cause not w uttin rhe control of the party whose performanee is interfered with, and which by the exercise of neasonuble diligence said party is unable to prevent. 16. ASSIGNMENT -DELEGATION. No right at interest in this contract shall be assigned or delegman of my obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Sella shall be wholly void and totally Ineffne a for all purpose rmleu made in conformity with this paragraph.. 17. WAIVER. No claim of right arising out of a breach orthis contract can be discharged in whole or in pantry a waiver or renunciation of the claim or right unless the waives or renunciation is supported by consideration and is in writing signed by the aggrieved potty. 18. INTERPRETA CION -PAROLE EVIDENCE. this writing, plus any specifications for bids and perfarmanee provided by Boyer in its adverstsnttat for tris, arm! Any other doeumats provided by Sella a P44 of his bid, is intended by the partes as a final expression of their agreement and intended also as a complete and exclusive statement of the terns of Their agreement. Whenever a Term defined by the Unifome Commencer Code is used in this agreen at, the definition contained in the Code is to control. 14. APPLICARL122 LAW. This agreaneM shall be govemed by the Uniform Commercial Code. Where ever the term "lhufonn Commercial Codi' is used, it shall be construed as meaning the Uniform Commercial Code as adopted in The State of Texas as effective and in face on the date of this agreanmt. 24. RIGHT TO ASSURANCE. Whenever One party to this contract in good faith has reason to guestiust the other party's intron to perform he may demand that the ether parry grve written assurance of his intent to perform. In the cyan that a demand is mark and no assurance is given within five M days. the demanding party may inert this failure as an anticipatory rclmhdtattan of the contract. 21, INDEMNIFICATION. Shca shall in.iernnil'y, keep and saver harmless the Biqa, its agents, orriciats and empluvees, against W injuria, death, loss, damages, claims, latents claims, sus, 1iaMlilies, judgments, cores and expenses, which may in anywise :etre again the Bherer In consequence of the greenling of this Contract or which may anywise result Iherefmm, evhclhcf or not d dull he alleged or determined Than the act was caused trough negligence m onar—on or The Seller of is employees, or of the subSella or assignee err its romployees, it any. and the Sella shall, at his own expense, appear, defend and pay all charges of attorneys and ill cons and other expenses arising thaefmm of incurred in connection therewith. and, i f any judgment shall he rendered against The Buyer in :very such action, the Seller shall, at its awn exfrenttx, satisfy and discharge the same Sella expressly undiaTu mds and agrees that may bond retpm ed by this extract, or otherwise provided by Sena, shall in no way limit the responsibility to indcruilFy, keep and save hamdess and ukferd the Buyer as herein provided. 2122. CISIE. II is hereby expressly agreed and Lrndtrgond that tura is of The essence for the paformaoce of this conlraa, and failure by contract to mat the time glactlicatiois of flus agreement will cause Seller to be in default of this agreement. 23. MBE, The City of Lubbock krel2y notifies all bidders that in regard to any contract entered mho pursuant to This request, minority, and wornen bosincu entegrrises will be afforded equal opportunities to wbmir beds in response to this invitation and will not be disetinu rale l against on the grounds of race. color. ass or nahrtal origin in consideration form awmE 'a. NON -ARBITRATION, Th[ City'Clava Tho right to exereise any right or remedy available to it by law, contact, equity, or otherwise, including without firritatiOn, The right to acs# airy end At Forms of relief in a count of com petal jurisdiction. Ponta, the City stall not he subject to wry arbitraiat process prior la exercising ill unrestricred risk to seek judicial rrmmedy. The Families sol forth herein ere cu aulative and not exclusive, and may be exercised ccxnvvsrently. To The extent of arty conflict between this provrrion and anther, povision in, or related to, this dxxrmemts, This provision shall control. 15. RIGHT TO AUDIT. At any time during The tam of The contrail or Thereafter, The City, or a duly authorized audit «presentaive of The City or the State of Texas, at its expense and at remoruLble limes, reserves The right to audit Ceetractofs records and books relevant to all services provided to the Cily —1 r This Contract. fn rhe event such an audit lyy The City rascals MY errors ur ovapaymsmts by the City, C'onttachmr shalt refund the City the full amotnal of such or erpayventa wilhm Thirty Ol days of such audit findings, or the City. A is o,l reserves the right to deduct suds alrlrxtms owing qhs City from my paymentsduo Contrauxor. Rev. 02/2012 ity of P"""' ORDER lubbock CO: RANDALL REED'S PRESTIGE FORD 3601 S. SHILOH ROAD GARLAND Texas 75044 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 1000 LUBBOCK, TX 79457 Ordered 01/15/2013 Freight Requested 04/15/2013 Taken By Delivery REQ 40676 M TREVINO Page - 1 Date - 01/28/2013 Order Number 31012866 000 OP Branch/Plant 3526 SHIP TO: CITY OF LUBBOCK FLEET SERVICES 204 MUNICIPAL DRIVE LUBBOCK Texas 79404 BY ITB 13-11009-RH or & Contraet Manal R HOLDER REVISED/CORRECTED PURCHASE ORDER Description/Supplier Item _ Ordered Unit Cost UM Extension Request Date 2013 Ford E-150 Cargo Van 1.000 17,572.0000 EA 17,572.00 04/15/2013 Spec 404 2013 Ford E-150 Cargo Van 1.000 17,572.0000 EA 17,572.00 04/15/2013 Spec 409 Total Order Terms NET DUE ON RECEIPT 35,144.00 c Old r-- TERtNS AND CONDITIONS UNI PORTANT: READ CAREFULLY f1�JL 1r\J STANDARD TERh1S 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 nlunber 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 tinder 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 Buys' 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 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. 5. INVOICES & PAYMENTS. m 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, 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 Bayer shalt 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 Sella 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 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 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 fumished will conform to the specification, drawings, and descriptions listed in the bid invitation, and to the samples) furnished by the Sclle, if any. In the event of a centlict 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 sequencing) of all hardware, software and ftnnware products delivered and services provided Linder 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 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 of 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 We 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 [bar 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 infringemern 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 haroiless. If Seller in good faith ascertains the production of the goods in accordance with the specifications will result in infringement of the like, the contract shall be null and void 13. RIGHT OF EJSPECTION. Buyer shall have the right to inspect the goods at delivery before accepting them. 13. CANCELLATION. Buyer shall have the right to cancei for default all or any part of the undelit°cred portion of this order if Seller breaches any of the terns 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 ha%c in law or equity. 14. TERMINATION. The perfomnance of work wider this order may be terminated in whole, or in part by the Buyer in accordance with this. provision. Termination of work hereunder shall be effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the daze 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 MAJEURE, Neither parry 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 patty 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 panics 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 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 elective 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 rive (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 agenm. officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits. liabilities, judgments, costs and expenses, which may in anywise accme 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 orni:sion of the Seller or its employees, or of the subSeller or assignee or its employe, if any, and the Seller shall, at his own expense, appear, dcfend and pay all charges of attorneys and all costs and other expenses arising therefrom of incurred in connection therewith, and, if any judp:ment 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, shat[ in no way limit the responsibility to indemnify, keep and sate harmless and defend the Buyer m herein provided- 22. rovided22. 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 speeificalions of this agreement will cause Seller to be in default of this agreement. 23. MBE. 'rhe City of Lubbock hereby notifies a8 bidders that in regard to any contract entered into pursuant to this request, minority and women business enterprises will be afforded equal opportunities to subunit 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 tern of the contract, or thereafter, the City, or a duly authorized audit representative of the City or the Slate of Texas, at its expense and at reasonable tiniest, 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, Contrador shall refund the City the full amount of such overpayments within shitty (30) days of such audit findings, or the City, at its optixm, reserves the right to deduct such amounts owing the City from any payments due Contractor. Rev. 0212012 lubcbi0ty Ck PURCHASE ORDER HIAS ro: SCOGGIN-RICKEY CHEVY-BUICK 5901 SPUR 327 LUBBOCK Texas 79464 4910 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2000 LUBBOCK,'TX 79457 SHIP TO: BY Page - 1 Date - 01/30/2013 Order Number 31013526 000 OP Branch/Plant 3526 CITY OF LUBBOCK FLEET SERVICES 204 MUNICIPAL DRIVE LUBBOCK Texas 79404 Ordered 01/11/2013 Freight Requested 06/14/2013 Taken By Delivery REQ 40676 M 'TREVINO ITB 13-11009-RH Description/Supplier Item Ordered Unit Cost UM 2013 Chevrolet Express 2500 1.000 23,754.0000 EA 12 Passenger Van Spec 412 Extension Request Date_ 23,759.00 06/14/2013 Total Order Terms NET DUE ON RECEIPT 23,759,00 'TERMS AND CONDITiONS INIPORTAN-r: READ CAREFULLY ST.INDARD TERMS AND CONDITIONS CITY OF LL:BBOCIC, TEXAS Seller and Buyer agree as follows; J. SELLER TO PACIG\GE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows la) Seller's name and address, tb) Consignee's name, address and puuchas t order or purchase release numberand the supply agreement number if applicable, (c) Container number and total number of conraincm, a g. box I of A boxes, and (J) the number of the container hearing the packing slip. Seller shall bear cost of packaging unless otherwise provided Goods shall be suitably packed to secure lowest transportation costs and to conform with requirements of common carriers and any .applicable specifications. Buyer's count or weight shell he final and conclusive on shipments not accompanied by packing lists. 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the goods under resen anon and no tender of a bill of tailing will operate as a tender of goods. 3. 'TITLE AND RISK OF LOSS. rhe title attd risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goals at the point or points of delivery, J. NO REPLACEMENT OF DEFECTIVE TENDER. Everytender of delivery of goods must fully comply with all provisions of this contract as to time of delivery, quality and the like. IT, tender is made which Joel not fully conform, this shall constitute a breach ami Seller shall not have the right to substitute a conforming tender, provided, where the rime 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 h PAYMENTS. a. Seller shall submit separate invoices, in duplicate, one each purchaser 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 bili of lading, and the freight waybill when applicable, should be attached to the invoice, Mail To: Accounts Payable, City of Lubbock, P. 0, Box 2000, Lubbock., "Texas 7W57. Payment shall not be due until the above instruments arta submitted after delivery. 6. GRATUITIES. The Buyer may, try written notice to the Seller, cancel this contract without liability to Seiler if it is determined by Buyer that gratuities, in the form of cntasairttrtent, gills err 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 doerminauons with respect to the performing of such a contract. In the event this contrary is canceled by Buyer pursuant to this provision,.. Buyer shall be entitled, in addition to any other rights and rense Ica, 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 leer equipment fabricated or required by Seiler 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 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 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 breech or Seller's actual expense, b. fhe Seller warrants that no person err selling agency has been employed or rcrained to solicit or secure this contract upon ars agrcerrratt or understanding for vrommrssioq percentage, brokerage, or contingent Tae excepting bona ride employees of bona ride established camtiacial of sailing agencies maintained try the Seller For the purpose of securing business. For breach of siccation of this warranty the Buyer shall have the right in addition to any other no of rights to cancel this contract without liability and to deduct from the contract price, or r,therwise recover without liability and to deduct from rhe contract price, or otherwise recover the full amount crutch commission, percentage, brokerage or comingent I'm 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. Selterwarrants that the goods famished will conforn to the specilicnion, drawings, and descriptions listed in the bid invitation, and to the imnpets) furnished by the Seller, if any, In the event of a conflict OF between the specifications, drawings, and descriptions, the specifications shall gmem Notwithstanding .try provimons conrainet in the cauractuat .agreement, the Seller represents ark! warrants fault -free perfumance and fault -free result in the processing date and date related data (including, but not limited to calculating, comparing and sequencing) of all hudwwa, software and firmware products delivered and services provided under this Contract, individually err in combination, as the case may be from the elfeelive date of this Contract. The obligations contained herein apply to products and services provided by the Seller, its sub. Seiler or arty 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, bul nor limited to, its right pertaining to larronarion or default. The nvaranries contained herein are separate and discroic from any ether warranties vpecifidxl in this Contract, and are not subject to any disclaimer of warranty, implied or cxprcssed, or limufahon of the Sellers liability which may be specified in [his 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 Libor amender the Occupational Safety and Health Ad of 1970. In the event the prri 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 trake the appropriate correction within a reasonable time, correction made by Buyer will be at the Seller's expense. 11. NO WARRANTY BY BUY FR AGAINST INFRINGEMENTS. As part of this contract for sale Seller :igran to ascertain whether gone manufactured in accordance with the specifications .utached to this agreemr rd will giver 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 rix to such a claim, and in no event shall Buyer be liable to Seller for indemnification in the event that Seller issued on the grounds of infringement of the like. If Seller is of the opinion that an infringennent or the like will result, be will notify the Buyer to this effect in writing within two weeks aper the signing of this agreement. If nuyer does not receive notice and is subsequently held liable for the infringement or the like, Seller will save Buyer homiest. tri 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 Than. 13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of the undelivered porion of this order if Seller breaches any of the terms hereof including warranties of Seller or if the Seller becomes insolvent or coimnits acts of bankruptcy. Such ribht of cancellation is in addition to arid not in lieu of any other remedies which Buyer may hava in law cc equity. 11, TERMINATION. lite performance ofworlc under lhis order maybe tarnmated in whole, Orin pan by the Buyer in accordance with this provision. Termination of work hereunder shalt 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. 15. FORCE MAJEURE. Neither party shall be held responsible for 105s9, resulting if the fulillinett of any tomo of provisions of this contract is delayed or presented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasenabte diligence said patty is unable to prevent. 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned or delegation of any obligation nude by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Seller shall be wholly void and totally inelrective for all purpose unless snook in conformity with this paragraph. L7. 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 m right unless the waiver or renunciation is supposed by consideration and is in writing signed by the aggrieved party. 19. INTFRPRETATION-PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement Tot bids, and any other documents provided by Seller art part of his bid, is intended by the parties as a final expression of their agreartent 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 Corte is to control. 19. APPLICABLE LAW, This agreanent shalt 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 Cale 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. '_.I, INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its iccnts, officials and emplayees, against all injuria, deaths, toss, damages, claims, Anent claims, suits6 liabilities, judgments, costs and expenses, which may in anywise accrue .igainst the Bu)cr in consequence of the granting of this Contract or which may anywise result therefrom, whciltcr or not it shall be alleged or determined that the act was cooed through negligence or ornission of the Seiler or its ernployees, or of the subSct tet cc assignee or its enplo)w4, if any, and the Seller shall, at his awn expense, appear, defend and pay all charges of Attomrys and all casts and other expenses arising therefrom of incurred in connection the"ilh. and, if any judgment shall be tendered against the Buyer in any such action, the Seller shall, at its own expanses. satisfy and discharge the Sarna Seller expressly understands and agrees that any bond tegtured by this contract, or otherwise provided by Seller, stall in no way limit the responsibility w indemnify, keep and save harmless and defend the Buyeras herein provided t1. 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 tenet the time ipecrlicatiom of this agreement w ill cause Seller to be in default of lhis agreement. 23. MBE. The City of Lubbock hereby notifies all bidden that in regard to any contract entered into pursuant to this request, mtinatrity and womm business enterprises will he afforded vgnwl opportunilics to submit bids in response to this invitation arms will not be discriminated against on the gmunds of race, color, sex or natural origin in consideration for an away 1. 24. NON -ARBITRATION, The City reserves the right to exercise any right or remedy as ailable to it by law, contract, equity, or otherwise, including without timitalion, the right to seek any :and all renins of relief in a court of competent jurisdiction. Further, the City shall not he subject to any arbitration procea prior to exercising its unrestricted right to seek judicial remedy. The ranedles set forth herein arc ctenulatite and nor exclusive, and may be exacts ct cnncurrenrly.. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. 25. RiGHT rO AUDIT. At arty time during the term of the contract, or thereafter, the City, or a duly authorized audit representative of the City or the State of rexan, at its expense and it reasonable rimes, reserves The right to audit Contractor's records and books relevant to all services provided to the City under this Contract. In the n crit such an audit by the City reveals any errors or overpayments by the City, Contractor shall refund The City the full amount of such merpayrrtents within thirty (10) days or such audit findings, or the City, at its option, reserves the right to deduct such amounts owing the City from any payments dire Contractor. Rev. 0212012 Resolution No. 2012—R©451 November 29, 2012 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 is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Purchase Order No. 31012866 for the purchase of light duty vans as per ITB 13-11009-RH, by and between the City of Lubbock and Randall Reed's Prestige Ford of Garland, Texas, and related documents. Said Purchase Order is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on November 29, 2012 f ATTEST: . 3�c Rebe ca Garza, City Secr r}' APPROVED AS TO Scott Snider, Assistant City Manager Community Services APPROVE AS O FORM: , Chad Weaver, Assistant City Attorney vwxcdocs/RES.Randall Reed's-Purchase0rd November 12, 2012 Resolution N0. 2012—RO451 t city of bokYE TO: PURCHASE ORDER RANDALL REED'S PRESTIGE FORD 3601 S. SHILOH ROAD GARLAND Texas 75044 INVOICE TO: CITY OF LUBBOCK ACCOUNTSPAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 SHIP TO: Page - I Date - 11/13/2012 Order Number 31012866 000 OP Branch/Plant 3526 CITY OF LUBBOCK FLEET SERVICES 204 MUNICIPAL DRIVE LUBBOCK Texas 79404 Ordered 11/12/2012 Freight Requested 02/15/2013 Taken By Delivery REQ 40676 M TREVINO ITB 13-11009-RH Description/Supplier Item Ordered Unit Cost UM 2013 Ford E-350 Passenger Van 1.000 2.1,650.0000 EA Spec 412 2013 Ford E-150 Cargo Van 1.000 17,572.0000 EA Spec 409 2013 Ford E-150 Cargo Van 1.000 17,572.0000 EA Spec 409 Terms NET DUE ON RECEIPT R HOLDER . Extension Request Date 21,650.00 02/15/2013 Total Order 17,572.00 02/15/2013 17,572.00 02/15/2013 56„794.00 This purchase order encumbers funds in the amount of $56,794.00 for the purchase of three vans awarded on November 29, 2012, to Randall Reed's Prestige Ford, of Garland, Texas in accordance with Randall Reed's Prestige Ford's response to ITB# 13-11009-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# 13-11009-RH. Resolution#-2Pl�-T2D4s t. CITY OF LUBBOCK ATTEST: Re ecca Garza, City etre ry 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 l of 4 boxes, and (d) the number of the container bearing the packing slip. Seller shall bear cast 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 frilly comply with all provisions of this contract as to time of delivery, quality and the like. Ira lender 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 instruments 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. g. 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 employedor 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 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 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) furnished by the Seller, if any. In the event of a conflict or between the specifications, drawings, and descriptions, the specifications shall govern. Notwithstanding any provisions contained in the contractual agreement, the Seller represents and warrants fault -free performance and famdk-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 Contract. The obligations contained herein apply to products and services provided by the Seller, its sub. Seller or any third patty 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. Depautrnent 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 goads 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 maybe 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 ternvnated and the date uponwhich 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 delegatimn 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 inwriting 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 their 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 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 of the contract. 2l. 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 allonieys 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 contact 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 thereaRer, 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