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HomeMy WebLinkAboutResolution - 2009-R0144 - PO - Kinloch Equipment & Supply Inc.- Broom Sweeper - 04/09/2009Resolution No. 2009—x0144 April 9, 2009 Item No_ 5.36 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Purchase Order Contract No. 345114 for the purchase of a broom sweeper pursuant to Buy Board Contract 271- 07, by and between the City of Lubbock and Kinloch Equipment & Supply Inc. of Arlington, Texas, and related documents. Said Purchase Order Contract No. 345114 is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 9th day of April , 2409. %gym 1 g;47 TOM MARTIN, MAYOR ATTEST: Rebe ca Garza, City Secretary APPROVED AS TO CONTENT: MarA Yelra4od,XAistant City Manager Chief Information Officer APPROVED AS TO FORM: 6; r 4u—, Chad Weaver, Assistant City Attorney vw/cedoes/Chad/Resolutions/RES.Kinloch Equipment & Supply Inc.-PurchascOrd March 26, 2009 � +Eito URCHASE ORDER TO: KINLOCH EQUIPMENT & SUPPLY INC 763 109tH St. ARLINGTON TX 76011 Page - 1 Date 3/26/09 Order No. - 345114 000 OP Brn/Plt 3511 SHIP T0: CITY OF LUBBOCK FLEET SERVICES 2.04 MUNICIPAL DRIVE LUBBOCK TK 79404 INVOICE TO: CITN' OF LUBBOCK ACCOUNTSPAVABLE P.O. BOX 2000 LUBBOCK. TX 79457 BY: -------------------------------------------------------- V ------------------ -------- Ordered 03/26/09 Freight FOB Destination Frt Prepaid Requested - 04/09/09 Taken By FELIX ORTA Delivery - PER T. GUZMAN REQ# 32026 BUYBOARD CONTRACT# 271-07 Description / Supplier Ite ---------------------------- ELGIN EAGLE F MECHANICAL BROOM SWEEPER SPEC# 799-1 Ordered UM Unit Cost UM Extension Req. Dt ---- 1.000 EA 182,482.0000 EA 182,482.00 06/16/09 This purchase order encumbers funds in the amount of $182,482, awarded on April 9, 2009, to Kinloch Equipment & Supply Incorporated of Arlington, Texas. The following is incorporated into and made part of this purchase order by reference: Price Quotation dated February 2$, 2009, from Kinloch Equipment & Supply Incorporated of Arlington, Texas and BuyBoard Contract 271-07. Resolution# 7009-80144 CITY OF LUBBOCK Tom Martin, Mayor ATTEST: Rebec a Garza, City Secretary Total Order ------------------------------------------ ----- Terms NET 30 182,482.00 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. tet Cents&= number and total number of containers, a S. box I of 4 boxes, and (d) the number of the container bearing the ticking 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 camera and any applicable specifications. Buyer's count or weight shall he final and conclusive an shipments not accompanied by packing lists_ 2. SHIPMENT UNDER RESERVATION PROHIBITED, Seller is not authorized to ship the goods under reservation and no tender ofa bill of lading will operate as a tender of goods. 3. TITLE AND RISK OF LOSS_ The title and risk of law of the goods shill not pass to Buyer until Buyer actually receives and takes possession of the goods at the point or points of deli% cry. 4. NO REPLACEMENT OF DEFECTIVE TENDER. Every tender of delivery of goods must fully comply with ail 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 sat have the right to substitute a conforming tender. provided, where the lime for performance has tit yet expired, the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming Vender within the contract time but nut afterward. S INVOICES & PAYMENTS. a Seller shall submit separate invoices, in duplicate, one each purchase order or purchase release after each delivery. Invoices shell indicate the purchase order or purchase release number and the supply agreement number if applicable. Invoices shall be itemized and transportation charges, it' arty, shall be listed separately. A copy of the bill OF lading, and the freight waybill when applicable, should he attached to the invoice. Mail Toy 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 "ice 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 contmet is canceled by Buyer pursuant to this provision, Buyer shall be entitled, in adddton 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 arty special tooling or special test equipment fabricated ar 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 shal4 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 far 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, lir in the alterative. Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense. b. The Setter warrants that no person or selling agency has been employed of retained to solicit or secure this contract upon an agreement ur understanding for commission, percentage, brokerage, or contingent fee excepting hone fide employees of bona fide established commercial or selling agencies maintained by the Seller For the purpose of securing business. For breach of vicianon 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 ofsuch commission, percentage, brokerage or contingent fee. q. W.ARRA:gTY-PRODUCT. Seller shall not limit or exclude any implied warranties and any anempi to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the goads furnished will conform to the specification, drawtngs, and descriptions listed in the bid invitation, and to the sample(s) furnished by the Seller, if any. In the avert ofa conflict ar 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 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 Coact, individually or in combination, as the ease may be from the effective date of this Contract. Also, the Seller warrants the year2000 calculations will he recognized and accommodated and will not, in any way, result in hardware, software or firmware failure. The City of Lubbock, at its sole option, may require the idler, at am time, to demonstrate the procedures it intends to follow in order to comply wrth all the obligations contained herein. The obligations contained herein apply to products and services provided by the Seller, is sub -Seller or any third party involved in the creation or development of the products and services to be delivered to the Cory of Lubbock miler this Contract, Failure to comply with arty of the obtigatiOnScontained herein, may result in the City of Lubbock availing itself of arty of its rights under the law and under this Contract including, but mit limited to, its right pertaining to termination or default. The warranties contained herein are separau and discrete from any other warranties specified on thus Contract, and are not subject to any disclaimer oFwarranty, implied or expressed, or limitation of the Seller's liability which may be specified on this Contract, is appendices, its schedules, its amasses 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. 5. Department of Labor under the Occupational Safety and Health Act of 1970. In the event the product does not conform to OSHA standards, Buyer may return the product for correction or replacement at the Seller's expense. In the event Seller fails to make the appropriate correction within a reasonable time, correction made by Buyer will be at the Seller's expense. 11. NO WARRANTY BY BUYER AGAINST INFRTNt ENIENTS. As part of this contract for safe Seller agrees to ascertain whether goods manufactured in accordance with the specifications attached to this agreement will give rise to the rightful claim orally, third person N way of infringement of the like. Bayer makes no warranty that the production ofgoods according to the specification will not tp ve 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 I Ike 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 issubsequently 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 remedim which Buyer may have in law or equity. 14. TERMINATION. The performance of work under this order maybe terminated in whole, min part by the Buyer in accordance with this provision. Termination of work hereunder shall be effected by the delivery of the Seller ofa "Nonce 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 losses, resulting if the fulfil Iment of arty terms of provisions of this contract is delayed or prevented by any cause not within the central of the party whose performance is interfered with, and which by the exercise of seasonable diligence saidparty is unable to prevent. 16. ASSIGNMENT -DELEGATION. No right or interest in this contract shall be assigned car delegation of any ohligation made by Seller without the written permnssian of the Buyer. Any attemptedassignment 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 ofa 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 arty specifications for bids and perforrance provided by Buyer in its advertisement for bids, and any other documents provided by Seller as part of his bid, is imended by the parties es 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, I q. APPLICABLE LAW, This agreement shall begavemed by the Uniform Commercial Cade. Where ever the term "Uniform Commercial Code" is used it shall be construed as meaning the Uniform Commercial Cade 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 gond faith has reason to question the other party's intent to perfrnm 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 15) days, the demanding party may treat this failure as an anticipatory repudiation of the contract. 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents., officials and employees, against all injuries, deaths, loss, damages, claims, patent clamps. suits, liabilities, judgments, costs and expenses, which may in amwise accrue against the Buyer in consequence of the granting of this Conlract 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 Seiler or is employees, or of the subSeller or assignee or its employees, 1f any, and the Seller shall, at his own expense, appear, defend and pay all chmges of auomeys and all costs and other expenses ansing therefrom of incurred in connection therewith, aril, if arty 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 understbrds and agrees that any bond required by this contract, or otherwise provided by Seller, shall in no way limn 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 rim& the time speciftcattors of this agreement will cause Seller to be in default of this agrcemem 23. MBE. The City of Lubbock hereby notifies all bidders that in regard to any contract entered into pursuant to this request, nammity and women business enterprises will he 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. Rev. 08/2005