HomeMy WebLinkAboutResolution - 2009-R0145 - PO - Equipment Southwest Inc.- Packer Bodies - 04/09/2009Resolution No. 2009-RO145
April 9, 2009
Item No. 5.37
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. 345075 for the purchase of packer bodies pursuant to Buy Board Contract 280-07, by
and between the City of Lubbock and Equipment Southwest Inc. of Irving, Texas, and
related documents. Said Purchase Order Contract No. 345075 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 , 2009.
TOM MARTIN, MAYOR
ATTEST:
Q6 -0 110 -114 -.1 "4-1 CD7\ /�-
Rebe ca Garza, City Secretary
APPROVED AS TO CONTENT:
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Mark earw d, Ass tant City Manager
Chief lhformation Officer
APPROVED AS TO FORM:
Chad Weaver, Assistant City Attorney
vw/ccdoes/Chad kesolutions/RES.Equipment Southwest Inc.-PurchaseOrd
March 26, 2009
To:
� Y O
1 f I
U R C H A S E ORDER
EQUIPMENT SOUTHWEST INC
425 S LOOP 12
IRVING TX 75060
Page - 1
Date 3/26/09
Order No. - 345075 000 OP
Brn/Plt 3511
SHIP T0:
CITY OF LUBBOCK
FLEET SERVICES
204 MUNICIPAL DRIVE
LUBBOCK TX 79404
INVOICE TO: CITY OF LUBBOCK
ACCOUNTSPAYABLE
P.O. BOX 2000
LUBBOCK, TX 79457 BY:
iz—Lok�Qd� -
Ordered - 03/25/09 Freight - FOB Destination Frt Prepaid
Requested 04/09/09 Taken By - FELIX ORTA
Delivery PER T. GUZMAN REQ# 32052 BUYBOARD CONTRACT 280-07
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Description / Supplier Ite
29 CUBIC YARD LEFT HAND
PACKER BODY SPEC# 801 -LH
29 CUBIC YARD RIGHT HAND
PACKER BODY SPEC# 801-RH
BUYBOARD ADMIN FEE
Ordered
UM
Unit Cost
UM
16.000
EA
77,008.6000
EA
2.000
EA
77,008.6000
EA
1.000 EA 400.0000 EA
Extension Req. Dt
-------------------- -
1,232,137.60 08/07/09
154,017.20 08/07/09
400.00 08/07/09
This purchase order encumbers funds in the amount of $1,386,554.80, awarded on April 9, 2009, to Equipment
Southwest incorporated of Irving, Texas. The following is incorporated into and made part of this purchase order
by reference: Price Quotation dated February 10, 2009, from Equipment Southwest Incorporated of Irving, Texas
and BuyBoard Contract 280-07. Resolution# 2009-80145
CITY OF LUBBOCK ATTEST:
Torn Martin, Mayor Reb0ca Garza, City Secretary
Total Order
-------------------------------------------------------------------------------------
Terms NET 30 1,386,554.80
TERMS AND CONDITIONS
IMPORTANT: READ CAREFULLY
STANDARD TERMS AND CONDITIONS
CITY OF LUBBOCK, TEXAS
Seiler and Buyer agree as follows:
1 SELLER TO PACKAGE GOODS Seller will package goods in accordance with good
commercmal practice. Each shipping container shall be clearly arid perinmently marked as
follows (al Seller's name and address, (b) Consignee's cisme, address and purchase order or
purchase release number and the supply agreement number if applicable, Ic) Container number
and local number of containers, e.g. box I of a boxes, and (d) the number of the container
hearing the packing slip. Seller shall bear coal of packaging unless otherwise provided. Goads
shall be suitably packed to secure lowest transportation costs and to conform with requirements
of common carvers and any applicable specifications, Buyer's count or weight shall be final
and conclusive on shipments not accompanied by packing lists.
2. SHIPMENT CINDER 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 receivesand 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 ofth is contract as to lime of dclivery. quahry 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 cnrnfanning 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 R 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 m 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, Maul To.-. Accounts
Payable, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457, Payment shall not bedue
until the above instruments are submitted atter delivery,
6. GRATUITIES. The Buyer may, by written notice to the Seller, cancel this correct without
liability to Seller if it is determined by Buyer that gratuities, in the form of enle"wriert- gifts
or otherwise, were offered or given by the Seller, or any agent or representative of the Seller, to
any officer or employes of the City of Lubbock with a view to securing a contract or secure ng
favorable treatment with respect to the awarding or amending, or the making of arty
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 acrd remedies, to recover or withhold the amount of the coat 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 m required by Seller for the
purpose of fi Ihng. this order, such special tooling equipment and any process sheets related
thereto shall become the property of the Buyer and to time extent feasible shall be identified by
the Seller as such.
8 WARRANTY -PRICE.
a. The pnce 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 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 vncauon of this warranty the Buyer shall have the right inaddition to any Other
right of rights to cancel this contract without liability and to deduct from the contract price, m
otherwise recover without liability and to deduct from the contract puce, or otherwise recover
the full amount of such commission, percentage, brokerage or contingent fee.
q. 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 fumshed will conform to the specification,drawings, and descriptions listed in
the bid invitation, and to the samplNs) famished 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 fault -Free result in the processing date and date related
data I including, but not limited to calculating, comparing and sequixui gl 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 bate of this Contract.
Also, the Seller warrants the year2000 calculations will be recognized and accommodated and
Atli not, in any way, result in hardware, software or firmware failure The City of Lubbock, at
its sole option, may require the Seiler, a airy time, to demonstrate the procedures it intends to
follow in order to comply with all the obligations contained herein. 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 deliveredto the City
of Lubbock under this Contract. Failure to comply with arty of the obligations contained
herein, may result in the City of Lubbock availing itself of airy 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 dncumem 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 or replacement at the Seller's expense. In the event Seller
fails to make the appropnate correction within a reasonable time, correction made by Buyer
will be at the Seller's expense.
I I NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of thus contract for
sale Seller agrees to ascertain whether goods manufactured in acomdarm with the
specifications attached to this agreement will give rise to the rightful claim of arty third person
by way of infringement of the like. Buyer makes no warranty that the production of goods
according to the specificalton will not give rise to such a ciatm, and in no event shall Buyer be
liable to Seller for indemnification in the event that Seller is sued on the grounds of
snfringement ofthe like If Seller is of the opinion that an infringemem or the like will result,
he wslI notify the Buyer to this effect in writing within two weeksafter the signing of this
agreement. If Buyer does not receive notice and is subsequently held liable fir 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 speci fications 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 am• part of the
undelivered portion of this order if Seller breaches arty of the terms hereof including warranties
of Seller or if the Seller becomes insolvent or commits acs 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 may be 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 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 biomes effective. Such nght or termination is in addition to and not in lieu of the
fights of Buyer set forth in Clause 13, herein.
15. FORCE MAJEURE. Neither parry shall be held responsible for lasses, resulting if the
fulfillment of any terns 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 di Iigence said party is unable to prevent.
16. ASS[GNMENT•DELEGATION. No right or interest in this contract shall be assigned or
delegation army obligation made by Seller without the wntten 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 nght unless the waiver or renunciation is
supported by consideration and us 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 orbits bid, is intended by the parties ns a final expression of their
agreement and intended also as a complete and exclusive statement of the terms of their
agreement. W henever 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 tens "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 ihat a demand ismade 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, is agents,
officials and employees, against all injuries, deaths, loss, damages, claims, patent claums, suits,
liabilities, judgments, costs and expenses, which may in amAlm 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 aatomeys and all toss
and other expenses arising therefrom of incurred in connection therewith, and, ifam judgment
shall be rendered against the Buyer in any such action, the Seller Mall, at its own expenses,
satisfy and discharge the same Seller expressly understands and agrees that try bond required
by this contract, or otherwise pronded by Seller, shall in no way limit the responsibility to
indemnify, keep and save harmless and defend the Buyer as heroin 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 thts
agreement wi 11 cause Seller to be in default of this agreement.
23. MBE. The City of Lubbock hereby notifies all bidders that in regard to any contract entered
into pursuant to this request, minaMy 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,
Rev, 08/2005