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HomeMy WebLinkAboutResolution - 2009-R0236 - PO - Professional Turf Products - Material Handler - 06/23/2009Resolution No. 2009—x0236 June 23, 2009 Item No. 5.6 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 No. 348635 for the purchase of a material handler pursuant to Buy Board Contract #292-08, by and between the City of Lubbock and Professional Turf Products of Dallas, 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 this ATTEST: Rebec4 Garza, City Secretary 23rd day of June , 2009. <;�44WA:Z_ TOM MARTIN, MAYOR APPROVED AS TO CONTEN Scott Snider, Assistant City Manager/Community Services APPR VE AS TO FORM: Chad Weaver, Assistant City Attorney vw/ccdocs/Chad/Resolutions/RES.-Professional Products-PurchascOrd June 11, 2009 Y II k TO: RCHASE0RDER PROFESSIONAL TURF PRODUCTS P 0 BOX 201349 DALLAS TX 75320-1349 INVOICE TO: CITU OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2000 I.I!BBO(`K, "['X 79457 Page - 1 Date 6/09/09 Order No. 348635 000 OP Brn/Plt - 3511 SHIP TO: CITY OF LUBBOCK PARKS AND RECREATION 1010 9TH STREET LUBBOCK TX 79401 BY: Vu --------------------------------------------------------------------------- Ordered 06/08/09 Freight FOB Destination Frt Prepaid Requested 06/23/09 Taken By - FELIX ORTA Delivery - PER K. KENNEDY REQ# 32877 BUYBOARD CONTRACT# 292-08 Description / Supplier Ite MH-400EH2 Base Top Dresser Twin Spinner EH Cross Conveyor Swivel Kit PTO Hydraulic Power Pack Light Kit Set up MH-400EH2 Delivery to Euless from Factory Freight to Lubbock Ordered UM Unit Cost UM Extension 1.000 EA 23,030.0000 EA 23,030.00 1.000 EA 3,290.0000 EA 3,290.00 1.000 EA 3,350.0000 EA 3,350.00 1.000 EA 1,890.0000 EA 1.,890.00 1.000 EA 3,820.0000 EA 3,820.00 1.000 EA 350.0000 EA 350.00 1.000 EA 350.0000 EA 350.00 1.000 EA 998.0000 EA 998.00 1.000 EA 652.0000 EA 652.00 Req. Dt 07/16/09 07/16/09 07/16/09 07/16/09 07/16/09 07/16/09 07/16/09 07/16/09 07/16/09 This purchase order encumbers funds in the amount of $37,730, awarded on June 23, 2009, to Professional Turf Products of Dallas, Texas. The following is incorporated into and made part of this purchase order by reference: Price Quotation dated June 3, 2009, from Professional Turf Products of Dallas, Texas and BuyBoard Contract 292-08. Resolution# 2009-R0236 CITY OF LUBBOCK Tom Martin, Mayor ATTEST: 'D "0" -9 - C�� — Re b -V a Garza, City Sec re ary Total Order ------------------------------------------------- Terms NET 30 37,730.00 TERiNS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: I SELLER TO PACKAGE GOODS. Seller will package }foods in accordance wnh good commercial practice. Each shipping container shall he clearly and permanently marked as Follows Ia) Seller's name and address, (b) C'onsignee'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. a g- box I of 4 Imes, and (d) the number of the container beanng the packing slip Seller shall bear cost of packaging unless otherwise provided. Goads shall be suitably packed to secure lowest transportation costs and to conform with requirements of commun tamers and any applicable specifications. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is nut 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 IHSS The title and nsk of loss of the goods shall not pass to Buyer until Buyer actually recen es and lakes possession of the goods at the point or prints of delivery 4. NO RFPLACEMEN'T OF DEFECTIVE TENDER. Every tender of delivery, of gcols most fully comply with all provisions of this contract as to time ofdeltvery, quality and the like. I f 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 lender, pmvrded, where the time for perfimn.ance has not yet expired the Seller may reasonably notify Buyer of his intention to cure and may then make a conforming tender vvnhm dee contract tune but not afterward. 5 INVOICES & PAYMENTS. a. Seller shall submit separate invoices, in duplicate, (me 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. ifany, shall he listed separately. A copy of the hill of lading, and the freight waybill when applicable, should be nttached to the invoice. Mail To Accounts Payable, City of Lubbock, P D Box 2000. Lubbock, Texas 74457 Payment shall net he due until the above instruments me 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 ofentertamment,gifts or otherwise, were offered or given by the Seller.. or any agent or representative of the Seller, to any officer or employee ofthe City of Lubbock with a view to securing a contract or securing favorable treatment with respect to the awarding or amending, or the making irony 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 hen,ar includes the cast of any special tooling or special test equipment fabricated or required by Seller for the purpose of Filling this order, suchspecial tooling equipment and any process sheets related thereto shat I became the property of the Buyer and to the extent feasible shall be idents fled by the Seller as such. 8. WARRANTY -PRICE, a, The price to be paid by the Buyer shall he that contained in Seller's bid which Seller warrants to be no higher than Seller's current pieces on orders by others for products of the kind and specification covered by this agreement for similar quantities under similar of like nindition, and methods of purchase In the event Seller breaches this warranty, the pricy; itf the nems shall be reduced to the Seller's current paces on orders by others. or in the alternatn'e- Buyer may cancel this contract without liability to Seller for hreach or Seller's actual expense b. The Seller warrants that no person or selling agency has been employed or retainedto solicit or secure this contract upon an agreement or understanding for commission, percentage, brokerage, or contingent fee excepting bona ride employees of bona fide established commercial or selling agencies maintained by the Seller For the purpose of securing business. Far breach of yiciatio t ofthis warranty the Buyer shall have the right in addition to any other right of rights to cancel this contract wmhort Lability 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. `) WARRANTY -PRODUCT Seller shall not limn or exclude awry implied wanannes and any attempt to do so shall render this connect voidable ai the option of the Buyer Seller warrants that the goods furnished will conform to the specification, drawings, and descriptions listed in the bid mvrtation, and to the sample(s) fumished by the Seller. if any In the event of a conflict ur between the speciicationdrawings, and descriptions. the specifications shall govern. '`ohvnhstandmg 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) nrall hardware. software and tinware products delivered and services provided under this Contract, individually or in combination, as the case may be from the effective date of this Contract ilw, the Seller warrants the veardnOR calculation, will he recognized and accommodated and will not, in any way, result in hardware. saliware or firmware failure. The City of Lubbock, at its sole option, may require the Seller, at arc 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 sitb-Scller 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 arty of the obligations contacted herein• may result in the City of Lubbock availing itself of any of its rights under the law and under this Curtracl 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 to this Contract, and are not subpect to any disclaimer of warranrv. implied of expressed, or fimaatnon of the Seller's liability which may be specified in this Contract. its appendices. its schedules, its annexes or anv document mcarporated in this Contract by reference. 10 SAFETY WCARRANTY. Seller warrants that the product sold to the Buyer shall conform to the standards promulgated by the U S Department of Labor under the Ocaupataonal Safety and Health Act of 1474, In the event the product does not conform to OSHA standards, Buyer may return the product fix corection or replacement at the Seller's expense. In the even) 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 pan of this contract for sale Sel ler 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 goals according to the specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for indemnification to 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 in this effect in writing within two weeks after the signing ofthrs 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 specdications will result in infringement or the like, the contract shall be null and void. IZ RIGHT OF INSPECTION. Buyer shall have the night 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 ofihe terms hereof including warantres of Seller or ifthe 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 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 ofvwrk under the order is terminated and the date upon which such termination becomes effective. Such right or termination is in addition to and no in lieu of the rights of Buyer set forth to Clause 13, herein.. 13. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting ifthe 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 reasonabie diligence said party is unable to prevent. 16. ASSIGNMENT -DELEGATION. No nght or interest in this contract shall beassigned or delegation army obligation made by Seller without the written permission orthe 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 ofthrs contract can be discharged in whole win part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in wast ng signed by the aggrieved party. I8. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advertisement for bods, and any other documents provided by Seller as pan of his bid, is intended by the parties as a final expression of their agreement and intended also as a complete and exclusive statement of the terms of their agreement. Whenever a term 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 govemed by the Uniform Commercial Code. Where ever the term "Uniform Commercial Code' is used it shall be construed as mewing the Uniform Commercial Code as adopted in the State of Texas as effective and in Force on the date of this agreement. „0. RIGHT TO ASSURANCE. Whenever one party to this contract in gond faith has reason to question the other party's intent to perform he may demand that the other party give written assurance of his intern io perform. In the event that a demand is made and nes assurance is given within live I51 clays, 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 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. is employees, or of the subSel ler or assignee or its employees, if any, and the Seller shall., at his own expense, appear, defend and pay all charges of attomevs and all costs and other expenses arising therefrom of inured in connection therewith, orad, rf any Judument ,hall he rendered against the Buyer 6n any such action, the Seller shall, at its own expenae3. satisfy and discharge the same Seller cxpressly understands and agrees that any bund required by this contract, or otherwise provided by Seller, ;hall in nri way limit the responsibil tty iu rndemnifv. keep and save harmless and defend the Buyer as herein provided 22. T14IF It is hereby expressly agreed and understood that time is ofille essence for the perfnnance ofthrs contract. and failure by contract to meet the time specifications of this agreement will cause Seller to he in default of this agreement 23 MBE The City of Lubbock hereby notifies all bidders that in regard to any civalao enierod into pursuant to this request, rnmonty 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, seg or natural origin in consideration for an award Rev. 08/2005 PROFESSIONAL I, '1 1 , N 11 n i i i, To: City of Lubbock Parks Dept Attn: Randy Truesdell 1625 13th Street Lubbock, Texas 79401 Resolution No. 2009-RO236 PROFESSIONAL TURF PRODUCTS 1010 N. Industrial Blvd. Euless, Texas 76039 Tel: 817-785-1900 / 888 -PRO- TURF Fax: 817-785-1901 Brian Noel, Account Executive Ext 5438 Email: noelb@proturtcom Web: www.proturf.com Buyboard Contract # 292-08 PRICE QUOTE Date 6/3/2009 Description 0000-7020 MH-400EH2 Base Model c/w 2 Wheel $23,030 $23,030.00 Brakes and option caddy Multifunctional low impact work trailer with 2 wheel electric brakes (Electronic Hydraulics) 0000-6881 Twin Spinner EH - this is new stock code $3,290 $3,290.00 for the EH version Flow control not required. Twin Spinner connects at the back of the MH -400. Twin Spinner can be used for a variety of spreading applications. 0000-2120 Cross Conveyor $3,350 $3,350.00 Cross Conveyor connects at the back of the MH -400. Cross Conveyor can be used for conveying materials to the right or left. 0000-2118 Swivel Kit $1,890 $1,890.00 Swivel Kit works with the Cross Conveyor and assists the Cross Conveyor in conveying materials in all directions. 0000-2121 PTO Hydraulic Power Pack $3,820 $3,820.00 PTO powered hydraulic pump and reservoir from PTO tractor. 0000-2126 Light Kit $350 $350.00 Marker lights for night visibility. Setup MH 400EH2 from factory $350 $350.00 Delivery to Euless location from factory 998 $998.00 Freight to Lubbock 652 $652.00 Notes: Prices quoted are for 30 days Subtotal 37,730.00 Prices quoted are without sales tax Total 37,730.00 Prepared By Brian Noel T0: U R C H A S E 0 R D E R PROFESSIONAL TURF PRODUCTS P 0 BOX 201349 DALLAS TX 75320-1349 Page 1 Date 7/14/09 Order No. - 348635 000 OP Brn/Plt - 3511 SHIP T0: CITY OF LUBBOCK PARKS AND RECREATION 1010 9TH STREET LUBBOCK TX 79401 ``VVO[CE TO: C[TV OF LUBBOCK ACCOUNTS PAVABLE t P.O. BOX 2000 Ll BBOCK. "TX 79457 BY: Ordered - 06/08/09 Freight - FOB Destination Frt Prepaid Requested 06/23/09 Taken By - FELIX ORTA Delivery PER K. KENNEDY REQ# 32877 BUYBOARD CONTRACT# 292-08 -------------------------------------------------------------------------------------- REVISED/CORRECTED PURCHASE ORDER Description / Supplier Ite MH-400EH2 Base Top Dresser Twin Spinner EH Cross Conveyor Swivel Kit Light Kit Set up MH-400EH2 Delivery to Euless from Factory Freight to Lubbock Ordered UM Unit Cost UM Extension Req. Dt ----------- 1.000 -- EA ----------- 23,030.0000 -- ------------ EA 23,030.00 -------- 07/16/09 1.000 EA 3,290.0000 EA 3,290.00 07/16/09 1.000 EA 3,350.0000 EA 3,350.00 07/16/09 1.000 EA 1,890.0000 EA 1,890.00 07/16/09 1.000 EA 350.0000 EA 350.00 07/16/09 1.000 EA 350.0000 EA 350.00 07/16/09 1.000 EA 998.0000 EA 998.00 07/16/09 1.000 EA 652.0000 EA 652.00 07/16/09 This purchase order encumbers funds in the amount of $33,910, awarded on June 23, 2009, to Professional Turf Products of Dallas, Texas. The following is incorporated into and made part of this purchase order by reference: Price Quotation dated June 3, 2009, from Professional Turf Products of Dallas, Texas and BuyBoard Contract 292-08. Resolution# 2009-RO236. CITY OFOF7LUBBOCK To Martin, Mayor ATTEST: Re—bea Garza, City Secretary Total Order - ------ Terms NET 30 33,910.00 TERM'S AND CONDITIONS IMPORTANT. READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seiler and Buyer agree as follows: 1. SELLER l'O PACKAGE GOODS, Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows lal Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Container number and total number of containers, e.g.. box I ofd boxes, and (d) the number of the container bean ng. the packing slip. Seller shall bear coat of packaging unless otherwise pto"cled. Goods shall be suitably parked to secure lowest transportation costs and to conform with requirements of common canters and any applicable specifications. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 2. SHIPSIE.NT I:,DER RFSERVATION PROHIBITED. Seller is not authorized to ship the goods under rescnavon and no lender of a bill of lading will operate as a tender ot'goods. 3. TITLE AND RISK OF LOSS. The title and risk of lossof 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. E% cry tender of delivery ofgoods must fully comply with all provisions of this contract as to time of dehvery, quality and the like. Ira tender is made which does not rully conform, this shall constitute a breach and Seller shall not have the right to substitute a conforming tender- provided, where the lime fix performance lista not yet expired, the Seller may reasonably notify Buyer of his mientiort to cure and may Awn make a conforming tender within the contract time but not aflerward. 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. Invarces 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 artached to the invoice. Mail To; Accounts Payable, City of Lubbock- P. O. Box 2000, Lubbock. Texas 79457. Payment shall not he 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 fr [ling 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 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 ofthe kind and specification covered by this agreement for similar quantities understmilar of like conditions anJ methods orpurchme. In the event Setter breaches this warranty, the prices of the items shall be reduced to the Seller's current prices on ordersby 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 persnn nr selling agency has been emploved 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 tide established commercial or selling agencies maintained by the Seller for the purpose of securing business. For breach of viciatwn ofthis warranty the Buyer shall have the right in addition to any other right of rights W 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 ur contingent fee. 9 WARRANTY -PRODUCT Seller shall not limit or exclude any implied warranties and am 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 anyin the event of a conflict or between the specifications, dravvings, and descriptions, the specifications shall govern. Nonvi thsiandmg any prov',sions 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 sequencing) of all hardware, software and Iirmware products delivered and services provided under this Contract, indwrdually or in combination, as the case may be from the effective date ofthis Contract. .also, the Seller warrants the year2000 calculations wttl be recognized and eccammcilated and will rust, in any way, result in hardware, software or firmware failure The City of Lubbock, at its sole option, may require the Seller at any time, to demonstrate the procedures it intends to fuhuw ,n order to comply with all the obligations comamed herein The obligations contained herem apply to products and services provided by the Seller. its sub -Seller or arty third party involved in the creation or development of the products and services to be delivered to the City of Lubhock under this Contract. Failure to comply with any of the obligations contained herein, may result in the City of Lubbock availing itself ufany of its nights under the law and under this Contract including, but not limned 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 hnntmton of the Seller's liability which may he 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 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 he at the Seller's expense. 11, NO WARR:\'VTY 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 nye to the rightful claim of any third person by way of mfnngemment of the like. Buyer makes no warranty that the production of gcods according to the specification will not give rise to such a claim, and in no event shall Buyer be liable to Seller for indemnification to 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 lake will result, he will notify the Buyer to this effect in writing within two weeks after the signing ofthis 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 goads 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 at l or any part of the undelivered portion ofthis order irSeller 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 TERtvt [NATION. The performance of work under this order maybe terminated in whole. Orin pan by the Buyer in accordance with this provision. Termination of work hereunder shall be of ecicd 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 temminatimt is in addition to and not in lieu of the rights of Buyer set forth in Clause 13, herein. 15 FORCE M.AJEURF. Neither patty shall be held responsible for losses, resulting if the fulfillment of any terms of provisions ofthis 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 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, IS 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 Cade. 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 flus agreement. 20 RIGHT TO ASSURANCE. Whenever one party to this contract an gond faith has reason to question the other party's intent to perform he may demand that the other parry give written assurance of his intent io perform. in the event that a demand is made and no assurance rs given vothin 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 Buycr, Its agents, Officials and employees, against all injuries, deaths. loss, damages_ claims. patent claims, suits. habdines,judgments, costs and expenses, which may in anywise accrue against the Buyer in consequence of the granting ofthis 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 anv. and the Set ler shall, at his own expense, appear, defend and pay all charges of attorneys and all costs and other expensesarising therefrom of incurred in connection therewith, and, ifany judgment shall he rendered against the Buyer in any such action, the Seller shall, at its own expenses. satisfv and discharge the same Set ler expressly understands and agrees that any bond required by this contract, or otherwise prosid'ed by Sel ler, shall in no way Iron the responsibility to Indemnify, keep and save harmless and defend the Buyer as herein provided. 2?. 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 queement 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 contract entered into pursuant to this request. minority and women business enterprises will be afforded equal opportunities to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, sex or natural origin in consideration for an award.. Rev, 08/2005