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HomeMy WebLinkAboutResolution - 2008-R0019 - PO - Exerplay Inc.- Playground Equipment - 01/10/2008Resolution No. 2008-R0019 January 10, 2008 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 is hereby authorized and directed to execute a Purchase Order Contract and any associated documents with Exerplay, Inc., of Cedar Crest, New Mexico, for purchase of playground equipment as per Buy Board Contract #204-04, which Purchase Order Contract and any associated documents are attached hereto as Exhibit A and made a part hereof for all intents and purposes. Passed by the City Council this 10th day of January , 2008. DAVID A. MILLER, MAYOR ATTEST: Garza, City Secretary APPROVED AS TO CO NT: Scott Snider Assistant City Manager/Director of Community Services APPROVED AS FORM: Vandi er, ttomey o Counsel D Dres/Exerplay-ParksPOcon08 Res December 13, 2007 Y CITY OF LUBBOCK PURCHASE ORDER TOEXERPLAY INC PO BOX 1160 CEDAR CREST NM 87008 Page - 1 Date - 12112107 Order No. - 322487 000 OP Brn/Plt 3511 SHIP TO: CITY OF LUBBOCK PARKS & RECREATION 1212 ERSKINE LUBBOCK TX 79457 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY: --------------------------- Ordered 12112107 Freight FOB Destination Frt Prepaid Requested 02/15/08 Taken By MARTA ALVAREZ Delivery Buy Board Contract # 204-04 Contact Brett Glen Description / Supplier Ite Playground Equip. Rawlings Freight and Installation Playground Equipment Atzlan Freight and Installation Playground Equipment Guy Freight and Installation Surfacing for Rawlings, Guy and Atzlan Insured Addendum Required Buy Board Discount Ordered UM Unit Cost UM Extension ----------- ------------- -- -- 1.000 ST 63,408.0000 ST 63,408.00 1.000 ST 64,565.0000 ST 1.000 ST 72,097.0000 ST 6921.000 SF 13.5000 SF 1.000 EA 150.0000 EA 1.000 EA 11,417.5300- EA INSURANCE CERTIFICATE REOUIRFD PRIOR TO INRTAI.i,ATT0N- 64,565.00 72,097.00 93,433.50 150.00 11,417.53 - Req. Dt 02/15/08 02/15/08 02/15/08 02/15/08 02/15/08 02/15/08 Commercial General Liability, per occurrence- S 1,000,000 Automotive Liability - $500,000 / Any Auto - Combined Single Limit Workers Compensations - Statutory Amounts Employer's Liability - $500,000 and/or Occupational Medical and Disability City of Lubbock is named as primary additional insured on General Liability with a Waiver of subrogation in favor of the City of Lubbock on all coverage. I his purchase order encumbers funds in the amount 15282,235.97 for the purchase of playground equipment and resilient surfacing or new playgrounds at Rawlings, Atzlan, and Guy awarded to Exerplay Inc, of Cedar Crest New Mexico. The following are incorporated into and made part of this purchase order by reference: Price Quotation #YY120507-4 from Exerplay Inc, and Buy - Board Contract # 204-04. Resolution No: 2008-80019 Total Order ------------------------------------------------ --- Terms NET 30 282,235.97 CITYOF LUBBWk ATTEST: 01 David A. Miller, Mayor Re eca Garza. City Secreta TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS I Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good 10. SAFETY WARRANTY. Seller warrants that the product sold to the Buyer shall conform to commercial practice. Each shipping container shall be clearly and permanently marked as the standards ;promulgated by the U. S. Department of Labor under the Occupational Safety follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or and Health Act of 1970. In the event the product does not conform to OSHA standards, Buyer purchase release number and the supply agreement number if applicable, (c) Container number may return the product for correction or replacement at the Seller's expense. In the event and total number of containers, e.g. box I of 4 boxes, and (d) the number of the container Seller fails to make the appropriate correction within a reasonable time, correction made by bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods Buyer will be at the Seller's expense. shall be suitably packed to secure lowest transportation costs and to conform with 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this contract for requirements of common carriers and any applicable specifications. Buyers count or weight sale Seller agrees to ascertain whether goods manufactured in accordance with the shall be final and conclusive on shipments not accompanied by packing lists. specifications attached to this agreement will give rise to the rightful claim of any third person 2. SHIPMENT UNDER RESERVATION PROHIBITED. Seller is not authorized to ship the byway of infringement of the like. Buyer snakes no warranty that the production of goods goods under reservation and no tender of a bill of lading will operate as a tender 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 3. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shall not pass to Buyer infringement of the like. if Seller is the opinion that infringement or the like will result until Buyer actually receives and takes possession of the goods at the point or points of w he will notify the Buyer to this effect n. writing within two weeks after the signing of this t i delivery. agreement. If Buyer does not receive notice and is subsequently held liable for the 4. NO REPLACEMENT OF DEFECTIVE TENDER Every tender of delivery of goads must infringement or the like, Seller will save Buyer harmless. If Seller in good faith ascertains the fully comply with all provisions of this contract as to time of delivery, quality and the like. If a production of the goods in accordance with the specifications will result in infringement or the lender is made which does not fully conform, this shall constitute a breach and Seller shall not like, the contract shall be null and void. have the right to substitute a conforming tender, provided, where the time for performance has l2. RIGHT OF INSPECTION. Buyer shah have the right m inspect the goods at delivery before not yet expired, the Seller may reasonably notify Buyer of his intention to cur; and may then acccepting teem. accepting make a conforming tender within the contract time but not afterward. 13. CANCELLATION. Buyer shall have the right to cancel for default all or any part of tate 5. INVOICES &PAYMENTS. a. Seller shall submit separate invoices, in duplicate, one each purchase order or purchase 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 u Such right of release after each delivery. Invoices shall indicate the purchase order or purchase release which remedies w is m addition to and not in lieu of any other rcncdics which Buyer may have in number and the supply agreement number if applicable. invoices shall be itemized and lcancellationequit law or equity. 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 14. TERMINATION. The performance of work under this order maybe terminated in whole, or in Payable, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457. Payment shall not be due part by the Buyer in accordance with this provision. Termination of work hereunder shall be until the above instruments are submitted after delivery. effected by the delivery of the Seller of a "Notice of Termination" specifying the extent to 6. GRATUITIES. The Buyer may, by written notice to the Seller, cancel this contact without 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 liability to Seller if it is determined by Buyer that gratuities, in the form of entertainment, gifts rights of Buyer set forth in Clause 13, herein. 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 15. FORCE MAJEURE. Neither party shall be held responsible for losses, resulting if the securing favorable treatment with respect to the awarding or amending, or the making of any fulfillment of any terms of provisions of this contract is delayed or prevented by any cause not determinations with respect to the performing of such a contract. In the event this contract is within die control of the party whose performance is interfered with, and which by the exercise canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other of reasonable diligence said party is unable to prevent. rights and remedies, to recover or withhold the amount of the cost incurred by Seller in 16. ASSIGNMENT -DELEGATION. No right or interes4 in this contract shall be assigned or providing such gratuities. delegation of any obligation made by Seller without the written permission of the Buyer. Any 7. SPECIAL TOOLS & TEST EQUIPMENT. If the price stated on the face hereof includes the attempted assignment or delegation by Seller shall be wholly void and totally ineffective for all cost of any special tooling or special test equipment fabricated or required by Seller for the purpose unless made in conformity with this paragraph. purpose of filling this order, such special tooling equipment and any process sheets related 17, WAIVER. No claim or right arising out of a breach of this contract can be discharged in whole thereto shall become the property of the Buyer and to the extent feasible shall be identified by or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is the Seller as such. supported by consideration and is in writing signed by the aggrieved party. g. WARRANTY -PRICE. 18. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bias and a. The price to be paid by the Buyer shall be that contained in Seller's bid which Seller performance provided by Buyer in its advertisement for bids, and any other documents warrants to be no higher than Seller's current process on orders by otters for products of the provided by Seller as part of his bid, is intended by the parties as a final expression of their kind and specification covered by this agreement for similar quantities under similar of like agreement and intended also as a complete and exclusive statement of the terms of their conditions and methods of purchase. In the event Seller breaches this warranty, the prices of agreement. Whenever a term defined by the Uniform Commercial Code is used in this the items shall be reduced to the Seller's current prices on orders by others, or in the agreement, the definition contained in the Code is to control. attemauve. Huyer may cancel this contract withon liability to Seller for breach or Seller's 19. t shall be governed by the Uniform Commercial Cade. APPLICABLE LAW. 'Ibis agreegovernedmmerc actual expe-ttse. b. The Seller warrants That no person or selling agency has been employed or retained to Where ever the term "Uniform Commercial Code" is used, it shall be construed as meaning the Uniform Commercial Code as adopted in the Slate of Texas as effective and in force on the solicit or secure this contract upon an agreement or understanding for commission, percentage, date of this agreement. brokerage, or contingent fee excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Seller for dee purpose of securing business. 20. RIGHT TO ASSURANCE. Whenever one party to this contract in good faith has reason to For breach of vitiation of this warranty the Buyer shall have the right in addition to any other question the other party's intent to perform he may demand that the other party give written tr right of rights to cancel this contract without liability and to deduct from the contract price, or assurance of his intent to perform In the event that a demand is made and no assurance is otherwise recover without liability and to deduct from the contract price, or otherwise recover given within five (5) days, the demanding party may treat this failure as an anticipatory the full amount of such commission, percentage, brokerage or contingent fee, repudiation of the contract. 9. WARRANTY -PRODUCT. Seller shall not limit or exclude any implied warranties and any 21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents, to do so shall render this contract voidable at the option of the Buyer. Seller warrants officials and employees, against all injuries, deaths, loss, damages, claims, patent claims, suits, at the goods furnished will conform to the specification, drawings, and descriptions listed in liabilities, judgments, costs and expenses, which may in anywise accrue against the Buyer its ottempt e bid invitation, and to the sample(s) furnished by the Seller, if any. In the event of a conflict consequence of the granting of this Contract or which may anywise result therefrom, whether r between the specificatioms, drawings, and descriptions, the specifications shall govmt, or not it shall be alleged or determined that the act was caused through negligence or omission Notwithstanding any provisions contained in the contractual agreement, the Seller represents of the Seller or its employees„ or of the subSetler or assignee or its employees, if any. and the and warrants fault -free performance and fault -free result in the processing date and urate related Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all costs data (including, but not limited to calculating, comparing and sequencing) of all hardware, and other expenses arising therefrom of incurred in connection therewith, and, if any judgment software and firmware products delivered and services provided under this Contract, shall be rendered against the Buyer in any such action, the Seller shall, at its own expenses, individually or in combination, as the case may be from the effective date of this Contract. satisfy and discharge the same Seller expressly understands and agrees that any bond required Also, the Seller warrants the year2000 calculations will be recognized and accommodated and by this contract, or otherwise provided by Seller, shall in no way limit the responsibility to will not, in anyway, result in hardware, software orfirmware failure. The City of Lubbock, at it intends indemnify, keep and save harmless and defend the Buyer as herein provided. its sole option, may require the Seller, at any time, to demonstrate the procedures to 22. TIME. It hereby a t, agreed and understood that lime the essence for toe follow in order to comply with all the obligations contained herein. The obligations contained meet the time specifications of this of this contract, and failure by contract e i performance comes herein apply to products and services provided by the Seiler, its sub -Seller or any third party t r agreement will rause Seller to be in default of this agreement. agemew 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 23. MBE, The City of Lubbock hereby notifies all bidders that in regard to any contract entered herein, may result in the City of Lubbock availing itself of any of its rights under the law and into pursuant to this request, minority and women business enterprises will be afforded equal under this Contract including, but not limited to, its right pertaining to termination or default. opportunities to submit bids in response to this invitation and will not be discriminated against The warranties contained hereinare separate and discrete from any other warranties specified on the grounds of race, color, sex or natural origin in consideration for an award. in this Contract, and are not subject to any disclaimer of wanamty, 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. Rev. 0812005