HomeMy WebLinkAboutResolution - 2007-R0163 - PO - Excerplay Inc.- Playground System For Miller Park - 04/26/2007Resolution No. 2007—RO163
April 26, 2007
Item No. 6.9
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 Excerplay, Inc., of
Cedar Crest, NM, for purchase of a playground system for Miller Park, 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 26th day of April , 2007.
DAVID A. LER, MAYOR
ATTEST:
Aeb6ccaGa�rza,ity Secretary
APPROVE AS TO CO
Scott Snider
Assistant City Manager/Community Services
APPROVED AS TO�FORM:
andiver, Attorney of
D1)res/ExeiplayP0con07Res
April 18, 2007
Y CITY OF LUBBOCK
� o
1�PURCHASE ORDER
To:
EXERPLAY INC
PO BOX 1160
CEDAR CREST NM 87008
TO: CITY OF LUBBMK
ACCOUNTS PAYABLE
P.O. BOX 2000
LUBBOCK. TX 79457
Resolution No. 2007-RO163
Page 1
Date - 5/09/07
Order No. 310967 000 OP
Brn/Plt - 3511
SHIP To:
CITY OF LUBBOCK PARKS & RECREATION
1212 ERSKINE
LUBBOCK TX 79457
BY:
- - --
Ordered - 05/09/07 Freight FOB R Destination Fr2163Prepaid
Requested - 06/26/07 Taken By BRUCE
Delivery - Ref: Quote #Q011907 -10R Dated: 3/30/07
Description / Supplier Ite Ordered UM Unit -Cost UM Extension
-
Playground Equipment 1.000 EA 208,037.6000 EA 208,037.60
Consists of the following:
LSI EVOS / 1 EA @ 78,300 for a total of $78,300
LSI 123831A / 2 EA @ 605 for a total of $1,210
LSI 1238328 / 2 EA @ 550 for a total of $1,100
LSI 152179A / 2 EA @ 665 for a total of $1,330
LSI 156065A / 1 EA @ 12,500 for a total $12,500
LSI 156067A / 1 EA @ 7,000 for a total $7,000
Less 6% for US Communities Contract 6,086.40
$3200.00
Freight charges ,
Installation of Playground Equipment $30,325
SofCRETE: Sof Surfaces Safety Surfacing.
Poured in place surfacing consisting of base and top layers
for a total cost of $47,140.00.
Installation of SofCrete by Manufacturer total $27,871.00.
Freight charges total $4,148.00.
Total Order
--------------------------------------------------------
Terms NET 30 208,037.60
Req. Dt
06/26/07
Seller and Buyer agree as follows:
TERMS AND CONDITIONS
IMPORTANT: READ CAREFULLY
STANDARD TERMS AND CONDITIONS
CITY OF LUBBOCK, TEXAS
1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with goad
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 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 lasts.
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
fully comply with all provisions of this contract as to time of delivery, quality and the like. ifa
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
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, ifany, 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 became 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 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 Seiler'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 ro
solicit or secure this contract upon an agreement or understanding for commission, percentage,
brokerage, or contingent fee excepting bona tide employees of bona fide established
commercial or selling agencies maintained by the Seller for the purpose of securing business.
For breach of vicialion of this warranty the Buyer shall have the right in addition to any other
rightof 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 shell 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 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 Contract,
individually or in combination, as the case may be from the effective date of this Contract.
Also. the Seller warrants the year2000 calculations will be recognized and accommodated and
will not, in any way, resultin 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
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 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 Contractincluding, 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 or replacement at the Seller's expense. In the event
Seiler 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 goods
according to the specification will not give rise to such a claim, and in no event shall Buyer be
liable to Seller fur indemnification in the event that Seiler 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 perfomtance 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 he
effected by the delivery of the Seller of a "Notice of Tertionation" 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
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 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 thiscontract 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 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 containedin the Cade 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.
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, j udgmenls, 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 attorneys 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 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. 0812005
kC43
CITY OF LUBBOCK
PURCHASE ORDER
EXERPLAY INC
PO BOX 1160
CEDAR CREST NM 87008
INVOICE TO: CITY OF LUBBOCK
ACCOUNTS PAYABLE
P.O. BOX 2000
LUBBOCK, TX 79457
Page - 2
Date - 5/09/07
Order No. - 310967-000 OP
Brn/Plt - 3511
SHIP TO:
CITY OF LUBBOCK PARKS & RECREATION
1212 ERSKINE
LUBBOCK TX 79457
BY:
-----------------------------------------------------------------------------------------------
Ordered - 05/09/07 Freight - FOB Destination Fit Prepaid
Requested - 06/26/07 Placed By - BRUCE MACNAIR 775-2163
_Special -Ins-- Ref: QUOTE # Q011907 Dated: 3/30/07 ---------------
Descrption_ J Supplier Item Ordered UM Unit -Cost ----- UM ---- Extension ------ ReR-Dt
Installation and Insurance requirements are as follows:
Commercial General Liability ($300,000) General Aggregate,
Products-Comp/Op AGG, Personal & Adv. Injury, Heavy Equip.
Automotive Liability ($100,000) Any Auto, Combined Single Limit.
Workers Comp & Employers Liability ($500,000 -MINIMUM)
Name City of Lubbock as a primary additional insured on General Liability and provide waiver of
subrogation in favor of the City of Lubbock on all coverages.
This purchase order encumbers funds in the amount of $208,037.60, for the purchase and installation of
Evos playground structures and equipment, awarded to ExerPlay Inc., of Cedar Crest New Mexico, on April
26, 2007, in accordance with your contract with U.S. Communities. The following are incorporated into
and made part of this purchase order by reference: Price Quotation from ExerPlay, Inc., of Cedar Crest New
Mexico, and U.S. Communities Contract Number 040377. Resolution Number 2007-R0163.
CITY OF LUBBO
David A. Miller, ayor
APPROVED AS TO FORIw'
Terms NET 30
ATTEST:
Adb-e-ecaca Garza, City Secre y
Total Order
208,037.60
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
commercial practice. Each shipping container shall be clearly and permanently marked as
follows (a) Seller's name and address, Ib) 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 of 4 boxes, and (d) the number of iht container
bearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods
shall be suitably packed to secure lowest transportation costs andto 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
fully comply with all provisions of thiscontract 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
make a conforming tender within the contract time but not afterward.
5. INVOICES & PAYMENTS.
a. Seller shalt 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 OF 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 shalt 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 Seiler, 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 perfor once 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 Contract,
individually or in combination, as the case may be from the effective date of this Contract.
Also, the Seller warrants the ycar2000 calculations will be 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 Seller, at any 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 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.
0. 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 be at the Seller's expense.
11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As pan 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 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 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 far the
infringement or the like, Seller wilt 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 Fruit 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 of 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 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
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.
I& 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 he 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 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
agrcemcnt, 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 tern "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.
21. INDEMNIFICATION. Seller shall indemnify, keep and save harmless the Buyer, its agents,
officials andemployees, against all injuries, deaths, loss, damages, claims, patent claims, amts,
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 sub Seller or assigner or its employees, if any, and the
Seller shall, at his own expense, appear, defend and pay all charges of attorneys 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 anion, 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 contract entered
into pursuant to this request, minority 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. 0812005