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HomeMy WebLinkAboutResolution - 2007-R0366 - PO - Scott Tractor & Equipment Company Inc.- Motor Grader, Articulating Frame - 08/09/2007Resolution No. 2007—RO366 August 4, 2007 Item No. 5.14 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 Scott Tractor & Equipment Company, Inc., of Lubbock, Texas, to purchase a motor grader with articulating frame per Bid #07 -061 -MA, 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 9th day of August , 2007. • 1t :+`MAYOR ATTEST: 9 FW ir r-14 laecca G za, City Secretary APPROVED AS TO CONTENT: Mark earwo�k 14 Assis ant City Manager/Chief Information Officer Don Vandiver, Attorney of Counsel DDresfscottTractor-motorgraderPbcon07 Res August I, 2007 B0 TO: CITY OF LUBBOCK Page R C H A S E ORDER Date Order No Brn/Plt SCOTT TRACTOR & EQUIPMENT COMPANY INC 102 SOUTHEAST LOOP 289 LUBBOCK TX 79404 SHIP T0: CITY OF LUBBOCK FLEET SERVICES 206 MUNICIPAL DRIVE LUBBOCK TX 79403 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2000 LUBBOCK, TX 79457 BY: VVTO ---------------------------------- Ordered - 08/01/07 Freight FOB Destination Frt Prepaid Requested - 11/30/07 Taken By MARTA ALVAREZ Delivery - BID 07 -061 -MIA Description / Supplier Ite -------------------- Case 845DP Motor Grader 125 HP, Spec 986 UPS _ 1 8101/07 315441 000 OP 3"511 Ordered UM Unit Cost UM Extension 1.000 EA 164,895.0000 EA 164,895.00 Req. Dt 11/30/07 This purchase order encumbers funds in the amount of $164,895 for the purchase of a Motor Grader with Articulating Frame, 125 HP, awarded to Scott Tractor & Equipment Company Inc. of Lubbock, Texas on August 9, 2007, in accordance with your response to BID 7 -061 -MA. The following is incorporated into and made part of this purchase order by reference: Bid submitted by your firm including the Bid Form, Specifications, and General Conditions of BID 07 -061 -MA. Resolution# 2007—RO366 CITY OF LUBBOCK"*Reec,, ATTEST: jt David A. Miller, ayorqGarfk, ity Secretary Total Order ------------------------------------------------- Terms NET 30 164,895.00 TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Seller and Buyer agree as follows: 1. SELLER TO PACKAGE GOODS. Seller will package goods in accordance with good commercial practice. Each shipping container shall be clearly and permanently marked as follows (a) Seller's name and address, (b) Consignee's name, address and purchase order or purchase release number and the supply agreement number if applicable, (c) Canna tar number and total number of containers, e.g. box 1 A4 boxes, and (d) the number of the container hearing the packing slip. Seller shall bear cost of packaging unless otherwise provided. Goods shall be suitably packed to secure lowest transportation costs and to confurm 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 goads 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 ordelivery ofgoods must fully comply with all provisions of this contract as to time of delivery, quality and the like. If a tender is made which does not fully conform, this shall constitute a breach and Seller shall 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, 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. 0. 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 detemnined 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 My 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 perforning 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 at 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. S. WARRANTY -PRICE - a. The price to be paid by the Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's current process on orders by others for products of the kind and specification covered by this agreement for similar goamities 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 altemarivc. Buyer may cancel this contract without liability to Seller for breach or Seller's actual expense. h. 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, at contingent fee excepting bona fide employees of bona ride established commercial or selling agencies maintained by the Seller for the purpose of securing business. For breach of vitiation 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 shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of rite Buyer. Seller warrants that the goons furnished will conforn to the specification, drawings, and descriptions listed in the bid invitation, and to the sample(s) 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 contnactual 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) ofall hardware, sortware and firmware products delivered and services provided under this Contract, individually or in combination, as the case may he from the effective date of this Contract. Also, the Sell ler warrants the year2B00 calculations will he recognized and accommodated and will not, in any way, result in hardware, software or firmware failure. The City of Lubbock, at its sole option, may require the Seger, 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 -Seiler ur 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 ternination or default. The waranties contained herein are separate and discrete from any other warranties specified in this Contract, and are not subject to any disclaimer ofwarranty, implied or expressed, or limitation 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 be at the Seller's expense. 11. NO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As part of this cataract 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 byway of infringement of the like. Buyer makesno 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 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 goads at delivery before accepting them. 13. CANCELLATION. Buyer shall have the right to cancel far 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 perforrmunce. of work under this order may be terminated in whole, or in pan 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 otter 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 far 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 orally 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 writingsigned 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 deferred by the Uniform Commercial Cork 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 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 our 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 hamnless 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 shalt 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 amorneys 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, shat) 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 perfommnce 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 redpaest, 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