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HomeMy WebLinkAboutResolution - 2007-R0367 - PO - Asphalt Zipper Inc.- Asphalt Pulverizing, Recycling Trenching Machine - 08/09/2007Resolution No. 2007-80367 August 9, 2007 Item No. 5.16 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 Asphalt Zipper, Inc., of Pleasant Grove, Utah, for purchase of a bucket -mounted portable asphalt pulverizing, recycling, and trenching machine, 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. DAVID A. MILLER, MAYOR ATTEST: City Secretary VED AS TO CONTENT: Loomis int City Manager/Transportation and Public Works APPROVED A TO FORM: 2 � K n Van ver, Attorne of Counsel Mres/AsphaltZipperPOcon07Res July 27, 2007 TO: CITY OF LUBBOCK Page U R C H A S E ORDER Date Order No Brn/Plt ASPHALT ZIPPER INC P.O. BOX 750 PLEASANT GROVE UT 84062 SHIP TO: CITY OF LUBBOCK STREET DEPARTMENT 202 MUNICIPAL DR LUBBOCK TX 79403 INVOICE TO: CITY OF LUBBOCK ACCOUNTS PAYABLE P.O. BOX 2000 V�t—tm LUBBOCK. TX 79457 BY: "EXHIBIT A" - 1 7/24/07 315014 000 OP 3511 ----------------------------------------------------------- --- ---------- -------- Ordered - 07/24/07 Freight - FOB Destination Frt Prepaid Requested - 09/28/07 Taken By - VALDEZ, ANGELA D Delivery - Quote date 7/09/2007 Clarice Christense Description / Supplier Ite Asphalt Zipper AZ -500 John Deere 185HP TD Engine Z -MAG 48 Cutter Head Upgrade Ordered UM Unit Cost UM Extension Req. Dt - 1.000 -- EA ----------- 96,950.0000 -- EA 96,950.00 09/28/07 1.000 EA 2,750.0000 EA 2,750,00 09/28/07 This purchase order encumbers funds in the amount of $99,700 for the purchase of one Asphalt Zipper AZ -500 with a Z -MAG 48 Cutter Head upgrade, awarded to Asphalt Zipper, Inc of Pleasant Grove, UT on August 9, 2007. The following are incorporated into and made part of this purchase order by reference Quote by Asphalt Zipper Inc on July 9, 2007. Resolution No. 2007-80367 CITY OF LUBBOCIO David A. Miller, Mayor 0ebeATTEST; ccaaria, City Secretary Total Order ------------------------------ Terms NET 30 99,700,00 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 andpurchase order or purchase release number and the supply agreement number i f dpplicabie, (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 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 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. 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 On 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 hereofincludes 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. 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 quantifies under similar of like conditions and methods of purchase. In the event Seller breaches this warranty, the prices of the items shall be reduced to the Seller's current prices on orders by others, or in the alternative. Buyer may cancel this contract without liability to Seller for breach or Seiler's actual expense. b. The Seller warrants that no person or sal ling 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 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 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 Fimrware 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 year21300 calculations will be recognized and accommodated and will net in any way, result in hardware, software or finmware 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 parry 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 arc 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 udder the Occupational Safety and Health Act of 1970. In the event the product does not conform to OSHA standards, Buyer may mram 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 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 byway of infringement of the like. Buyer makes no warranty that due production of goods according to the specification will not give rise to such a claim, andin no event shall Buyer be liable to Seller for indemnification in the event that Seller is sued on the grounds of infringement or 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 terns 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 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 Sel ler of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the dale 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 he held responsible for losses, resulting if the fulfillment of any terns of provisions of this contract is delayed or prevented by any cause not within the control of the party whose performance is interfered with, and which by the exercise of reasonable diligence said parry is unable to prevent. I4. 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 rhe 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 contained in the Code is to control. 19. APPLICABLE LAW. This agreement shall be governed by the Uniform Commercial Code. Where ever the term "tIviform Convnemial 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 parry'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 repudiatimn 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, judgmems, 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 ur assignee or its employees, if any, and the Seller shall, at his own expense, appear, defend and pay all charges of attorneys and all cents 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 lime is of the essence for the performance of this cuntract, 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 chat in regard to any contract entered into pursuant to this request, minority and women business enterprises willhe 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. 0812045