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HomeMy WebLinkAboutResolution - 2007-R0468 - PO - USA Shade & Fabric Structures Inc.- Sports Complex Structures - 10/11/2007Resolution No. 2007-RO468 October 11, 2007 Item No. 5.19 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council of the City of Lubbock hereby authorizes and directs the Mayor of the City of Lubbock to execute a Purchase Order Contract by and between the City of Lubbock and USA Shade & Fabric Structures, Inc., of Dallas, Texas, for purchase of shade structures for the sport complex, which Contract and any associated documents, are attached hereto and made a part of this Resolution for all intents and purposes. Passed by the City Council this uth day of ATTEST: Garza, City APPROVED A Q TO CON - October , 2007. DAVID A. MILLER, MAYOR Scott Snider, Assistant City Manager/Community Service Director APPROVED AS TV FORM: i on Vandiver, ttorney of Counsel DDres/USAshade07 POconRes October 3, 2007 �URGHAS TO: GrrT OF LUBBOCK E 0 R D E R USA SHADE & FABRIC STRUCTURES, INC 8505A CHANCELLOR ROW DALLAS TX 75247 INVOICE TO: CrrY OF TUSSOCK ACCOUNTS PAYABLE P.O. Sox 2000 LUBBOCK TX 79457 Page Date Order No. Brn/Plt SHIP TO: CITY OF LUBBOCK PARKS AND RECREATION 1010 9TH STREET LUBBOCK TX 79401 1 10102/07 318687 000 OP 3511 ------------------------------------------------------------ V ------------ -------- Ordered - 10/02/07 Freight - FOB Destination Frt Prepaid Requested 12/07/07 Taken By - MARTA ALVAREZ Delivery - Buy Board Contract:204-4 Attn: Craig Wuensche ------------------------------------------------------------------------------------- Description / Supplier Ite Shade Structures for the Sport Complex Ordered UM Unit Cost UM Extension 32.000 EA 5,420.8750 EA 173,468.00 Req. Dt 12/07/07 This purchase order encumbers funds in the amount of $173,468 awarded to USA Shade & Fabric Structures, Inc. of Dallas, Texas on October 11, 2007. The following are incorporated into and made part of this purchase order by reference: Price Quotation 070385DHH and Texas Buy Board Contract 204-04. Resolution: 2007—RO468 CITY OF LUB O K ATTEST: David A. Miller, Mayor Re ccca Garza, City Secreta Total Order ------------------------------------------------------------------------------------- Terms NET 30 173,468.00 TERMS AND CONDITIONS IMPORTANT: READ CAREFULLY STANDARD TERMS AND CONDITIONS CITY OF LUBBOCK, TEXAS Sailor and MuYK agroo as f011Owfs: 1. SELLEFK TO PACKAGE GOODS. Seller will package goods in accordance with good co,mmerrtial practice.. Each shipping container shell be clearly and permerendy merited as follows (a) Seller's name and address, (b) Consignee's name. address and purchase order err purchase release number arid the supply sWeement 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 Raring the packing slip. Seller shall best cost of packaging unless otherwise provided Goods shall be suitably packed to secure lowest transporialion costs and to conform with requirements of comurton carrier, tad any applicable specifications. Buyer's count or weight shall be final and conclusive on shipments not accompanied by packing lasts. :L SHIPMENT UNDER RESERVATION PROHIBITED. Seiler is not authorized to ship the gonads under reservation and no tender of a bill of lading will operate a a tender of goods, ]. TITLE AND RISK OF LOSS. The title and risk of loss of the goods shell not pats to Buyer until Buyer actually receives std rakes possession of the goals at the point or points of delivery - 4. NOREPLACEMENT OFDEFECTIVE TENDER. Every tender of delivery of goods must fully cornply with all provisions of this contrea u to time of delivery, quality and the tike. If e tender in "rade which dual not fully confomt [his shall constitute a broach and Seiler shall not have the ri ght to substitute it conforming tender, provided, where the dee for performance has no, yet expired, the Seller may m wnably notify Buyer of his intention to cure and may then make a confarahing tender within the contract time but not afterward 5. INVOICES & PAYMENTS. a. Seller shall submit separate invoices, in duplicate, ora each purchase order err purchase mlcw soften each delivery. Invoices shall indicate the "thus order or purchase mice" 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 bili of lading, and the freight waybill when applicable, should be attached to the involce. 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. GRA.TUiTIES, The Buyer may, by written nonce to the Seller, cancel this contract without liability to Seller if it is determined by Buyer this gratuities, in the form of entenainnseM, &irks or otherwise, were offered or given by the Seiler, or any agent or mpnese+tative 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 detamhin ttions with respect to the performing of such a contract, 1r, the event this contract is canceled by Buyer pursuant to this provision. Buyer shall be entitled, in addition to my other rights and remedies, to recover -or withhold the amount of this cost incurred by Seller in providing such gromilies. 7. SPECIAL TOOLS R TEST EQUIPMENT. If the price sated on the face hereof includes die cast of army special tooling orspecial test equipment fabricated Or required by Seller for the purpose of filling this order, such special circling equipment and any process sheets related thereto shall become the property of the Buyer and to dee extent feasible shall be identified by the Seller u such. R. WARRANTY -PRICE. a. The price to be paid by dna Buyer shall be that contained in Seller's bid which Seller warrants to be no higher than Seller's curi-eng Process on orders by others for produce of the kind tad specitication covered by this Agreement for similar quantities under similar of like cundidorns and methods of purchase. In the event Seller breaches this werranty, the prices of the isms scull be reduced to the Seller's current prices on orders by Others, or in the alternative.. Buyer may camel this contract without liability to Seller for breach or Seller's actual expense. b. TMs Seller wvrmta that no persue err sa ing agency has been employed or retained to solicit car secure this conduct upon an agreement or understanding for commissim percentage, brokeram or contingent fee excepting bon fide employees of bons fide established connemial or selling agencies maintained by the Seller rot the purpose of securing business. For bnsw:h of viciadon of this warranty the Buyer shall have the right in addition to any other Tight of rights to cancel this condut without liability and to deduct from the conduct price, or otherwise recover without liability and to deduct from ole contract price, Or Otherwise recover the fall amount ofsuch commission, perch age, bokemp or contingent fee. 9. WARRANTY -PRODUCT. Seller shall nor limit or culuda any implied warrandes and any attempt to do so shall render this contract voidable at the option of the Buyer. Seller warrants that the gocab linnished will conforms aro the specification, drawings. and descriptions listed in the bid invitation. and to the sample(s) f smished by the Seller, if any, In the event of a conflict tar between the specifications, drawings, and descriptions, the specifncatinn shall govern. Notwithstanding any provisions contained in the cordramnad agmemenL the Seller represents and waians fault -free performance and fault -free result in the processing date and date related data 0ncluding, but not limited to calculating, comparing and sequencing) of all hardware, software wed firmware products delivered and services provided under this Conduct. individual ly or in combitwion, as the cue may be from the effective tine of this Contract. Vass, the Seller warrens the year2000 calculations wil be recognized and accommodated std wilt n.a. in any way, result in hantwam, wRvrare or firmware failure. The City of Lubbock, at ,h :.ale option, may require the Seller, at any time. to demonstrate rhe procedures it intetds to fol low sr, order to comply with all the ubligaians contained haevr. The obligations contained hcrrirh apply to products and services provided by the Seller, its sub -Seller Or any third party involved i n 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 to the City of Lubbock availing itself of any Of its righs ander the low and under this Conduct including, but not limited to, its right pattering to termination or default. The warranties contained herein are separate anddiscrete from any Other warranties specified in this Contract, and are not subject w any disclaimer of wananry, implied or expressed, or limitation of lite Seller's liability which may be specified in this Contract, its appendices, its schedules, is 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 rhe standards promulgated by the U. S. Department of Labor under the Occupational Safety and Health Act of 1970, in de event die product don not conform to OSHA tiandatda, Buyer may return the product for correction or replacement at the Seiler'& expense. In the event Sciler fails to make the appropriate correction within a reasonable time, correction made by Buyer will be at to Seller's expense. IL YO WARRANTY BY BUYER AGAINST INFRINGEMENTS. As put of this contract for sale Seller agrees to ascertain whether goods manufactured in accordance with die speci Fcations 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 the production of goods according to the specification will not give rise to such sclaim, and in m event shall Buyer be liable m Sella for indemnification in the event that Seller is sued an the grounds of infringement of the tike. If Sella is of the opinion that an infringement or the like will msulL he will notify the Buyer to this effect in writing within two weeks ager the signing of this agmememL If Buyer does not receive notice and is subsequently held liable for die infringement or the like. Seller will save Buyer harmless. If Sella in good faith ascertains the production of the goods in accordance with the specification will result in infringemarx orthe like, the conduct shall be null and void 12. RIGHT OF INSPECTION. Buyer shall have the right to impact the goods at delivery before accepting them. 17. CANCELLATION. Buyer shall have the right to carocei for deflAt all or vary pan of the undelivered portion of this order if Sailer breaches my of the terms hereof including warranties of Seller or if the Seger becomes insolvent or commits am of hu &ngxey. Such right of cancellation is in addition to and not in lieu of any other remedies which Buyer may have in law as equity. 14. TERMINATION. The perforrnnce of work under this order nay be terminated in whole, "in Von by the Buyer in accordance with this provision Termination of wock Increunda shall be effected by time delivery of the Sella of a "Notice of Termination" specifying the extent to which performance of work under the order is terminated std the date upon which web termination becomes effective. Such right or termination is in addition to" not in lieu of the rights of Buyer sort forth in Clause IJ, herxia 15. FORCE MAJEURE. Neither party shall be held resporaibla for losses, resulting if the fulfillment of airy teras of povisions of this contract is delayed or prevented icy any cause not within the control of tie party whose performance is intarvad 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 shalt be assigned or delegation of any obligation made by Seller without the written permission of the Buyer. Any attempted assignment or delegation by Siler 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 oft breach of oils centncl can be discharged in whole or in pan by a waiver or renunciation of the claim as right unless the waiver or renunciation is supported by consideration tad is in writingsigned by the aggrieved palmy. 19. INTERPRETATION -PAROLE EVIDENCE. This writing, plus any specifications for bids and performance provided by Buyer in its advadsemeN for bids, and any other documerita prmvided by Seller as pan of his bid, is intended by the parties n a final expression of dein agreement and intended also 0 a complete and exclusive statement of the rams of their agreement Whenever a tern defined by the Uniform Commercial Code is used in this agreemmn, the definition contained in tie Code is to control. 19. APPLICABLE LAW. This agreement shall be govemed by the Uniform Commercial Code. Where ever the tam `Unifonn Commerciai Codd' is used, it shall be construed as meaning the Uniform Commereial Code as adopted in the Sate of Texan as ehtective and in force on the daft of this agreement. 20. RIGHT TO ASSURANCE. Whenever one patty to this contract in good faith has reason to question the other parry's intent to perform he may demand that the tither party give written assurance of his intent o perform. In the event that a demand is nude and no assuramro is given within five 45) days, die demanding party may trot this failure as an anticipatory repudiation of the d:ondaci. 21. INDEMNIFICATION. Seller doll indemnify, keep and ave harmless the Buyer, is agents, officials and employees, against all injuries, dads, los, damages, claims, parent claims, suits, liabilities, judg ent&, toss and exposes, which may in anywise accrue against the Buyer in consequence of the granting of this Contract of which may anywise result therefrom, wheeler or not it -hail be alleged or determined that the act was caused through negligence Or Omission of the Seller or its employees, orof the subSeller or assigner or its employees, if my, ,std the Seller shall, at his own expense, appear, defend and pry all charges of atiorrheys and all costs and other expenses arising therefrom of incurred in connection therewith, add, if my judgir"l shall be rendered against the Buyer in any such action, (fie Seller shall, az its own cxpsrtses, Wisfy and diuhioge the sane Seiler expressly urdenurdt and .agrees that any bed required by this cuntrwt. or otherwise ptovrdel by Seiler, ,hall in no way limit the respunsibtliry to indemnify, keep and save harmless and dcfend the Buyer As herein provided 12. TIME. It is hereby expressly agreed and understood that time is of rhe essence for the performance of this contract, and faihee by eontract to meet the time specifications or this agreement will cause Seller to be in default of this agreement. !]. MBE. The City of Lubbock hereby notifies all bidders that in regard w any conduct entered into pursuant to this requital, minority and women business enterprises will be afforded equal upprimadides to submit bids in response to this invitation and will not he discriminated against on the grounds of moos, color, sex or natural origin in consideration for an award Rev. 0812005