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HomeMy WebLinkAbout184254 DURAN EXCAVATING INC - PURCHASE ORDER - 9955954Date: 11 /5/2009 City of F„ort Co-[tInS Page Number: 1 Purchase Order Number: 9955954 Delivery Date: 10/2/2009 Buyer: STEPHEN, JOHN Purchase Order number must appear on invoices, packing lists, labels, bills of lading, and all correspondence. Note: Line Qty/Units Description 2 1 LOT Change order 1 City of Fort CqKinf Director of Purchasing and Risk Management This order is slid over $5000 unless signed by James B. O'Neill II, CPPO City of Fort Collins Purchasing, PO Box 580, Fort Collins, CO 80522-0580 Phone: 970-221-6775 Fax: 970-221-6707 Email: purchasing@fcgov.com Extended Price 5,756.02 Total $5,756.02 Invoice Address: City of Fort Collins Accounting Department PO Box 580 Fort Collins, CO 80522-0580 Purchase Order Terms and Conditions I. COMMERCIAL DETAILS. Tax exemptions. By statute the City of Fort Collins is exempt from state and local taxes. Our Exemption Number is 98-04502. Federal Excise Tax Exemption Certificate of Registry 84-0000587 is registered with the Collector of Internal Revenue, Denver, Colorado (Ref. Colorado Revised Statutes 1973, Chapter 39-26. 114 (a). Goods Rejected. GOODS REJECTED due to failure to meet specifications, either when shipped or due to defects of damage in transit, may be returned to you for credit and are not to be replaced except upon receipt of written instructions from the City of Fort Collins. Inspection. GOODS are subject to the City of Fort Collins inspection on arrival. Final Acceptance. Receipt ofthe merchandise, services or equipment in response to this order can result in authorized payment on the part of the City of Fort Collins. However, it is to be understood that FINAL ACCEPTANCE is dependent upon completion of all applicable required inspection procedures. Freight Terns. Shipments must be F.O.B., City of Fort Collins. 700 Wood St., Fort Collins, CO 80522. unless otherwise specified on this order. If permission is given to prepay freight and charge separately, the original freight bill must accompany invoice. Additional charges for packing will not be accepted. Shipment Distance. Where manufacturers have distributing points in various pats ofthe country, shipment is expected from the nearest distribution point to destination, and excess fi eight will be deducted four Invoice when shipments are made from greater distance. Permits. Seller shall procure at sellers sole cost all necessary permits, certificates and licenses required by all applicable laws, regulations, ordinances and rules ofthe state, municipality, territory or political subdivision where the work is performed, or required by any other duly constituted public authority having jurisdiction over the work of vendor. Seller father agrees to hold the City of For Collins hamiless from and against all liability and loss incurred by them by reason of an asserted or established violation of any such laws, regulations, ordinances, rules and requirenments. Authorization. All parties to this contract agree that the representatives are, in fact, bona fide and possess full and complete authority to bind said parties. LIMITATION OF TERMS. This Purchase Order expressly limits acceptance to the terns and conditions stated Inerein set forth and any supplementary or additional terns and conditions annexed hereto or incorporated herein by reference. Any additional or different terms and conditions proposed by seller ac objected to and hereby rejected. 2. DELIVERY. PLEASE ADVISE PURCHASING AGENT immediately ifyou cannot make complete shipment to arive on your promised delivery date as noted. Time is ofthe essence. Delivery and pet fornmance must be effected within the time stated on the purchase order and the documents attached hereto. No acts of the Purchasers including, without limitation, acceptance of partial late deliveries, shall operate as a waiver of this provision. In the event ofanydelay, the Purchaser shall have, in addition to other legal and equitable remedies, the option of placing this order elsewhere and holding the Seller liable for damages. However, the Seller shall not be liable for damages as a result of delays due to causes not reasonably foreseeable which are beyond its reasonable control and without its fault ofnegligence, such acts of God, acts of civil or military authorities, governmental priorities, fires, strikes, flood, epidemics. wars or riots provided that notice of the conditions causing such delay is given to the Purchaser within five (5) days of the time when the Seller first received knowledge thereof. In the event of any such delay, the date of delivery shall be extended for the period equal to the time actually lost by reason ofthe delay. 3. WARRANTY. The Seller warrants that all goods, articles, materials and work covered by this order will conform with applicable drawings, specifications, samples and/or other descriptions given, will be fit for the purposes intended. and performed with the highest degree of care and competence in accordance with accepted standards for work of a similar nature. The Seller agrees to hold the purchaser harmless fiom any loss, damage or expense which the Purchaser nray suffer or incur on account ofthe Sellers breach of warranty. The Seller shall replace, repair or nuke good, without cost to the purchaser, any defects or faults arising within one (1) year or within such longer period of timme as nvay beprescribed by law or by the terms of any applicable warranty provided by the Seller after the date of acceptance of the goods ftmushed hereunder (acceptance not to be unreasonably delayed), resulting from imperfect or defective work done or materials famished by the Seller. Acceptance or use of goods by the Purchaser shall not constitute a waiver of any claim under this warranty. Except as otherwise provided in this purchase order, the Sellers liability hereunder shall extend to all damages proximately caused by the breach of any of the foregoing warranties or guarantees, but such liability shall in no event include loss of profits or loss of use. NO IMPLIED WARRANTY OR MERCHANTABILITY OR OF FITNESS FOR PURPOSE SHALL APPLY. 4. CHANGES IN LEGAL TERMS. The Purchaser may make changes to legal terms by written change order. 5. CHANGES IN COMMERCIAL TERMS. The Purchaser nmay nuke any changes to the terms, other than legal terns, including additions to or deletions from the quantities originally ordered in the specifications or drawings, by verbal or written change order. Ifany such change affects the amount due or the time of performance hereunder, an equitable adjustment shall be nude. 6. TERMINATIONS. The Purchaser may at any time by written change order, terminate this agreement as to any or all potions ofthe goods then not shipped, subject to any equitable adjustment between the parties as to any work or materials then in progress provided that the Purchaser shall not be liable for any claims for atmticipated prof its on the uncompleted portion ofthe goods and/or work, for incidental or consequential damages, and that no such adjustment be made in favor ofthe Seller with respect to any goods which are the Sellers standard stock. No such termination shall relieve the Purchaser or the Seller of any of their obligations as to any goods delivered hereunder. 7. CLAIMS FOR ADJUSTMENT. Any claim for adjustment most be asserted within thirty (30) days from the date the change or termination is ordered. 8. COMPLIANCE WITH LAW. The Seller warrants that all goods sold hereunder shall have been produced, sold, delivered and furnished in strict compliance with all applicable laws and regulations to which the goods are subject. The Seller shall execute and deliver such documents as may be required to effect or evidence compliance. NI laws and regulations required to be incorporated in agreements of this character are hereby incorporated herein by this reference. The Seller agrees to indemnify and hold the Purchaser harmless from all costs and damages suffered by the Purchaser as a result of the Sellers failure to comply with such Inv. If and only to the extent this [Agreement] constitutes a "sole source government contract" within the meaning of Article XXV III ofthe Colorado Constitution ("Article XXV II I"). then the provisions of Section 15 of Article XXVI I I are her incorporated into this [Agreement]. In such a case, if the [Contractor] or any other person who is a "contract holder" as defined in Section 2(4.5) of Article XXVIII intentionally violates Section 15 or Section 17(2) of Article XXVIII, then the [Contractor] agrees it shall be ineligible to hold any sole source government contract, or public employment with the state of Colorado or any of its political subdivisions, for three years. 9. ASSIGNMENT. Neither party shall assign, transfer, or convey this Oder, or any monies due or to become due hereunder without the prior written consent of the other party. lo. TITLE. The Seller warrants full, clear and unrestricted title to the Purchaser for all equipment, materials. and items furnished in perfonn:mce of this agreement, fi ee and clear of any and all liens, restrictions. reservations, security interest encumbrances and clains of others. 11. NONWAIVER. Pailure of the Purchaser to insist upon strict performance ofthe terns and conditions hereof, failure or delay to exercise any rights or remedies provided herein or by law, failure to promptly notify the Seller in the event of a breach, the acceptance of or payinent for goods hereunder or approval ofthe design, shall not release the Seller of airy of the wananties or obligations of this purchase order and shall not be deemed a waiver of any right ofthe purchaser to insist upon strict performance hereof or any of its rights or remedies as to any such goods, regardless of when shipped, received or accepted, as to any prior or subsequent default hereunder. nor shall any purported oral modification or rescission of this purchase order by the Purchaser operate as a waiver of any ofthe terms hereof. 12. ASSIGNMENT OF ANTITRUST CLAIMS. Seller and the Purchaser recognize that in actual economic practice, overcharges resulting from antitrust violations are in fact home by the Purchaser. Theretofore, for good cause and as consideration for executing this purchase order, the Seller hereby assigns to the Purchaser any and all claims it may now have or hereafter acquired tinder federal or state antic ust laws for such overcharges relating to the particular goods or services purchased of acquired by the Purchaser pursuant to this purchase order. 13. PURCHASERS PERFORMANCE OF SELLERS OBLIGATIONS. I f the Purchaser directs the Seller to correct nonconforming or defective goods by a date to be agreed upon by the Purchaser and the Seller, and the Seller thereafter indicates its inability or unwillingness to comply, the Purchaser may cause the work to be per by the most expeditious means available to it, and the Seller shall pay all costs associated with such work. The Seller shall release the Purchaser and its contractors of any tier from all liability and claims of any nature resulting finer the performance of such work. This release shall apply even in the event of fault of negligence ofthe party released and shall extend to the directors, officers and employees of such party. "file Seller's contractual obligations, including wananty, shall not be deemed to be reduced, in any way, because such work is performed or caused to be performed by the Purchaser. 14.PATENTS - Whenever the Seller is required to use any design, device. material or process covered by letter, patent, trademark or copyright. the Seller shall indennify and save harmless the Purchaser from any and all clahrs for infringement by reason of the use of such patented design, device, material or process in connection with the contract, and shall indemnify the Purchaser for any cost, expense or damage which it nay be obliged to pay by reason of such infiingennent at any time during the prosecution or after the completion ofthe work. In case said equipment, or any part thereof or the intended use of the goods, is in such suit held to constitute infi ingenment and the use of said equipment or par is enjoined, the Seller shall, at its own expense and at its option, either procure for the Purchaser the right to continue using said equipment or parts, replace the same with substantially equal but non -infringing equipment, or modify it so it beconxs non-infiinging. 15. INSOLVENCY. I f the Seller shall beconme insolvent or bankrupt, make an assignment for the benefit of creditors, appoint a receiver or trustee for any ofthe Sellers property or business, this order mty forthwith be canceled by the Purchaser without liability. 16. GOVERNING LAW. The definitions of terns used or the interpretation of the agreement and the rights of all parties hereunder shall be consumed under and governed by the laws ofthe State of Colorado, USA. The following Additional Conditions apply only in cases where the Seller is to per work hereunder, including the services of Sellers Representntive(s), on the premises of others. 17. SELLERS RESPONSIBILITY. The Seller shall carry on said work at Seller's own risk until the same is fully completed and accepted, and shall, in case of any accident, destruction or injury to the work and/or materials before Seller's final completion and acceptance, complete the work at Seller's own eeponse and to the satisfaction ofthe Purchaser. When materials and equipment are furnished by others for installation or erection by the Seller, the Seller shall receive, unload, store and handle sane at the site and become responsible therefor ns though such materials and/or equipment were being famished by the Seller wader the order. 18. INSURANCE. The Seller shall, at his own expense, provide for the payment of workers compensation, including occupational disease benefits, to its employees employed on or in connection with the work covered by this purchase order, and/or to their dependents in accordance with the laws of the state in which the work is to be done. The Seller shall also cant' comprehensive general liability including, but not limited to, contractual and automobile public liability insurance with bodily injury and death limits of at least $300,000 for any one person, $500,000 for any one accident and property damage limit per accident of $400,000. The Seller shali'likewise require his contractors, if any, to provide for such compensation and insurance. Before any of the Sellers or his contractors employees shall do any work upon the premises of others. the Seller shall furnish the Purchaser with a certificate that such compensation and insurance have been provided. Such certificates shall specify the date when such compensation and insurance have been provided. Such certificates shall specify the date when such compensation and insurance expires. The Seller agrees that such compensation and insurance shall be maintained until after the entire work is completed and accepted. 19. PROTECTION AGAINST ACCIDENTS AND DAMAGES. 'file Seller hereby tssunmes the entire responsibility and liability for any and all damage, loss or injury of any kind or nature whatsoever to persons or property caused by or resulting Bum the execution ofthe work provided for in this purchase order or in connection herewith. The Seller will indemnify and hold harmless the Purchaser and any or all of the Purchasers officers. agents and employees from and against any and all clains, losses, damages, charges or expenses, whether direct or indirect, and whether to per or property to which the Purchaser may be put or subject by reason of any act, action, neglect, omission or default on the part of the Seller, any of his contractors, or any ofthe Sellers or contractms officers, agents or employees. In case any suit or other proceedings shall be brought against the Purchaser, or its officers, agents or employees at any time on account or by reason of any act, action, neglect, omission or default of the Seller of any of his contractors or any of its or their officers, agents or employees as aforesaid, the Seller hereby agrees to assume the defense thereof and to defend the same at the Sellers own expense, to pay any and all costs, charges, attorneys fees and other expenses, any and all judgments that may be incurred by or obtained against the Purchaser or any of its or their officers, agents or employees in such suits or other proceedings, and in case judgment or other lien be placed upon or obtained against the property ofthe Purchaser, or said parties in or as a result ofsuch suits or other proceedings. the Seller will at once cause the same to be dissolved and discharged by giving bond or otherwise. The Seller and his contractors shall take all safety precautions, furnish and install all guards necessary for the prevention of accidents, comply with all laws and regulations with regard to safety including, but without limitation, the Occupational Safety and Health Act of 1970 and all rules and regulations issued pursuant thereto. Revised 04/2009