Loading...
HomeMy WebLinkAboutResolution No. 2012-23 RESOLUTION NO. R2012-23 A RESOLUTION APPROVING THE PARTICIPATION IN A COOPERATIVE PURCHASING PROGRAM PURSUANT TO THE AUTHOffiTY GRANT�D BY CHAPTER '791 OF THE TEXAS GOVERNMENT CODE, THE INTERLOCAL COOPERATIVE ACT. .'Y 'X SF �f X X X X 'iC ' 'if Whereas, the City of Friendswood, Texas, (hereinafter "Cooperative Member") desires to participate in a Cooperative Purchasing Program pursuant to the authority granted by Chapter 791 of the Texas Government Code,the Interlocal Cooperative Act("AcY'); and Whereas, the City of Friendswood, Texas has elected to be a Cooperative Member in the Local Government Purchasing Cooperative (hereinafter "Cooperative"), a local government purchasing cooperative program created by local governments in accordance with and pursuant , to the Act and Section 271.001, et seg., of the Texas Local Government Code; and Whereas, the Cooperative Member, is of the opinion that participation in the Cooperative's purchasing program will be highly beneficial to the taspayers of the City of Friendswood, Texas through the efficiencies and potential savings to be realized; and Whereas, the Cooperative Member desires to participate and join with other local governments in an Interlocal Participation Agreement("AgreemenY') for the purpose of fulfilling and implementing their respective public and governmental purposes, needs, objectives, programs, functions and services. NOW, THEREFORE, BE IT R�SOLVED BY THE CITY COUNCIL OF TAE CITY OF FRIENDSWOOD, TEXAS: Section 1. The Cooperative Member requests that the Cooperative include its stated needs for all categories, including but not limited to, instructional, maintenance, custodial, and food services goods and services, in the Cooperative's purchasing program and select vendors for those item, whereby the Cooperative Members may be allowed to purchase those items from the Cooperative's contracts; Section 2. The Cooperative is authorized to sign and deliver necessary requests and other documents in connection therewith far and on behalf of the Cooperative Members that have elected to participate; Section 3. That the City Council of the City of Friendswood hereby authorizes its Mayor to execute the Interlocal Participation Agreement attached hereto as Exhibit "A" which includes the Organizational Interlocal Agreement previously executed by two or more local governments; Section 4. All resolutions and agreements in conflict herewith are hereby repealed to the extent of the conflict only. PASS�D,APPROVED, AND RESOLVED this the ls�day of October, 2012. ������ Kevin M. Ho1 d, Mayor ATTEST: �//�� �-�/t�—�L-� �`� ` �+�� f��1,�H�,, -1 .d, • Melinda Welsh, TRMC '�j• �O° ', City Secretary ;* : :�: i ;N�'• r� o � • P '.'9j.' •.......• •'Q,5�` p°�aFT�?�'��'> R2012-23 2 i , � ������-� � �� ����� �he Local Government Purchasing Cooperative INTERLOCAL PARTICIPATION AGR�EMENT This Interlocal Partieipation Agreement ("Agreement") is made and ei�tered into by and between Tl�e Local Govermnent Puxchasing Cooperative ("Cooperative"), an administrative agency of cooperating local goveriin�ents, actiug on its own behalf and the behalf of all participating local governments, and the undersigned local bovernment of the State of Texas ("Cooperative Member"). I.RECITALS WHEREAS, a local govermne��t entity is authorized by the Interlocal Cooperation Act, Chapter 791 of the Telas Government Code, to agree witl� other local government entities to form a purchasing cooperaCive; and WHEREAS, the Cooperative is further aLithorized as a local pw�chasing'cooperative oigauization as set forth in Section 271.101, etsel., ofthe Texas Local Government Code; and , WHERFAS, Che purpose o'F tl�is AgreemenC is to facilitate compliance with state procurement I requirements, to identify qualified vendors of coinmodities, goods and seivices, to relieve the bm'dens of the governmental pw�chasing fimction, and to realize the various potential economies, incltiiding administraCive cost savings, for Cooperative Members; NOW THEREFORE, in consideration of the mutual covenants, promises and obligations contained Iterein, the timdersigned Cooperative Member and Yhe Cooperative agree as follows. IL T�RMS AND CONDITIONS 1. Adopt Organizational Interlocal Cool�eration Agreement. The Cooperative Member by the e�ecutiou or acceptance of Yhis Agreement hereby adopts and approves the Organizational Interlocal Agreement dated Januaiy 26, 1998, which agi�ement is incorporated herein by reference (and is available from the Cooperative upon request). The OrganizaCioual Interlocal Agreen�ent established Che Cooperative as an adnsinistrative agency of its collcctive participants, and Cooperative MemUer agrees to bcco�ne a paiticipant or additional party to that Orgauizational Interloeal Agreemeut. 2. Term. The initial ternl of this Agreement shall commence.on the date it is executed by both parties and shall auton�atically renew for suecessive one-year terms unless sooner teni�inated in accordance with tl�e provisions of this Agreement. If the Cooperative Nlember is an eaisting Cooperative MemUer that joined the Cooperative by executiug a participation agreement whicl� authorized ameudment upou the Cooperative providing 60 days notice, then t(�is Agreement will be dee�ned an Auiendment by Notice, 1 tis revised by the Cooperatn�e Boca•cl ofT�z�stees on.Tanzicrry 23, 2008. � ����� a � I � which will be effective on the 61sr day that the Cooperative Member is sent notice of this documenC. Li addition, this Agreemei�t will continue to auton�atically renew for successive one-year terms on the anniversary date of the Cooperative Member's initial term (not the effeclive date of the Atnendment by Notice), unless the Agreement is sooner terminated in accordance with the proyisions herein. 3. Termination. (a) By the Cooperative Member. This Agreement may be terminated by the Cooperative Member at any time by thirty (30) days prior written uotice to the Cooperative, provided any amounts owed to the Cooperative and any vendor have been fiilly paid. (6) By tl�e Cooperative. The Cooperative may teiminate this Agreement by: (1) Giving ten (10) days iiotice by certified mail to the Cooperative Member if the Cooper�tive I Member breaches this Agreeinent; or (2) Giving thiriy (30) days notice by cei�tified mail to Yhe Cooperative Member rvith or without cause. (c) Termination Procedure. If the Cooperative Member terminates its paiticipation under this Agreement or breaches this Agreement, or if tl�e Cooperative terininates participation of the Cooperarive Meiiiber, the Cooperative Member shall bear the full financial responsibility for all of its purchases made fi•om vendors wider or tlu•ough this Agreement. The Cooperative may seek fhe whole amount due, if any, from the terininated Cooperative Member. In additioil, the Cooperative Member agrees it will neither be entitled to a refund of any menibership dues paid nor a distribution which n�ay occur after the Cooperative Member terminates from the Cooperative. 4. Payments by Cooper�tive Member. (a) The Cooperative Member agrees to pay membership fees as may be requn•ed by the CooperaYive. The Cooperative will provide the Cooperative Member with 60 days prior written notice of any change in the membership fee before such fee becomes effective. MemUership fees are payable by Cooperative Member within 30 days of receipt of an invoice fi�om tlie Cooperative or its designee, unless otherwise provided by law. A late chaige amounting to the maximum inYerest allowed by law, but not less tlian the rate of interest under Section 2251.021, et secl., Texas Government Code, shall begin to accrue daily on the 46th day following the d�ie daCe and contimie to aecrue itntil the inembership fees and late charges are paid in full. The Cooperative rese�ves the rigl�t to collect all fimds that are due to the Cooperative in the event of terminatiou by Cooperative Member or breach of this Agreement by Cooperative Member. (b) ln addition Yo meinbership fees, the CooperaYive Member will malce Cimely payments to the vendor for the goods, materials and services received in accoidance with the terms and conditions of the bid invitation, instr•uctions, and all other applicable procurement docuinents. Payment for goods, materials and services and inspections and acceptance of goods, materials aud services ordered by the procuring Cooperative Member shall be the exclusive obligation of 2 As revised by dlae Cooperative Board ofTi�erslees on.Tanuary 23, 2008. the procuriilg Cooperative Member, and not the Cooperative. Furthermore, the Cooperative Member is solely responsible for negotiating and securing ancillairy agreements from the vendor on such other terms and conditions, including pirovisions relating to insurance or bonding, that the Cooperative Meinber deems necessary or desirable under sYaCe or local law, local policy or ru1e, or withiu iYs business judgmet�t. 5. Payments by Vendors. The parties ag•ee that tlie Cooperative will require payment firom vendors which - are selected to provide goods, materials or services to Coopeiative Members. Such payuient (hereafter "Vendor Fees") may be up to two percent (2%) of the piuchase price paid by Cooperative Members or a flat fee amount that may be set fi�om time to time by the Cooperative Board of Trustees. Cooperative Member agrees that these Vendor Fees fairly compensate Yhe Cooperative for the services and functions performed under this Agreement and that these Vendor Fees enable the Cooperative Yo pay the administrative, endorsement, licensing, marketing, and oChex expenses involved in successfiilly operatnig a program of electronic commerce for the Cooperafive Meinbers. Further, Cooperative Meinber affirmatively disclaims any rights to such Vendor Fees, aclmowledgii�g all sLich fees are the property of the Cooperative. Similarly, in no event shall a Cooperative Member be responsible far paymeut of Vendor Fees. 6. Distribution. From time to time, and at the sole discretion of the Cooperative Board of TrusYees, the Cooperative may issue a disLribution to Cooperative Members under a plan developed by tlie Cooperative Board of Trustees. Cooperative Member acicnowledges that a distribution is never guaranteed and will depend oi� the overall fiva�xial condition of the Cooperative at the tune of the distribution and the purchases made by the Cooperative Member. 7. Adminish•ation. The Cooperative may enter into conhacts with others, inehiding non-profit associations, for the administration, operatiou and sponsorship of the purchasing program provided by this Agreement. The Cooperative will provide reports, at least annually, to the Cooperative MemUer electronically or by mail. Cooperative Member will repoi�t purchase ordeis generated �mder this Agreeinent to the Cooperative or its designee, in accordvice with instructions of the Cooperative. 8. BuyBoard�. Cooperative Member will have a non-exclusive license to use the BLryBoard elech•ouic pw�d7asing application dw•ing the term of this Agreement. Cooperative Member acicnowledges and agrees that the BiryBoard elecCronic application and h•ade name are owned by the Texas Association of Scliool Boards, Inc. and that neither Yhe Cooperative nor the Cooperative MemUer has any proprietary rights in the BuyBoard elecYronic application or h�ade na�ne. Cooperative Member will not attempt to resell, renY, or otherwise distribute any part of the BuyBoard Yo any other party; uor wili it attempt to modify the � BuyBoard programs on the seiver or acquire the pirograinming code. Cooperative Member may not aCtempt to modify, adapt, translate, distribute, reverse engineer, decon�pile, or disasseinble any component I of the application. Cooperative Member will use the BuyBoard in accordance with instr�ictions from the Cooperative (or its designee) aud will discontinue use upon termination of participation in the Coopeiative. Cooperative Member will maintain equipment, software and conduct testing to operate the BuyBoard system at its own expense. 3 As revised by the Cooperative Board of Trustees on Janarary 23, 2008. III. G�N�RAL PROVISIONS 1. Amendment by Notice. The Board may amend this Agreement, provided that prior written notice is sent to the Cooperative Member at least 60 days prior to the effective date of any change described in such amendment and provided that the Cooperative Meinber does not tei�ninate its participation in the Cooperative before the expiration of said 60 days. 2. Autliorization to Participate and Compliance with Local Policies. Eacl� Cooperative Member represents ai�d warrants that its governing body has duly authorized its participation iu tlie Cooperative and that the Cooperative Member will comply with all state and local laws and policies pertaining to purchasing of goods and services through its membership in the Cooperative. 3. Bylaws. The Cooperative Member agrees to abide by tlie Bylaws of the Cooperative, as tl�ey may be i amended, and airy and all written policies and procedures established by the Cooperative. 4. Cooperation and Access. The Cooperative Member agrees that it will cooperate in compliance with any reasonable req��ests for information and/or records made by the Cooperative. The Cooperative reseives the right to audit tlie relevant records of any Cooperative Meinber. Any breach of this - provision shall be considered material and shall ma(<e the Agreement subject to terminaCion on ten (10) days written notice to the Cooperative Member. 5. Coordinator. The Cooperative Member agrees to appoint a program coordinator who shall have express autliority to represent and bind tlie Cooperative Member, and the Cooperative will not be reqLiired to contact any other individual regarding program matters. Any notice to or airy agreements with the coordinator shall be binding upon the Cooperative Member. The Cooperative Member reserves the right to change tlie coordinator as needed by giving written notice to the Cooperative. Such notice is not effeotive until actually received by the Cooperative. 6. Cin•rent Revemie. The Cooperative Member hereby warrants that all payments, fees, and disbursements required of it hereunder shall be made from current revenues Uudgeted and available co tl�e Cooperative Member. 7. Defense and Prosecatiou of Claims. Tl�e Cooperative Member authorizes the Cooperative to regulate the cominencement, defeilse, intervention, or participation in a judicial, administrative, or other governmental proceeding or in au arbitration, mediation, or any otlier foim of alternative disp�ite resolution, or other appearances of the Cooperative in ai�y litigation, claim or dispute which arises from Yhe seivices provided by the Cooperative on behalf of its members, collectively or individually. Neither this provision nor any oCher provision in this Agreement will creaYe a legal duty for the Cooperative to provide a defense or prosecLite a claim; rather, the Cooperative may exercise this right i�1 its sole discretion and to the extent permitted or authorized by law. The Cooperative Member shall reasonably cooperate and supply any information necessary or helpful in such prosecution or defense. Subject to specific revocation, the Cooperative Member hereby designates the Cooperative to act as a class representative on its behalf in matters arising out of this Agreement. 4 As rei�ised by the Cooper�ndve Board ofTrustees on.IanUary 23, 2008. 3. Governance. The Board of TrusYees (Board) will govern the Cooperative in accordance with tl�e Bylaws. 9. Jurisdiction/Venne. This Agreement shall be governed by and constrLied ii� accordance with the laws of the State of Texas and, to the extent permitted by law, venue for all disputes arising imder this Agreement shalllie in Travis County, Texas. 10. Legal Authority.Tlie Cooperative Member represents and wairants to the Cooperative the following: a) lt ineets the definition of"Local Government" or "State Agency" Lmder tl�e Iuterlocal Cooperation Act("AcY'), Chapter 791 ofthe Texas Government Code. b) The fimctions and services to be performed under the Agreement will be litnited to "Adminish�ative Ftimctions"as defined 'n�the Act, which includes purchasing. c) It possesses the legal authority to enter into this Agreement and can allow this Agreement to automatically renew without subsequent action of its goveming body. d) Purchases made under this Agreeme��t will satisfy all pirocedural procurement requirements that tl�e Cooperative Member n�ust meet under all applicable local policy, regLilation, or state law. e) All requirement�local ar state—for a Yhird party to approve, record or authorize the Agreemcnt have been met. � 11. Disclaimer. THE COOPERATIV�, ITS ENDORSERS (TEXAS ASSOCIATION OF SCHOOL � BOARDS, INC., TEXAS ASSOCIATION OF COUNTIES, AND TEXAS MUNICIPAL LEAGU�) AND SERVICING CONTRACTOR (TEXAS ASSOCIATION OF SCHOOL BOARDS, INC.) DO NOT WARRANT THAT THE OPERATION OR USE OF COOPERATIVE SERVICES WILL BE IJNINTERRUPTED OR ERROR FREE. THE COOPERATIVE, ITS �NDORSERS AND SERVICING CONTRACTORS, �IEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRLSS OR IMPLIED, IN REGARD TO ANY I INrORMATION, PRODUCT OR SERVICE FURNISHED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY t1ND ALL IMPLIED WARRANTIES OF . MERCHt1NTABILITY OR FITNESS FOR A PARTICULAR PURPOS�. 12. Limitation of Liability. WithouY waiver of the disclaimer or other limitation of liability in this Agreement,the parties agree that: (a)Neither party waives any immunity fi•om liability afforded under law; (b) L� regard to any lawsuit or formal adjudication arising out of or relating to this Agreeinent, neither parry shall be liable Co the other uuder any eircumstance for special, incidental, consequential, or exemplaty damages; (c) The maximum amoLint of damages recoverable will be limited to the auioimt of fees which the Cooperative received as a direct result of the Cooperative Member's membership fee and purchase activity, within 24�nouths of when the lawsuit or action was filed; and (d) In the event of a lawsuit or formal adjudication the prevailing party will be entitled to recover reasonable attorney's fees pursuant to Section 271.159 of the Texas Local Government Code. VJithout waiver of the disclaimer or other limitation of liability in this Agreen�ent, the parties furCher agree to limit the liability of tl�e Cooperative's servicing contractor, endorsers and sponsors (including, 5 ,4s rei�ised by the Cooperative Iloard of Trtrstees on January 23, 2008. Uut not limited to, the Texas Association of School Boards, Inc., Texas Association of Counties, Texas Municipal League, and educational service centers) up to the maxi�num amount each received from or through the Cooperative, as a direct result of the undersigned Cooperative Member's membership fee and purchase activity, within 24 months of the filing of any lawsuit or action. 13. Limitatiou of Rights. Except as othexwise expressly provided in this Agreement, nothing in this Agreeinent, is intended to confer upon any person, other than the parties hereto, any beuefits, rights, or remedies Lmder or Uy reason o�this Agreement. 14. Merger/Entirety. This Agreement, together with the Cooperative's Bylaws and Organizational Interlocal Agreement, represents the complete understanding of the Cooperative and Cooperative Member. To the extent there exists any conflict Uetween the terms of this Agreemenc and that of prior agreeinents, the terms of Chis Agreement shall coutrol and take precedence over all prior participation agreements. 15. Notice. Any writteu notice to the Cooperative shall be made by firsY class mail, posYage prepaid, and delivered to the BtryBoard Administrator, Texas Association of Scl�ool Boards, Iuc., P.O. Box 400, Austin, Texas 78767-0400. Notices to CooperaYive Member may be made by first class inail, postage prepaid, and delivered to the Coopei•ative Member's Coordinator or chief execuEive officer (e.g., sLiperintendent, city manager, counTy jL�dge or mayor). 16. Severlbility. If any portion of this Agreement shall be declared illegal or held uneuforceable for any reason,the remaining portions shall continue in full force and effect. 17. Signatures/Counterparts. The failure of a party to provide an original, manually executed signature to the other party will not affect tlie validity, enPorceability or binding effect oP this Agreement because either party may rely upon a faesimile signature as if it were an originaL Furthermore, this Agreement may be executed in several separate counterparts, each of which shall be an original and all of whicl� shall constitute one and the same instrument. 18. Warrauty. By the execution and deliveiy of this Agreement,the tu�dersigned individuals warrai�t that I they have been duly authorized by all requisite adminisCrative action required to enter into and perform the terins of this Agreement. 6 f1s rerised by the Cooperafive Board ofTrustees on Jane�a�y 23, 2008. ( 1N WITNESS WHEREOP, the parties, acting through their duly authorized represenfatives, accept this Agreeinent. TO B� COMPL�TED BY TH� COOPERATIVE: The LOCAL GOVERNMENT PURCHASING COOPERATIVE, as acting on behalf of all other Cooperative Members By; Date: ��� �� James . �ow, Secretary TO B� COMPL�TED BY COOPERATIVE MEMBER: [Signatzere regarired unless acceptecl as an flmendr�aent by Notice as descrzbed i�r the flgreement.J City of Friendswood � (Name of Local Goverimtent) By_ �zr° � Date: October 1, 2012 Signah�r of authorized representati ev of Cooperative Member Roger Roecker, City Manager Printed name and title of authorized representative Coordinator for the Cooperative MemUer is Cindy S. Edge Name Director of Administrative Services Title 910 S Fr�endswood nrive � Mailing Address FrianA a � ���'� C1� Texas, 77546 (zip) (281) 996-3224 Telephone (281) 482-6491 Fa� cedQe@friendswood.com Email 7 . As revised by[he Cooperafdve Board ofTr•zrstees o�aTanumy 23, 2008.