Texas Local Government Purchasing Cooperative/Buy Board-3293-Award/Ordinance/Pricing (2)
T e Local Government
urchasing Cooperative..
INTERLOCALI PARTICIPATION AGREEMENT
This Interlocal Participation Agreement ("Agreement") is made and entered into by and between The
Local Government Purchasing Cooperative I("Cooperative"), an administrative agency of cooperating local
governments, acting on its own behalf and the behalf of all participating local governments, and the undersigned
local government of the State of Texas ("Cooperative Member").
1. RECITALS
WHEREAS, a local government entity is authorized by the Interlocal Cooperation Act, Chapter 791 of
the Texas Government Code, to agree with other local government entities to form a purchasing cooperative;
and
WHEREAS, the Cooperative is furthet authorized as a local purchasing cooperative organization as set
forth in Section 271.101, et seq., of the Texas Local Government Code; and
WHEREAS the
purpose of this Agreement is to facilitate compliance with state,; procurement
requirements, to identify qualified vendors of commodities, goods and services, to relieve the burdens of the
governmental purchasing function, and to realize the various potential economies, including administrative cost
savings, for Cooperative Members;
NOW THEREFORE, in consideration of the mutual covenants, promises and obligations contained
herein, the undersigned Cooperative Member and the Cooperative agree as follows.
II. TERMS AND CONDITIONS
1. Adopt Organizational Interlocal Cooperation Agreement. The Cooperative Member by the execution
or acceptance of this Agreement hereby. adopts and approves the Organizational Interlocal Agreement
dated January 26, 1998, which agreement is incorporated herein by reference (and is available from the
Cooperative upon request). The Organi4ational Interlocal Agreement established the Cooperative as an
administrative agency of its collective participants, and Cooperative Member agrees to become a
participant or additional party to that Organizational Interlocal Agreement.
2. Term The initial term of this Agreement shall commence on the date it is executed by both parties and
shall automatically renew for successive 'One-year terms unless sooner terminated in accordance with the
provisions of this Agreement. If the Cooperative Member is an existing Cooperative Member that joined
the Cooperative by executing a participation agreement which authorized amendment upon the
Cooperative providing 60 days notice, then this Agreement will be deemed an Amendment by Notice,
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As revised by the Cooperative Board of Trustees on October 18, 2006
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• which will be effective on the 61St day that the Cooperative Member is sent nonce of this document. In
addition, this Agreement will continue' to automatically renew for successive one-year terms on the
anniversary date of the Cooperative M~mber's initial term (not the effective date of the Amendment by
Notice), unless the Agreement is sooner; terminated in accordance with the provisions 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 notice to the Cooperative, provided any amounts
owed to the Cooperative and any vendor have been fully paid.
(b) By the Cooperative. The Cooperative may terminate this Agreement by:
(1) Giving ten (10) days notice by certified mail to the Cooperative Member if the Cooperative
Member breaches this Agreement; or
(2) Giving thirty (30) days notice by certified mail to the Cooperative Member with or without
cause.
(c) Termination Procedure. If the Cooperative Member terminates its participation under this
Agreement or breaches this Agreement, or if the Cooperative terminates participation of the
Cooperative Member, the Cooperative Member shall bear the full financial responsibility for all
of its purchases made from vendors under or through this Agreement. The Cooperative may seek
the whole amount due, if and, from the terminated Cooperative Member. In addition, the
Cooperative Member agrees it will neither be entitled to a refund of any membership dues paid
nor a distribution which may occur after the Cooperative Member terminates from the
Cooperative.
4. Payments by Cooperative Member.
(a) The Cooperative Member agrees to pay membership fees as may be required by the Cooperative.
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. Membership fees are payable
by Cooperative Member upon receipt of an invoice from the Cooperative or its designee. A late
charge amounting to the maximum interest allowed by law, but not less than the rate of interest
under Section 2251.021, et seq., Texas Government Code, shall begin to accrue daily on the 31st
day following the due date and continue to accrue until the membership fees and late charges are
paid in full. The Cooperative reserves the right to collect all funds that are due to the Cooperative
in the event of termination by Cooperative Member or breach of this Agreement by Cooperative
Member.
(b) In addition to membership fees, the Cooperative Member will make timely payments to the
vendor for the goods, materials and services received in accordance with the terms and
conditions of the bid invitation„ instructions, and all other applicable procurement documents.
Payment for goods, materials aAd services and inspections and acceptance of goods, materials
and services ordered by the prop uring Cooperative Member shall be the exclusive obligation of
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As revised by the Cooperative Board of Trustees on October 18, 2006
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• the procuring Cooperative ember, and not the Cooperative. Furthermore, the Cooperative
Member is solely responsible or negotiating and securing ancillary agreements from the vendor
on such other terms and conditions, including provisions relating to insurance or bonding, that
the Cooperative Member deems necessary or desirable under state or local law, local policy or
rule, or within its business judOment.
5. Payments by Vendors. The parties ag ee that the Cooperative will require payment from vendors which
are selected to provide goods, material or services to Cooperative Members. Such payment (hereafter
"Vendor Fees") may be up to two perc~nt (2%) of the purchase price paid by Cooperative Members or a
flat fee amount that may be set from time to time by the Cooperative Board of Trustees. Cooperative
Member agrees that these Vendor Fees ! fairly compensate the Cooperative for the services and functions
performed under this Agreement and! that these Vendor Fees enable the Cooperative to pay the
administrative, endorsement, licensing, marketing, and other expenses involved in successfully operating a
program of electronic commerce fori the Cooperative Members. Further, Cooperative Member
affirmatively disclaims any rights to su6h Vendor Fees, acknowledging all such fees are the property of
the Cooperative. Similarly, in no evert shall a Cooperative Member be responsible for payment of
Vendor Fees.
6. Distribution. From time to time, and at the sole discretion of the Cooperative Board of Trustees, the
Cooperative may issue a distribution to Cooperative Members under a plan developed by the Cooperative
Board of Trustees. Cooperative Memb e r acknowledges that a distribution is never guaranteed and will
depend on the overall financial condit~on of the Cooperative at the time of the distribution and the
purchases made by the Cooperative Metrlber.
• 7. Administration. The Cooperative may inter into contracts with others, including non-profit associations,
for the administration, operation and spothsorship of the purchasing program provided by this Agreement.
The Cooperative will provide reports, at least annually, to the Cooperative Member electronically or by
mail. Cooperative Member will report purchase orders generated under this Agreement to the Cooperative
or its designee, in accordance with instructions of the Cooperative.
8. BuyBoard®. Cooperative Member will have a non-exclusive license to use the BuyBoard electronic
purchasing application during the term of this Agreement. Cooperative Member acknowledges and agrees
that the BuyBoard electronic application land trade name are owned by the Texas Association of School
Boards, Inc. and that neither the Cooperative nor the Cooperative Member has any proprietary rights in the '
BuyBoard electronic application or trade name. Cooperative Member will not attempt to resell, rent, or
otherwise distribute any part of the BuyBoard to any other party; nor will it attempt to modify the
BuyBoard programs on the server or acquire the programming code. Cooperative Member may not
attempt to modify, adapt, translate, distribute, reverse engineer, decompile, or disassemble any component
of the application. Cooperative Member will use the BuyBoard in accordance with instructions from the
Cooperative (or its designee) and will discontinue use upon termination of participation in the Cooperative.
Cooperative Member will maintain equipment, software and conduct testing to operate the BuyBoard
system at its own expense.
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As revised by the Cooperative Board of Trustees on October 18, 2006
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III. GENERAL 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 th4 Cooperative Member does not terminate its participation in the
Cooperative before the expiration of said 60 days.
2. Authorization to Participate and (Compliance with Local Policies. Each Cooperative Member
represents and warrants that its govern ing body has duly authorized its participation in the Cooperative
and that the Cooperative Member wl 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 the Bylaws of the Cooperative, as they may be
amended, and any 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 requests for information and/or records made by the Cooperative. The Cooperative
reserves the right to audit the relev~nt records of any Cooperative Member. Any breach of this
provision shall be considered material land shall make the Agreement subject to termination 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 authority to represent and bind the Cooperative Member, and the Cooperative will not be
required to contact any other individual regarding program matters. Any notice to or any agreements
with the coordinator shall be binding upon the Cooperative Member. The Cooperative Member reserves
the right to change the coordinator as needed by giving written notice to the Cooperative. Such notice is
not effective until actually received by the Cooperative.
6. Current Revenue. The Cooperative Member hereby warrants that all
payments, fees, and
disbursements required of it hereunder shall be made from current revenues budgeted and available to
the Cooperative Member.
7. Defense and Prosecution of Claims. The Cooperative Member authorizes the Cooperative to regulate
the commencement, defense, intervention, or participation in a judicial, administrative, or other
governmental proceeding or in an arbitration, mediation, or any other form of alternative dispute
resolution, or other appearances of the Cooperative in any litigation, claim or dispute which arises from
the services provided by the Cooperative on behalf of its members, collectively or individually. Neither
this provision nor any other provision in this Agreement will create a legal duty for the Cooperative to
provide a defense or prosecute a claim; rather, the Cooperative may exercise this right in its sole
discretion and to the extent permitted of authorized by law. The Cooperative Member shall reasonably
cooperate and supply any information pecessary 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.
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As revised by the Cooperative Board of Trustees on Qctober 18, 2006
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8. Governance. The Board of Trustees (Board) will govern the Cooperative in accordance with the
Bylaws.
9. Jurisdiction/Venue. This Agreement shall be governed by and construed in accordance with the laws
of the State of Texas and venue for all disputes arising under this Agreement shall lie in Travis County,
Texas.
10. Legal Authority. The Cooperative Member represents and warrants to the Cooperative the following:
a) It meets the definition of "Local 0overnment" or "State Agency" under the Interlocal Cooperation
Act ("Act"), Chapter 791 of the Texas Government Code.
b) The functions and services to be rformed under the Agreement will be limited to "Administrative
Functions" as defined in the Act, vdhich 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 governing body.
d) Purchases made under this Agreement will satisfy all procedural procurement requirements that the
Cooperative Member must meet under all applicable local policy, regulation, or state law.
e) All requirements-local or state-for a third party to approve, record or authorize the Agreement
have been met.
11. Disclaimer. THE COOPERATIVE; ITS ENDORSERS (TEXAS ASSOCIATION OF SCHOOL
BOARDS, INC., TEXAS ASSOCIA'T'ION OF COUNTIES, AND TEXAS MUNICIPAL LEAGUE)
AND SERVICING CONTRACTOR (TEXAS ASSOCIATION OF SCHOOL BOARDS, INC.) DO
• NOT WARRANT THAT THE OPERATION OR USE OF COOPERATIVE SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE.
THE COOPERATIVE, ITS ENDORSERS AND SERVICING CONTRACTORS, HEREBY
DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD TO ANY
INFORMATION, PRODUCT OR SERVICE FURNISHED UNDER THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12. Limitation of Liability. Without waiver of the disclaimer or other limitation of liability in this
Agreement, the parties agree that:
(a) Neither party waives any immunity from liability afforded under law;
(b) In regard to any lawsuit or formal adjudication arising out of or relating to this Agreement, neither
party shall be liable to the other under any circumstance for special, incidental, consequential, or
exemplary damages;
(c) The maximum amount of damages recoverable will be limited to the amount of fees which the
Cooperative received as a direct result of the Cooperative Member's membership fee and purchase
activity, within 24 months 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 S4ction 271.159 of the Texas Local Government Code.
Without waiver of the disclaimer or other limitation of liability in this Agreement, the parties further
agree to limit the liability of the Coopeirative's servicing contractor, endorsers and sponsors (including,
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As revised by the Cooperative Board of Trustees on Qctober 18, 2006
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but not limited to, the Texas Association of School Boards, Inc., Texas Association of Counties, Texas
Municipal League, and educational sorvice centers) up to the maximum 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. Limitation of Rights. Except as otherwise expressly provided in this Agreement, nothing in this
Agreement, is intended to confer upon any person, other than the parties hereto, any benefits, rights, or
remedies under or by reason of this Agreement.
14. Merger/Entirety. This Agreements together with the Cooperative's Bylaws and Organizational
Interlocal Agreement, represents thej complete understanding of the Cooperative and Cooperative
Member. To the extent there exists a#y conflict between the terms of this Agreement and that of prior
agreements, the terms of this Agreement shall control and take precedence over all prior participation
agreements.
15. Notice. Any written notice to the Cooperative shall be made by first class mail, postage prepaid, and
delivered to the BuyBoard Administrator, Texas Association of School Boards, Inc., P.O. Box 400,
Austin, Texas 78767-0400. Notices to Cooperative Member may be made by first class mail, postage
prepaid, and delivered to the Cooperative Member's Coordinator or chief executive officer (e.g.,
superintendent, city manager, county jydge or mayor).
16. Severability. If any portion of this Agreement shall be declared illegal or held unenforceable 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 the validity, enforceability or binding effect of this Agreement because
either party may rely upon a facsimile ';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 which
shall constitute one and the same instrument.
18. Warranty. By the execution and delive7ry of this Agreement, the undersigned individuals warrant that
they have been duly authorized by all requisite administrative action required to enter into and perform
the terms of this Agreement.
IN WITNESS WHEREOF, the parties, acting through their duly authorized representatives, accept this
Agreement.
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As revised by the Cooperative Board of Trustees on October 18, 2006
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TO BE COMPLETED BY THE COOPERATIVE:
The LOCAL GOVERNMENT PURCHASING COOPERATIVE,
as acting on behalf of a other Cooperative Members
By: Date:
J B. Crow, Secretary
TO BE COMPLETED BY COOPERATIVE MEMBER: ~rv
[Signature required unless accepted as an Amendment by Notice as described in'.. greement.]
(Name of Local Government)
f
By: Date:
Signature of authorized representative of Cooperative MiVr
Printed name and title of authorized re resentjve `
Coordinator for the
Cooperative Member is:,
Name t-
Title ;s r y
;1V6ing Addressi
Texas
rrty
F Zip
Telephone
Fax
Email
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As revised by the Cooperative Board of Trustees on October 18, 2006