2018-092 BuyBoard Cooperative Contracts

"Board\n\nNational Purchasing Gooperative\n\nNATIONAL PURCHASING COOPERATIVE\nINTERLOCAL PARTICIPATION AGREEMENT\n\nThis Interlocal Participation Agreement (\"Agreement\") is made and entered into on the date indicated\nbelow by and between The National Purchasing Cooperative (\"Cooperative\"), an administrative agency of\ncooperating local governments, acting on its own behalf and the behalf of all participating local governments,\nand the undersigned local government (\"Cooperative Member\").\n\n1. RECITALS\n\nWHEREAS, the National Purchasing Cooperative was formed on May 26, 2010, pursuant to Mo. Cope\nAnn., STATE Fn. & Proc. $ 13-110 (West 2009), and R.I.Gen.Laws $ 16-2-9.2 (2009); and\n\nWHEREAS, the purpose of this Agreement is to facilitate compliance with state procurement\nrequirements, to identify qualified vendors of commodities, goods and services, to relieve the burdens of the\ngovernmental purchasing function, and to realize the various potential economies, including

administrative cost\nsavings, for Cooperative Members;\n\nNOW THEREFORE, in consideration of the mutual covenants, promises and obligations contained\nherein, the undersigned Cooperative Member and the Cooperative agree as follows.\n\nU. TERMS AND CONDITIONS\n\nl. Adopt Organizational Interlocal Cooperation Agreement. The Cooperative Member by the execution\nor acceptance of this Agreement hereby adopts and approves the Organizational Interlocal Agreement\ndated May 26, 2010, which agreement is incorporated herein by reference (and is available from the\nCooperative upon request). The Organizational Interlocal Agreement established the Cooperative as an\nadministrative agency of its collective participants, and Cooperative Member agrees to become a\nparticipant or additional party to that Organizational Interlocal Agreement.\n\n2. Term. The initial term of this Agreement shall commence on the date it is executed by both parties and\nshall automatically renew for successive one-year terms unless sooner terminated in accordance with the\nprovisions of this Agreement.\n\n3. Termination.\n(a) By the Cooperative Member. This Agreement may be terminated by the Cooperative Member\n\nat any time by thirty (30) days prior written notice to the Cooperative, provided any amounts\nowed to any vendor have been fully paid.\n\nPage 1 0f6\n(Revised by the Cooperative Board of Trustees on March 10, 2016).\n" "(b) By the Cooperative. The Cooperative may terminate this Agreement by:\n\n(1) Giving ten (10) days notice by certified mail to the Cooperative Member ifthe Cooperative\nMember breaches this Agreement; or\n\n(2) Giving thirty (30) days notice by certified mail to the Cooperative Member with or without\ncause.\n\n(c) Termination Procedure. If the Cooperative Member terminates its participation under this\nAgreement or breaches this Agreement, or if the Cooperative terminates participation of the\nCooperative Member, the Cooperative Member shall bear the full financial responsibility for all\nof its purchases made from vendors under or through this Agreement. The Cooperative may seek\nthe whole amount due, if any, from the terminated Cooperative Member. In addition, the\nCooperative Member agrees it will not be entitled to.a distribution which may occur after the\nCooperative Member terminates from the Cooperative.\n\nPayments by Cooperative Member. The Cooperative Member will make timely payments to the vendor\nfor the goods, materials and services received in accordance with the terms and conditions of the bid\ninvitation, instructions, and all other applicable procurement documents. Payment for goods, materials\nand services and inspections and acceptance of goods, materials and services ordered by the procuring\nCooperative Member shall be the exclusive obligation of the procuring Cooperative Member, and not the\nCooperative. Furthermore, the Cooperative Member is solely responsible for negotiating and securing\nancillary agreements from the vendor on such other terms and conditions, including provisions relating to\ninsurance or bonding, that the Cooperative Member deems necessary or desirable under federal, state or\nlocal law, local policy or rule, or within its business judgment.\n\nPayments by Vendors. The parties agree that the Cooperafive will require payment from vendors which\nare selected to provide goods, materials or services to Cooperative Members. Such payment (hereafter\n\u201cVendor Fees\u201d) may be up to two percent (2%) of the purchase price paid by Cooperative Members or a\nflat fee amount that may be set from time to time by the Cooperative Board of Directors. Cooperative\nMember agrees that these Vendor Fees fairly compensate the Cooperative for the services and functions\nperformed under this Agreement and that these Vendor Fees enable the Cooperative to pay the\nadministrative, endorsement, licensing, marketing, and other expenses involved in successfully operating a\nprogram of electronic commerce for the Cooperative Members. Further, Cooperative Member\naffirmatively disclaims any rights to such Vendor Fees, acknowledging all such fees are the property of\nthe Cooperative. Similarly, in no event shall a Cooperative Member be responsible for payment of\nVendor Fees.\n\nDistribution. From time to time, and at the sole discretion of the Cooperative Board of Directors, the\nCooperative may issue a distribution to Cooperative Members under a plan developed by the Cooperative\nBoard of Directors. The Cooperative Member acknowledges that a distribution is never guaranteed and\nwill depend on the overall financial condition of the Cooperative at the time of the distribution and the\npurchases made by the Cooperative Member.\n\nAdministration. The Cooperative may enter into contracts with others, including non-profit associations,\nfor the administration, operation and sponsorship of the purchasing program provided by this Agreement.\nThe Cooperative will provide reports, at least annually, to the Cooperative Member electronically or by\n\nPage 2 0f6\n(Revised by the Cooperative Board of Trustees on March 10, 2016).\n" "mail. Cooperative Member will report purchase orders generated under this Agreement to the Cooperative\nor its designee, in accordance with instructions ofthe Cooperative.\n\nBuyBoard\u00ae. Cooperative Member will have a non-exclusive license to use the BuyBoard electronic\npurchasing application (BuyBoard) during the term of this Agreement. Cooperative Member\nacknowledges and agrees that the BuyBoard electronic application and trade name are owned by the Texas\nAssociation of School Boards, Inc., and that neither the Cooperative nor the Cooperative Member has any\nproprietary rights in the BuyBoard electronic application or trade name. The Cooperative Member will\nnot attempt to resell, rent, or otherwise distribute any part of BuyBoard to any other party; nor will it\nattempt to modify the BuyBoard programs on the server or acquire the programming code. The\nCooperative Member may not attempt to modify, adapt, translate, distribute, reverse engineer, decompile,\nor disassemble any component of the application. The Cooperative Member will use BuyBoard in\naccordance with instructions from the Cooperative (or its designee) and will discontinue use upon\ntermination of participation in the Cooperative. The Cooperative Member will maintain equipment,\nsoftware and conduct testing to operate the BuyBoard system at its own expense.\n\nIII. GENERAL PROVISIONS\n\nAmendment by Notice. The Board may amend this Agreement, provided that prior written notice is sent\nto the Cooperative Member at least 60 days prior to the effective date of any change described in such\namendment and provided that the Cooperative Member does not terminate its participation in the\nCooperative before the expiration of said 60 days.\n\nAuthorization to Partieipate and Compliance with Local Policies. Each Cooperative Member\nrepresents that its governing body has duly authorized its participation in the Cooperative and that the\nCooperative Member will comply with all state and local laws and policies pertaining to purchasing of\ngoods and services through its membership in the Cooperative.\n\nBylaws. The Cooperative Member agrees to abide by the Bylaws of the Cooperative, as they may be\namended, and any and all written policies and procedures established by the Cooperative. Notwithstanding\nthe foregoing, the Cooperative shall provide written notice to the Cooperative Member of any amendment\nto the Bylaws ofthe Cooperative and any written policy or procedure of the Cooperative that is intended to\nbe binding on the Cooperative Member. The Cooperative shall promptly notify all Cooperative Members\nin writing ofany Bylaw amendment, policy or procedure change.\n\nCooperation and Access. The Cooperative Member agrees that it will cooperate in compliance with any\nreasonable requests for information and/or records made by the Cooperative. The Cooperative reserves the\nright to audit the relevant records of any Cooperative Member. Any breach of this provision shall be\nconsidered material and shall make the Agreement subject to termination on ten (10) days written notice to\nthe Cooperative Member.\n\nCoordinator. The Cooperative Member agrees to appoint a program coordinator who shall have express\nauthority to represent and bind the Cooperative Member, and the Cooperative will not be required to\ncontact any other individual regarding program matters. Any notice to or any agreements with the\ncoordinator shall be binding upon the Cooperative Member. The Cooperative Member reserves the right to\nchange the coordinator as needed by giving written notice to the Cooperative. Such notice is not effective\nuntil actually received by the Cooperative.\n\nPage 3 of 6\n(Revised by the Cooperative Board of Trustees on March 10, 2016).\n" "10.\n\n11.\n\nCurrent Revenue. The Cooperative Member hereby represents that all payments, fees, and\ndisbursements required of it hereunder shall be made from current revenues budgeted and available to the\nCooperative Member.\n\nDefense and Prosecution of Claims. The Cooperative Member authorizes the Cooperative to regulate the\ncommencement, defense, intervention, or participation in a judicial, administrative, or other governmental\nproceeding or in an arbitration, mediation, or any other form of alternative dispute resolution, or other\nappearances of the Cooperative in any litigation, claim or dispute which arises from the services provided\nby the Cooperative on behalf of its members, collectively or individually. Neither this provision nor any\nother provision in this Agreement will create a legal duty for the Cooperative to provide a defense or\nprosecute a claim; rather, the Cooperative may exercise this right in its sole discretion and to the extent\npermitted or authorized by law. The Cooperative Member shall reasonably cooperate and supply any\ninformation necessary or helpful in such prosecution or defense. Subject to specific revocation, the\nCooperative Member hereby designates the Cooperative to act as a class representative on its behalf in\nmatters arising out ofthis Agreement.\n\nGovernance. The Board of Directors (Board) will govern the Cooperative in accordance with the Bylaws.\n\nLegal Authority. The Cooperative Member represents to the Cooperative the following:\n\na) The Cooperative Member has conferred with legal counsel and determined it is duly authorized by\nthe laws of the jurisdietion in which the Cooperative Member lies to participate in cooperative\npurchasing, and specifically, the National Purchasing Cooperative.\n\nb) The Cooperative Member possesses the legal authority to enter into this Agreement and can allow\nthis Agreement to automatically renew without subsequent action of its governing body.\n\nc) Purchases made under this Agreement will satisfy all procedural procurement requirements that the\nCooperative Member must meet under all applicable local policy, regulation, or state law.\n\nd) Ali requirements\u2014local or state-for a third party to approve, record or authorize the Agreement\nhave been met.\n\nDisclaimer. THE COOPERATIVE, ITS ENDORSERS, SPONSORS AND SERVICING\nCONTRACTORS, INCLUDING THE NATIONAL SCHOOL BOARDS ASSOCIATION (NSBA) AND\nTHE TEXAS ASSOCIATION OF SCHOOL BOARDS, INC. (TASB), DO NOT WARRANT THAT THE\nOPERATION OR USE OF COOPERATIVE SERVICES WILL BE UNINTERRUPTED OR ERROR\nFREE.\n\nTHE COOPERATIVE, ITS ENDORSERS, SPONSORS AND SERVICING CONTRACTORS, HEREBY\nDISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD TO ANY\nINFORMATION, PRODUCT OR SERVICE FURNISHED UNDER THIS AGREEMENT, INCLUDING\nWITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR\nFITNESS FOR A PARTICULAR PURPOSE.\n\nLimitation of Liability. Without waiver of the disclaimer or other limitation of liability in this\nAgreement, the parties agree that:\n(a) Neither party waives any immunity from liability afforded under law;\n\nPage 4 0f6\n(Revised by the Cooperative Board of Trustees on March 10, 2016).\n" "12.\n\n13,\n\n14.\n\n13.\n\n16.\n\n17,\n\n(b) In regard to any lawsuit or formal adjudication arising out of or relating to this Agreement, neither\nparty shall be liable to the other under any circumstance for special, incidental, consequential, or\nexemplary damages;\n\n(c) The maximum amount of damages recoverable will be limited to the amount of fees which the\nCooperative received as a direct result of the Cooperative Member\u2019s purchase activity, within 12\nmonths of when the lawsuit or action was filed; and\n\n(d) In the event of a lawsuit or formal adjudication the prevailing party will be entitled to recover\nreasonable attorney\u2019s fees.\n\nWithout waiver of the disclaimer or other limitation of liability in this Agreement, the parties further agree\nto limit the liability of the Cooperative\u2019s Endorsers, Sponsors and Servicing Contractors (defined in\nParagraph 11, above) up to the maximum amount each received from or through the Cooperative, as a\ndirect result ofthe undersigned Cooperative Member\u2019s purchase activity, within 12 months of the filing of\nany lawsuit or action.\n\nLimitation of Rights. Except as otherwise expressly provided in this Agreement, nothing in this\nAgreement is intended to confer upon any person, other than the parties hereto, any benefits, rights, or\nremedies under or by reason of this Agreement.\n\nMerger/Entirety. This Agreement, together with the Cooperative\u2019s Bylaws and Organizational Interlocal\nAgreement, represents the complete understanding of the Cooperative and Cooperative Member. To the\nextent there exists any conflict between the terms of this Agreement and that of prior agreements, the terms\nof this Agreement shall control and take precedence over all prior participation agreements.\n\nNotice. Any written notice to the Cooperative may be given by e-mail to NSBA at BuyBoard@nsba.org;\nby U.S. mail, postage prepaid, and delivered to the National Purchasing Cooperative, 1680 Duke Street\nFL2, Alexandria, VA, 22314; or other mode of delivery typically used in commerce and accessible to the\nintended recipient. Notices to Cooperative Member may be given by e-mail to the Cooperative Member\u2019s\nCoordinator or other e-mail address of record provided by the Cooperative Member; by U.S. mail, postage\nprepaid, and delivered to the Cooperative Member\u2019s Coordinator or chief executive officer (e.g.,\nsuperintendent, city manager, county judge or mayor); or other mode of delivery typically used in\ncommerce and accessible to the intended recipient.\n\nSeverability. If any portion of this Agreement shall be declared illegal or held unenforceable for any\nreason, the remaining portions shall continue in full force and effect.\n\nSignatures/Counterparts. The failure of a party to provide an original, manually executed signature to\nthe other party will not affect the validity, enforceability or binding effect of this Agreement because\neither party may rely upon an electronic or facsimile signature as if it were an original. Furthermore, this\nAgreement may be executed in several separate counterparts, each of which shall be an original and all of\nwhich shall constitute one and the same instrument.\n\nAuthority. By the execution and delivery of this Agreement, each undersigned individual represents that\nhe or she is authorized to bind the entity that is a party to this Agreement.\n\nPage 5 0f6\n(Revised by the Cooperative Board of Trustees on March 10, 2016).\n"