HomeMy WebLinkAbout152-24 RESOLUTIONFile Number: 2024-130
113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 152-24
WHITING SYSTEMS INC. (BID W AIYER):
A RESOLUTION TO WAIVE COMPETITIVE BIDDING AND AUTHORJZE THE PURCHASE OF VEHICLE
WASH CHEMICALS FROM WHITING SYSTEMS INC. ON AN AS-NEEDED BASIS THROUGH MAY 15 , 2026
WHEREAS, on April 6 , 2021 , the City Council approved Resolution I 07-21 and authorized the purchase of Car Wash
Chemicals from Whiting Systems Inc . because the use of the chemicals not made and sold by Whiting Systems Inc.
would void the Fleet Division car wash warranty ; and
WHEREAS, Whiting Systems, Inc . has agreed to extend the warranty for an additional two years and the Fleet
Division will be required to purchase Whiting Systems products through May 15 , 2026, to keep the warranty.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section I: That the City Council of the City of Fayetteville, Arkansas hereby determines an exceptional situation exists
in which competitive bidding is deemed not feasible or practical and therefore waives the requirements of formal
competitive bidding and authorizes the purchase of vehicle wash chemicals from Whiting Systems Inc. on an as-needed
basis for the duration of the car and truck wash extended warranty through May 15 , 2026 .
PASSED and APPROVED on June 4 , 2024
Page 1
Ross Jackson
Submitted By
City of Fayetteville Staff Review Form
2024-130
Item ID
6/4/2024
City Council Meeting Date -Agenda Item Only
N/A for Non-Agenda Item
5/16/2024
Submitted Date
Action Recommendation:
FLEET OPERATIONS (770)
Division/ Department
A RESOLUTION TO WAIVE COMPETITIVE BIDDING AND PURCHASE VEHICLE WASH CHEMICALS FROM THE SUPPLIER,
WHITING SYSTEMS INC. FOR THE DURATION OF THE CAR AND TRUCK WASH EXTENDED WARRANTY THROUGH
05/15/2026 WITH ANY ADDITIONAL EXTENDED WARRANTIES PROVIDED .
9700 . 770.1910-5203.00
Account Number
Project Number
Budgeted Item? Yes
Does item have a direct cost? No
Is a Budget Adjustment attached? No
Purchase Order Number:
Change Order Number:
Original Contract Number:
Comments:
Budget Impact:
Total Amended Budget
Expenses (Actual+Encum)
Available Budget
Item Cost
Budget Adjustment
Remaining Budget
Shop
Fund
Project Title
$
$
$
$
$
Previous Ordinance or Resolution #
Approval Date:
61,000 .00
40,436.92
20,563.os 1
20,563.08
V202 2 1130
.....a CITY OF
~~ FAYETTEVILLE
.. ARKANSAS
MEETING OF JUNE 4, 2024
TO: Mayor Jordan and City Council
THRU: Terry Gulley , Asst Public Works Director -Ops
CITY COUNCIL MEMO
2024-130
FROM:
SUBJECT:
Ross Jackson , Jr., Fleet Operations Superintendent
WHITING SYSTEMS INC. (PURCHASE AGREEMENT):
RECOMMENDATION:
A RESOLUTION TO WAIVE COMPETITIVE BIDDING AND PURCHASE VEHICLE WASH CHEMICALS
FROM THE SUPPLIER , WHITING SYSTEMS INC . FOR THE DURATION OF THE CAR AND TRUCK WASH
EXTENDED WARRANTY THROUGH 05/15/2026 WITH ANY ADDITIONAL EXTENDED WARRANTIES
PROVIDED .
BACKGROUND:
The City Council approved the purchase of Car Wash Chemicals from Whiting Systems Inc. in April of 2021 in
Resolution 107-21. After going through the Houston -Galveston Area Council (HGAC), we were notified that
the chemicals were unpublished items and could not be more than 25% of the base total price of the order.
The use of the chemicals not made and sold by Whiting Systems , Inc. will void the warranty which began
March 16 , 2021 and will continue now through May 15 , 2026 .
DISCUSSION:
Whiting Systems , Inc . provided the City with written notification that not only will the warranty be affected by
the use of another manufacturers chemicals , but that they would extend the warranty for an additional two
years , now totaling a 60 -month warranty period . Staff requests authority to purchase in various quantities
vehicle wash chemicals within our approved annual operating budget for the duration of the car wash warranty
through March 15 , 2026 .
BUDGET/STAFF IMPACT:
Funds for the acquisition of car wash chemicals have been budgeted in Fleets annual operating budget.
ATTACHMENTS: SRF (#3), City of Fayetteville Truck Wash -Extended Warranty (#4), Whiting-Systems (#5),
Amendment 1-Whiting Systems, Inc (#6), Amendment 2 contract extension FL03-21-Whiting Systems , Inc
(#7), Amendment 3 contract extension -Whiting Systems, Inc (#8), Ordinance 6458 (#9)
Mailing address :
113 W. Mountain Street
Fayetteville , AR 72701
www.fayetteville-ar.gov
City of Fayetteville, Arkansas
Legislation Text
File #: 2024-130
WHITING SYSTEMS INC. (PURCHASE AGREEMENT):
113 West Mountain Street
Fayetteville , AR 72701
(479) 575-8323
A RESOLUTION TO WAIVE COMPETITIVE BIDDING AND AUTHORIZE THE PURCHASE OF
VEHICLE WASH CHEMICALS FROM WHITING SYSTEMS INC. ON AN AS-NEEDED BASIS
THROUGH MAY 15 , 2026
WHEREAS , on April 6 , 2021, the City Council approved Resolution 107-21 and authorized the
purchase of Car .Wash Chemicals from Whiting Systems Inc. because the use of the chemicals not made
and sold by Whiting Systems Inc . would void the Fleet Division car wash warranty; and
WHEREAS , Whiting Systems, Inc. has agreed to extend the warranty for an additional two years and
the Fleet Division will be required to purchase Whiting Systems products through May I 5, 2026, to keep
the warranty.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby determines an exceptional
situation exists in which competitive bidding is deemed not feasible or practical and therefore waives the
requirements of formal competitive bidding and authorizes the purchase of vehicle wash chemicals from
Whiting Systems Inc. on an as-needed basis for the duration of the car and truck wash extended
warranty through May 15 , 2026.
Page 1
Effect ive Date
Sales Rep
Bill To
Ship To
511512024
Kenny Boardman
City of Fayetteville Attn : Sara Glenn
113 W Mountain St Fayetteville AR 72701
City of Fayetteville 1525 S Happy Hollow Rd
Fayetteville AR 72727
WHITING SYSTEMS , INC .
9000 HWY 5 N, A lexander AR 72002
www .wh it in gsystems .com
800-542 -9031
EXTENDED WARRANTY
Providing the Best Overall Value : Cost-Quality-Time
HGAC contract FL03-21
To Be Supp li ed By Whiting Systems :
• Offsite Diagnostics of the Truck Wash System at No Charge
• WSI Driver Delivery Checklist -light PM every time .
• Verification of proper equipment operation and recommended steps to maintain .
• Periodic preventative ma intenance visits w /checklists at no charge .
• 20% Discount on W S I chemicals purcha sed for supporting automatic wash operations .
• 10% Discount on WSI Parts as needed outside of provisions of the agreemen t.
• 10% Discount on WSI Labor when needed outside of the provisions of this agreement
• No Charge for WSI programming for updates as flee t requirements change .
• Ded icated service phon e suppo rt for technical , operational and repair requirements .
• Priority service sche d uling , Troubl eshooting: 7am-7pm
• Weekly maintenance checklist for site personnel use .
• Recommendations to maintain wash system operations as new.
• Dedicated Account Ma nager to provide point of contact and support .
• Regular contact to track usage and maintain acceptable level of cleaning solution on hand to provide
uninterrupted equipment operation.
• Materials and cleaning solutions invoiced as replenished .
To Be Suppli ed By Custom er:
• Client or their representative to provide one "Go To Person" for the weekly bay maintenance , minor troubleshooting and site
ass istance . Customer is res pons ible for spare parts kit. Weekly maintenance checklist to be provided by WSI.
• Only Whiting Systems detergents to be used in Wash Bay.
• All utilities and connection s with open port and dedicated IP address for data communications .
• Electrical , Mechanical, Plumbing and heat required for ongoing equipment operation .
• Maintenance and pump out of in ground separator and reclaim tank as requ ired .
• Salt for Water Softener as required .
• Routine periodic maintenance to system , assistance with troubleshooting .
Product Line Item Descnpt1on
Extended Warranty -Parts and Labo r for the automat ic truck washing equipment.
Chemical Discount
SmartWash Brilliance
SmartWash SmartBrite
SmartWash Ori Wax , 55 gallon drum
Prices shown for chemical are current dis counted rate .
•After the initial term exp1res, and a termination notice is not provided by either party in writing the agree
Whiting Systems Inc __________________ _
2 Years 5/15/24 to 5/15/26
20%
$7 .16 per gallon
$7.96 per gallon
$236 .00 per drum
Signature:
Email:
Greg Jenkins (Jun 17, 2024 16:05 CDT)
Greg Jenkins
gjenkins@whitingsystems.com
DocuSign Envelope ID: 28F EA 7 40-24BF-429C-A5D 1-57C97B02090B
H-GAC
H o u ston-Galveston Ar ea Council
P.O. Box 22 777 • 3555 T imm o ns • Hou st o n, Texa s 7722 7-277 7
Cooperative Agreement -Whiting Systems. Inc. -Public Services -ID: 6312
GENERAL PROV ISIO NS
This Agreement is made and entered into, by and between the Houston -Galveston Area Council hereinafter
referred to as H-GAC having its principal place of business at 3555 Timmons Lane, Suite 120, Houston, Texas
77027 and Whiting Systems, Inc., hereinafter referred to as the Contractor, having its principal place of business
at 9000 Highway 5 North, Alexander, AR 72002.
WITNESS ETH:
WHEREAS. H-GAC hereby engages the Contractor to perform certain services in accordance with the
specifications of the Agreement; and
WHEREAS. the Contractor has agreed to perform such services in accordance with the specifications of the
Agreement;
NOW, THEREFORE, H-GAC and the Contractor do hereby agree as follows :
A RTI CLE I : L EG A L AU THORITY
The Contractor warrants and assures H-GAC that it possesses adequate legal authority to enter into this
Agreement. The Contractor's governing body, where appl icable, has authorized the signatory official(s) to enter
into this Agree m ent and bind the Contractor to the terms of this Agreement and any subsequent amendments
hereto.
A RTI CL E 2: APPLI CA BL E LAW S
The Contractor agrees to conduct all activities under this Agreement in accordance w ith all federal laws ,
executive orders , policies , procedures, applicable rules , regulations, directives , standards, ordinances, and laws , in
effect or promulgated during the term of this Agreement, including without limitation , workers ' compensation
laws, minimum and maximum salary and wage statutes and regu lations , and licensing laws and regulations. When
required , the Contractor shall furnish H -GAC with satisfactory proof of its compliance therewith.
A RTI CLE 3 : P U BLIC INFORMA TION
Except as stated below, all materials submitted to H-GAC, including any attachments, appendices , or other
information submitted as a part of a submission or Agreement. are considered public information, and become the
property of H-GAC upon submission and may be reprinted , published , or distributed in any manner by H-GAC
according to open records laws , requirements of the US Department of Labor and the State of Texas , and H-GAC
policies and procedures . In the event the Contractor wishes to claim portions of the response are not subject to the
Texas Pub lic Information Act, it shall so ; however. the determination of the Texas Attorney General as to whether
such information must be disclosed upon a public request shall be binding on the Contractor. H -GAC will request
such a determination on ly if Contractor bears all costs for preparation of the submission . H-GAC is not
responsib le for the return of creative examples of work submitted . H -GAC will not be held accountable if material
from submissions is obtained without the written consent of the contractor by parties other than H -GAC, at any
time during the evaluation process .
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ARTICLE 4 : INDEPENDENT CONTRACT OR
The execution of this Agreement and the rendering of services prescribed by this Agreement do not change the
independent status of H-GAC or the Contractor. No· provision of this Agreement or act of H-GAC in performance
of the Agreement shall be construed as making the Contractor the agent, servant or employee ofH-GAC, the State
of Texas or the United States Government. Employees of the Contractor are subject to the exclusive control and
supervision of the Contractor. The Contractor is solely responsible for employee related disputes and
discrepancies, including employee payrolls and any claims arising therefrom.
A RTI CLE 5: ANTI-CO MP ETI TI VE BEHAV IOR
Contractor will not col l ude, in any manner, or engage in any practice which may restrict or eliminate competition
or otherwise restrain trade.
A RTICLE 6: SUSPENSIO N AN D DEBAR MENT
Debarment and Suspension (Executive Orders 12549 and 12689) -A contract award (2 CFR 180 .220) must not
be made to parties listed on the government-wide exclusions in the System for Award Management (SAM), in
accordance with the 0MB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR Part 1966
Comp. p. 189) and 12689 (3 CFR Part 1989 Comp. p. 235), "Debarment and Suspension.'' SAM Exclusions
contains the names of parties debarred , suspended, or otherwise excluded by agencies, as well as parties declared
ineligible under statutory or regulatory authority other than Executive Order 12549.
Pursuant to the Federal Rule above, Respondent certifies that neither it nor its principals are presently debarred ,
suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal
depai1ment or agency or by the State of Texas and at all times during the term of the Contract neither it nor its
principals will be debarred , suspended, proposed for debarment, declared ineligible , or voluntarily excluded from
participation by any federa l department or agency or by the State of Texas Respondent shall immediately provide
the written notice to H-GAC if at any time the Respondent learns that this ce11ification was erroneous when
submitted or has become erroneous by reason of changed circumstances. H-GAC may rely upon a certification of
the Respondent that the Respondent is not debarred , suspended, ineligible , or voluntarily excluded from the
covered contract, unless the H -GAC knows the ce11ification is erroneous.
ART ICLE 7: GOAL F OR CONTRA CTI NG W ITH SMALL AN D M INORIT Y BUSINESSES, W OMEN'S
BUS INESS ENTE RPRISES , AN D LA BOR SURPLUS AREA FIRMS (if subco ntra cts are to be let)
H-GAC's goal is to assure that small and minority businesses , women's business enterprises , and labor surplus
area firms are used when possible in providing services under a contract. In accordance with federal procurements
requirements of 2 CFR §200 .321 , if subcontracts are to be let, the prime contractor must take the affirmative steps
listed below:
I. Placing qualified small and minority businesses and women's business enterprises on solicitation lists:
2. Assuring that small and minority businesses and women 's business enterprises are solicited whenever
they are potential sources;
3. Dividing total requirements, when economically feasible, into smaller task or quantities to permit
maximum participation by small and minority businesses , and women 's business enterprises;
4. Establishing delivery schedules, where the requirement permits , which encourage participation by small
and minority businesses, and women 's business enterprises ;
5 . Using the services and assistance as appropriate, of such organizations as the Small Business
Administration and the Minority Business Development Agency of the Department of Commerce.
6.
Nothing in this provision will be construed to require the utilization of any firm that is either unqualified or
unavailable. The Small Business Administration (SBA) is the primary reference and database for information on
requirements related to Federal Subcontracting https://www .sba.gov /f ederal-contracti ng/contracti ng-gui de /pri rne-
subcontracti ng
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DocuSign Envelope ID : 28 FEA740-24BF-429C-A5D1-57C97B02090B
NOTE: The term DB E as u sed in this so li c itati o n is understood to encompass a ll programs/business enterprises
s uch as: Small Di sadvantaged Busi ne ss (S OB ), Hi stor ic a ll y Und erutili ze d Bu si ne ss (H UB ), Minority Owned
Business Enterpri se (MB E), Women Owned Business Enterpri se (W BE) and Di sabl e d Veteran Bu si nes s Enterprise
(DVBE) or other designation as issued by a certifying agency.
Contractor agrees to work with and assist HGACBuy customer in meeting any DBE targets and goals, as
may be required by any rules, processes or programs they might have in place. Assistance may include
compliance with reporting requirements, provision of documentation, consideration of Certified/Listed
subcontractors, provision of documented evidence that an active participatory role for a DBE entity was
considered in a procurement transaction , etc.
ARTICLE 8: SCOPE OF SERVICES
The services to be performed by the Contractor are outlined in an Attac hm ent to this Agreement.
ARTICLE 9: PERFORMANCE PERIOD
This Agreement shall be performed during the period whic h begins Mar O 1 202 1 a nd ends Feb 28 2023. All
se rv ices under thi s Agreement must be rendered w ithin this performance period , unless directly specified under a
writte n c han ge or extension provisioned under Article 21 , which shall be fully executed by both parties to thi s
Agreement.
ARTICLE 10: PAYMENT OR FUNDING
Pay me nt provisions under this Agreement are outlined in the Specia l Provisions . H-GAC will not pay for any
expenses incurred prior to th e execution date of a contract, or any expenses incurred after the termination date of
the contract.
ARTICLE 11: PAYMENT FOR WORK
The H-GAC Customer is responsible for making payment to the Contractor up o n delivery and acceptance of the
goods or co mpl etion of the services and submission of the sub sequent invoice.
ARTICLE 12: PAYMENT TERMS/PRE-PAYMENT/QUANTITY DISOUNTS
If discounts for accelerated payment, pre-payment, progress payment. or quantity discounts are offered, they must
be clearly indi cated in the Contractor's submission prior to contract award . The applicability or acceptance of
these terms is at the discretion of the Customer.
ARTICLE 13: REPORTING REQUIREMENTS
If the Contractor fails to submit to H-GAC in a timely and sati s factory manner any report required by this
Agreement, or otherwise fails to satisfactorily render performances hereunder, H-GAC may terminate this
agreeme nt with notice as identified in Article 29 of these General Provisions. H-GAC h as final determination of
the adeq uac y of performance a nd reporting by Contractor. Termination of thi s agreem ent for failure to perform
m ay affect Contractor's ability to participate in future opportunities with H-GA C. The Contractor's failure to
timely submit any report may also be considered cause for terminatio n of this Agreement. Any additional
reporti ng requirements s hall be set forth in the Special Provisions of this Agreeme nt.
ARTICLE 14: INSURANCE
Contractor shall maintain insurance coverage for work performed or services rendered under this Agreement as
outlined and defined in the attached Special Provisions.
ARTICLE 15: SUBCONTRACTS AND ASSIGNMENTS
Except as may be set forth in the Special Provisions , the Contractor agrees not to ass ig n , transfer, convey , s ubl et
or othe rwi se dispose of this Agreement or any right, tit le , ob li gation or interest it may have therein to any third
party without prior written approva l ofH -G AC. The Contractor acknowledges that H-GAC is not liable to any
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Do cuSign Envelope ID : 28FEA740-24BF-429C-A5O1-57C97B02090B
subcontractor or assignee of the Contractor. The Contractor shall ensure that the performance rendered under al I
subcontracts shal I result in comp I iance with al I the terms and provisions of this Agreement as if the performance
rendered was rendered by the Contractor. Contractor shall give all required notices, and comply with all laws a nd
regulations applicable to furnishing and performance of the work. Except where otherwise expressly required by
applicable law or regulation, H-GAC shall not be responsible for monitoring Contractor's compliance, or that of
Contractor's subcontractors, with any laws or regulations.
ARTICLE 16: AUDIT
Notwithstanding any other audit requirement, H-GAC reserves the right to conduct or cause to be conducted an
independent audit of any transaction under this Agreement, such audit may be performed by the H-GAC loc al
government audit staff, a certified public accountant firm, or other auditors designated by H-GAC and will be
conducted in accordance with applicable professional standards and practices. The Contractor understands and
agrees that the Contractor shall be liable to the H-GAC for any findings that result in monetary obligations to H-
GAC.
ARTICLE 17: TAX EXEMPT STATUS
H-GAC and Customer members are either units of government or qualified non-profit agencies , and are generally
exempt from Federal and State sales, excise or use taxes. Respondent must not include taxes in its Re sponse . It is
the responsibility of Contractor to determine the applicabi li ty of any taxes to an order and act accordingly.
Exemption certificates will be provided upon request.
ARTICLE 18: EXAMINATION OF RECORDS
The Contractor shall maintain during the course of the work complete and accurate records of all of the
Contractor's costs and documentation of items which are chargeable to H-GAC under this Agreement. H-GAC,
through its staff or designated public accounting firm, the State of Texas, and United States Government, shall
have the right at any reasonable time to inspect, copy and audit those records on or off the premises by authorized
representatives of its own or any public accounting firm selected by H-GAC. The right of access to records is not
limited to the required retention period, but shall last as long as the records are retained . Failure to provide access
to records may be cause fo r termination of the Agreement. The records to be thus maintained and retained by the
Contractor shall include (without limitation): (1) personnel and payroll records, including social security numbers
and labor classifications, accounting for total time distribution of the Contractor's employees working full or part
time on the work, as well as cancelled payroll checks, signed receipts for payroll payments in cash, or other
evidence of disbursement of payroll payments ; (2) invoices for purchases, receiving and issuing documents, and
all other unit inventory records for the Contractor's stocks or capital items ; and (3) paid invoices and cancelled
checks for materials purchased and for subcontractors' and any other third parties' charges.
Contractor agrees that H-GAC will have the right with reasonable notice , to inspect its records pertaining to
purchase orders processed and the accuracy of the fees payable to H-GAC . The Contractor further agrees that the
examination of records outlined in this article shall be included in all subcontractor or third -party agreements .
ARTICLE 19: RETENTION OF RECORDS
The Contractor and its subcontractors shal l maintain al l records pertinent to this Agreement, a nd al l other
financial, statistical , property , participant records, and supporting documentation for a period of no less than seven
(7) years from the later of the date of acceptance of the final payment or until all audit findings have been
resolved . If any litigation , claim , negotiation , audit or other action involving the records has been started before
the expiration of the retention period , the records shall be retained until completion of the action and resolution of
all issues which arise from it, or until the end of the seven (7) years, whichever is later. and until any outstanding
litigation , audit, or claim has been fully resolved.
ARTICLE 20: DISTRIBUTORS, VENDORS, RESELLERS
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DocuSign Envelope ID : 28FEA 7 40-24BF-429C-A5D 1-57C97B02090B
Contractor agrees and acknowledges that any such designations of distributors, vendors, resellers or the like are
for the convenience of the Contractor only and the awarded Contractor will remain responsible and liable for all
obligations under the Contract and the performance of any designated distributor, vendor. reseller, etc. Contractor
is also responsib le for receiving and processing any Customer purchase order in accordance with the Contract and
forwarding of the Purchase Order to the designated distributor, vendor, reseller, etc. to complete the sa le or
service. H-GAC reserves the right to reject any entity acting on the Contractor's behalf or refuse to add entities
after a contract is awarded.
A R TICLE 21 : CHANGE O RDERS AND AMENDMENTS
A. Any alterations, additions, or deletions to the terms of this Agreement, which are required by changes in
federal or state law or by regulations, are automatically incorporated without written amendment hereto.
and shall become effective on the date designated by such law or by regulation .
B. To ensure the legal and effective performance of this Agreement, both parties agree that any amendment
that affects the performance under this Agreement must be mutually agreed upon and that all s uch
amendments must be in writing. After a period of no less than 30 days subsequent to written notice.
unless sooner implementation is required by law, such amendments shall have the effect of qualifying the
terms of this Agreement and s hall be binding upon the parties as if written herein .
C. Customers have the right to issue a change order to any purchase orders issued to the Contractor for the
purpo ses of clarification or inclusion of additional specifications, qualifications. conditions, etc. The
change order must be in writing a nd agreed upon by Contractor and the Customer agency prior to
issuance of any Change Order. A copy of the Change Order must be provided by the Contractor to , and
acknowledged by. H-GAC.
ARTICLE 22 : CONTRACT ITEM CHANGES
A. lfa manufacturer discontinues a contracted item, that item will automatically be considered deleted from
the contract with no penalty to Contractor. However, H-GAC may at its so le discretion elect to make a
contract award to the next lowest Re s pondent for the item , or take any other action deemed by H-GAC, at
its sole discretion , to be in the best interests of its Customers.
B. If a manufacturer makes any kind of change in a contracted item which affects the contract price ,
Contractor must advise H-GAC of the details. H-GAC may allow or reject the change at its so le
discretion. If the change is rejected, H -GAC will remove the item from its program and there will be no
penalty to Contractor. However, H-GAC may at its sole discretion elect to make a contract award to the
next lowest Respondent for the item , or take any other action deemed by H-GAC, at its so le discretion, to
be in the best interests of its Customers.
C. lf a manufacturer makes any change in a contracted item which does not affect the contract price,
Contractor shall advise H-GAC of the details . lf the 'new' item is equal to or better than the originally
contracted item, the 'new' item shall be approved as a replacement. If the change is rejected H-GAC will
remove the item from its program and there will be no penalty to Contractor. However, H-GAC may at its
sole discretion elect to make a contract award to the next lowest Respondent for the item or ma y take any
other action deemed by H-GAC at its sole discretion. to be in the best interests of it s Customers.
D. In the case of specifically identified catalogs or price s heets which have been contracted as base bid items
or as published options , routine publi s hed changes to products and pricing will be automatically
incorporated into the contract. However, Contractor must still provide thirty (30) calendar days written
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DocuS ign Envelope ID : 28FEA740-24BF-429C-A5O1-57C978020908
notice and an explanatio n of the changes to products and pricing. H-GAC will respond with written
approval.
ARTI CLE 23: CON TRACT PRI CE ADJUST MEN T S
Price D ec reases
If Contractor's Direct Cost decreases at any time during the full term of this award, Contractor must immediately
pass the decrease on to H-GAC and lower its prices by the amount of the decrease in Direct Cost. (Direct Cost
means Contractor·s cost from the manufacturer of any item or if Contractor is the manufacturer, the cost of raw
materials required to manufacture the item, plus costs of transportation from manufacturer to Contractor and
Contractor to H-GAC. Contractor must notify H-GAC of price decreases in the same way as for price increases
set out below. The price decrease shal l become effective upon H-GAC's receipt of Contractor"s notice. If
Contractor routinely offers discounted contract pricing. H-GAC may request Contractor accept amended contract
pricing equivalent to the routine ly discounted pricing
Price In creases
Contractors may request a pr ice increase after twelve ( 12) months from the bid opening date of the bid received
by H-GAC. The amount of any increase will not exceed actual documented increase in Contractor's Direct Cost
and will not exceed 10% of the previous bid price. Considerations on the percentage limit will be given if the
price increase is the resu lt of increased tariff charges , or other economic factors.
Price C ha nges
Any permanent increase or decrease in offered pricing for a base contract item or published option is considered a
price change. Temporary increases in pricing by whatever name (e .g. 'surcharge ', ·adjustment', ·equalization
charge ', ·compliance charge·, ·recovery charge ', etc.), are also considered to be price changes . For published
catalogs and price sheets as part ofan H-GAC contract, requests to amend the contract to reflect any new
published catalog or price sheet must be submitted whenever the manufacturer publi shes a new document. The
request must include the new catalog or price sheet.
All Products shall , at time of sale, be equipped as required under any then current applicable local , state, and
federal government requirements. If, during the course of any contract changes are made to any government
requirements which cause a manufacturer's costs of production to increase , Contractor may increase pricing to the
extent of Contractor's actual cost increase. The increase must be substantiated with support documentation
acceptable to H-GAC prior to taking effect. Modifications to a Product required to comply with such requirements
which become effective after the date of any sale are the responsibility of the Customer.
R equ es tin g Pri ce Increas e/R equi re d Docum enta ti o n
Contractor must submit a written notification at least thirty (30) calendar days prior to the requested effective date
of the change, setting the amount of the increase, along with an itemized list of any increased prices, showing the
Contractor's current price , revised price, the actual dollar difference and the percentage of the price increase by
line item. Price change requests must include H -GAC Forms D Offered Item Pricing and E Options Pricing, or the
documentation used to submit pricing in the original Response and be supported with substantive documentation
( e.g. manufacturer's price increase notices , copies of invoices from suppliers , etc .) clearly showing that
Contractor's actual costs have increased per the applicable line item bid . The Producer Price Index (PPI) may be
used as partial justification, subject to approva l by H -GAC, but no price increase based solely on an increase in
the PPI will be allowed. This documentation should be submitted in Excel format to facilitate analysis and
updating of the website. The letter and documentation must be sent to the Bids and Specifications manager,
William Burton, at William.Burton (@ h-gac .co m
R ev iew/ A pp rova l of Requ es ts
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lfH-GAC approves the price increase, Contractor will be notified in writing; no price increase will be effective
until Contractor receives this notice. lfH-GAC does not approve Contractor's price increase, Contractor may
terminate its performance upon sixty (60) days advance written notice to H-GAC, however Contractor must fulfill
any outstanding Purchase Orders. Termination of performance is Contractor's only remedy if H-GAC does not
approve the price increase. H-GAC reserves the right to accept or reject any price change request.
ARTICLE 24: DELIVERIES AND SHIPPING TERMS
The Contractor agrees to make deliveries only upon receipt of authorized Customer Purchase Order
acknowledged by H-GAC. Delivery made without such Purchase Order will be at Contractor·s risk and will leave
H-GAC the option of canceling any contract awarded to the Contractor. The Contractor must secure and deliver
any item within five (5) working days, or as agreed to on any corresponding customer Purchase Order.
Shipping must be Freight On Board Destination to the delivery location designated on the Customer purchase
order. The Contractor will retain title and control of all goods until delivery is completed and the Customer has
accepted the delivery. All risk of transportation and all related charges are the responsibility of the Contractor.
The Customer will notify the Contractor and H-GAC promptly of any damaged goods and will assist the
Contractor in arranging for inspection . The Contractor must file all claims for visible or concealed damage.
Unless otherwise stated in the Agreement, deliveries must consist only of new and unused merchandise .
ARTICLE 25 : RESTOCKING (EXCHANGES AND RETURNS)
There will be no restocking charge to the Customer for return or exchange of any item purchased under the terms
of any award. If the Customer wishes to return items purchased under an awarded contract, the Contractor agrees
to exchange, these items for other items, with no additional charge incurred. Items must be returned to Contractor
within thirty (30) days from date of delivery . If there is a difference in price in the items exchanged , the
Contractor must notify H-GAC and invoice Customer for increase price or provide the Customer with a credit or
refund for any decrease in price per Customer's preference. On items returned, a credit or cash refund will be
issued by the Contractor to Customer. This return and exchange option will extend for thi1ty (30) days following
the expiration of the term of the Contract. All items returned by the Customer must be unused and in the same
merchantable condition as when received . Items that are special ordered may be returned only upon approval of
the Contractor.
ARTICLE 26: MANUALS
Each product delivered under contract to any Customer must be delivered with at least one (I) copy of a safety
and operating manual and any other technical or maintenance manual. The cost of the manual(s) must be included
in the price for the Product offered.
ARTICLE 27: OUT OF STOCK, PRODUCT RECALLS , AND DISCONTINUED PRODUCTS
H-GAC does NOT purchase the products sold pursuant to a Solicitation or Agreement. Contractor is responsible
for ensuring that notices and mailings , such as Out of Stock or Discontinued Notices, Safety Alerts, Safety Recall
Notices and customer surveys , are sent directly to the Customer with a copy sent to H-GAC. Customer will have
the option of accepting any equivalent product or canceling the item from Customer's Purchase Order. Contractor
is not authorized to make substitutions without prior approval.
ARTICLE 28: WARRANTIES, SALES, AND SERVICE
Warranties must be the manufacturer's standard and inclusive of any other warranty requirements stated in the
Agreement; any warranties offered by a dealer will be in addition to the manufacturer's standard warranty and
will not be a substitute for such . Pricing for any product must be inclusive of the standard warranty.
Contractor is responsible for the execution and effectiveness of all product warranty requests and any claims.
Contractor agrees to respond directly to correct warranty claims and to ensure reconciliation of warranty claims
that have been assigned to a third party .
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ARTI CLE 2 9: T ERM INA TION PRO CE DURES
The Contractor acknowledges that this Agreement may be terminated for Convenience or Default.
H-GAC will not pay for any expenses incurred after the termination date of the contract.
A. Convenience
H -GAC may terminate this Agreement at any time. in whole or in part, with or without cause, whenever
H-GAC determines that for any reason such termination is in the best interest ofH -GAC, by providing
written notice by certified mai I to the Contractor. Upon receipt of notice of termination , all services
hereunder of the Contractor and its employees and subcontractors shall cease to the extent specified in the
notice of termination.
The Contractor may cancel or terminate this Agreement upon submission of thirty (30) days written
notice, presented to H-GAC via certified mail. The Contractor may not give notice of cancellation after it
has received notice of default from H-GAC.
B. Default
H -GAC may, by written notice of default to the Contractor, terminate the whole or any part of the
Agreement, in any one of the following circumstances:
(I) If the Contractor fails to perform the services herein specified within the time specified herein or any
extension thereof; or
(2) If the Contractor fails to perform any of the other provisions of this Agreement for any reason
whatsoever, or so fails to make progress or otherwise violates the Agreements that completion of
services herein specified within the Agreement term is significantly endangered , and in either of these
two instances does not cure such failure within a period often ( I 0) days (or such longer period of time
as may be authorized by H-GAC in writing) after receiving written notice by certified mail of default
from H-GAC.
(3) In the event of such termination , Contractor will notify H-GAC of any outstanding Purchase Orders and
H-GAC will consult with the End User and notify the Contractor to what extent the End User wishes the
Contractor to complete the Purchase Order. If Contractor is unable to do so, Contractor may be subject
to a claim for damages from H-GAC and/or the End User.
ARTI CLE 30 : SEVERABILITY
H-GAC and Contractor agree that should any provision of this Agreement be determined to be invalid or
unenforceable , such determination shall not affect any other term of this Agreement. which shall continue in full
force and effect.
ARTI CLE 31: FORCE MAJEURE
To the extent that either party to this Agreement shall be wholly or partially prevented from the performance of
any obligation or duty placed on such party by reason of or through strikes , stoppage of labor, riot, fire , flood , acts
of war, insurrection , accident, order of any court, act of God, or specific cause reasonably beyond the party's
control and not attributable to its neglect or nonfeasance, in such event, the time for the performance of such
obligation or duty shall be suspended until such disability to perform is removed. Determination of force majeure
shall rest solely with H-GAC.
A RTI CLE 32: CONFLICT OF INTE RES T
No officer, member or employee of the Contractor or subcontractor, no member of the governing body of the
Contractor, and no other public officials of the Contractor who exercise any functions or responsibilities in the
review or Contractor approval of this Agreement, shall participate in any decision relating to thi s Agreement
which affects his or her personal interest, or shall have any personal or pecuniary interest, direct or indirect, in this
Agreement.
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A. C onflict o f Inte rest Qu estio nn a i re: Chapter 176 of the Texas Local Government Code requires
contractors contracting or seeking to contract with H-GAC to file a conflict of interest questionnaire (CIQ)
if they have an employment or other business re lationship with an H -GAC officer or an officer's close
family member. The required questionnaire and instructions are located on the H-GAC website or at the
Texas Ethics Commission website https://www .e thics.state.tx .us/forms/CIQ .pdf. H-GAC officers include its
Board of Directors and Executive Director. who are listed on this website. Respondent must complete and
file a C IQ with the Texas Ethics Commission if an employment or business relationship with H-GAC office
or an officer's close family member as defined in the law exists.
B. C ertifica te oflnte res te d P a rti es F o rm -Form 1295: As required by Section 2252.908 of the Texas
Government Code. H -GAC will not enter a Contract with Contractor unless (i) the Contractor submits a
disclosure of interested parties form to H-GAC at the time the Contractor submits the contract H-GAC, or
(ii) the Contractor is exempt from such requirement . The required form and instructions are located at the
Texas Ethics Commission website https://www.ethics .s tate .tx.us/whatsnew/elf info form 1295.htm .
Respondents who are awarded a Contract must submit their Form 1295 with the signed Contract to H-GAC.
ARTICLE 33: FED E RAL C O MPLIANCE
Contractor agrees to comply with all federal statutes relating to nondiscrimination , labor standards. and
environmental compliance. With regards to "Rights to Inventions Made Under a Contract or Agreement,'' If the
Federa l award meets the definition of"funding agreement'' under 37 CFR § 401.2 (a) and the recipient or
subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the
substitution of parties, assignment or performance of experimental, deve lopmental , or research work under that
'"funding agreement,'' the recipient or subrecipient must comply with the requirements of 3 7 CFR Part 401,
"Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants,
Contracts and Cooperative Agreements,'' and any implementing regulations is s ued by the awarding agency .
Contractor agrees to be wholly compliant with the provisions of2 CFR 200, Appendix II. Additionally , for work
to be performed under the Agreement or s ubcontract thereof, including procurement of materials or lea ses of
equipment, Contractor shall notify each potential subcontractor or supplier of the Contractor's federal compliance
obligations. These may include. but are not limited to: (a) Title VI of the Civil Rights Act of 1964 (P.L. 88 -352)
which prohibits discrimination on the basis of race , color or national origin ; (b) Title IX of the Education
Amendments of 1972, as amended (20 U.S.C. §§ 1681 -1683 , and 1685 -1686), which prohibits discriminat ion on
the basis of sex ; (c) the Fair Labor Standards Act of 1938 (29 USC 676 et. seq .). (d) Section 504 of the
Rehabilitation Act of 1973 , as amended (29 U.S.C. § 794). which prohibits discrimination on the basis of
handicaps and the Americans with Disabilities Act of 1990; (e) the Age Discrimination in Employment Act of
1967 (29 USC 621 et. seq.) and the Age Discrimination Act of 1974, as amended (42 U.S.C. §§ 6101 -6107),
which prohibits discrimination on the basis of age; (f) the Drug Abuse Office and Treatment Act of 1972 (P .L. 92 -
255), as amended , relating to nondiscrimination on the basis of drug abuse ; (g) the Comprehens ive Alcohol Abuse
and Alcoholism Prevention , Treatment and Rehabilitation Act of 1970 (P.L. 91 -616), as amended , relating to the
nond is crimination on the basis of alcoho l abuse or alcoholism ; (h) §§ 523 and 527 of the Public Health Service
Act of 1912 ( 42 U.S .C. 290 dd-3 and 290 ee-3 ), as amended, relating to confidentiality of alcohol and drug abuse
patient records ; (i) Title Vlll of the Civil Rights Act of 1968 (42 U.S.C. § 360 I et seq.), as amended, relating to
nondiscrimination in the sale, rental or financing of housing; (j) any other nondiscrimination provi sio ns in any
specific statute(s) applicable to any Federal funding for this Agreement: (k) the requirements of any other
nondiscrimination statute(s) which may apply to this Agreement; (I) applicable provi s ions of the Clean Air Act
(42 U.S.C. §7401 et seq.), the Federal Water Pollution Control Act, as amended (33 U.S.C. § 1251 et seq.),
Section 508 of the Clean Water Act (33 U.S.C. 1368). Executive Order 11738. and the Environmental Protection
Agency regulations at 40 CPR Part 15 ; (111) applicable provisions of the Davis-Bacon Act (40 U.S.C. 276a -
276a-7), the Copeland Act (40 U .S.C. 276c), and the Contract Work Hours and Safety Standards Act (40 U.S.C.
327-332), as set forth in Department of Labor Regulations at 20 CPR 5.5a; (n) the mandatory standards and
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policies relating to energy efficiency which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act (P.L. 94 -163).
ARTICLE 34: CRIMINAL PROVISIONS AND SANCTIONS
The Contractor agrees to perform the Agreement in conformance with safeguards against fraud and abuse as set
forth by the H-GAC, the State of Texas, and the acts and regulations of any related state or federal agency. The
Contractor agrees to promptly notify H-GAC of any actual or suspected fraud , abuse, or other criminal activity
through the filing ofa written report within twenty-four (24) hours of knowledge thereof. Contractor shall notify
H-GAC of any accident or incident requiring medical attention arising from its activities under this Agreement
within twenty-four (24) hours of such occurrence . Theft or willful damage to property on loan to the Contractor
from H-GAC, if any, shall be reported to local law enforcement agencies and H-GAC within two (2) hours of
discovery of any such act.
The Contractor further agrees to cooperate fully with H-GAC , local law enforcement agencies, the State of Texas.
the Federal Bureau of Investigation and any other duly authorized investigative unit, in carrying out a full
investigation of all such incidents .
The Contractor shall notify H-GAC of the threat of lawsuit or of any actual suit filed agai nst the Contractor
pertaining to this Agreement or which would adversely affect the Contractor's ability to perform services under
this Agreement.
ARTICLE 35: INDEMNIFICATION AND RECOVERY
H-GAC's liability under this Agreement, whether for breach of contract, warranty, negligence , strict liability , in
tort or otherwise, is limited to its order processing charge. In no event will H-GAC be liable for any lo ss of use,
loss of time, inconvenience. commercial loss , lost profits or savings or other incidental , s peci al or consequential
damages to the full extent such use may be disclaimed by law. Contractor agrees, to the extent permitted by law ,
to defend and hold harmless H-GAC, its board members, officers, agents, officials, employees and indemnities
from any and all claims. costs , expenses (including reasonable attorney fees), actions , causes of action.
judgements, and liens arising as a result of Contractor's negligent act or omission under this Agreement.
Contractor shall notify H-GAC of the threat of lawsuit or of any actual suit filed against Contractor relating to this
Agreement.
ARTICLE 36: LIMITATION OF CONTRACTOR'S LIABILITY
Ex cept as specified in any separate writing between the Contractor and an END USER , Contractor's total liability
under this Agreement, whether for breach of contract, warranty, negligence, strict liability , in tort or otherwise,
but excluding its obligation to indemnify H-GAC. is limited to the price of the particular products/services sold
hereunder, and Contractor agrees either to refund the purchase price or to repair or replace product(s) that are not
as warranted. In no event will Contractor be liable for any loss of use, loss of time, inconvenience. commercial
loss, loss of profits or savings or other incidental. special or consequential damages to the full extent such use may
be disclaimed by law. Contractor understands and agrees that it shall be liable to repay and shall repay upon
demand to END USER any amounts determined by H-GAC, its independent auditors. or any agency of State or
Federa l government to have been paid in violation of the terms of this Agreement.
ARTICLE 37: TITLES NOT RESTRICTIVE
The titles assigned to the various Articles of this Agreement are for convenience only. Titles shall not be
considered restrictive of the subject matter of any Article, or part of this Agreement.
ARTICLE 38: JOINT WORK PRODUCT
This Agreement is the joint work product ofH-GAC and the Contractor. This Agreement ha s been negotiated by
H-GAC and the Contractor and their respective counsel and shall be fairly interpreted in accordance with its terms
and , in the event of any ambiguities. no inferences shall be drawn against any patty .
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ARTICLE 39: PROCUREMENT OF RECOVERED MATERIAL
H-GAC and the Respondent must comply with section 6002 of the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act. The requirements of Section 6002 include: (I) procuring only items
designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the
highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of
competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the
preceding fiscal year exceeded $10.000; (2) procuring solid waste management services in a manner that
maximizes energy and resource recovery ; and (3) establishing an affirmative procurement program for
procurement of recovered materials identified in the EPA guidelines. Pursuant to the Federal Rule above, as
required by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6962(c)(3)(A)(i)), Respondent
certifies that the percentage of recovered materials content for EPA-designated items to be delivered or used in
the performance of the Contract will be at lea st the amount required by the applicable contract s pecifications or
other contractual requirements .
ARTICLE 40: COPELAND "ANTI-KICKBACK" ACT
Contractor shall comply with 18 U.S.C. § 874 , 40 U.S.C. § 3145 . a nd the requirements of 29 C.F.R. pt. 3 as may
be applicable, which are incorporated by reference into the contract. The contractor or subcontractor shall in se rt in
any subcontracts the clause above and such other clauses as appropriate agency instructions require. and also a
clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor
shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all of these contract
clauses. A breach of the contract clauses above may be grounds for termination of the Contract, and for debarment
as a contractor and s ubcontractor as provided in 29 C.F .R. § 5.12.
ARTICLE 41: DISCRIMINATION
Respondent and any potential subcontractors shall comply with all Federal statutes relating to nondiscrimination .
These include , but are not limited to:
a) Title VI of the Civil Rights Act of 1964 (P.L. 88-352), which prohibits discrimination on the bas is of
race, color. or national origin;
b) Title lX of the Education Amendments of 1972 , as amended (20 U.S .C. §§ 1681-1683 , and 1685-
1686). which prohibits discrimination on the bas is of sex;
c) Section 504 of the Rehabilitation Act of 1973 , as amended (29 U.S.C. §794), which prohibits
discrimination on the basi s of handicaps ;
d) The Age Discrimination Act of 1975 , as amended (42 U.S.C. §§6101-6107), which prohibits
discrimination on the basis of age;
e) The Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended, relating to
nondiscrimination on the basis of drug abuse:
f) The Comprehensive Alcohol Abuse and Alcoholism Prevention , Treatment and Rehabilitation Act of
1970 (P.L. 91-616). as amended. relating to nondiscrimination on the basis of alcohol abuse or
alcoholism ;
g) Sections 523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. §§290 dd-3 and 290 ee-3),
as amended, relating to confidentiality of alcohol and drug abuse patient records;
h) Title VIII ofthe Civil Rights Act of 1968 (42 U.S.C. §§3601 et seq.). as amended, relating to
nondiscrimination in the sale, rental, or financing of housing;
i) Any other nondiscrimination provisions in the specific statute(s) under which application for Federal
assistance is being made; and
j) The requirements of any other nondiscrimination statute(s) that may apply to the application .
ARTICLE 42: DRUG FREE WORKPLACE
Contractor must provide a drug-free workplace in accordance with the Drug-Free Workplace Act, as applicable.
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For the purposes of this Section, "drug-free" means a worksite at which employees are prohibited from engaging
in the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance. H-GAC may
request a copy of this policy.
ARTICLE 43: APPLICABILITY TO SUBCONTRACTORS
Respondent agrees that all contracts it awards pursuant to the contract awarded as a result of this Agreement will
be bound by the foregoi ng terms and conditions.
ARTICLE 44: WARRANTY AND COPYRIGHT
Submissions must include a ll warranty information, including items covered , items excluded, duration , and
renewability. Submissions must include proof of licensing if using third party code for programming.
ARTICLE 45: DAT A HANDLING AND SECURITY
It will always be the responsibility of the selected Contractor to manage data transfer and to secure all data
appropriately during the project to prevent unauthorized access to all data, products, and deliverables.
ARTICLE 46: DISPUTES
All disputes concerning questions of fact or of law arising under this Agreement, which are not addressed within
the Whole Agreement as defined pursuant to Article 4 hereof, shall be decided by the Executive Director of H-
GAC or his designee , who sha ll reduce his decision to writing and provide notice thereof to the Contractor. The
decision of the Execut ive Director or his designee shall be fina l and conclusive unless, within thirty (30) days
from the date of receipt of such notice, the Contractor requests a rehearing from the Executive Director of H-
GAC. In connection with any rehearing under this Article, the Contractor shall be afforded an opportunity to be
heard and offer evidence in support of its position. The deci s ion of the Exec utive Director after any such
rehearing shall be final and conclus ive. The Contractor may , if it elects to do so, appeal the final a nd conc lu s ive
decision of the Executive Director to a court of competent jurisdiction. Pending final decision of a dispute
hereunder, the Contractor shall proceed diligently with the performance of the Agreement and in accordance w ith
H-GAC's fina l decision .
ARTICLE 47: CHOICE OF LAW: VENUE
Th is Agreement shall be governed by the laws of the State of Texas. Venue and jurisdiction of any suit or cause
of action arising under or in connection with the Agreement s hall lie exclu ively in Harris County, Texas.
Disputes between END USER and Contractor are to be resolved in accordance with the law and venue rules of the
state of purchase. Contractor shall immediately notify H-GAC of such disputes.
ART ICL E 48: ORDER OF PRIORITY
In the case of any conflict between or within this Agreement, the following order of priority shall be utilized: I)
General Provisions, 2) Specia l Provisions , 3) Scope of Work, and , 4) Other Attachments.
ARTICLE 49: WHOLE AGREEMENT
The General Provisions, Special Provisions , and Attachments, as provided herein , constitute the comp lete
Agreement ("Agreement") between the parties hereto, and supersede any and all oral and written agreements
between the parties relating to matters herein . Exce pt as otherwise provided herein , this Agreement cannot be
modified without written consent of the patties .
SIGNATURES:
H-GAC and the Contractor have read , agreed, and executed the whole Agreement as of the date first writ ten
above, as accepted by:
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Do cuSign Envelope ID: 28FEA740-24BF-429C-A5O1-57C97B02090B
H-GAC
Ho u sto n-Ga lveston A rea Co un ci l
P.O. Box 22777 • 3555 Ti mm o ns • Ho usto n, Texas 77227-2777
Cooperative Agreement -Whiting Systems. Inc. -Public Services -ID: 6312
W hiting r;~ll.Wli'v
. ~ss itfufo,\~ Signature • -·/J
1D2 ,81 6 1EB6 Da 60
Name
Title
Date
Russ Whiting
President
3/2/2021
H-GAC [DocuSigncd by .
Signatur d~t ~~OLN'c''·'~-'
Name Chuck Wemple
Title Executive Director
Date 3/2/2021
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H-GAC
Houston-Galveston Area Council
P.O. Box 22777 • 3555 Timmons • Houston, Texas 77227-2777
Cooperative Agreement -Whiting Systems. Inc. -Public Services -6312
SPECIAL PROVISIONS
Incorporated by attachment, as part of the whole agreement, H-GAC and the Contractor do, hereby agree to the
Special Provisions as follows:
ARTICLE l: BIDS/PROPOSALS IN CORPORA TED
In addit ion to the whole Agreement, the following documents listed in order of priority are incorporated into
the Agreement by reference: Bid /Proposal Specifications and Contractor's Response to the Bid/Proposal.
ARTICLE 2: END USER AGREEMENTS ("EUA")
H-GAC acknowledges that the END USER may choose to enter into an End User Agreement ("EUA) with the
Contractor through this Agreement, and that the term of the EUA may exceed the term of the current H-GAC
Agreement. H-GAC's acknowledgement is not an endorsement or approval of the End User Agreement's terms
and conditions. Contractor agrees not to offer. agree to or accept from the END USER, any terms or conditions
that conflict with those in Contractor's Agreement with H-GAC. Contractor affirms that termination of its
Agreement with H-GAC for any reason shall not result in the termination of any underlying EUA, which shall
in each instance, continue pursuant to the EUA's stated terms and duration. Pursuant to the terms of this
Agreement, termination of this Agreement will disallow the Contractor from entering into any new EUA with
END USERS. Applicable H-GAC order processing charges will be due and payable to H-GAC on any EUAs,
surviving termination of this Agreement between H-GAC and Contractor.
ARTICLE 3: MOST FAVORED CUSTOMER CLAUSE
Contractor shall provide its most favorable pricing and terms to H-GAC. If at any time during this Agreement,
Contractor develops a regularly followed standard procedure of entering into agreements with other
governmental customers within the State of Texas. and offers the same or substantially the same
products/services offered to H-GAC on a basis that provides prices, warranties, benefits, and or terms more
favorable than those provided to H-GAC, Contractor shall notify H-GAC within ten ( I 0) business days
thereafter, and this Agreement shall be deemed to be automatically retroactively amended. to the effective date
of Contractor's most favorable past agreement with another entity. Contractor shall provide the same prices,
warranties, benefits. or terms to H-GAC and its END USER as provided in its most favorable past agreement.
H-GAC shall have the right and option at any time to decline to accept any such change, in which case the
amendment shall be deemed null and void. If Contractor claims that a more favorable price, warranty, benefit.
or term that was charged or offered to another entity during the term of this Agreement, does not constitute
more favorable treatment, than Contractor shall , within ten ( I 0) business days , notify H-GAC in writing, setting
forth the detailed reasons Contractor believes the aforesaid offer is not in fact most favored treatment. H-GAC,
after due consideration of Contractor's written explanation , may decline to accept such explanation and
thereupon this Agreement between H-GAC and Contractor shall be automatically amended, effective
retroactively , to the effective date of the most favored agreement, to provide the same prices, warranties,
benefits, or terms to H-GAC and the END USER.
EXCEPTION: This clause shal l not be app licable to prices and price adjustments offered by a bidder,
proposer or contractor, which are not within bidder's/proposer's control [example; a manufacturer's bid
concession], or to any prices offered to the Federal Government and its agencies.
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ARTICLE 4: PARTY LIABILITY
Contractor's total liability under this Agreement, whether for breach of contract, warranty, negligence, strict
liability, in tort or otherwise, is limited to the price of the particular products/services sold hereunder.
Contractor agrees either to refund the purchase price or to repair or replace product(s) that are not as warranted.
Contractor accepts liability to repay, and shall repay upon demand to END USER, any amounts determined by
H-GAC, its independent auditors, or any state or federal agency, to have been paid in violation of the terms of
this Agreement.
ARTICLE 5: GOVERNING LAW & VENUE
Contractor and H-GAC agree that Contractor will make every reasonable effort to resolve disputes with the END
USER in accord with the law and venue rules of the state of purchase. Contractor shall immediately notify H-
GAC of such disputes.
ARTICLE 6: SALES AND ORDER PROCESSING CHARGE
Contractor shall sell its products to END USERS based on the pricing and terms of this Agreement. H-GAC
will invoice Contractor for the applicable order processing charge when H-GAC receives notification of an
END USER order. Contractor shall remit to H-GAC the full amount of the applicable order processing charge,
after delivery of any product or service and subsequent END USER acceptance. Payment of the Order
Processing Charge shall be remitted from Contractor to H-GAC , within thirty (30) calendar days or ten ( 10)
business days after receipt of an END USER 's payment, whichever comes first , notwithstanding Contractor's
receipt of invoice. For sales made by Contractor based on this Agreement, including sales to entities without
lnterlocal Agreements, Contractor shall pay the applicable order processing charges to H-GAC. Further,
Contractor agrees to encourage entities who are not members of H-GAC 's Cooperative Purchasing Program to
execute an H-GAC lnterlocal Agreement. H-GAC reserves the right to take appropriate actions including, but
not limited to, Agreement termination if Contractor fails to promptly remit the appropriate order processing
charge to H-GAC. In no event shall H-GAC have any liability to Contractor for any goods or services an END
USER procures from Contractor. At all times, Contractor shall remain liable to pay to H-GAC any order
processing charges on any portion of the Agreement actually performed. and for which compensation was
received by Contractor.
ARTICLE 7: LIQUIDATED DAMAGES
Contractor and H-GAC agree that Contractor shall cooperate with the END USER at the time an END USER
purchase order is placed , to determine terms for any liquidated damages.
ARTICLE 8: INSURANCE
Unless otherwise stipulated in Section B of the Bid/Proposal Specifications, Contractor must have the
following insurance and coverage minimums:
a. General liability insurance with a Single Occurrence limit of at least $1 ,000,000.00, and a General
Aggregate limit of at least two times the Single Occurrence limit.
b. Product liability insurance with a Single Occurrence limit of at least $1,000,000.00, and a General
Aggregate limit of at least two times the Single Occurrence limit for all Products except Automotive Fire
Apparatus. For Automotive Fire Apparatus. see Section B of the Bid /Proposal Specifications.
c. Property Damage or Destruction insurance is required for coverage of End User owned equipment while
in Contractor's possession , custody or control. The minimum Single Occurrence limit is $500,000.00 and
the General Aggregate limit must be at least two times the Single Occurrence limit. This insurance may be
carried in several ways, e.g. under an Inland Marine policy, as art of Automobile coverage, or under a
Garage Keepers policy. In any event, this coverage must be specifically and clearly listed on insurance
certificate(s) submitted to H-GAC.
Page 2 of 8
Do cuSign Envelope ID : 28FEA 7 40-24 BF-429C-A5D 1-57C97B02090B
d. Insurance coverage shall be in effect for the length of any contract made pursuant to the Bid /Proposal , and
for any extensions thereof, plus the number of days/months required to deliver any outstanding order after
the close of the contract period.
e. Original Insurance Certificates must be furnished to H-GAC on request, showing Contractor as the
insured and showing coverage and limits for the insurances listed above.
f. If any Product(s) or Service(s) will be provided by parties other than Contractor, all such parties are
required to carry the minimum insurance coverages specified herein , and if requested by H-GAC, a
separate insurance certificate must be submitted for each such party.
g. H-GAC reserves the right to contact insurance underwriters to confirm policy and certificate issuance and
document accuracy.
ARTICLE 9: PERFORMANCE AND PAYMENT BONDS FOR INDIVIDUAL ORDERS
H-GACs contractual requirements DO NOT include a Performance & Payment Bond (PPB): therefore,
Contractor shall offer pricing that reflects this cost savings. Contractor shall remain prepared to offer a PPB to
cover any order if so requested by the END USER. Contractor shall quote a price to END USER for
provision of any requested PPB, and agrees to furnish the PPB within ten business ( I 0) days of receipt of END
USER's purchase order.
ARTICLE 10: ORDER PROCESSING CHARGE
H-GAC will apply an Order Processing Charge for each sale done through the H-GAC contract, with the
exception of orders for motor vehicles. Any pricing submitted must include this charge amount per the most
current H-GAC schedule. For motor vehicle orders, the Processing Charge is paid by the Customer.
ARTICLE 11: CHANGE OF STATUS
Contractor shall immediately notify H-GAC, in writing, of ANY change in ownership, control ,
dealership /franchisee status, Motor Vehicle license status, or name . Contractor shall offer written guidance to
advise H-GAC if this Agreement shall be affected in any way by such change. H-GAC shall have the right to
determine whether or not such change is acceptable, and to determine what action shall be warranted. up to and
including cancellation of Agreement.
ARTICLE 11: REQUIREMENTS TO APPLICABLE PHYSICAL GOODS
In the case of physical goods (e.g. equipment, material , supplies, as opposed to services), all Products offered
must comply with any applicable provisions of the Texas Business and Commerce Code, Title I , Chapter 2 and
with at least the following:
a . Be new, unu sed , and not refurbished.
b. Not be a prototype as the general design , operation and performance . This requirement is NOT meant to
preclude the Contractor from offering new models or configurations which incorporate improvements in
a current design or add functionality , but in which new model or configuration may be new to the
marketplace.
c. Include all accessories which may or may not be specifically mentioned in the Agreement, but which are
normally furnished or necessary to make the Product ready for its intended use upon delivery. Such
accessories shall be assembled, installed and adjusted to allow continuous operation of Product at time
of delivery .
d . Have assemblies, sub-assemblies and component parts that are standard and interchangeable throughout
the entire quantity of a Product as may be purchased simultaneously by any Customer.
e. Be designed and constructed using current industry accepted engineering and safety practices, and
materials.
f. Be available for inspection at any time prior to or after procurement.
Page 3 of 8
DocuSign Env e lop e 10 : 28FEA740-24BF-429C-A5O1-57C97B02090B
ARTICLE 12: TEXAS MOTOR VEHICLE BOARD LICENSING
All that deal in motor vehicles shall maintain current licenses that are required by the Texas Motor Vehicle
Commission Code. If at any time during this Agreement term. any required Contractor license is denied,
revoked , or not renewed , Contractor shall be in default of this Agreement, unless the Texas Motor Vehicle
Board issues a stay or waiver. Contractor shall promptly provide copies of all current applicable Texas Motor
Vehicle Board documentation to H-GAC upon request.
ARTICLE 13: INSPECTION/TESTING
All Products sold pursuant to this Agreement will be subject to inspection/testing by or at the direction of H-
GAC and/or the ordering Customer, either at the delivery destination or the place of manufacture. In the event a
Product fails to meet or exceed all requirements of this Agreement, and unless otherwise agreed in advance, the
cost of any inspection and/or testing. will be the responsibility of the Contractor.
ARTICLE 14: ADDITIONAL REPORTING REQUIREMENTS
Contractor agrees to submit written quarterly reports to H-GAC detailing all transactions during the previous
three (3) month period. Reports must include, but are not limited, to the following information :
a. Customer Name
b. Product/Service purchased , including Product Code if applicable
c. Customer Purchase Order Number
d. Purchase Order Date
e. Product/Serv ice dollar amount
f. HGACBuy Order Proces s ing Charge amount
ARTICLE 15: BACKGROUND CHECKS
Cooperative customers may request background checks on any awarded contractor's employees who will have
direct contact with students, or for any other reason they so choose, any may require contractor to pay the cost
of obtaining any background information requested by the Customer.
ARTICLE 16: PROHIBITION ON CONTRACTS WITH COMPANIES BOYCOTTING ISRAEL
CERTIFICATION
As required by Chapter 2271 of the Texas Local Government Code the Contractor must verify that it 1) does
not boycott Israe l; a nd 2) will not boycott Israe l during the term of the Contract. Purs uant to Section 2271 .00 I.
Texas Government Code:
I. "'Boycott Israel " mean s refusing to deal with, terminating business activities with, or otherwise taking
any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically
with Israel , or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not
include an action made for ordinary business purposes; and
2. "Company'' means a for-profit sole proprietorship, organization, association, corporation , partnership,
joint venture, limited partnership, limited liability partnership, or any limited liability company. including a
wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate of those entities or business
associations that exist to make a profit.
ARTICLE 17: NO EXCLUDED NATION OR TERRORIST ORGANIZATION CERTIFTCA TION
As required by Chapter 2252 of the Texas Government Code the Contractor must certify that it is not a
company engaged in active business operations with Sudan, Iran , or a foreign terrorist organization -
s pecifically, any company identified on a list prepared and maintained by the Texas Comptroller under Texas
Government Code §§806.051 , 807 .051, or 2252.153. (A company that the U.S. Government affirmatively
declares to be excluded from its federal sanctions regime relating to Sudan, Iran, or any federal sanctions
regime relating to a foreign terrorist organization is not subject to the contract prohibition.)
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DocuS ign Envelope ID : 28FEA740-24BF-429C-A5D1-57C97B02090B
ARTICLE 18: PROHIBITION ON CONTRACTING WITH ENTITIES USING CERTAIN
TELECOMMUNICATIONS AND VIDEO SURVEILLANCE EQUIPMENT (Effective Aug. 13, 2020
and as amended October 26, 2020)
Pursuant to 2 CFR 200.216 , Contractor shall not offer equipment. services, or system that use covered
telecommunications equipment or services as a substantial or essential component of any system , or as critical
technology as part of any system. "Covered telecommunications equipment or services means 1)
telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any
subsidiary or affiliate of such entities); 2) for the purpose of pub! ic safety, security of government faci I ities,
physical security surveillance of critical infrastructure, and other national security purposes, video surveillance
and telecommunications equipment produced by Hytera Communications Corporation , Hangzhou Hikvision
Digital Technology Company. or Dahua Technology Company (or any subsidiary or affiliate of such entities);
3) telecommunications or video surveillance services provided by such entities or using such equipment; or 4)
telecommunications or video surveillance equipment or services produced or provided by an entity that the
Secretary of Defense. in consultation with the Director of National Intelligence or the Director of the Federal
Bureau ofTnvestigation , reasonably believes to be an entity owned or controlled by, or otherwise connected to ,
the government of a covered foreign country.
Contractor must comply with requirements for certifications . The provision at 48 C.F.R Section 52.204-26
requires that Contractors review SAM prior to completing their required representations. This rule applies to all
acquisitions, including acquisitions at or below the simplified acquisition threshold and to acquisitions of
commercial items, including commercially available off the-shelf items.
ARTICLE 19: BUY AMERICA ACT (National School Lunch Program and Breakfast Program)
With respect to products purchased by Customers for use in the National School Lunch Program and/or
National School Breakfast Program , Contractor shall comply with all federal procurement laws and regulations
with respect to such programs. including the Buy American provisions set forth in 7 C.F.R. Part 210.21 (d), to
the extent applicable . Contractor agrees to provide all certifications required by Customer regarding such
programs .
In the event Contractor or Contractor's supplier(s) are unable or unwilling to certify compliance with the Buy
American Provision , or the applicability of an exception to the Buy American provision, H-GAC Customers
may decide not to purchase from Contractor. Additionally, H-GAC Customers may require country of origin on
all products and invoices submitted for payment by Contractor, and Contractor agrees to comply with any such
requirement.
ARTICLE 20: BUY AMERICA REQUIREMENT (Applies only to Federally Funded Highway and Transit
Projects)
With respect to products purchased by Customer for use in federally funded highway projects, Contractor shall
comply with all federal procurement laws and regulations with respect to such projects, including the Buy
American provisions set forth in 23 U.S.C. Section 313 , 23 C.F.R. Section 635.410, as amended , and the Steel
and Iron Preference provisions of Texas Transportation Code Section 223.045 , to the extent applicable.
Contractor agrees to provide all certifications required by Customer regarding such programs. With respect to
products purchased by Customer for use in federally funded transit projects, Contractor shall comply with all
federal procurement laws and regulations with respect to such projects. including the Buy American provisions
set forth in 49 U.S.C. Section 5323(j)( I), 49 C.F.R. Sections 661.6 or 661.12, to the extent applicable.
Contractor agrees to provide all certifications required by Customer regarding such programs.
ARTICLE 21: DOMESTIC PREFERENCE
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ln accordance with 2 CFR 200.322, as appropriate and to the extent consistent with law, a Customer using
federal grant award funds should, to the greatest extent practicable, provide a preference for the purchase,
acquisition , or use of goods, products, or materials produced in the United States (including but not limited to
iron , aluminum , steel , cement, and o ther manufactured products). The Customer must include this requirement
in all subawards including all contracts and purchase orders for work or products under the federal grant award.
If Contractor intends to qualify for Purchase Orders using federal grant money, the it shall work with the
Customer to provide all required certifications and other documentation needed to show compliance.
ARTICLE 22: TITLE VI REQUIREMENTS
H-GAC in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U .S.C.
§§ 2000d to 2000d-4) and the Regulations , hereby notifies all bidders that it will affirmatively ensure that any
disadvantaged business enterprises will be afforded full and fair opportunity to submit in response to this
Agreement and will not be discriminated against on the grounds of race , color, or national origin in
consideration for an award.
ARTICLE 23: EQUAL EMPLOYMENT OPPORTUNITY
Except as otherwise provided under 41 CFR Part 60 , all Contracts and Customer Purchase Orders that meet the
definition of "federally assisted con s truction contract" in 41 CFR Part 60-1.3 shall be deemed to include the
equal opportunity clause provided under 41 CFR 60-1.4(b ), in accordance with Executive Order 11246 , "Equal
E mployment Opportunity'' (30 FR 12319, 12935 , 3 CFR Pa11 , 1964-1965 Comp., pg.339), as amended by
Executive Order I 1375 , "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and
implementing regulation s at 41 CFR Part 60, "Office of Federal Contract Compliance Programs, Equal
E mployment Opportunity, Department of Labor."
The equal opportunity clause provided under 41 CFR 60-I .4(b) is hereby incorporated by reference. Contractor
agrees that such provision applies to any contract that meets the definition of "federally as s isted construction
contract" in 41 CFR Part 60-1 .3 and agrees that it will comply with s uch provision.
ARTICLE 24: CLEAN AIR AND WATER POLLUTION CONTROL ACT
Customer Purchase Orders u s ing federal funds must contain a provision that requires the Contractor to agree to
comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U .S .C.
7401-7671q) and the Federal Water Po llution Control Act as amended (33 U.S.C. 1251-1387). Violations must
be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency
(EPA).
Pursuant to the Federal Rule above , Contractor certifies that it is in compliance with all applicable provisions of
the Clean Air Act (42 U.S.C. 7401-7671 q) and the Federal Water Pollution Control Act as amended (33 U.S.C.
1251-1387) and will remain in compliance during the term of the Contract.
ARTICLE 25: PREVAILING WAGE
Contractor and any potential subcontractors have a duty to and shall pay the prevailing wage rate under the
Davi s-Bacon Act, 40 U .S .C. 276a -276a-5 , as amended , and the regulations adopted thereunder contained in 29
C.F.R . pt. 1 and 5.
ARTICLE 26: CONTRACT WORK HOURS AND SAFETY ST AND ARDS
As per the Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708), where applicable, all
Customer Purchase Orders in excess of ,000 that involve the employment of mechanics or laborers must include
a provision for compliance with 40 U .S.C. 3702 and 3704, as supplemented by Department o f Labor regulations
(29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor mu st be required to compute the wages of
Page 6 of 8
Do cuSign Env elop e ID : 28FEA740-2 4BF-429C-A5O1-57C97B02090B
every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard
work week is permissible provided that the worker is compensated at a rate of not less than one and a half times
the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40
U.S .C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to
work in surroundings or under working conditions which are unsanitary , hazardous or dangerous. These
requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open
market, or contracts for transportation or transmission of intelligence.
ARTICLE 27: PROFIT AS A SEPARATE ELEMENT OF PRICE
For purchases using federal funds in excess of ,000, a Customer may be required to negotiate profit as a
separate element of the price. See, 2 CFR 200.323(b ). Contractor agrees to provide information and negotiate
with the Customer regarding profit as a separate element of the price for the purchase. Contractor also agrees
that the total price , including profit, charged by Contractor to Customer will not exceed the awarded pricing,
including any applicable discount, under any awarded contract.
ARTICLE 28: BYRD ANTI-LOBBYING AMENDMENT
Byrd Anti-Lobbying Amendment (31 U.S.C. 1352) -Contractors that apply or bid for an award exceeding ,000
must file the required anti -lobbying certification. Each tier must certify to the tier above that it will not and has
not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence
an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee
of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered
by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in
connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the
Customer. As applicable, Contractor agrees to file all certifications and disclosures required by, and otherwise
comply with , the Byrd Anti-Lobbying Amendment (31 USC 1352).Contractor certifies that it is currently in
compliance with all applicable provisions of the Byrd Anti-Lobbying Amendment (31 U.S.C. 1352) and will
continue to be in compliance throughout the term of the Contract and further certifies that:
1. No Federal appropriated funds have been paid or will be paid by or on behalf of the Contractor, to any
person for influencing or attempting to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection
with the awarding of a Federal contract. the making of a Federal Grant, the making of a Federal Loan , the
entering into a cooperative agreement, and the extension , continuation , renewal , amendment, or
modification of a Federal contract, grant, loan , or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for
influencing, or attempting to influence, an officer or employee of a Member of Congress in connection
with a Federal contract, grant, loan, or cooperative agreement, Contractor shall complete and submit
Standard Form -LLL, "Disclosure Fom1 to Report Lobbying", in accordance with its instructions.
3. Contractor shall require that the language of this certification be included in the award documents for all
subawards at all tiers (including subcontracts. subgrants, and contracts under grants , loans. and
cooperative agreements) and that all subcontractors shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was
made or entered into. Submission of this certificate is a prerequisite for making or entering into this transaction
imposed by Section 1352. title 31. U.S. Code. Any person who fails to file the required certification shall be
subject to a civi I penalty of not less than .000 and not more than .000 for each such failure .
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ARTICLE 29: COMPLIANCE WITH EPA REGULATIONS APPLICABLE TO GRANTS,
SUBGRANTS, COOPERATIVE AGREEMENTS, AND CONTRACTS
Contractor certifies compliance with all applicable standards, orders, regulations, and/or requirements issued
pursuant to the Clean Air Act of 1970, as amended (42 U.S .C. I 857(h)), Section 508 of the Clean Water Act. as
amended (13 U.S.C. 1368). Executive Order 117389 and E nvironmental Protection Agency Regulation , 40 CFR
Part 15.
ARTICLE 30: COMPLIANCE WITH ENERGY POLICY AND CONSERVATION ACT
Contractor certifies that Contractor will be in compliance with mandatory standards and policies relating to
energy efficiency which are contained in the state energy conservation plan issued in compliance with the
Energy Pol icy and Conservation Act (Pub. L. 94-163 , 89 Stat. 871 ).
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DocuSign Envelope ID : 28FEA740-24BF-429C-A5D1-57C97B02090B
Attachment A
Whiting Systems, Inc.
Fleet Services Equipment
Contract No. FL03-21
Applicable items are the catalogs listed in the table below, as well as any pricing documents included in the
awardee·s bid response.
Specific
Product Code Manufacturer Description System I
Solution
Price
F: Vehicle Wash Systems
SmartWash Sugra Wash System: Automatic three-
brush roll-over type system (trave lin g gantry over
standing vehicle on surface mounted tracks); selectab le
FL2 l F25 Whiting programs: front. roof, rear and sides; applications:
$195.591 Systems cars. trucks, buses. tractor-trailers. trucks up to 13'6";
two side brushes, one top brush, and eleven rotating
motor driven spinners; pre-soak, final rinse arch: photo
eye activation/de-activation
Smart Wash Storm Wash System: Automatic touch-
Whiting
free roll-over blaster system; applications: standard
FL21F26 and irregular shaped cars and trucks up to 13'6"; side $146 ,704 Systems and top mounted high pressure nozzles; floor mounted
gantry tracks
Sgrite Drive-Thru Fleet Washer System: Two-step
system (wash step , rinse step): fully automatic , with
Whiting manual overr id e; front, side, and rear washing:
FL2 l F27 applications: heavy duty cleaning on large trucks and $122.639 Systems trailers and similarly dimensioned equipment up to
13'6": infrared fiber optic beams , starters, and
overloads
Sgrite Drive-Thru Fleet Washer Svstem: Single-step
system (single wash-rinse design): fully automatic.
Whiting with manual override: front side, and rear washing.
FL21F28 applications: heavy duty cleaning on large trucks and $106,111 Systems trailers and similarly dimensioned equipment up to
13'6": infrared fiber optic beams. starters, and
overloads
Page I of2
DocuSign Envelope ID : 28FEA740-24BF-429C-A5O1-57C97B02090 B
Sma11W as h Suger Scout Syste m : Full y automatic
three-brush roll-over type syste m (trave lin g ga ntry
ove r standin g vehicle o n s urfac e m o unt e d tracks);
FL21F29 Whiting se lectable pro gram s: front. roof, rear a nd bo th s id es ; $167,6 15 Systems applications: cars a nd small trucks, bu ses, tracto r-
trai lers. large trucks up to 13 '6"; two s id e bru s hes. one
top brush ; pre -soa k, final rin se a rch ; ph o to eye
activation/d e -act ivatio n
SmartWash Sco ut Syste m: All-electric 3 -bru s h roll-
Whiting ove r syste m a pplicat io n s: s ta nd ard s ize cars and light
FL21F30 Syste m s trucks, including buses. a nd la rger truck s up to 12'; $105.667
floor m o unted tracks; two ste p wash-rinse design
Page 2 of2
DocuSign Envelope ID : 80EEF131-4771-4875-82B3-4B156C261D05
AMENDMENT No. 1 to CONTRACT No. FL03-21
For
Fleet Services Equipment
Between
HOUSTON-GALVESTON AREA COUNCIL
And
Whiting Systems, Inc.
Tl-OS AMENDMENT modifies the above referenced Contract as follows:
Clarifies Articles 26 , 27, and 28 in Special Provisions of the above referenced Agreement(# 6312) should
read as follows:
ARTICLE 26: CONTRACT WORK HOURS AND SAFETY STANDARDS
As per the Contract Work Hours and Safety Standards Act (40 U.S.C. 3 701-3708), where applicable, all
Customer Purchase Orders in excess of$100,000 that involve the employment of mechanics or laborers
must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of
Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act , each contractor mu st be required to
compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work
in excess of the standard work week is permissible provided that the worker is compensated at a rate of not
less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work
week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer
or mechanic must be required to work in surroundings or under working conditions which are unsanitary ,
hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or
articles ordinarily available on the open market , or contracts for transportation or transmission of
intelligence .
ARTICLE 27: PROFIT AS A SEPARATE ELEMENT OF PRICE
For purchases using federal funds in excess of $150 ,000 , a Customer may be required to negotiate profit as
a separate element of the price. See, 2 CFR 200.323(b ). Contractor agrees to provide information and
ne gotiate with the Customer regarding profit as a separate element of the price for the purchase . Contractor
also agrees that the total price, including profit, charged by Contractor to Customer will not exceed the
awarded pricing, including any applicable discount, under any awarded contract .
ARTICLE 28: BYRD ANTI-LOBBYING AMENDMENT
Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)-Contractors that apply or bid for an award exceeding
$100 ,000 must file the required anti-lobbying certification. Each tier must certify to the tier above that it
will not and has not used Federal appropriated funds to pay any person or organization for influencing or
attempting to influence an officer or employee of any agency, a member of Congress, officer or employee
of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract,
grant or any other award covered by 31 U .S .C. 1352. Each tier must also disclose any lobbying with non-
Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are
forwarded from tier to tier up to the Customer. As applicable, Contractor agrees to file all certifications and
disclosures required by , and otherwise comply with, the Byrd Anti-Lobbying Amendment (31 USC
1352).Contractor certifies that it is currently in compliance with all applicable provisions of the Byrd Anti-
Lobbying Amendment (31 U.S.C. 1352) and will continue to be in compliance throughout the term of the
Contract and further certifies that:
I . No Federal appropriated funds have been paid or will be paid by or on behalf of the Contractor, to
any person for influencing or attempting to influence an officer or employee of any agency , a
Member of Congress, an officer or employee of Congress , or an employee of a Member of
Congress in connection with the awarding of a Federal contract, the making of a Federal Grant, the
making of a Federal Loan , the entering into a cooperative Master Agreement, and the extension ,
continuation, renewal , amendment, or modification of a Federal contract, grant, loan , or cooperative
Revi se d 6. I . 18
DocuSign Envelope ID : 80EEF131-4771-4875-8283-48156C261D05
Master Agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for
influencing, or attempting to influence, an officer or employee of a Member of Co ngress in
connection with a Federal contract, grant, loan , or cooperative Master Agreement, Contractor shall
complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying", in accordance
with its instructions.
3. Contractor shall require that the language of this certification be included in the award documents
for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants , loans ,
and cooperative Master Agreements) and that all subcontractors shall certify and disclose
accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction
was made or entered into . Submission of this certificate is a prerequisite for making or entering into this
transaction imposed by Section 1352 , title 31 , U.S. Code. Any person who fails to file the required
certification shall be subject to a civil penalty of not less than $10 ,000 and not more than $100 ,000 for each
such failure .
Unless otherwise noted , this amendment goes into effect on the date signed by H-GAC. All other terms and
conditions of this Contract shall remain unchanged and in full force and effect.
rN WITNESS WH EREOF, the parties have caused this Agreement to be executed by their respective duly
authorized representatives .
Signed for Houston-Galveston Area Council,
Houston, Texas
Signed for: Whiting Systems, Inc.
Printed Name & Title:
Chuck Wemple , Executive Directo r
12/7/2021
Date: _____________ _
Russ whiting President
Date: 11/30/2021
---------------
Revised 6 .1.18
DocuSign Envelope ID: BEE0FCFD-140C-4271-8F7F-5D5E4FFACF09
AMENDMENT No. 2 to CONTRACT No. FL03-21
For
Fleet Services Equipment
Between
HOUSTON-GALVESTON AREA COUNCIL
And
Whiting Systems, Inc.
THJS AMENDMENT modifies the above referenced Contract as follows:
This contract is extended through February 28 , 2024 Midnight CT.
Unless otherwise noted , this amendment goes into effect on the date signed by H-GAC. All other terms and
conditions of this Contract shall remain unchanged and in full force and effect.
rN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly
authorized representatives.
Signed for Houston-Galveston Area Council,
Houston, Texas
Signed for: Whiting Systems, Inc.
Printed Name & Title:
Chuck Wempe, Executive Director
Date :
2/22/2023
--------------
Russ h . .1D2F8161 EB6D460 ... w ,ting President
Date: 2/22/2023
--------------
Revised 6. I .18
DocuSign Envelope ID : 07364C1 F-A 18C-4475-9277-857D2F97F5AF
AMENDMENT No. 3 to CONTRACT No. FL03-21
For
Fleet Services Equipment
Between
HOUSTON-GALVESTON AREA COUNCIL
And
Whiting Systems, Inc.
THJS AMENDMENT modifies the above referenced Contract as follows:
This contract is extended through February 28 , 2025 Midnight CT.
Unless otherwise noted , this amendment goes into effect on the date signed by H-GAC. All other terms and
conditions of this Contract shall remain unchanged and in full force and effect.
[N WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly
authorized representatives.
Signed for Houston-Galveston Area Council,
Houston , Texas
Signed for: Whiting Systems, Inc.
Printed Name & Title:
Chuck WenN>'fi:t"~~Utive Director
2/14/2024 Date: _____________ _
RUSS whiting President
Date : 2/13/2024
--------------
Rev ised 6.1. 18
File Number: 2021-0502
WHITING SYSTEMS, INC.:
113 West Mountain Street
Fayetteville, AR 72701
(4 79) 575-8323
Ordinance: 6458
AN ORDINANCE TO WAIVE COMPETITIVE BIDDING AND APPROVE THE PURCHASE
OF CAR WASH CHEMICALS FROM THE SUPPLIER WHIT! G SYSTEMS , INC. IN
VARIOUS QUANTITIES THROUGH MARCH 16 , 2024
WHEREAS, on May 7, 2019, the City Council passed Resolution 115-19 to approve a Contract
with Whiting Systems, Inc. to supply and install the equipment for the Fleet Wash Facility; and
WHEREAS , on April 6, 2021, the City Council passed Reso lution l 07-21 authorizing the purchase
of car wash chemicals from Whiting Systems , Inc ., pursuant to a Houston -Galveston Area Council
(HGAC) cooperative purchasing contract, but the City was later notified that the chemicals were
unpubli shed items and could not be more than 25% of the base total price of the order; and
WHEREAS, Whiting Systems, Inc . provided the City with written notification that the use of another
manufacturer's chemicals could void the fleet wash facility warranty and offered to extend the warranty
for an additional two years, through March 16 , 2024, if the City purchases and uses Whiting Systems
chemicals.
NOW, THEREFORE, BE IT ORDAi ED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section I: That the City Council of the City of Fayetteville, Arkansas hereby finds the above
circumstances make competitive bidding not feasible .or practical and therefore waives the
requirements of formal competitive bidding and approves the purchase of car wash chemicals from
Whiting Systems, Inc . in various quantities through March 16 , 2024.
Page 1 Printed on 7121121
Ordinance : 6458
File Number: 2021-0502
PASSED and APPROVED on 7/20/2021
Attest:
.............
Pagel Printed on 7121121
City of Fayetteville, Arkansas
Agenda Date: 7/20/2021
In Control : City Council MeetinQ
Agenda Number: C .1
WHITING SYSTEMS, INC. :
Text File
File Number: 2021-0502
Version: 1
113 West Mountain Street
Fayetteville , AR 72701
(479) 575-8323
Status: Passed
File Type: Ordinance
AN ORDINANCE TO WAIVE COMPETITIVE BIDDING AND APPROVE THE PURCHASE OF CAR
WASH CHEM ICALS FROM THE SUPPLIER WHITING SYSTEMS , INC. IN VAR IOUS
QUANTITIES THROUGH MARCH 16 , 2024
WHEREAS , on May 7. 2019, the City Council pa ssed Re solution 115-19 to approve a Contract with
Whiting Systems, In c . to supply and install the equipment for the Fleet Wash Facility; and
WHEREAS, on April 6, 2021 , the City Council pas sed Resolution I 07 -21 authorizing the purchase of car
wash chemicals from Whiting Systems , Inc .. purs uant to a Houston -Galveston Area Council (HGAC)
cooperative purchasing contract, but the City was later notified that the chemicals were unpubli shed item s and
could not be more than 25 % of the base total price of the order; and
WHEREAS, Whiting Systems , Inc. provided the City with written notification that the use of another
manufacturer 's chemica ls cou ld vo id the fleet wash facility warranty and offered to extend the warranty for an
additional two years , through March 16 , 2024, if the City purchases and uses Whiting Systems chemicals.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section I : That the City Council of the City of Fayetteville , Arkansas hereby find s the above circumsta nces
make competitive bidding not feasible or practical and therefore waives the requirements of fom1al competitive
bidding and approves the purchase of car wash chemicals from Whiting Systems, Inc. in various qu a ntities
through March 16, 2024.
City of Fayetteville, Arkansas Page 1 Printed on 7/21 /2021
Sara Glenn
Submitted By
City of Fayetteville Staff Review Form
2021-0502
Legistar File ID
7/20/2021
City Council Meeting Date -Agenda Item Only
N/ A for Non-Agenda Item
6/30/2021
Submitted Date
Action Recommendation:
FLEET OPERATIONS (770)
Division / Department
An ordinance to authorize the purchase of a car wash chemicals from the Supplier, Whiting Systems, Inc . for the
duration of the warranty.
Budget Impact:
9700. 770.1910-5203.00 Shop
Account Number Fund
Project Number Project Title
Budgeted Item? Yes Current Budget $ 79,281.00
Funds Obligated $ 33,063 .62
Current Balance Is 46,217.38 1
Does item have a cost? Yes Item Cost $ 38 ,000 .00
Budget Adjustment Attached? No Budget Adjustment $
Remaining Budget $ 8,217.38
V20210527
Purchase Order Number: Previous Ordinance or Resolution #
Change Order Number: ___________ Approval Date:
Original Contract Number:
Comments: The Item Cost listed above has been estimated with the assistance from the manufacturer. In future
years, with a record of actual usage this will be more accurate .
CITY OF
FAYETTEVILLE
ARKANSAS
MEETING OF JULY 20, 2021
TO: Mayor and City Council
THRU: Terry Gulley , Director of Transportation
FROM: Sara Glenn , Fleet Operations Superintendent
DATE: June 30, 2021
SUBJECT: Bid Waiver for car wash chemicals
RECOMMENDATION:
CITY COUNCIL MEMO
An ordinance to authorize the purchase of a car wash chemicals from the supplier, Whiting
Systems , Inc. for the duration of the warranty .
BACKGROUND:
The City Council approved the purchase of Car Wash Chemicals from Wh iting Systems Inc. in
April of 2021 in Resolution 107-21 . After going through the Houston-Galveston Area Council
(HGAC), we were notified that the chemicals were unpublished items and could not be more
than 25% of the base total price of the order. The use of the chemicals not made and sold by
Whiting Systems , Inc. will void the warranty which began March 16, 2021.
DISCUSSION:
Whiting Systems , Inc. provided the City with written notification that not only will the warranty be
affected by the use of another manufacturers chemicals, but that they would extend the
warranty for an additional two years, for a 36-month total warranty period. Staff requests
authority to purchase in various quantities within budgeted amounts for the duration of the
warranty through March 16, 2024 .
BUDGET/STAFF IMPACT:
For the first year, the amount of chemicals that will be needed and used have been estimated
with the manufacturer's assistance. In Fleet's overall budget we estimate that the savings of the
monthly expense of the outside car wash , the ample repair cost and water inefficiencies of the
truck wash will largely make up the cost of these chemicals .
Attachments:
Whiting Systems Warranty Letter
Mailing Address :
113 W . Mountain Street
Fayetteville, AR 72701
www.fayetteville-ar.gov
Whiting Systems, Inc.
June 22, 2021
Les McGaugh
Support Manager
Fleet Services
1525 S. Happy Hollow Rd.
City of Fayetteville , Arkansas 72701
Dear Les :
9000 Highway 5 North
Alexander, AR 72002
501-847-9031
We are writing to provide you information concerning your wash system warranty and the use
of Whiting approved products in the systems .
The wash system comes with a standard 12-month factory warranty. The warranty start date
for your system began March 16, 2021.
Factory warranty may be affected when unapproved products are used through the wash
system . This includes but not limited to, lubricants, cleaning detergents, etc .
Whiting Systems prov ides an extended 36-month factory warranty for your wash system when
Whiting Systems cleaning detergents are exclusively used through the wash system .
Whiting Systems manufactures its own line of cleaning detergents . The WSI chemistry
department formulates proprietary cleaners specifically designed for our wash application . WSI
products achieve maximum results without the use of harsh or damaging materials through your
system .
Whiting Systems has 45 yea rs of experience providing wash programs focused on wash time,
wash cost, and wash quality.
We are excited about the opportunity to serve your wash needs, especially with WSI being an
Arkansas company . Please let us know if you need further information concerning your wash
system .
Greg Jenkins
Senior V ice President
152-24 RESOLUTION_City of Fayetteville Truck
Wash-Extended Warranty_051524
Final Audit Report 2024-06-17
Created:2024-06-17
By:Allison Albert (aalbert@whitingsystems.com)
Status:Signed
Transaction ID:CBJCHBCAABAAxZk8lHRbRHMufVuoyxeoftZp3hk45ZLy
"152-24 RESOLUTION_City of Fayetteville Truck Wash-Extende
d Warranty_051524" History
Document created by Allison Albert (aalbert@whitingsystems.com)
2024-06-17 - 6:29:30 PM GMT- IP address: 12.28.46.83
Document emailed to Greg Jenkins (gjenkins@whitingsystems.com) for signature
2024-06-17 - 6:29:52 PM GMT
Email viewed by Greg Jenkins (gjenkins@whitingsystems.com)
2024-06-17 - 9:02:49 PM GMT- IP address: 12.28.46.83
Document e-signed by Greg Jenkins (gjenkins@whitingsystems.com)
Signature Date: 2024-06-17 - 9:05:10 PM GMT - Time Source: server- IP address: 12.28.46.83
Agreement completed.
2024-06-17 - 9:05:10 PM GMT