HomeMy WebLinkAboutContract 54225 DocuSign Envelope ID:690CBI7D-5A19-49C4-AFEC-6AC78533328D CITY SECRETARY
C TRACT NO. a
ADDENDUM TO VIRTUAL COURSE FACILITATION AGREEMENT
BETWEEN
THE CITY OF FORT WORTH
AND
VITALSMARTS, LC
This Addendum to the Virtual Course Facilitation Agreement ("Addendum") is entered
into by and between VITALSMARTS, LC ("Vendor") and the City of Fort Worth ("City"),
collectively the "parties."
The Contract documents shall include the following:
1. This Addendum
2. Exhibit A -The Virtual Course Facilitation Agreement; and
3. Exhibit B - Quote with Sales Order ID NS-057319 dated 6/17/2020.
Notwithstanding any language to the contrary in the attached Virtual Course Facilitation
Agreement(collectively referred to herein as the "Agreement"), the parties stipulate by evidence
of execution of this Addendum below by a representative of each party duly authorized to bind the
parties hereto, that the parties hereby agree that the provisions in this Addendum below shall be
applicable to the Agreement as follows:
1. Term. The Agreement shall commence on July 25, 2020 ("Effective Date") and
shall expire no later than July 24,2021 ("Expiration Date"),unless terminated earlier in accordance
with the provisions of this Agreement or otherwise extended by the parties. This Agreement may
be renewed for two (2) one (1)year renewal periods at the City's option, each a"Renewal Term."
The City shall provide Vendor with written notice of its intent to renew at least thirty (30) days
prior to the end of each term.
2. Termination.
a. Convenience. Either City or Vendor may terminate the Agreement at any
time and for any reason by providing the other party with 30 days written notice of
termination.
r�
b. Breach.If either party commits a material breach of the Agreement,the non-
breaching Party must give written notice to the breaching party that describes the breach
�iryoF ��ZO in reasonable detail. The breaching party must cure the breach ten(10) calendar days after
party, or
her time frame as
to by the
C/rys��9FTgqo receipt of notice from the 9ry parties. If the breaching party fails to cure the r achtwithin the stated period of f time, the
r non-breaching party may, in its sole discretion, and without prejudice to any other right
under the Agreement, law, or equity, immediately terminate the Agreement by giving
written notice to the breaching party. - -
OFFICOAL RECUkU
CITY SECRETARY
Addendum to Agreement F 1. WO,R7979X
Between City of Fort Worth
And VITALSMARTS,LC Page 1 of 9
DocuSign Envelope ID:690CB17D-5A19-49C4-AFEC-6AC78533328D
C. Fiscal Funding Out. In the event no funds or insufficient funds are
appropriated by City in any fiscal period for any payments due hereunder, City will notify
Vendor of such occurrence and the Agreement shall terminate on the last day of the fiscal
period for which appropriations were received without penalty or expense to the City of
any kind whatsoever, except as to the portions of the payments herein agreed upon for
which funds have been appropriated.
d. Duties and Obligations of the Parties. In the event that the Agreement is
terminated prior to the Expiration Date, City shall pay Vendor for services actually
rendered up to the effective date of termination and Vendor shall continue to provide City
with services requested by City and in accordance with the Agreement up to the effective
date of termination. Upon termination of the Agreement for any reason, Vendor shall
provide City with copies of all completed or partially completed documents prepared under
the Agreement. In the event Vendor has received access to City information or data as a
requirement to perform services hereunder, Vendor shall return all City provided data to
City in a machine readable format or other format deemed acceptable to City.
3. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties
or liquidated damages in any amount, City objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect.
4. Law and Venue.The Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed in accordance with the laws of the United States and state of
Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement
shall be in a court of competent jurisdiction in Tarrant County,Texas.To the extent the Agreement
is required to be governed by any state law other than Texas or venue in Tarrant County, City
objects to such terms and any such terms are hereby deleted from the Agreement and shall have
no force or effect.
5. Linked Terms and Conditions. If the Agreement contains a website link to terms
and conditions,the linked terms and conditions located at that website link as of the effective date
of the Agreement shall be the linked terms and conditions referred to in the Agreement. To the
extent that the linked terms and conditions conflict with any provision of either this Addendum or
the Agreement,the provisions contained within this Addendum and the Agreement shall control.
If any changes are made to the linked terms and conditions after the date of the Agreement, such
changes are hereby deleted and void. Further, if Vendor cannot clearly and sufficiently
demonstrate the exact terms and conditions as of the effective date of the Agreement, all of the
linked terms and conditions are hereby deleted and void.
6. Insurance. The City is a governmental entity under the laws of the state of Texas
and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self-Insurance by
Governmental Units," is self-insured and therefore is not required to purchase insurance. To the
extent the Agreement requires City to purchase insurance, City objects to any such provision,the
parties agree that any such requirement shall be null and void and is hereby deleted from the
Addendum to Agreement
Between City of Fort Worth
And VITALSMARTS,LC Page 2 of 9
DocuSign Envelope ID:690CB17D-5A19-49C4-AFEC-6AC78533328D
Agreement and shall have no force or effect. City will provide a letter of self-insured status as
requested by Vendor.
7. Sovereign lmmunity. Nothing herein constitutes a waiver of City's sovereign
immunity. To the extent the Agreement requires City to waive its rights or immunities as a
government entity; such provisions are hereby deleted and shall have no force or effect.
8. Indemnity. To the extent the Agreement, in any way,requires City to indemnify or
hold Vendor or any third party harmless from damages of any kind or character, City objects to
these terms and any such terms are hereby deleted from the Agreement and shall have no force or
effect.
9. IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its
own cost and expense, including the payment of attorney's fees, any claim or action against
the City for infringement of any patent, copyright, trade mark, service mark, trade secret,
or other intellectual property right arising from City's use of the Deliverable(s), or any part
thereof, in accordance with the Agreement, it being understood that the agreement to
indemnify, defend, settle or pay shall not apply if City modifies or misuses the
Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions
against the City pursuant to this section 8,Vendor shall have the right to conduct the defense
of any such claim or action and all negotiations for its settlement or compromise and to settle
or compromise any such claim; however, City shall have the right to fully participate in any
and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest,
and City agrees to cooperate with Vendor in doing so.In the event City,for whatever reason,
assumes the responsibility for payment of costs and expenses for any claim or action brought
against the City for infringement arising under the Agreement, the City shall have the sole
right to conduct the defense of any such claim or action and all negotiations for its settlement
or compromise and to settle or compromise any such claim; however, Vendor shall fully
participate and cooperate with the City in defense of such claim or action. City agrees to give
Vendor timely written notice of any such claim or action,with copies of all papers City may
receive relating thereto.Notwithstanding the foregoing,the City's assumption of payment of
costs or expenses shall not eliminate Vendor's duty to indemnify the City under the
Agreement. If the Deliverable(s), or any part thereof, is held to infringe and the use thereof
is enjoined or restrained or, if as a result of a settlement or compromise, such use is
materially adversely restricted, Vendor shall, at its own expense and as City's sole remedy,
either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the
Deliverable(s) to make them/it non-infringing, provided that such modification does not
materially adversely affect City's authorized use of the Deliverable(s); or (c) replace the
Deliverable(s)with equally suitable, compatible, and functionally equivalent non-infringing
Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is
reasonably available to Vendor, terminate the Agreement, and refund all amounts paid to
Vendor by the City, subsequent to which termination City may seek any and all remedies
available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE
SECURED BY THE REQUISITE INSURANCE COVERAGE REQUIRED BY CITY.
Addendum to Agreement
Between City of Fort Worth
And VITALSMARTS,LC Page 3 of 9
DocuSign Envelope ID:690CB17D-5A19-49C4-AFEC-6AC78533328D
10. Data Breach. Vendor further agrees that it will monitor and test its data
safeguards from time to time, and further agrees to adjust its data safeguards from time to
time in light of relevant circumstances or the results of any relevant testing or monitoring. If
Vendor suspects or becomes aware of any unauthorized access to any financial or personal
identifiable information ("Personal Data") by any unauthorized person or third party, or
becomes aware of any other security breach relating to Personal Data held or stored by
Vendor under. the Agreement or in connection with the performance of any services
performed under the Agreement or any Statement(s)of Work("Data Breach"),Vendor shall
immediately notify City in writing and shall fully cooperate with City at Vendor's expense
to prevent or stop such Data Breach. In the event of such Data Breach, Vendor shall fully
and immediately comply with applicable laws,and shall take the appropriate steps to remedy
such Data Breach. Vendor will defend, indemnify and hold City, its Affiliates, and their
respective officers, directors, employees and agents, harmless from and against any and all
claims, suits, causes of action, liability, loss, costs and damages, including reasonable
attorney fees, arising out of or relating to any third party claim arising from breach by
Vendor of its obligations contained in this Section, except to the extent resulting from the
acts or omissions of City. All Personal Data to which Vendor has access under the
Agreement, as between Vendor and City, will remain the property of City. City hereby
consents to the use, processing and/or disclosure of Personal Data only for the purposes
described herein and to the extent such use or processing is necessary for Vendor to carry
out its duties and responsibilities under the Agreement,any applicable Statement(s)of Work,
or as required by law. Vendor will not transfer Personal Data to third parties other than
through its underlying network provider to perform its obligations under the Agreement,
unless authorized in writing by City. Vendor's obligation to defend, hold harmless and
indemnify City shall remain in full effect if the Data Breach is the result of the actions of a
third party. All Personal Data delivered to Vendor shall be stored in the United States or
other jurisdictions approved by City in writing and shall not be transferred to any other
countries or jurisdictions without the prior written consent of City.
11. No Mandatory Arbitration. To the extent the Agreement requires mandatory
arbitration to resolve conflicts, City objects to these terms and any such terms are hereby deleted
from the Agreement and shall have no force or effect.
12. Insurance. Vendor agrees that insurance coverage provided to City by Vendor is
sufficient for purposes of the Agreement only.
13. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the availability of funds.
If such funds are not appropriated or become unavailable, City shall have the right to terminate the
Agreement except for those portions of funds which have been appropriated prior to termination.
14. Public Information. City is a government entity under the laws of the State of Texas
and all documents held or maintained by City are subject to disclosure under the Texas Public
Information Act. To the extent the Agreement requires that City maintain records in violation of
the Act, City hereby objects to such provisions and such provisions are hereby deleted from the
Addendum to Agreement
Between City of Fort Worth
And VITALSMARTS,LC Page 4 of 9
DocuSign Envelope ID:690CB17D-5A19-49C4-AFEC-6AC78533328D
Agreement and shall have no force or effect.In the event there is a request for information marked
Confidential or Proprietary, City shall promptly notify Vendor. It will be the responsibility of
Vendor to submit reasons objecting to disclosure. A determination on whether such reasons are
sufficient will not be decided by City, but by the Office of the Attorney General of the State of
Texas or by a court of competent jurisdiction.
15. Addendum Controlling. If any provisions of the attached Agreement, conflict with
the terms herein, are prohibited by applicable law, conflict with any applicable rule,regulation or
ordinance of City,the terms in this Addendum shall control.
16. Network Access.
a. City Network Access. If Vendor, and/or any of its employees, officers,
agents, servants or subcontractors (for purposes of this section "Vendor Personnel"),
requires access to the City's computer network in order to provide the services herein,
Vendor shall execute and comply with the Network Access Agreement which is attached
hereto as Exhibit"A" and incorporated herein for all purposes.
b. Federal Law Enforcement Database Access. If Vendor, or any Vendor
Personnel,requires access to any federal law enforcement database or any federal criminal
history record information system, including but not limited to Fingerprint Identification
Records System ("FIRS"), Interstate Identification Index System ("III System"),National
Crime Information Center ("NCIC") or National Fingerprint File ("NFF"), or Texas Law
Enforcement Telecommunications Systems("TLETS"),that is governed by and/or defined
in Title 28, Code of Federal Regulations Part 20 ("CFR Part 20"), for the purpose of
providing services for the administration of criminal justice as defined therein on behalf of
the City or the Fort Worth Police Department, under the Agreement, Vendor shall comply
with the Criminal Justice Information Services Security Policy and CFR Part 20, as
amended,and shall separately execute the Federal Bureau of Investigation Criminal Justice
Information Services Security Addendum. No changes, modifications, alterations, or
amendments shall be made to the Security Addendum. The document must be executed as
is, and as approved by the Texas Department of Public Safety and the United States
Attorney General.
17. Immigration Nationality Act. Vendor shall verify the identity and employment
eligibility of its employees who perform work under the Agreement, including completing the
Employment Eligibility Verification Form(I-9). Upon request by City,Vendor shall provide City
with copies of all I-9 forms and supporting eligibility documentation for each employee who
performs work under the Agreement. Vendor shall adhere to all Federal and State laws as well as
establish appropriate procedures and controls so that no services will be performed by any Vendor
employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY
CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR
LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S
EMPLOYEES,SUBCONTRACTORS,AGENTS,OR LICENSEES. City,upon written notice
Addendum to Agreement
Between City of Fort Worth
And VITALSMARTS,LC Page 5 of 9
DocuSign Envelope ID:690CB17D-5A19-49C4-AFEC-6AC78533328D
to Vendor, shall have the right to immediately terminate the Agreement for violations of this
provision by Vendor.
18. No Boycott of Israel. If Vendor has fewer than 10 employees or the Agreement is
for less than $100,000,this section does not apply. Vendor acknowledges that in accordance with
Chapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with
a company for goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the
contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those
terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Vendor
certifies that Vendor's signature provides written verification to City that Vendor: (1) does not
boycott Israel; and(2) will not boycott Israel during the term of the Agreement.
19. Right to Audit. Vendor agrees that City shall, until the expiration of three(3)years
after final payment under the Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of Vendor involving transactions relating to the
Agreement. Vendor agrees that City shall have access during normal working hours to all
necessary Vendor facilities and shall be provided adequate and appropriate workspace in order to
conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable
advance notice of intended audits.
(signature page follows)
Addendum to Agreement
Between City of Fort Worth
And VITALSMARTS,LC Page 6 of 9
DocuSign Envelope ID:690CB1 7D-5A1 9-49C4-AFEC-6AC78533328D
ACCEPTED AND AGREED:
CITY:
City of Fort Worth Contra-,,-
By sigr. 9 erson
respon� ��lt,Q, `� istration
of this i
By: .� 1� perforn 0ta1�
Name: Jesus J. Chapa ,� ,,,
Title: Deputy City Manager ' `�'
Date: 7 r c3 ,— �a By:
Name: Neumi r�ovuru
Approval Recommen ed: Title: Assistant Director Of Human Resources
Approved as to Form and Legality:
By:
Nam4rianckersoTitle of Hu an Resources By: /
Attest: Title: -ant City Attorney
�Z9rpVy-
n Contract Authotization:
M&C:
By:
Name: a Kayser ' '�
Title: City Secretary
VENDOR:
VITALSMARTS,LC
Docuftned by:
By: fiVd� G u-s
Name: Troy Giles
Title: CFO/COO
Date: 7/20/2020
t
Addendum to Agreement
Between City of Fort Worth
And VITALSMARTS,LC Page 7 of 9
DocuSign Envelope ID:690CB17D-5A19-49C4-AFEC-6AC78533328D
ACCEPTED AND AGREED:
CITY:
City of Fort Worth Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract, including ensuring all
By: performance and reporting requirements.
Name: Jesus J. Chapa
Title: Deputy City Manager
Date: By:
Name: Neena Kovuru
Approval Recommended: Title: Assistant Director Of Human Resources
Approved as to Form and Legality:
By:
Name: Brian Dickerson
Title: Director of Human Resources By:
Name: Thomas R. Hansen
Attest: Title: Assistant City Attorney
Contract Authorization:
M&C:
By:
Name: Mary Kayser
Title: City Secretary
VENDOR:
VITALSMARTS, LC
By: F� cuSigned by:
V"6y e�itt's
Name: Troy Giles
Title: CFO/COO
Date: 7/2 0/202 0
Addendum to Agreement
Between City of Fort Worth
And VITALSMARTS,LC Page 7 of
DocuSign Envelope ID:690CB17D-5A19-49C4-AFEC-6AC78533328D
EXHIBIT A
Virtual Course Facilitation Agreement
Training Details
Organization
Term Length 1 year four agreement date
Topic
Certified Trainer
ClientContact Name
Phone
Erna it
VitalSunarts Name
Representative Phone
Email
VitalSmarts Client Name
Success Specialist Phone
Email
Terris and Conditions
ALLORDERS ARE EXPRESSLY MADESUBJECT TO VITA LSMARTS TERMS AND CONDITIONS OF PURCHASE LOCATEDAT
W tNUVITALSMARTS.COMITERMS
• VithlSmarts will provide Client all necessary course material('IP Assets')for the above referenced visual course,including (but
not limited b)videos,slides,and participant materials.
• Client will use these IP Assets only to leach the above referenced course by a certified VtalSmarts trainer. Materials cannot be
used in another capacity.
• Client agrees to delete the IP Assets from all Systems if Client decides to discontinue the course.
• Client agrees to teach the material only to learners for whom Client has purchased a Virtual Participant Toolkit from
VifelSmarts. Client will complete an order confrmation form for each purchase of Virtual Participant Toolkits. Client may
purchase Toolkits in bulk or for each individual course. If Toolkits are purchased in bulk,Client agrees to maintain accurate
records of participant numbers to avoid excess distrbuton of the digital files.
• Client agrees that VtalSmarts Wll not provide any platform support or setup.
Client Signature VitalSmarts Signature
Name Name Troy Giles
Title Title CFO/COO
D.—i9-d by:
Signature Signature Efi 4 4b s
Date Date 7/20/2020
Addendum to Agreement
Between City of Fort Worth
And VITALSMARTS,LC Page 8 of 9
DocuSign Envelope ID:690CB17D-5A19-49C4-AFEC-6AC78533328D
EXHIBIT B
Vita l S m a rts,, 6/17/2020
A TWENTYEIGHTY'COMPANY
Quote
Account City of Fort Worth Texas
Sales Order ID NS-057319
Billing information Shipping Information
Billing Address Attn:Veronica Sanchez Shipping Address Attn:Veronica Sanchez
City of Fort Worth Texas City of Fort Worth Texas
900 Monroe Street 900 Monroe Street
Fort Worth,Texas 76102 Fort Worth,Texas 76102
United States United States
Payment Terms Net 30 Shipping Contact Email veronica.sanchez@fortworlhtexas
Accounts Payable Contact Veronica Sanchez Shipping Contact Phone 817-392-8563
Accounts Payable Email veronica.sanchez@fortworthtexas.gov Shipping Special Instructions QUOTE
DescriptionProduct Line Item
Crucial Conversations:Participant Suite v4 100 USD 217.00 USD 21,700.00
Crucial Conversations:Virtual Participant 100 USD 217.00 USD 21,700.00
Suite
Virtual Subscription 1 USD 500.00 USD 500.00
Crucial Accountability-Add On:Participant 50 USD 156.00 USD 7,800.00
Suite v1
Crucial Accountability-Add On:Virtual 50 USD 156.00 USD 7,800.00
Participant Suite
Subtotal USD 59,500.00
Estimated Tax USD 0.00
Estimated Shipping USD 230.00
Total Amount USD 59,730.00
THIS QUOTE EXPIRES 30 DAYS FROM QUOTE DATE.NOTE:ANY TAXES,TRAVEL EXPENSES,SHIPPING AND HANDLING ON THIS QUOTE
ARE ESTIMATES.ACTUALS WILL APPEAR ON FINAL INVOICE
ALL ORDERS ARE EXPRESSLY MADE SUBJECT TO VITALSMARTS TERMS AND CONDITIONS OF PURCHASE LOCATED AT
W W W.VITALSMA RTS.COM/TERM S
Addendum to Agreement
Between City of Fort Worth
And VITALSMARTS,LC Page 9 of 9
FORT WORTH
CITY OF FORT WORTH
CHAPTER 252 EXEMPTION FORM
This form must be provided when requesting to make a purchase over$50,000 without following
public bidding requirements.
Instructions: Fill out the entire form with detailed information. Once you have completed this
form,provide it to the Purchasing attorney for review. The attorney will review the information
you have provided and determine whether using an exemption to Chapter 252's biding
requirements would be defensible. If you are printing this form to provide to Legal,please do not
provide the Primer portion. Failure to provide sufficient information may result in follow up
questions and cause a delay in the attorney's determination.
Section 1: General Information
Requesting Department: Human Resources
Name of Contract Manager: Neena Kovuru
Department's Attorney: Royce Hansen
Item or Service sought: Training curriculum and accompanying_participant material
Vendor: Vital Smarts
Current Agreement for item/service: Yes No X
CSC #: Expired contract, CSC# 51283
How will this item or service be used: The curriculum will be used to deliver the Crucial
Conversations and Crucial Accountability courses to city employees. VitalSmarts holds a
coRywright for this curriculum.
Section 2: Exemption Justification
Please indicate which exemption you believe applies to the purchase and provide information to
support its applicability. Please refer to the Exemption Primer for detailed information about
common exemptions.
a procurement made because of a public calamity that requires the immediate appropriation
of money to relieve the necessity of the municipality's residents or to preserve the property of the
municipality;
a procurement necessary to preserve or protect the public health or safety of the
municipality's residents;
Page 1 of 4
a procurement necessary because of unforeseen damage to public machinery, equipment,or
other property;
a procurement for personal,professional, or planning services;
a procurement for work that is performed and paid for by the day as the work progresses;
a purchase of land or a right-of-way;
X a procurement of items that are available from only one source, including:
a purchase of rare books,papers, and other library materials for a public library;
_paving drainage, street widening, and other public improvements, or related matters, if at
least one-thud of the cost is to be paid by or through special assessments levied on property that
will benefit from the improvements;
a public improvement project, already hi progress, authorized by the voters of the
municipality, for which there is a deficiency of funds for completing the project in accordance
with the plans and purposes authorized by the voters;
a payment under a contract by which a developer participates in the construction of a public
improvement as provided by Subchapter C, Chapter 212;
_personal property sold:
(A) at an auction by a state licensed auctioneer;
(B) at a going out of business sale held in compliance with Subchapter F, Chapter 17,
Business& Commerce Code;
(C) by a political subdivision of this state, a state agency of this state, or an entity of the
federal government; or
(D) under an interlocal contract for cooperative purchasing administered by a regional
planning commission established under Chapter 391;
services performed by blind or severely disabled persons;
goods purchased by a municipality for subsequent retail sale by the municipality;
electricity; or
advertising, other than legal notices.
Please provide details and facts to explain why you believe the exemption applies to the
purchase. You may also attach documentation to this form.
Numerous departments have requested Crucial Conversations training for their employees. We
purchased curriculum and participant materials from this vendor in the past, but need to replenish
the supply of participant materials. To date, approximately 500 employees have participated in
this training. Additionally,we want to purchase Crucial Accountability curriculum and participant
materials so that we can begin offering this course as well.
The department performed internet searches to determine that new, clean copies of the course
curriculum and participant toolkits are only available through VitalSmarts. Used booksellers have
previously used toolkits that do not meet the needs of the City. All of the materials are copyri hg ted
and registered and are not distributed through or provided by any other individual or company
other than VitalSmarts. VitalSmarts is the sole source for licensing the intellectual property
associated with this training_program and all attendance materials.
Page 2 of 4
A sole source letter is attached. Below are the cop3Lright details.
Crucial Conversations—Tools for Talking When Stakes are High. U.S. Copyrights:
TX007423673, TX005575222, TX0007547587 among others owned by VitalSmarts
along with associated U.S.trademarks.
Crucial Accountability—Tools for Resolving Violated Expectations, Broken
Commitments, and Bad Behavior. U.S. Cop3Tights: TX0007835520. (formerly Crucial
Confrontations which is also owned by VitalSmarts TX0007555816, TX0006082334)
among others owned by VitalSmarts along with associated U.S.trademarks
Section 3:Attorney Determination
With the facts provided by the department, is the use of the claimed exemption defensible if the
City were to be challenged on this purchase? V Yes or No
Was there anything not included on this form or attached hereto that was relied on in making this
determination? V Yes or No
If yes,please explain: VitalSmarts sole source letter.
Approved:
aylor Paris
Assistant City Attorney
Page 3 of 4
EXEMPTION FORM PRIMER
Below are explanations and examples of common exemption that apply to municipal purchases.
If you have questions about the information provided or need additional information,please
contact your department's assigned attorney.
1. A procurement made because of a public calamity that requires the immediate
appropriation of money to relieve the necessity of the municipality's residents or to preserve the
property of the municipality. This is generally used in cases of public emergency.
2. A procurement necessary to preserve or protect the public health or safety of the
municipality's residents. This is a factual determination that will be used when the purchase directly
impacts public health and safety. Please note,this is generally a very narrow exception.
3. A procurement necessary because of unforeseen damage to public machinery, equipment,
or other property. Damage or immediately foreseeable damage that is caused by an unexpected
event. This will generally be used when a natural disaster or unforeseen failure occurs that impacts
other property.
4. A procurement for personal, professional, or planning services;
Professional services are not defined under Chapter 252, so there is no precise definition to
follow. However,the Texas Attorney General has suggested that a professional service
comprehends labor and skill that is `predominately mental or intellectual, rather than physical or
manual."' Tex. Atty Gen Op. JM-940 (1988) (quoting Maryland Casualty Co. v. Cray Water
Co., 160 S.W. 2d 102 (Tex. Civ. App.—Eastland 1942, no writ). The Texas Attorney General
has also opined that"professional services" no longer includes only the services of lawyers,
physicians, or theologians, but also those members of disciplines requiring special knowledge or
attainment and a high order of learning, skill, and intelligence. Id.
Facts needed to support a professional service exemption include the specialized requirements of
that profession and the mental and intellectual skill required by the person while performing the
service. Purchases of goods are not professional services.
5. A procurement of items that are available from only one source.
This exemption is commonly referred to as the sole source exemption. In determining whether a
purchase is of a good or service that is available from one source, you should not consider price
or time to receive the good or service. The information needed to support this exemption, is that
no other provider can provide the service or category of good except for the vendor you are
proposing. Some examples of sole source purchases include service agreements when only one
vendor is authorized to work on the equipment by the manufacturer and allowing another vendor
would void the warranty;purchase of a good that is copyrighted or trademarked and only
provided by one vendor.
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