HomeMy WebLinkAboutContract 51283 P.O. No. 18-00105375
SS No. :SS18-437156
FORWORTH CITY SECRETARY
CONTRACT NO,
CITY OF FORT WORTH
SOLE SOURCE PURCHASE VENDOR AGREEMENT
This Sole Source Purchase Agreement ("Agreement") is entered into by and between
VITALSMARTS, LC ("Seller") and the City of Fort Worth, ("Buyer"), a Texas home rule
municipal corporation.
The Sole Source Purchase Agreement includes the following documents which shall be construed
in the order of precedence in which they are listed:
1. This Sole Source Purchase Agreement;
2. Exhibit A—Terms and Conditions;
3. Exhibit B—Conflict of Interest Questionnaire.
4. Exhibit C—Vendor Contact Information
5. Exhibit D—Verification of Signature Authority
6. Exhibit E— Seller's Sole Source Justification Letter
7. Exhibit F— Sole Source Procurement Justification; and
6. Exhibit G— Seller's Proposal
Exhibits A, B, C, D, E, F and G, which are attached hereto and incorporated herein, are made a
part of this Agreement for all purposes. The Amount of this contract shall not exceed$65,100.00.
The undersigned represents and warrants that he or she has the power and authority to execute this
Agreement and bind the respective Seller. Seller and Buyer have caused this Agreement to be
executed by their duly authorized representatives to be effective as of the date signed below.
their duly authorized representatives to be effective as of the date signed below.
Vendor Name: VitalSmarts,LC
Authorized Signature &gg&� h 2yl gd
Grad(ey Ken,<I;Sco 17,2018;
Printed Name: Bradley Kendall
Title: Chief Revenue Officer
Date: Sep 17,2018
4j �
Sole Source Agreement—
:CFiVEC� Y 1
OFFICIAL RECOR� vised 7.6.18cg
Ckv OF FORT WOR(1t
CrrsCC�E�aRY r' CITY SECRETARY
° FT.WORTH,TX
P.O. No. 18-00105375
SS No. :SS18-437156
City of Fort Worth
Authorized Signature
Printed Name:
Title:
Date:
Exhibit A
CITY OF FORT WORTH, TEXAS
STANDARD PURCHASING TERMS AND CONDITIONS
1.0 DEFINITION OF BUYER
The City of Fort Worth, its officers, agents, servants, authorized employees, vendors and
subvendors who act on behalf of various City departments, bodies or agencies.
2.0 DEFINITION OF SELLER
The consultant, Vendor(s), supplier, Vendor(s)or other provider of goods and/or services,
its officers, agents, servants, employees, vendors and subvendors who act on behalf of the
entity under a contract with the City of Fort Worth.
3.0 TERM
3.1 The term of this Agreement will commence upon September 1, 2018 or the last date
that both the Buyer and the Seller have executed this Agreement(the "Effective
Date") and shall continue in full force and effect until August 31, 2019. (This will
be a maximum of 1 year- follow M&C date or agreed to date), unless terminated
earlier in accordance with the Provision of this Agreement.
3.2 Buyer shall have the sole right to renew this Agreement for 0_additional one-
year terms. If Buyer desires to exercise an option to renew, Buyer will notify
Seller in writing of its intention to renew. Compensation to be paid during any
option term shall be the same as is stated in the Initial Term,unless agreed to in
writing by both parties.
4.0 PUBLIC INFORMATION
Any information submitted to the City of Fort Worth(the "City")may be requested by a
member of the public under the Texas Public Information Act. See TEX. GOVT CODE
ANN. §§ 552.002, 552.128(c) (West Supp. 2006). If the City receives a request for a
Seller's proprietary information, the Seller listed in the request will be notified and given
an opportunity to make arguments to the Texas Attorney General's Office (the"AG")
Sole Source Agreement—
2
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
regarding reasons the Seller believes that its information may not lawfully be released. If
Seller does not make arguments or the AG rejects the arguments Seller makes, Seller's
information will be released without penalty to the City.
5.0 PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS
No officer or employee of Buyer shall have a financial interest, direct or indirect, in any
contract with Buyer or be financially interested,directly or indirectly, in the sale to Buyer
of any land,materials, supplies or services, except on behalf of Buyer as an officer or
employee. Any willful violation of this section shall constitute malfeasance in office,and
any officer or employee found guilty thereof shall thereby forfeit his office or position
Any violation of this section with the knowledge,expressed or implied,of the person or
corporation contracting with the City Council shall render the contract invalid by the City
Manager or the City Council. (Chapter XXVII, Section 16, City of Fort Worth Charter)
6.0 ORDERS
6.1 No employees of the Buyer or its officers, agents, servants,vendors or subvendors
who act on behalf of various City departments, bodies or agencies are authorized
to place orders for goods and/or services without providing approved contract
numbers,purchase order numbers, or release numbers issued by the Buyer. The
only exceptions are Purchasing Card orders and emergencies pursuant to Texas
Local Government Code Section 252.022(a)(1), (2),or(3). In the case of
emergencies, the Buyer's Purchasing Division will place such orders.
6.2 Acceptance of an order and delivery on the part of the Seller without an approved
contract number,purchase order number,or release number issued by the Buyer
may result in rejection of delivery,return of goods at the Seller's cost and/or non-
payment.
7.0 SELLER TO PACKAGE GOODS
Seller will package goods in accordance with good commercial practice. Each shipping
container, shall be clearly and permanently marked as follows: (a)Seller's name and
address: (b)Consignee's name, address and purchase order or purchase change order
number; (c)Container number and total number of containers,e.g., box 1 of 4 boxes; and
(d)Number of the container bearing the packing slip. Seller shall bear the cost of
packaging unless otherwise provided. Goods shall be suitably packed to secure lowest
transportation costs and to conform to requirements of common carriers and any
applicable specifications. Buyer's count or weight shall be final and conclusive on
shipments not accompanied by packing lists.
8.0 SHIPMENT UNDER RESERVATION PROHIBITED
Seller is not authorized to ship the goods under reservation, and no tender of a bill of
lading will operate as a tender of goods.
Sole Source Agreement—
3
Revised 7.6.18cg
P.O. No. 18-00105375
SS No.:SS18-437156
9.0 TITLE AND RISK OF LOSS
Title to Seller's pre-existing Intellectual Property,whether protected by copyrights or
not, shall not pass to the Buyer upon acceptance,but shall remain with the Seller.
Buyer is granted a nonexclusive,nontransferable, limited license to use the Programs
and Materials solely for Buyer's internal use by employees of Client who participated
in the training.
10.0 DELIVERY TERMS AND TRANSPORTATION CHARGES
Freight terms shall be F.O.B. Shipping Point, Freight Prepaid and Allowed, unless
delivery terms are specified otherwise in Seller's proposals. Buyer agrees to
reimburse Seller for transportation costs in the amount specified in Seller's proposals
or actual costs, whichever is lower, if the quoted delivery terms do not include
transportation costs; provided, Buyer shall have the right to designate what method
of transportation shall be used to ship the goods.
11.0 PLACE OF DELIVERY
The place of delivery shall be set forth in the "Ship to" block of the purchase order,
purchase change order, or release order.
12.0 RIGHT OF INSPECTION
Buyer shall have the right to inspect the goods upon delivery before accepting them.
Seller will, as its sole remedy,replace defective product with conforming product
provided returns are made within 10 business days of receipt. All purchases are non-
cancellable and non-refundable.
13.0 INVOICES
13.1 Seller shall submit separate invoices in duplicate, on each purchase order or
purchase change order after each delivery. Invoices shall indicate the
purchase order or purchase change order number. Invoices shall be itemized
and transportation charges, if any, shall be listed separately. A copy of the bill
of lading and the freight waybill,when applicable, should be attached to the
invoice. Seller shall mail or deliver invoices to Buyer's Department and
address as set forth in the block of the purchase order,purchase change order
or release order entitled"Ship to." Payment shall not be made until the above
instruments have been submitted after delivery and acceptance of the goods
and/or services.
13.2 Seller shall not include Federal Excise, State or City Sales Tax in its invoices.
The Buyer shall furnish a tax exemption certificate upon Seller's request.
13.3 Payment. All payment terms shall be "Net 30 Days"unless otherwise agreed
to in writing. Before the 1 st payment is due to Seller, Seller shall register for
direct deposit payments prior to providing goods and/or services using the
forms posted on the City's.website".
Sole Source Agreement—
4
Revised 7.6.18cg
P.O. No. 18-00105375
SS No.:SS18-437156
14.0 PRICE WARRANTY
14.1 The price to be paid by Buyer shall be that contained in Seller's proposals
which Seller warrants to be no higher than Seller's current prices on orders by
others for products and services of the kind and specification covered by this
agreement for similar quantities under like conditions and methods of
purchase. In the event Seller breaches this warranty,the prices of the items
shall be reduced to the prices contained in Seller's proposals,or in the
alternative upon Buyer's option, Buyer shall have the right to cancel this
contract without any liability to Seller for breach or for Seller's actual
expense. Such remedies are in addition to and not in lieu of any other
remedies which Buyer may have in law or equity.
14.2 Seller warrants that no person or selling agency has been employed or
retained to solicit or secure this contract upon an agreement or understanding
for commission,percentage,brokerage or contingent fee,excepting
employees of an established commercial or selling agency that is maintained
by Seller for the purpose of securing business. For breach or violation of this
warranty, Buyer shall have the right,in addition to any other right or rights
arising pursuant to said purchase(s),to cancel this contract without liability
and to deduct from the contract price such commission percentage, brokerage
or contingent fee, or otherwise to recover the full amount thereof.
15.0 PRODUCT WARRANTY
Seller shall not limit or exclude any express or implied warranties and any attempt to
do so shall render this contract voidable at the option of Buyer. Seller warrants that
the goods furnished will conform to Buyer's specifications, drawings and
descriptions listed in the proposal invitation, and the sample(s)furnished by Seller,if
any. In the event of a conflict between Buyer's specifications,drawings, and
descriptions,Buyer's specifications shall govern.
16.0 SAFETY WARRANTY
Seller warrants that the product sold to Buyer shall conform to the standards
promulgated by the U.S. Department of Labor under the Occupational Safety and
Health Act(OSHA)of 1970, as amended. In the event the product does not conform
to OSHA standards, Buyer may return the product for correction or replacement at
Seller's expense. In the event Seller fails to make appropriate correction within a
reasonable time, any correction made by Buyer will be at Seller's expense. Where no
correction is or can be made, Seller shall refund all monies received for such goods
within thirty(30)days after request is made by Buyer in writing and received by
Seller.Notice is considered to have been received upon hand delivery,or otherwise
in accordance with Section 29.0 of these terms and conditions. Failure to make such
refund shall constitute breach and cause this contract to terminate immediately
Sole Source Agreement—
5
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
17.0 SOFTWARE LICENSE TO SELLER
If this purchase is for the license of software products and/or services, and unless
otherwise agreed, Seller hereby grants to Buyer, a perpetual, irrevocable,non-
exclusive,
nontransferable, royalty free license to use the software. This software is
"proprietary"to Seller, and is licensed and provided to the Buyer for its sole use for
purposes under this Agreement and any attached work orders or invoices. The City
may not use or share this software without permission of the Seller; however Buyer
may make copies of the software expressly for backup purposes. For the avoidance
of doubt, all purchases under this Agreement are not for the license of software
products and/or services.
18.1 WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY
18.2 The SELLER warrants that all Deliverables,or any part thereof,
furnished hereunder,including but not limited to: programs,
documentation, software,analyses,applications,methods,ways, and
processes(in this Section each individually referred to as a "Deliverable"
and collectively as the"Deliverables,") do not infringe upon or violate
any patent,copyrights,trademarks, service marks,trade secrets, or any
intellectual property rights or other third party proprietary rights,in the
performance of services under this Agreement.
18.3 SELLER shall be liable and responsible for any and all claims made
against the City for infringement of any patent,copyright,trademark,
service mark,trade secret, or other intellectual property rights by the use
of or supplying of any Deliverable(s) in the course of performance or
completion of, or in any way connected with providing the services, or the
City's continued use of the Deliverable(s) hereunder.
18.4 SELLER 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 this Agreement, it being understood that this agreement to
indemnify, defend,settle or pay shall not apply if the City modifies or
misuses the Deliverable(s). So long as SELLER bears the cost and
expense of payment for claims or actions against the City pursuant to this
section 8, SELLER 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
Sole Source Agreement—
6
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
cooperate with SELLER 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 this 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,
SELLER shall fully participate and cooperate with the City in defense of
such claim or action. City agrees to give SELLER 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 SELLER's duty to
indemnify the City under this 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, SELLER 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
SELLER,terminate this Agreement, and refund all amounts paid to
SELLER by the City,subsequent to which termination City may seek
any and all remedies available to City under law.
19.0 RESERVED
20.0 NETWORK ACCESS
The City owns and operates a computing environment and network(collectively the
"Network"). If Seller requires access, whether onsite or remote,to the City's network
to provide services hereunder,and the Seller is required to utilize the Internet,
Intranet,email, City database, or other network application, Seller shall separately
execute the City's Network Access Agreement prior to providing such services. A
copy of the City's standard Network Access Agreement can be provided upon
request.
21.0 CANCELLATION
Either party shall have the right to cancel this contract immediately for default of the
other party on all or any part of the undelivered portion of this order if such party
breaches any of the terms hereof, including warranties of Seller. Such right of
cancellation is in addition to and not in lieu of any other remedies, which a party
may have in law or equity.
Sole Source Agreement—
7
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
22.0 TERMINATION
The performance of work or purchase of goods under this order may be terminated in
whole or in part by Buyer, with or without cause, at any time upon the delivery to
Seller of a thirty-day written "Notice of Termination" specifying the extent to which
performance of work or the goods to be purchased under the order is terminated and
the date upon which such termination becomes effective. Such right of termination is
in addition to and not in lieu of any other termination rights of Buyer as set forth
herein. Upon such termination, Buyer shall be obligated to pay any outstanding,
undisputed invoices according to the terms outlined in Section 13.3 of this
Agreement.
23.0 ASSIGNMENT/DELEGATION
No interest, obligation or right of Seller,including the right to receive payment,
under this contract shall be assigned or delegated to another entity without the
express written consent of Buyer. Any attempted assignment or delegation of Seller
shall be wholly void and totally ineffective for all purposes unless made in
conformity with this paragraph. Prior to Buyer giving its consent, Seller agrees that
Seller shall provide, at no additional cost to Buyer, all documents, as determined by
Buyer,that are reasonable and necessary to verify Seller's legal status and transfer of
rights, interests, or obligations to another entity. The documents that may be
requested include, but are not limited to, Articles of Incorporation and related
amendments, Certificate of Merger, IRS Form W-9 to verify tax identification
number, etc. Buyer reserves the right to withhold all payments to any entity other
than Seller, if Seller is not in compliance with this provision. If Seller fails to provide
necessary information in accordance with this section, Buyer shall not be liable for
any penalties, fees or interest resulting therefrom. Notwithstanding the foregoing,
either party may, without consent, assign,transfer,delegate or pledge this
Agreement and/or its rights and obligations hereunder to any third party in
connection with any merger, spin-off or sale of substantially all of that party's stock
or assets.
24.0 WAIVER
No claim or right arising out of a breach of this contract can be discharged in whole
or in part by a waiver or renunciation of the claim or right unless the waiver or
renunciation is supported by consideration in writing and is signed by the aggrieved
ply.
25.0 MODIFICATIONS
This contract can be modified or rescinded only by a written agreement signed by
both parties.
26.0 THE AGREEMENT
In the absence of an otherwise negotiated contract, or unless stated otherwise,the
Agreement between Buyer and Seller shall consist of these Standard Terms and
Sole Source Agreement—
8
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
Conditions together with any attachments and exhibits. This Agreement is intended
bythe parties as a final expression of their agreement and is intended also as a
complete and exclusive statement of the terms of their agreement.No course of prior
dealings between the parties and no usage of trade shall be relevant to supplement or
explain any term used in this Agreement. Acceptance of or acquiescence in a course
of performance under this Agreement shall not be relevant to determine the meaning
of this Agreement even though the accepting or acquiescing party has knowledge of
the performance and opportunity for objection. Whenever a term defined by the
Uniform Commercial Code(UCC)is used in this Agreement,the definition
contained in the UCC shall control. In the event of a conflict between the contract
documents,the order of precedence shall be these Standard Terms and Conditions,
and the Seller's Quote.
27.0 APPLICABLE LAW/VENUE
This agreement shall be governed by the Uniform Commercial Code wherever the
term"Uniform Commercial Code" or"UCC"is used. It shall be construed as
meaning the Uniform Commercial Code as adopted and amended in the State of
Texas. Both parties agree that venue for any litigation arising from this contract shall
be in Fort Worth, Tarrant County, Texas. This contract shall be governed,construed
and enforced under the laws of the State of Texas.
28.0 INDEPENDENT VENDOR(Sl
Seller shall operate hereunder as an independent Vendor(s)and not as an officer,
agent, servant or employee of Buyer. Seller shall have exclusive control of,and the
exclusive right to control,the details of its operations hereunder, and all persons
performing same, and shall be solely responsible for the acts and omissions of its
officers,agents,employees,vendors and sub-vendors. The doctrine of respondent
superior shall not apply as between Buyer and Seller, its officers, agents, employees,
vendors and subvendors.Nothing herein shall be construed as creating a partnership
or joint enterprise between Buyer and Seller, its officers,agents, employees,vendors
and subvendors.
29.1 LIABILITY AND INDEMNIFICATION.
29.2 LIABILITY-SELLER SHALL BE LIABLE AND RESPONSIBLE
FOR ANY AND ALL PROPERTY LOSS,PROPERTY DAMAGE
AND/OR PERSONAL INJURY,INCLUDING DEATH,TO ANY AND
ALL PERSONS, OF ANY KIND OR CHARACTER,WHETHER
REAL OR ASSERTED,TO THE EXTENT CAUSED BY THE
NEGLIGENT ACT(S) OR OMISSION(S),MALFEASANCE OR
INTENTIONAL MISCONDUCT OF SELLER,ITS OFFICERS,
AGENTS,SERVANTS OR EMPLOYEES.
29.3 INDEMNIFICATION-SELLER HEREBY COVENANTS AND
AGREES TO INDEMNIFY,HOLD HARMLESS AND DEFEND THE
Sole Source Agreement—
9
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
CITY (ALSO REFERRED TO AS BUYER),ITS OFFICERS,
AGENTS, SERVANTS AND EMPLOYEES,FROM AND AGAINST
ANY AND ALL CLAIMS OR
LAWSUITS OF ANY KIND OR CHARACTER,WHETHER REAL
OR ASSERTED,FOR EITHER PROPERTY DAMAGE OR LOSS
(INCLUDING ALLEGED DAMAGE OR LOSS TO SELLER'S
BUSINESS,AND ANY RESULTING LOST PROFITS)PERSONAL
INJURY,INCLUDING DEATH,TO ANY AND ALL PERSONS,AND
DAMAGES FOR CLAIMS OF INTELLECTUAL PROPERTY
INFRINGEMENT,ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT,TO THE EXTENT CAUSED BY THE ACTS OR
OMISSIONS OF SELLER,ITS OFFICERS,AGENTS,
SUBVENDOR(S)S, SERVANTS OR EMPLOYEES
30.0 SEVERABILITY
In case any one or more of the provisions contained in this agreement shall for any
reason,be held to be invalid,illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this agreement,
which agreement shall be construed as if such invalid,illegal or unenforceable
provision had never been contained herein.
31.0 FISCAL. FUNDING LIMITATION
In the event no funds or insufficient funds are appropriated and budgeted in any fiscal
period for payments due under this contract,then Buyer will immediately notify
Seller of such occurrence and this contract shall be terminated on the last day of the
fiscal period for which funds have been appropriated without penalty or expense to
Buyer of any kind whatsoever,except to the portions of annual payments herein
agreed upon for which funds shall have been appropriated and budgeted or are
otherwise available.
32.0 NOTICES TO PARTIES
Notices addressed to Buyer pursuant to the provisions hereof shall be conclusively
determined to have been delivered three(3)business days following the day such
notice is deposited in the United States mail, in a sealed envelope with sufficient
postage attached, addressed to Purchasing Manager,City of Fort Worth, Purchasing
Division, 200 Texas Street,Fort Worth, Texas 76102.Notices to Seller shall be
conclusively determined to have been delivered three(3)business days following the
day such notice is deposited in the United States mail, in a sealed envelope with
sufficient postage attached, addressed to the address given by Seller in its response to
Buyer's invitation to proposals. Or if sent via express courier or hand delivery,notice
is considered received upon delivery.
33.0 NON-DISCRIMINATION
This contract is made and entered into with reference specifically to Chapter 17,
Article III, Division 3 ("Employment Practices"),of the City Code of the City of Fort
Sole Source Agreement—
10
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
Worth(1986), as amended, and Seller hereby covenants and agrees that Seller,its
employees, officers, agents, vendors or subvendors,have fully complied with all
provisions of same and that no employee,participant, applicant,Vendor(s)or
subVendor(s)has been discriminated against according to the terms of such
Ordinance by Seller, its employees, officers, agents,Vendor(s)or subvendors herein.
34.0 IMMIGRATION NATIONALITY ACT
City actively supports the Immigration&Nationality Act(INA)which includes
provisions addressing employment eligibility, employment verification, and
nondiscrimination.Vendor shall verify the identity and employment eligibility of all
employees who perform work under this Agreement. Vendor shall complete the
Employment Eligibility Verification Form(I-9),maintain photocopies of all
supporting employment eligibility and identity documentation for all employees, and
upon request,provide City with copies of all I-9 forms and supporting eligibility
documentation for each employee who performs work under this Agreement. Vendor
shall establish appropriate procedures and controls so that no services will be
performed by any employee who is not legally eligible to perform such services.
Vendor shall provide City with a certification letter that it has complied with the
verification requirements required by this Agreement. Vendor shall indemnify City
from any penalties or liabilities due to violations of this provision. City shall have the
right to immediately terminate this Agreement for violations of this provision by
Vendor.
35.0 HEALTH. SAFETY.AND ENVIRONMENTAL REQUIREMENTS
Services,products,materials, and supplies provided by the Seller must meet or
exceed all applicable health, safety, and the environmental laws,requirements, and
standards. In addition, Seller agrees to obtain and pay,at its own expense, for all
licenses,permits, certificates, and inspections necessary to provide the products or to
perform the services hereunder. Seller shall indemnify Buyer from any penalties or
liabilities due to violations of this provision. Buyer shall have the right to
immediately terminate this Agreement for violations of this provision by Seller.
36.0 RIGHT TO AUDIT
Seller agrees that the Buyer, or Buyer's authorized representative, shall, until the
expiration of three(3) years after final payment under this contract, and at no
additional cost to Buyer, have access to and the right to examine and copy any
directly pertinent books, digital files, documents,papers and records of the Seller
involving transactions relating to this contract, including any and all records
maintained pursuant to this Agreement. Seller agrees that the Buyer shall have
access,during normal working hours,to all necessary Seller books, digital files,
documents,papers and records, and shall be provided adequate and appropriate
workspace,in order to conduct audits in compliance with the provisions of this
section.Buyer shall pay Seller for reasonable costs of any copying in accordance
with the standards set forth in the Texas Administrative Code. The Buyer shall give
Sole Source Agreement—
11
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
Seller reasonable advance written notice of intended audits, but no less than ten(10)
business days.
37.0 DISABILITY
In accordance with the provisions of the Americans With Disabilities Act of 1990
(ADA), Seller warrants that it and any and all of its subvendors will not unlawfully
discriminate on the basis of disability in the provision of services to general public,
nor in the availability, terms and/or conditions of employment for applicants for
employment with, or employees of Seller or any of its subvendors. Seller warrants it
will fully comply with ADA's provisions and any other applicable federal, state and
local laws concerning disability and will defend, indemnify and hold Buyer harmless
against any claims or allegations asserted by third parties or subvendors against
Buyer arising out of Seller's and/or its subvendor's alleged failure to comply with the
above-referenced laws concerning disability discrimination in the performance of this
agreement.
38.0 DISPUTE RESOLUTION
If either Buyer or Seller has a claim, dispute, or other matter in question for breach
of duty, obligations, services rendered or any warranty that arises under this
Agreement, the parties shall first attempt to resolve the matter through this dispute
resolution process. The disputing party shall notify the other party in writing as soon
as practicable after discovering the claim, dispute, or breach. The notice shall state
the nature of the dispute and list the party's specific reasons for such dispute. Within
ten(10)business days of receipt of the notice,both parties shall make a good faith
effort, either through email, mail,phone conference, in person meetings, or other
reasonable means to resolve any claim, dispute, breach or other matter in question
that may arise out of, or in connection with this Agreement. If the parties fail to
resolve the dispute within sixty(60) days of the date of receipt of the notice of the
dispute, then the parties may submit the matter to non-binding mediation upon
written consent of authorized representatives of both parties in accordance with the
Industry Arbitration Rules of the American Arbitration Association or other
applicable rules governing mediation then in effect. If the parties cannot resolve the
dispute through mediation,then either party shall have the right to exercise any and
all remedies available under law regarding the dispute.
39.0 PROHIBITION ON CONTRACTING WITH C'OMPANIFS THAT BOYCOTT ISRAF.I.
Seller acknowledges that in accordance with Chapter 2270 of the Texas Government
Code, the 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 contract, Seller certifies that Seller's signature provides written
verification to the City that Seller: (1) does not boycott Israel; and(2)will not boycott
Sole Source Agreement—
12
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
Israel during the term of the contract
40.0 INSURANCE REQUIREMENTS
40.1 Seller shall assume all risk and liability for accidents and damages that may occur
to persons or property during the prosecution of work under this
Agreement.Seller shall file with the City of Fort Worth Purchasing Division, prior
to the commencement of services, a certificate of insurance documenting the
following required insurance within five (5) calendar days of notification.
40.2 Policies shall have no exclusions by endorsements which nullify the required lines
of coverage, nor decrease the limits of said coverage unless such endorsements
are approved by the City. In the event a contract has been bid or executed and the
exclusions are determined to be unacceptable or the City desires additional
insurance coverage, and the City desires the Vendor to obtain such coverage,the
contract price shall be adjusted by the cost of the premium for such additional
coverage plus 10%.
40.2.1 Statutory Workers' Compensation Insurance and Employer's Liability
Insurance at the following limits:
$100,000 Each Accident
$500,000 Disease—Policy limit
$100,000 Disease—Each Employee This coverage may be written as
follows:
Workers' Compensation and Employers' Liability coverage with limits
consistent with statutory benefits outlined in the Texas Workers'
Compensation Act(Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) and
minimum policy limits for Employers' Liability of
$100,000 each accident/occurrence,
$500,000 bodily injury disease policy limit and
$100,000 per disease per employee.
40.2.2 Commercial General Liability Insurance including Explosion, Collapse,
and Underground Coverage shall be provided as follows:
$1,000,000 Each Occurrence
$2,000,000 Annual Aggregate
Coverage shall include but not be limited to the following:
premises/operations, independent vendors,products/completed operations,
personal injury, and contractual liability. Insurance shall be provided on an
occurrence basis, and as comprehensive as the current Insurance Services
Office (ISO)policy.
Sole Source Agreement—
13
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
40.2.3 Auto Liability Insurance shall be provided as follows:
$1,000,000 Combined Single Limit Each Accident
A commercial business policy shall provide coverage on "Any Auto",
defined as autos owned, hired and non-owned.
40.2.4 The Contractor shall furnish the Purchasing Manager, with a certificate of
insurance documenting the required insurance prior to the commencement
of services.
40.2.5 Policies shall be endorsed to provide the City of Fort Worth a thirty-(30)
day notice of cancellation, material change in coverage, or non-renewal of
coverage.
40.2.6 Applicable policies shall also be endorsed to name the City of Fort Worth
as an additional insured, as its interests may appear(ATIMA).
40.3 ADDITIONAL INSURANCE REQUIREMENTS
40.3.1 The City, its officers, employees and servants shall be endorsed as an
additional insured on Vendor's insurance policies excepting employer's
liability insurance coverage under Contractor's workers' compensation
insurance policy.
40.3.2 Certificates of insurance satisfactory to the City and Worker's
Compensation Affidavit must be received before Vendor can begin work.
Failure to supply and maintain such insurance shall be a breach of
contract. Contractor shall provide complete copies of all insurance policies
required by this Agreement. Certificates of insurance must be supplied to:
Financial Management Services Department
Attention: Purchasing Division SS- 18-437156
200 Texas Street (Lower Level)
Fort Worth, Texas 76102
40.3.3 Any failure on part of the City to request required insurance
documentation shall not constitute a waiver of the insurance requirements
specified herein. Each insurance policy shall be endorsed to provide the
City a minimum 30 days' notice of cancellation, non-renewal, and/or
material change in policy terms or coverage. A ten (10) day notice shall be
acceptable in the event of non-payment of premium.
40.3.4 Insurers must be authorized to do business in the State of Texas and have a
current A.M. Best rating of A: VII or equivalent measure of financial
strength and solvency. Deductible limits, or self-funded retention limits,
on each policy must not exceed$10,000.00 per occurrence unless
otherwise approved by the City.
Sole Source Agreement—
14
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
40.3.5 Other than worker's compensation insurance, in lieu of traditional
insurance, City may consider alternative coverage or risk treatment
measures through insurance pools or risk retention groups. The City must
approve in writing any alternative coverage.
40.3.6 Workers' compensation insurance policy(s) covering employees of the
Vendor shall be endorsed with a waiver of subrogation providing rights of
recovery in favor of the City.
40.3.7 City shall not be responsible for the direct payment of insurance premium
costs for Vendor's insurance.
40.3.8 Vendor's insurance policies shall each be endorsed to provide that such
insurance is primary protection and any self-funded or commercial
coverage maintained by City shall not be called upon to contribute to loss
recovery.
40.3.9 While this agreement is in effect, Vendor shall report, in a timely manner,
to the Purchasing Department any known loss occurrence that could give
rise to a liability claim or lawsuit or which could result in a property loss.
40.3.10 Vendor's liability shall not be limited to the specified amounts of
insurance required herein.
Sole Source Agreement—
15
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
Exhibit B—CONFLICT OF INTEREST QUESTIONNAIRE
Pursuant to Chapter 176 of the Local Government Code, any person or agent of a person
who contracts or seeks to contract for the sale or purchase of property, goods, or services
with a local governmental entity (i.e. The City of Fort Worth) must disclose in the
Questionnaire Form CIQ ("Questionnaire")the person's affiliation or business relationship
that might cause a conflict of interest with the local governmental entity. By law, the
Questionnaire must be filed with the Fort Worth City Secretary no later than seven days
after the date the person begins contract discussions or negotiations with the City,or submits
an application or response to a request for proposals or bids, correspondence, or another
writing related to a potential agreement with the City.Updated Questionnaires must be filed
in conformance with Chapter 176.
A copy of the Questionnaire Form CIQ is enclosed with the submittal documents. The
form is also available at httn://www.ethics.statc.tx.us/forms/CIO.t)df.
If you have any questions about compliance, please consult your own legal counsel.
Compliance is the individual responsibility of each person or agent of a person who is
subject to the filing requirement. An offense under Chapter 176 is a Class C misdemeanor.
NOTE: If you are not aware of a Conflict of Interest in any business relationship
that you might have with the City, state Vendor name in the # 1, use N/A in each of
the areas on the form. However, a signature is required in the #4 box in all cases.
Sole Source Agreement—
16
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
For vendor doing business with local governmental entity
This questionnaire reflects changes made to the taw by H.B. 23,80th Leg., Regular session. OFFICEUSECINLY
This questionnaire is being filed in accordance with Chapter 176,Local Government Code, o�ta R
by a vendor who has a business relationship as defined by Section 176.001(1-a)with a local
governmental entity and the vendor meets requirements under section 176.006(a),
By lawn this questionnaire must be fiied with the records administrator of the local governmental
entity not later than the 7th business day after the date the vendor becomes aware of facts
that require the statement to be filed. See Section 176,006(a-1),Local Government Code.
A vendor commits an offense if the vendor knowingly violates Section 176.006, Local
Government Code,An offense under this section is a misdemeanor.
1 Narn a of vendor who has a business relationship with local governmental entity_
VitalSmarts, LC
2j D Check this box It you are flling an update to a previously filed questionnaire. N/A
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not
later than the 7th business day after the date on which you became aware that the originally filed questionnaire was
incomplete or inaccurate)
3
Name of local government officer about whom the Information In this section Is being disclosed. N/A
Blame of Officer
This section{item 3 including subparts A, B,C„ 8 Dl must be completed for each officer with whom the vendor has an
employment or other business relationship as defined by Section 176.001(1•a), Local Government Code_ Attach additional
pages to this Form CIO as necessary.
A, is the local government officer named in this section receiving or rely to receive taxable income,other than investment
income, from the vendor?
Yes F--] No
B, Is the vendor receiving or likely to receive taxable Mme,other than investment income,from or at the direction of the local
government officer named in this section AND the taxable income is not received from the local governmental entity?
Yes E-1 No
C, Is the liter of this questionnaire employed by a corporation or other business entity with respect to which the local
government officer serves as an officer or director,or holds an ownership interest of one percent or more?
Yes F-1 No
D. Describe each employment or business and family relationship with the local government officer named in this section,
a
e ,. Sep 17,2018
Signature of vendor douv ousiress with the governmental entity Date
Adopted 81712015
Sole Source Agreement—
17
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
EXHIBIT C—VENDOR CONTACT INFORMATION
Vendor's Name: VitalSmarts, LC
Vendor's Local Address: 282 West River Bend Lane, Suite 100, Provo,UT 84604
Phone: 801.724.6295 Fax: 801.765.0272
Email: psandberanvitalsmarts.com
Name of persons to contact when placing an order or invoice questions:
Name/Title Patricia Sandberg, Executive Assistant/Senior Event Coordinator
Phone: 801.724.6295 Fax: 801.765.0272
Email: psandberygvitalsmarts.com
Name/Title Randy Tomlinson, Financial Support Staff Accountant
Phone: 801.919.3414 Fax: 801.765.0272
Email: rtomlinsongvitalsmarts.com
Name/Title
Phone: Fax:
Email:
�2A&9�"�4a Bradley Kendall Sep 17,2018
Bradley Kend l"Sep 17,2.03.8)
Signature Printed Name Date
Sole Source Agreement—
18
Revised 7.6.18cg
P.O. No. 18-00105375
SS No. :SS18-437156
EXHIBIT D
VERIFICATION OF SIGNATURE AUTHORITY
Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals
and/or positions have the authority to legally bind Vendor and to execute any agreement, amendment or
change order on behalf of Vendor. Such binding authority has been granted by proper order, resolution,
ordinance or other authorization of Vendor. City is fully entitled to rely on the warranty and representation
set forth in this Form in entering into any agreement or amendment with Vendor. Vendor will submit an
updated Form within ten (10) business days if there are any changes to the signatory authority. City is
entitled to rely on any current executed Form until it receives a revised Form that has been properly executed
by Vendor.
Signature authority granted pursuant to corporate Signature Policy and List of Authorized Signatories dated
8/27/18.
1. Name: Bradley Kendall
Position: Chief Revenue Officer
LLd2C &�w'
Signature Gradley Ken ;i(`ep 17,21019)
2. Name:
Position:
Signature
DN:
cMsiarrnre0ettry G—dl,¢T—y ,
Eighry,nMargaret Brandis
uderal
—201a—171r.32 sE3TurenryEghry.com,c=115
Date:]OI fIDr.l)123]'30-01'00'
Signature
Title: Contracts Manager/Office of the Date 9/17/18
General Counsel
Sole Source Agreement—
19
Revised 7.6.18cg
EXHIBIT E- Seller's Sole Source Justification Letter
® VitaiSmarts°
March 21,2018
Subject: VitalSmarts sole source of all listed IP.
To Whom It May Concern,
This letter is to serve as notification to all interested parties that VitalSmarts,LC located at 282
West River Bend Lane,Suite 100,Provo,UT 84604 is the sole source for licensing the following
intellectual property in the form of training programs and all attendance materials, in whatever
medium contained.
All materials and facilitation pertaining to the following programs are copyrighted and
registered and are not distributed through or provided by any other individual or company
other than VitalSmarts. Furthermore,VitalSmarts owns all rights to grant licenses for use
of its intellectual property. The U.S.copyright registration numbers are listed next to
each training program:
• Crucial Conversations—Tools for Talking When Stakes are High. U.S.
Copyrights: TX007423673,TX005575222,TX0007547587 among others
owned by VitalSmarts along with various U.S.trademarks.
• Crucial Accountability—Tools for Resolving Broken Promises,Violated
Expectations and Bad Behavior U.S. Copyrights: TX0007835520. (formerly
Crucial Confrontations which is also owned by VitalSmarts TX0007555816,
TX0006082334)among others owned by VitalSmarts along with various U.S.
trademarks
• Influencer—The Power To Change Anything. U.S. Copyrights:
TX0006857665,TX0007710645,TX0007547590 among others owned by
VitalSmarts along with various U.S.trademarks.
• Change Anything. US. Copyrights: TX0007451153,TX0007547592 among others
owned by VitalSmarts along with various U.S.trademarks.
• The Gray Fedora—Lessons on Life,Business,And Everything In Between.
US Copyright: TX0008179586 along with US trademarks.
In addition,VitalSmarts,LC is the exclusive distributor and sole source for training
programs and associated materials for the Getting Things Done®methodology and the
GTD CCORET"t system in the United States(including its territories)and Canada.
Sincerely,
8 e wg
Bradley Nen l(Mar 21,2018)
Bradley Kendall
Chief Revenue Officer
bkendall(?)yitalsmarts.com
801-724-6356
801.765.9600 1 282 River Bend Ln,Ste 100,Prow,Ulah 84604 www.vitalslnarts.com
I
EXHIBIT F- Sole Source Procurement Justification
I
I
FoRTWORTI-TI,
Purchasing Division
City of Fort Worth
SOLE SOURCE PROCUREMENT JUSTIFICATION
Purpose
This form must accompany all sole source purchase requests for equipment, construction, supplies or
services when the purchase is for more than$3,000.00. This form is not needed when the purchase is for a
professional services contract. The purpose of the sole source procurement justification is to demonstrate
that the competitive process is not required because only one product or service can meet the specific need
of the City of Fort Worth("City"). A sole source procurement may not be used to circumvent the City's
normal purchasing procedures or for a price-based justification. Acceptance of the sole source procurement
justification is at the discretion of the Purchasing Division Manager or his designee.
Certification
My signature below certifies that I am aware that state and federal procurement statutes and regulations
require that procurements of a certain amount made by government entities must be competitively bid
unless the purchase qualifies as an exemption to the competitive bidding requirements. I am requesting this
sole source procurement based on the information provided in the Justification section below. The'
information is complete,accurate and based on my professional judgment and investigations. I also certify
that this purchase will not violate Section 2-238 of the City's Ethics Code.
Requesting Department: Performance&Budget
Requested by [printed name]: Cristi Lemon
Signature:
Recommended by [printed name]:. Lynda Johnson
Department Director
Signature:
Telephone number: 817-392-6222
Date: August 16,2018
Sole Source Procurement Justification
Page 1 of 3 Rev. 12/2014
i
Justification
1. Describe the product(s) or service(s) your department wishes to purchase – provide vendor name,
manufacturer,model number and/or generic description identifying the item(s)or service(s).
Weareseekingto purchase Crucial ConversationsParticipant
Toolkitsfrom Vita/Smarts. The toolkit includes:
• Crucial Conversations participant workbook
• Cue cards
• Model cards
Copy of Crucial Conversations: Tools for Talking When
Stakes are High, 2nd Edition
• Crucial Conversations Audio Companion
• Course completion certificate
Crucial Conversations—Tools for Talking When Stakes are High.
i
US. Copyrights: TX007423673, TX005575222, and TX0007547587
among others owned by Vita/Smarts along with various U,S
trademarks.
2. Purpose–provide a brief description of why the product(s)or service(s)is required.
Numerous departments have requested Crucial Conversations training
from the Performance and BudgetDepartment. The course is taught by
in-house staff and participants are required to have a Crucial
Conversation toolkit to participate in the training.
3. Describe your efforts to identify other vendors – trade shows, internet search, vendor catalogues.
Provide product and contact information for other products,services and vendors evaluated. (A quote
is not required, simply enough information to show the availability/non-availability of other sources.)
An internet search was used to determine that new, clean copies of
the Crucial Conversations participant toolkits are only available
through Vital Smarts. A handful of used copies were available through
used booksellers, but these toolkits had been written in. They do not
meet our needs. We need to purchase 300participant toolkits.
4. Justification:
a. Identify the reason(s) why other vendors, products, or services competing in this market do not
meet the City's needs or specifications:
_x_ The product(s)or service(s)is available from only one source because of patents,copyrights,
secret processes,or natural monopolies.
The product(s)is a captive replacement part(s)or component(s)for existing equipment.
The dollar value of the existing equipment is approximately$
Sole Source Procurement Justification
Page 2 of 3 Rev. 12/2014
i
Use of other than Original Equipment Manufacturer parts jeopardizes the warranty or may
result in equipment not functioning to the level of factory specifications.
Authorized factory service is available from only one source.
Maintenance for the existing product is only available from one source.
b. Attach justification letter from the manufacturer or originator of the product or service.
5. Will this purchase limit the ability of other vendors to compete on future purchases for supplies,
upgrades, or replacements? If so,how?
N/A
6. Will this purchase obligate the City to future purchases, for example, maintenance or license(s)?If so,
what future purchases will be required?
We will need to purchase a participant toolkit for each employee
who receives training. After training is completed,no further
purchases will be required.
7. What will happen if the City does not purchase the requested product(s)or service(s)from this vendor?
The Performance and Budgetdepartmentwill be unable to provide
the requested training.
Purchasing Division Comments:
Buyer/Senior Buyer/Supervisor: Date:
Approval
PURCHASING DIVISION:
Sole Source Procurement approved: Yes No
Signature of Purchasing Division Manager:
Printed Name:
Date:
Sole Source Procurement Justification
Page 3 of 3 Rev. 12/2014
EXHIBIT G- Seller's Proposal
I
crucial
Government Pricing
conversations 1
Products listed below may be combined in one order for volume discount pricing.Volume pricing is based on individual
orders.Orders that accumulate over time will not be added together in order to achieve volume discounts,Prices do not
include shipping and handling.This document Is subject to change without notice.
Participant Suites Publics
Quantity Retell GOV 1-2 PARTICIPANTS
crucial 1-99 $295 $265 Track Retail GOV 1
accountability 100-249 $250 $226 Training Course(2 days) $1,595 $1,436
250-499 $240 $217 Trainer Certification(1.5 days) $2,600 $2,160
500-999 $225 $203 Public Workshop/Certification $3,995 $3,416
1,000-1,999 $210 $190 Combo(3.5 days)
2,000-2,999 $190 $172 Trainer Certification(1 day)t $2,200 $1,800
3000+ $180 $163 FasTrack Certification"' $1,895 J$1,525
inf a a
Trainer Suites 3+PARTICIPANTS
Quantity Retail GOV Track Retail GOV
1-9 $1,295 $1,166 Training Course(2 days) $1,456 $1,310
10-19 $1,245 $1,121
Trainer Certification(1.5 days) $2,195 $1,796
20-49 $1,205 $1,085 Public Workshop/Certification $3,470 $2,944
50-99 J$1,165 $1,049 Trainer Certification(1 day)t $1,865 $1,499
100+ Call for quote Call for quote FasTrack Certification•" $1,595 $1,256
NEW;For Influencer Training only:These courses require a Participant Response System(PRS).The receiver is$250
and each participant remote is$40.The PRS receiver and set of remotes can be used more than once and do not need
to be purchased new for each class taught.Each participant in the training will need a remote for the duration of the
class.The PRS is a required and essential element of Influencer.This course also requires the purchase of a Classroom
Kit that contains additional materials needed to teach course exercises;Classroom Kits are$100.Total for both PRS
receiver and Classroom Kits is$350,The$40 cost per remote is additional.VIP 3.0 supports both H-ITT and Turning
Technologies.VitalSmarts only supplies Turning Technologies equipment.
"All participating individuals must be from the same organization.Each training course participant receives a Participant Materials Suite.Each
Individual enrolled in a Vainer certification course receives a Trainer Suite.
t For trainers already certified in Crucial Conversations or Cruclal Accountability being certified in the other course.
Only for trainers already certified in Crucial Conversations or Cruclal Accountability.
FEB2018 VItalSmarts'
P.O. No. 18-00105376
SS No. :SS18-437144
IN WITNESS WHEREOF,the parties hereto have executed this Agreement in multiples thi day
of� J, 2018.
ACCEPTED AND AGREED:
CITY OF FORT WORTH: CONTRACTOR:
By: � �L�' By:
Name: Fernando Costa Name:
Title: Assistant City Manager Title:
Date:_d8k8 Date:
APPROVAL RECOM LADED:
By: vS
Name: T-erry� n Lc/rtCCC,` �af�t�tSo-✓L-
Title: Assis Performance and Budget Director
ATTES ,,,���'(ft FOR
NY.aj e: Mary K er 'Q
Title: City Secretary `� M&C:
L
APPROVED AS TO FORM AND G >crY: * 1295. I�
AS
By:
Name: Matt Murray
Title: Assistant City Attorney
CONTRACT COMPLIANCE MANAGER
By signing, I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
f
By. r
Name: Iren Jasoni
Title:
Sole Source Agreement—
7
OFFICIAL RECORD Revised 7.6.18cg
CITY SECRETARY
FT.WORTH,TX