HomeMy WebLinkAboutContract 57557 CSC No. 57557
FORTWORTH.
VENDOR SERVICES AGREEMENT
This VENDOR SERVICES AGREEMENT ("Agreement") is made and entered into by and
between the CITY OF FORT WORTH("City"),a Texas home rule municipal corporation,acting by and
through its duly authorized Assistant City Manager,and SWIFTCOMPLY US OPCO,INC.("Vendor"),
a California company specializing in Water Quality,Distribution,Pretreatment&Wastwater Software and
acting by and through its duly authorized representative, each individually referred to as a "party" and
collectively referred to as the "parties."
1. Scope of Services. Vendor will provide City with its Web-Based Fats, Oils and Grease
program and fee management services ("Services"), which are set forth in more detail in Exhibit "A,"
attached hereto and incorporated herein for all purposes.
2. Term. The initial term of this Agreement is for(1)year(s),beginning on the date that this
Agreement is executed by the City's Assistant City Manager("Effective Date"),unless terminated earlier
in accordance with this Agreement ("Initial Term"). City will have the option, in its sole discretion, to
renew this Agreement under the same terms and conditions, for up to four(4) one-year renewal option(s)
(each a"Renewal Term").
3. Compensation.
3.1 Vendor will provide the City with its fee management program and software and
City will pay Vendor in accordance with Exhibit B, Price Schedule, attached hereto, for
Vendor's software management services. Specifically,and as further detailed in Exhibit B,
Vendor will deduct a percentage-based fee from City's wastewater discharge/grease
abatement annual permit fee,liquid waste hauler annual permit fee,and liquid waste hauler
fee.Vendor will then reimburse the City the remaining funds from the associated fees on
a monthly basis.The fees collected pursuant to the wastewater discharge/grease abatement
annual permit fee, liquid waste hauler annual permit fee, and liquid waste hauler fee will,
at all times,be considered City funds
3.2 Vendor will keep complete and accurate records of all fees collected.All deposits
into Vendor's accounts will be secured by eligible securities to the extent and in the manner
required by applicable law,including but not limited to,Texas Government Code Chapter
2257. The Parties will conduct a settlement within thirty (30) days of the end of each
Agreement term at which time Vendor will account for any amounts that were underpaid
or overpaid during such Agreement term.
3.3 In the event of expiration or early termination of this Agreement, or upon
dissolution of Vendor,either voluntarily or involuntarily,all fees collected pursuant to this
Agreement during the term of this Agreement, will immediately vest to the City. Vendor
will take all necessary measures to ensure that all such funds are transferred to the City in
OFFICIAL RECORD
Vendor Services Agreement CITY SECRETARY Page 1 of 17
FT.WORTH, TX
a timely manner.
3.4 Vendor will not perform any additional services or bill for expenses incurred for
City not specified by this Agreement unless City requests and approves in writing the
additional costs for such services. City will not be liable for any additional expenses of
Vendor not specified by this Agreement unless City first approves such expenses in
writing.
4. Termination.
4.1. Written Notice. City or Vendor may terminate this Agreement at any time and for
any reason by providing the other party with 30 days' written notice of termination.
4.2 Non-appropriation of Funds. 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 this Agreement will terminate on the last day of the fiscal period for which
appropriations were received without penalty or expense to City of any kind whatsoever,except as
to the portions of the payments herein agreed upon for which funds have been appropriated.
4.3 Duties and Obligations of the Parties. In the event that this Agreement is
terminated prior to the Expiration Date, City will pay Vendor for services actually rendered up to
the effective date of termination and Vendor will continue to provide City with services requested
by City and in accordance with this Agreement up to the effective date of termination. Upon
termination of this Agreement for any reason, Vendor will provide City with copies of all
completed or partially completed documents prepared under this Agreement. In the event Vendor
has received access to City Information or data as a requirement to perform services hereunder,
Vendor will return all City provided data to City in a machine-readable format or other format
deemed acceptable to City.
5. Disclosure of Conflicts and Confidential Information.
5.1 Disclosure of Conflicts.Vendor hereby warrants to City that Vendor has made full
disclosure in writing of any existing or potential conflicts of interest related to Vendor's services
under this Agreement.In the event that any conflicts of interest arise after the Effective Date of this
Agreement,Vendor hereby agrees immediately to make full disclosure to City in writing.
5.2 Confidential Information.Vendor,for itself and its officers,agents and employees,
agrees that it will treat all information provided to it by City ("City Information") as confidential
and will not disclose any such information to a third party without the prior written approval of
City.
5.3 Public Information Act. 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.In the event there is a request for information marked Confidential or Proprietary,
City will 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.
Vendor Services Agreement Page 2 of 17
5.4 Unauthorized Access.Vendor must store and maintain City Information in a secure
manner and will not allow unauthorized users to access, modify, delete or otherwise corrupt City
Information in any way. Vendor must notify City immediately if the security or integrity of any
City Information has been compromised or is believed to have been compromised,in which event,
Vendor will, in good faith, use all commercially reasonable efforts to cooperate with City in
identifying what information has been accessed by unauthorized means and will fully cooperate
with City to protect such City Information from further unauthorized disclosure.
6. Right to Audit. Vendor agrees that City will,until the expiration of three (3)years after
final payment under this Agreement,or the final conclusion of any audit commenced during the said three
years,have access to and the right to examine at reasonable times any directly pertinent books,documents,
papers and records, including, but not limited to, all electronic records, of Vendor involving transactions
relating to this Agreement at no additional cost to City. Vendor agrees that City will have access during
normal working hours to all necessary Vendor facilities and will be provided adequate and appropriate work
space in order to conduct audits in compliance with the provisions of this section. City will give Vendor
reasonable advance notice of intended audits.
7. Independent Contractor. It is expressly understood and agreed that Vendor will operate
as an independent contractor as to all rights and privileges and work performed under this Agreement, and
not as agent, representative or employee of City. Subject to and in accordance with the conditions and
provisions of this Agreement, Vendor will have the exclusive right to control the details of its operations
and activities and be solely responsible for the acts and omissions of its officers, agents, servants,
employees, Vendors, and subcontractors. Vendor acknowledges that the doctrine of respondeat superior
will not apply as between City,its officers,agents,servants and employees,and Vendor,its officers,agents,
employees, servants, contractors, and subcontractors. Vendor further agrees that nothing herein will be
construed as the creation of a partnership or joint enterprise between City and Vendor. It is further
understood that City will in no way be considered a Co-employer or a Joint employer of Vendor or any
officers, agents, servants, employees, contractors, or subcontractors. Neither Vendor, nor any officers,
agents, servants, employees, contractors, or subcontractors of Vendor will be entitled to any employment
benefits from City.Vendor will be responsible and liable for any and all payment and reporting of taxes on
behalf of itself, and any of its officers,agents, servants,employees,or contractors.
8. Liability and Indemnification.
8.1 LIABILITY- VENDOR WILL BE LIABLE AND RESPONSIBLE FOR ANY
AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND PERSONAL INJURY,
INCLUDING, INCLUDING, BUT NOT LIMITED TO, 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 VENDOR, ITS OFFICERS, REPRESENTATIVES,
AGENTS,SERVANTS,EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS.
8.2 GENERAL INDEMNIFICATION- VENDOR HEREBY COVENANTS AND
AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS,
AGENTS, REPRESENTATIVES, 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 VENDOR'S BUSINESS AND ANY RESULTING LOST
PROFITS)AND PERSONAL INJURY,INCLUDING,BUT NOT LIMITED TO,DEATH, TO
ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS
Vendor Services Agreement Page 3 of 17
AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS
OR MALFEASANCE OF VENDOR, ITS OFFICERS, AGENTS, REPRSENTATIVES,
SERVANTS,EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS.
8.3 INTELLECTUAL PROPERTY INDEMNIFICATION — Vendor agrees to
defend, settle, or pay, at its own cost and expense, any claim or action against City for
infringement of any patent, copyright, trade mark, trade secret, or similar property right
arising from City's use of the software or documentation in accordance with this Agreement,
it being understood that this agreement to defend,settle or pay will not apply if City modifies
or misuses the software and/or documentation.So long as Vendor bears the cost and expense
of payment for claims or actions against City pursuant to this section, Vendor will 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 will have the right
to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to
protect 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 City for infringement arising under this Agreement,City
will 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 will fully participate and cooperate with 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, City's
assumption of payment of costs or expenses will not eliminate Vendor's duty to indemnify
City under this Agreement.If the software and/or documentation 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 will, at its own expense and
as City's sole remedy, either: (a) procure for City the right to continue to use the software
and/or documentation; or (b) modify the software and/or documentation to make it non-
infringing, provided that such modification does not materially adversely affect
City's authorized use of the software and/or documentation; or (c) replace the software and
documentation with equally suitable, compatible, and functionally equivalent non-infringing
software and documentation at no additional charge to City; or (d) if none of the foregoing
alternatives is reasonably available to Vendor terminate this Agreement, and refund all
amounts paid to Vendor by City,subsequent to which termination City may seek any and all
remedies available to City under law.
9. Assignment and Subcontracting.
9.1 Assignment. Vendor will not assign or subcontract any of its duties, obligations
or rights under this Agreement without the prior written consent of City. If City grants consent to
an assignment, the assignee will execute a written agreement with City and Vendor under which
the assignee agrees to be bound by the duties and obligations of Vendor under this Agreement.
Vendor will be liable for all obligations of Vendor under this Agreement prior to the effective date
of the assignment.
9.2 Subcontract. If City grants consent to a subcontract,the subcontractor will execute
a written agreement with Vendor referencing this Agreement under which subcontractor agrees to
be bound by the duties and obligations of Vendor under this Agreement as such duties and
obligations may apply. Vendor must provide City with a fully executed copy of any such
subcontract.
Vendor Services Agreement Page 4 of 17
10. Insurance. Vendor must provide City with certificate(s) of insurance documenting
policies of the following types and minimum coverage limits that are to be in effect prior to commencement
of any Services pursuant to this Agreement:
10.1 Coverage and Limits
(a) Commercial General Liability:
$1,000,000- Each Occurrence
$2,000,000- Aggregate
(b) Automobile Liability:
$1,000,000- Each occurrence on a combined single limit basis
Coverage will be on any vehicle used by Vendor, or its employees, agents, or
representatives in the course of providing Services under this Agreement. "Any
vehicle"will be any vehicle owned,hired and non-owned.
(c) Worker's Compensation:
Statutory limits according to the Texas Workers' Compensation Act or any other
state workers' compensation laws where the Services are being performed
Employers' liability
$100,000- Bodily Injury by accident;each accident/occurrence
$100,000- Bodily Injury by disease;each employee
$500,000- Bodily Injury by disease;policy limit
(d) Professional Liability(Errors&Omissions): ❑ Applicable ®N/A
$1,000,000- Each Claim Limit
$1,000,000- Aggregate Limit
Professional Liability coverage may be provided through an endorsement to the
Commercial General Liability (CGL) policy, or a separate policy specific to
Professional E&O. Either is acceptable if coverage meets all other requirements.
Coverage must be claims-made,and maintained for the duration of the contractual
agreement and for two (2) years following completion of services provided. An
annual certificate of insurance must be submitted to City to evidence coverage.
(e) Fidelity.
Vendor will maintain coverage in the form of insurance or bond in the amount of
$100,000.00 to insure against loss from the fraud, theft, or dishonesty of any of
Vendor's officers, agents, trustees, directors, employees, or volunteers related to
the City funds held by Vendor prior to each monthly reimbursement, as required
by this Agreement. The proceeds of such insurance or bond shall be used to
Vendor Services Agreement Page 5 of 17
reimburse the City for any and all loss of funds, as described by this Agreement,
occasion by such misconduct. To effectuate such reimbursement, such fidelity
coverage must include a rider stating that reimbursement for any loss or loss will
name the City as a Loss Payee. If, at any time during the term of this Agreement,
the funds held by Vendor exceed the amount of this fidelity or bond coverage,then
Vendor will contact the City's Risk Manager as soon as reasonably practicable.
The City's Risk Manager will have the right to review and evaluate the insurance
or bond coverage and suggest revisions in coverage in accordance with this
Agreement.
(f) Technology Liability(Errors&Omissions)
Combined limit of not less than $2,000,000 per occurrence; $4million
aggregate or
Combined limit of not less than $1,000,000 per occurrence; $2,000,000
aggregate and Umbrella Coverage in the amount of$4,000,000. Umbrella policy
shall contain a follow-form provision and shall include coverage for personal and
advertising injury. The umbrella policy shall cover amounts for any claims not
covered by the primary Technology Liability policy.Defense costs shall be outside
the limits of liability.
Coverage shall include,but not be limited to,the following:
Failure to prevent unauthorized access;
Unauthorized disclosure of information;
Implantation of malicious code or computer virus;
Fraud, Dishonest or Intentional Acts with final adjudication
language;
Intellectual Property Infringement coverage, specifically including
coverage for intellectual property infringement claims and for indemnification and
legal defense of any claims of intellectual property infringement, including
infringement of patent, copyright, trade mark or trade secret, brought against the
City for use of Deliverables, Software or Services provided by Vendor under this
Agreement;
Technology coverage may be provided through an endorsement to the
Commercial General Liability (CGL) policy, a separate policy specific to
Technology E&O, or an umbrella policy that picks up coverage after primary
coverage is exhausted. Either is acceptable if coverage meets all other
requirements.Technology coverage shall be written to indicate that legal costs and
fees are considered outside of the policy limits and shall not erode limits of
liability. Any deductible will be the sole responsibility of the Vendor and may not
exceed$50,000 without the written approval of the City. Coverage shall be claims-
made,with a retroactive or prior acts date that is on or before the effective date of
this Agreement. Coverage shall be maintained for the duration of the contractual
Vendor Services Agreement Page 6 of 17
agreement and for two (2) years following completion of services provided. An
annual certificate of insurance, or a full copy of the policy if requested, shall be
submitted to the City to evidence coverage; and
10.2 General Requirements
(a) The commercial general liability and automobile liability policies must
name City as an additional insured thereon, as its interests may appear. The term
City includes its employees,officers,officials,agents,and volunteers in respect to
the contracted services.
(b) The workers' compensation policy must include a Waiver of Subrogation
(Right of Recovery)in favor of City.
(c) A minimum of Thirty (30) days' notice of cancellation or reduction in
limits of coverage must be provided to City.Ten (10) days' notice will be
acceptable in the event of non-payment of premium.Notice must be sent to the
City in accordance with the notice provision of this Agreement.
(d) The insurers for all policies must be licensed and/or approved to do
business in the State of Texas.All insurers must have a minimum rating of A-VII
in the current A.M.Best Key Rating Guide,or have reasonably equivalent financial
strength and solvency to the satisfaction of Risk Management.If the rating is
below that required,written approval of Risk Management is required.
(e) Any failure on the part of City to request required insurance
documentation will not constitute a waiver of the insurance requirement.
(f) Certificates of Insurance evidencing that Vendor has obtained all required
insurance will be delivered to the City prior to Vendor proceeding with any work
pursuant to this Agreement.
11. Compliance with Laws,Ordinances,Rules and Reeulations. Vendor agrees that in the
performance of its obligations hereunder, it will comply with all applicable federal, state and local laws,
ordinances,rules and regulations and that any work it produces in connection with this Agreement will also
comply with all applicable federal, state and local laws, ordinances,rules and regulations. If City notifies
Vendor of any violation of such laws, ordinances, rules or regulations, Vendor must immediately desist
from and correct the violation.
12. Non-Discrimination Covenant. Vendor, for itself, its personal representatives, assigns,
contractors,subcontractors,and successors in interest,as part of the consideration herein,agrees that in the
performance of Vendor's duties and obligations hereunder, it will not discriminate in the treatment or
employment of any individual or group of individuals on any basis prohibited by law. IF ANY CLAIM
ARISES FROM AN ALLEGED VIOLATION OF THIS NON-DISCRIMINATION COVENANT
BY VENDOR, ITS PERSONAL REPRESENTATIVES, ASSIGNS, CONTRACTORS,
SUBCONTRACTORS, OR SUCCESSORS IN INTEREST, VENDOR AGREES TO ASSUME
SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND HOLD CITY HARMLESS
FROM SUCH CLAIM.
Vendor Services Agreement Page 7 of 17
13. Notices. Notices required pursuant to the provisions of this Agreement will be
conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents,
employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the
transmission,or(3)received by the other party by United States Mail,registered,return receipt requested,
addressed as follows:
To CITY: To VENDOR:
City of Fort Worth SwiftComply US OpCo,Inc.
Attn: Assistant City Manager Michael O'Dwyer, CEO
200 Texas Street 6701 Koll Center Pkwy, Suite 250
Fort Worth,TX 76102-6314 Pleasanton,CA 94566
Facsimile: (817) 392-8654 Email: hello(a swiftcomply.com
With copy to Fort Worth City Attorney's Office at
same address
14. Solicitation of Employees. Neither City nor Vendor will, during the term of this
Agreement and additionally for a period of one year after its termination,solicit for employment or employ,
whether as employee or independent contractor, any person who is or has been employed by the other
during the term of this Agreement, without the prior written consent of the person's employer.
Notwithstanding the foregoing,this provision will not apply to an employee of either party who responds
to a general solicitation of advertisement of employment by either party.
15. Governmental Powers. It is understood and agreed that by execution of this Agreement,
City does not waive or surrender any of its governmental powers or immunities.
16. No Waiver. The failure of City or Vendor to insist upon the performance of any term or
provision of this Agreement or to exercise any right granted herein does not constitute a waiver of City's or
Vendor's respective right to insist upon appropriate performance or to assert any such right on any future
occasion.
17. Governing Law/Venue. This Agreement will be construed in accordance with the laws
of the State of Texas. If any action,whether real or asserted,at law or in equity,is brought pursuant to this
Agreement, venue for such action will lie in state courts located in Tarrant County, Texas or the United
States District Court for the Northern District of Texas,Fort Worth Division.
18. Severability. If any provision of this Agreement is held to be invalid, illegal or
unenforceable,the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired.
19. Force Maieure. City and Vendor will exercise their best efforts to meet their respective
duties and obligations as set forth in this Agreement,but will not be held liable for any delay or omission
in performance due to force majeure or other causes beyond their reasonable control, including, but not
limited to, compliance with any government law, ordinance, or regulation; acts of God; acts of the public
enemy; fires; strikes; lockouts; natural disasters; wars; riots; epidemics or pandemics; government action
or inaction; orders of government; material or labor restrictions by any governmental authority;
transportation problems;restraints or prohibitions by any court,board,department,commission,or agency
of the United States or of any States;civil disturbances;other national or regional emergencies;or any other
Vendor Services Agreement Page 8 of 17
similar cause not enumerated herein but which is beyond the reasonable control of the Party whose
performance is affected(collectively, "Force Majeure Event"). The performance of any such obligation is
suspended during the period of, and only to the extent of, such prevention or hindrance, provided the
affected Party provides notice of the Force Majeure Event, and an explanation as to how it prevents or
hinders the Party's performance,as soon as reasonably possible after the occurrence of the Force Majeure
Event,with the reasonableness of such notice to be determined by the City in its sole discretion.The notice
required by this section must be addressed and delivered in accordance with Section 13 of this Agreement.
20. Headings not Controlling. Headings and titles used in this Agreement are for reference
purposes only,will not be deemed a part of this Agreement,and are not intended to define or limit the scope
of any provision of this Agreement.
21. Review of Counsel. The parties acknowledge that each party and its counsel have
reviewed and revised this Agreement and that the normal rules of construction to the effect that any
ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this
Agreement or Exhibits A,B,and C.
22. Amendments/Modifications/Extensions. No amendment, modification, or extension
of this Agreement will be binding upon a party hereto unless set forth in a written instrument, which is
executed by an authorized representative of each party.
23. Counterparts. This Agreement may be executed in one or more counterparts and each
counterpart will, for all purposes,be deemed an original,but all such counterparts will together constitute
one and the same instrument.
24. Warranty of Services. Vendor warrants that its services will be of a high quality and
conform to generally prevailing industry standards. City must give written notice of any breach of this
warranty within thirty (30) days from the date that the services are completed. In such event, at Vendor's
option, Vendor will either(a) use commercially reasonable efforts to re-perform the services in a manner
that conforms with the warranty, or (b) refund the fees paid by City to Vendor for the nonconforming
services.
25. Immigration Nationality Act. Vendor must verify the identity and employment eligibility
of its employees who perform work under this Agreement, including completing the Employment
Eligibility Verification Form (I-9). Upon request by City,Vendor will provide City with copies of all I-9
forms and supporting eligibility documentation for each employee who performs work under this
Agreement. Vendor must 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 WILL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM
ANY PENALTIES,LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH
BY VENDOR, VENDOR'S EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, OR
AGENTS.City,upon written notice to Vendor,will have the right to immediately terminate this Agreement
for violations of this provision by Vendor.
26. Ownership of Work Product. City will be the sole and exclusive owner of all reports,
work papers,procedures,guides, and documentation that are created,published,displayed,or produced in
conjunction with the services provided under this Agreement(collectively,"Work Product"). Further,City
will be the sole and exclusive owner of all copyright,patent,trademark,trade secret and other proprietary
rights in and to the Work Product. Ownership of the Work Product will inure to the benefit of City from
the date of conception, creation or fixation of the Work Product in a tangible medium of expression
Vendor Services Agreement Page 9 of 17
(whichever occurs first).Each copyrightable aspect of the Work Product will be considered a"work-made-
for-hire" within the meaning of the Copyright Act of 1976, as amended. If and to the extent such Work
Product,or any part thereof,is not considered a"work-made-for-hire"within the meaning of the Copyright
Act of 1976, as amended,Vendor hereby expressly assigns to City all exclusive right,title and interest in
and to the Work Product,and all copies thereof,and in and to the copyright,patent,trademark,trade secret,
and all other proprietary rights therein, that City may have or obtain, without further consideration, free
from any claim,lien for balance due,or rights of retention thereto on the part of City.
27. Signature Authority. The person signing this Agreement hereby warrants that they have
the legal authority to execute this Agreement on behalf of the respective party, and that such binding
authority has been granted by proper order,resolution,ordinance or other authorization of the entity. This
Agreement and any amendment hereto,may be executed by any authorized representative of Vendor.Each
party is fully entitled to rely on these warranties and representations in entering into this Agreement or any
amendment hereto.
28. Change in Company Name or Ownership. Vendor must notify City's Purchasing
Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining
updated City records.The president of Vendor or authorized official must sign the letter.A letter indicating
changes in a company name or ownership must be accompanied with supporting legal documentation such
as an updated W-9, documents filed with the state indicating such change, copy of the board of director's
resolution approving the action, or an executed merger or acquisition agreement. Failure to provide the
specified documentation so may adversely impact future invoice payments.
29. No Boycott of Israel. If Vendor has fewer than 10 employees or this Agreement is for
less than $100,000, this section does not apply. Vendor acknowledges that in accordance with Chapter
2271 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"has the meanings ascribed to those terms in Section 2271 of the Texas Government Code.
By signing this Agreement,Vendor certifies that Vendor's signature provides written verification to
the City that Vendor: (1) does not boycott Israel; and (2)will not boycott Israel during the term of
the Agreement.
30. Prohibition on Boycotting Energy Companies. Vendor acknowledges that, in
accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S.,
S.B. 13, § 2, the City is prohibited from entering into a contract for goods or services that has a value of
$100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10
or more full-time employees unless the contract contains a written verification from the company that it:
(1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the
contract. The terms"boycott energy company" and"company"have the meaning ascribed to those terms
by Chapter 2274 of the Texas Government Code,as added by Acts 2021, 87th Leg.,R.S., S.B. 13, § 2. To
the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this
Agreement,Vendor certifies that Vendor's signature provides written verification to the City that Vendor:
(1) does not boycott energy companies; and(2)will not boycott energy companies during the term of this
Agreement.
31. Prohibition on Discrimination Against Firearm and Ammunition Industries. Vendor
acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code,as added
by Acts 2021, 87th Leg.,R.S., S.B. 19, § 1,the City is prohibited from entering into a contract for goods or
services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the
Vendor Services Agreement Page 10 of 17
City with a company with 10 or more full-time employees unless the contract contains a written verification
from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates
against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the
contract against a firearm entity or firearm trade association. The terms "discriminate," "firearm entity"
and "firearm trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that Chapter 2274
of the Government Code is applicable to this Agreement,by signing this Agreement,Vendor certifies that
Vendor's signature provides written verification to the City that Vendor:(1)does not have a practice,policy,
guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will
not discriminate against a firearm entity or firearm trade association during the term of this Agreement.
32. Electronic Signatures. This Agreement may be executed by electronic signature, which
will be considered as an original signature for all purposes and have the same force and effect as an original
signature.For these purposes,"electronic signature"means electronically scanned and transmitted versions
(e.g.via pdf file or facsimile transmission)of an original signature,or signatures electronically inserted via
software such as Adobe Sign.
33. Entirety of Agreement. This Agreement contains the entire understanding and agreement
between City and Vendor,their assigns and successors in interest, as to the matters contained herein. Any
prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict
with any provision of this Agreement.
(signature page follows)
IN WITNESS WHEREOF,the parties hereto have executed this Agreement in multiples.
City: Vendor:
By: Dana Bur 1313,20� By: Mick O'Dwyer(May 12,2022 10:49 PDT)
Name: Dana Burghdoff Name: Michael O'Dwyer.
Title: Assistant City Manager Title: CEO—Chief Executive Officer.
Date: May 13,2022 Date: May 12,2022
FOR CITY OF FORT WORTH INTERNAL PROCESSES:
Approval Recommended: Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
Christopher of this contract,including ensuring all
By: Hard (May13,202211:15CDT) performance and reporting requirements.
Name: Chris Harder
OFFICIAL RECORD
Vendor Services Agreement CITY SECRETARY Page 11 of 17
FT.WORTH, TX
Title: Water Director
fCu�c6e�Cy 9�tt
By: Kimberly Jutt( ay 11,202212:34 CDT)
Approved as to Form and Legality: Name: Kimberly Jutt
Title: Senior Administrative Assistant—Water
By: City Secretary:
Name: Taylor Paris oo�4nn���
Title: Assistant City Attorney o1......oxy �
Tgnnette S. Goo�%ll p��►0 �ool
Op�d
Jannette S.Goodall(May 13,202214:11 CDT) �l�o o�(�
By. �vo O=d
Contract Authorization: Name: Jannette Goodall o o* d
M&C: M&C NUMBER Title: City Secretary
°°°0000000,
°°° �
AZI
Form 1295: FORM 1295 NUMBER ���nEXP5b4p
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
Vendor Services Agreement Page 12 of 17
EXHIBIT A
SCOPE OF SERVICES
Cloud-based software and mufti-region data storage,with storage of files and pictures associated with
Grease Control Devices.Back-ups and software updates are done automatically.Open architecture to allow
report and data export(_csvformat)as well as third party data import manually or automatically via RESTful
API (Application Programming Interface). Web based,secure and rule based access rights to unlimited
users.
Accuracy, completeness, and reliability of data throughout its lifecycle based on state-of-the-art software
platform and da a i^tegritV best prat ices. Teal-time and on-demand reporting capabilities, including
dashboards and alerts; report cfeation far deeper data analysis.
Frictionless engagement of Food Service Establishments and Haulers_ Bath are able to securely access
the[,oerscnallzed:veh poi�als and submit their pump-out manifest online an any Internet connected device
with a modern bro4vsed
�Manifest integration and automated intake_
FOG Automation Essentials Online Pump-out Reports Module
• Database Management . FSE aridior Pumper Uploads(Optional)
• Online FSE registrationlWeb portals . Service Providers Web Portals
• Automated Compliance Notifications . Compliance Tracking
Inspection Module Enforcement Module
• Customer Inspection Form Builder . Enforcement Form Builder
• Inspection Management . Enforcement Management
• Inspection Reports . Enforcement Reports
Permit Module Third-Party Systems Integration(Optional)
• Permit Form Builder& Parme-t Colle:Jon . GIS based system(e.g.Lpy!ArcGIS)
• Permit&Pa:n-e-t Ida nago, . ERP'Billina system ie.g hduniq)
• Permit&Pa,:n-e-t P.epjrts + ,'.'ar{:once `Janager-ent(e.g.�J
Vendor Services Agreement Page 13 of 17
Exhibit B
Price Schedule
FEES
Vendor Management Fee per unit will be as follows:
• 3%of the existing one hundred thirty six dollars($1.36)Wastewater discharge J Grease
Abatement annual permit fee or 3%of future permit fee increases based on City approval.
• 3%of the existing three hundred dollars($3D0) Liquid Waste Hauler annual permit fee or 3%of
future permit fee increases based on Cit; approval.
• 40%of the new eight dollars($8)Liquid Waste Hauler fee per unit or 40%of any future fee unit
increases based on City approval. Currently this fee is not offered but will be in the future based
on City approval and implementation of program.
The Vendor will take and process the payments for the City for the Wastewater discharge f Grease
Abatement annual permit,Liquid Waste Hauler annual permit fee as well as the new Liquid Waste
Hauler fee once implemented. Vendor will deduct the percentages from fees stated above and will then
reimburse the City the remaining amount on a monthly basis via ACH(Automated Clearing House).
Vendor Services Agreement Page 14 of 17
EXHIBIT C
Service Level Agreement - Exhibit C
This Service Level Agreement("SLA")applies to Customer's use of the Contractor Service during
the Term in accordance with Section 1.1 of the Agreement. All terms used herein but not defined
will have the meaning given to them in the Agreement.
I- Support 619.304.6022, hello@swiftcomply.com. Support office hours are 7am-7pm EST from
Monday to Friday except US national public holidays. Knowledge base is available 24/7 at
hM2s://knowledge.swiftcomply.com/hc/en-us.
2- Service Commitment
Contractor will use commercially reasonable efforts to make the Contractor Service available with
a Monthly Uptime Percentage (defined below) of 99.9%, during the Term (the "Service
Commitment"). In the event Contractor does not meet the Service Commitment, Customer's sole
remedy will be a Service Credit as described below.
Update process is continuous, typically once every two weeks and always deployed out of US
work hours after extensive testing and validation in a staging environment.
3- Definitions
The following capitalized terms shall be given the meaning set forth below:
3.1- "Uptime Percentage" is calculated by subtracting from 100% the percentage of time during
an applicable calendar month in which the Contractor Service was Unavailable for one or more
continuous period of 3 minutes or more. Uptime Percentage measurements exclude downtime
resulting directly or indirectly from any SLA Exclusion (defined below).
3.2- "Service Credit" is a dollar credit, calculated as set forth below, that Contractor will credit
back to Customer as described in Section 4 of this SLA.
3.3-"Unavailable" and"Unavailability"means a period of time during which an Authorized User
with valid credentials cannot log into the Contractor Service,retrieve a form, and log out.
4- Service Commitments and Service Credits
Service Credits are calculated, in accordance with the schedule set forth below, as a percentage of
the total amounts paid by Customer for the Contractor Service that are attributable to the monthly
period in which the Unavailability occurred.
Vendor Services Agreement Page 15 of 17
Uptime Percentage Service Credit Percentage
Less than 99.9%but equal to or greater than 98.0% 10% of the Fees attributable to such
month
Less than 98.0%but equal to or greater than 90.0% 20% of the Fees attributable to such
month
Less than 90.0% 30% of the Fees attributable to such
month
Contractor will apply any Service Credits only against future payments otherwise due from
Customer; provided,however, that if any Service Credits remain outstanding upon termination or
expiration of the Agreement, then Contractor will provide a refund to Customer in the amount of
such outstanding Service Credits. Customer's sole and exclusive remedy for any unavailability is
the receipt of a Service Credit(if eligible) in accordance with the terms of this SLA.
5- Credit Request and Payment Procedures
To receive a Service Credit, Customer must submit a claim by sending an email to
hello@swiftcomply.com. To be eligible, the credit request email must be received by Contractor
no later than 30 days following the last day of the monthly period during which the Unavailability
occurred and must include: (i) the words "SLA Credit Request" in the subject line; (ii) the dates
and times of each Unavailability Incident Customer is claiming; and (iii) support request logs that
document the errors and corroborate the Customer's claimed outage.
If the Uptime Percentage of such request is confirmed by Contractor and is less than the Service
Commitment, then Contractor will issue a Service Credit to Customer within one billing cycle
following the month in which Customer's request is confirmed by Contractor. Customer's failure
to provide the request and other information as required above will disqualify Customer from
receiving a Service Credit.
6- SLA Exclusions
The Service Commitment does not apply to any unavailability, suspension or termination of the
Contractor Service, or any other performance issues, that: (i) are caused by factors outside of
Contractor's reasonable control,including,without limitation,any Force Majeure Event or Internet
access or related problems beyond the demarcation point of the Contractor Service or its direct
hosting subcontractors (i.e. beyond the point in the network where Contractor maintains access
and control over the Contractor Service); (ii) result from any actions or inactions of Customer or
any third party (other than Contractor's direct hosting subcontractor); (iii)result from Customer's
equipment, software or other technology and/or third party equipment, software or other
technology (other than third party equipment within Contractor's direct control); (iv) result from
any scheduled maintenance (provided that Contractor gives the Customer notice of scheduled
Vendor Services Agreement Page 16 of 17
maintenance at least 48 hours in advance of the downtime, or, in the event of emergency
maintenance, provides notice as soon as practicable); or (vi) arise from Contractors suspension
and termination of Customer's right to use the Contractor Service in connection with any breach
by Customer of the Agreement(collectively,the "SLA Exclusions").
Vendor Services Agreement Page 17 of 17
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO
For vendor doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session. OFFICE USE ONLY
This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who Date Received
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 law this questionnaire must be filed 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.
jJ Name of vendor who has a business relationship with local governmental entity.
Not applicable
2
Check this box if you are filing an update to a previously filed questionnaire.(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 is being disclosed.
Name of Officer
4J Describe each employment or other business relationship with the local government officer, or a family member of the
officer,as described by Section 176.003(a)(2)(A). Also describe any family relationship with the local government officer.
Complete subparts A and B for each employment or business relationship described. Attach additional pages to this Form
CIO as necessary.
A. Is the local government officer or a family member of the officer receiving or likely to receive taxable income,
other than investment income, from the vendor?
Yes F-1 No
B. Is the vendor receiving or likely to receive taxable income,other than investment income,from or at the direction
of the local government officer or a family member of the officer AND the taxable income is not received from the
local governmental entity?
Yes F-1 No
5 Describe each employment or business relationship that the vendor named in Section 1 maintains with 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.
s
❑ Check this box if the vendor has given the local government officer or a family member of the officer one or more gifts
as described in Section 176.003(a)(2)(B), excluding gifts described in Section 176.003(a-1).
7
Olivier Terrien 05/03/2022
Signature of vendor doing business with the governmental entity Date
Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015
CONFLICT OF INTEREST QUESTIONNAIRE
For vendor doing business with local governmental entity
A complete copy of Chapter 176 of the Local Government Code maybe found at http://www.statutes.Iegis.state.tx.us/
Docs/LG/htm/LG.176.htm. For easy reference, below are some of the sections cited on this form.
Local Government Code§176.001(1-a):"Business relationship"means a connection between two or more parties
based on commercial activity of one of the parties. The term does not include a connection based on:
(A) a transaction that is subject to rate or fee regulation by a federal, state, or local governmental entity or an
agency of a federal, state, or local governmental entity;
(B) a transaction conducted at a price and subject to terms available to the public; or
(C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and
that is subject to regular examination by, and reporting to, that agency.
Local Government Code§176.003(a)(2)(A)and(B):
(a) A local government officer shall file a conflicts disclosure statement with respect to a vendor if:
(2) the vendor:
(A) has an employment or other business relationship with the local government officer or a
family member of the officer that results in the officer or family member receiving taxable
income, other than investment income, that exceeds $2,500 during the 12-month period
preceding the date that the officer becomes aware that
(i) a contract between the local governmental entity and vendor has been executed;
or
(ii) the local governmental entity is considering entering into a contract with the
vendor;
(B) has given to the local government officer or a family member of the officer one or more gifts
that have an aggregate value of more than$100 in the 12-month period preceding the date the
officer becomes aware that:
(i) a contract between the local governmental entity and vendor has been executed; or
(ii) the local governmental entity is considering entering into a contract with the vendor.
Local Government Code§ 176.006(a)and (a-1)
(a) A vendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship
with a local governmental entity and:
(1) has an employment or other business relationship with a local government officer of that local
governmental entity,or a family member of the officer,described by Section 176.003(a)(2)(A);
(2) has given a local government officer of that local governmental entity, or a family member of the
officer,one or more gifts with the aggregate value specified by Section 176.003(a)(2)(B),excluding any
gift described by Section 176.003(a-1);or
(3) has a family relationship with a local government officer of that local governmental entity.
(a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator
not later than the seventh business day after the later of:
(1) the date that the vendor:
(A) begins discussions or negotiations to enter into a contract with the local governmental
entity; or
(B) submits to the local governmental entity an application,response to a request for proposals
or bids, correspondence, or another writing related to a potential contract with the local
governmental entity;or
(2) the date the vendor becomes aware:
(A) of an employment or other business relationship with a local government officer, or a
family member of the officer,described by Subsection(a);
(B) that the vendor has given one or more gifts described by Subsection (a);or
(C) of a family relationship with a local government officer.
Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015
FORT WORTH
CITY OF FORT WORTH
CHAPTER 252 EXEMPTION FORM
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 to determine whether an exemption to Chapter 252's biding requirements is 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 l: General Information
Requesting Department: Water
Name of Contract Manager: Kimberly Jutt
Department's Attorney: Taylor Paris
Item or Service sought:
Goods: ❑
Service: ®.
Anticipated Amount: $45,000
Vendor: SwiftComply US OpCo Inc.
Current/Prior Agreement for item/service: Yes ❑ No
CSC or Purchase Order#: N/A
Amount: N/A
Projected M&C Date: N/A
How will this item or service be used? SwiftComply will be utilized to manage all aspects
of the Fats, Oils, and Grease(FOG) Profram for the Water Department. This includes the
scanning and recording of waste manifests (pump outs), issuance of permits for facilities and
liquid waste transporters, entry of inspection reports, and collection/management of permit
payments.
Has your department started a requisition or otherwise contacted the Purchasing Division related
to obtaining this good/service? Yes ❑ No
Page 1 of 7
If yes,please provide requisition number or brief explanation of contact with
Purchasing Division: N/A
Section 2: Claimed Exemption and Justification (Other than sole source)
NOTE -For a claimed sole-source exemption, complete Section 3.
Please indicate the non-sole-source 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 necessary to preserve or protect the public health or safety of the City
of Fort Worth's residents;
0 A procurement necessary because of unforeseen damage to public machinery,
equipment, or other property;
0 A procurement for personal, professional, or planning services;
Q A procurement for work that is performed and paid for by the day as the work
progresses;
0 A purchase of land or a right-of-way;
Q Paving drainage, street widening, and other public improvements, or related matters, if
at least one-third of the cost is to be paid by or through special assessments levied on
property that will benefit from the improvements;
Q A public improvement project, already in 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;
0 A payment under a contract by which a developer participates in the construction of a
public improvement as provided by Subchapter C, Chapter 212;
Q Personal property sold:
• at an auction by a state licensed auctioneer;
• at a going out of business sale held in compliance with Subchapter F,
Chapter 17, Business & Commerce Code;
• by a political subdivision of this state, a state agency of this state, or an
entity of the federal government; or
• under an interlocal contract for cooperative purchasing administered by a
regional planning commission established under Chapter 391;
0 Services performed by blind or severely disabled persons;
Page 2 of 7
Q Goods purchased by a municipality for subsequent retail sale by the municipality;
0 Electricity; or
0 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.For the health and safety of our City
as well as our surrounding Customer Cities, the FOG program (Fats, Oils and Grease)
significantly reduces the impact of blockages in our collection (sewer)system. FOG buildup or
blockages in our system can cause total blockages, backups resulting in Sanitary Sewer
Overflows (SSOs). The consequences of those SSOs are wastewater in our homes, on our
streets,in bodies of water that cause fish kills and the potential to have impacts on public health
and pollution in our environment. At this time, no other vendor in the State of Texas or
municipality in the State of Texas is currently using online manifest form entry with the food
service permitting and payment function. Currently a paper manifest form is filled out and
submitted by permitted wastehauler upon the removal of grease trap waste by a Food Service
Establishment (FSE), once received by the City those manifest are scanned and data is uploaded
into tables of a software application. By going to an online data management program the City
will eliminate the extensive review and research of the paper copies especially those that are not
legible to the scanner or to the employees reviewing. This service will provide a much needed
support to the City of Fort Worth as well as other municipalities in the future with the permitting
and payment function as an addition to the online data management.
SwiftComply is the only software that can manage all aspects of Fort Worths FOG program. In
2019, SwiftComply acquired XC2, the software currently in use for manifest management. It was
announced that the end-of-life for XC2 would occur in 2024, with an end of mainenance in 2023.
All in one streamlined service for the City of Fort Worth FOG program. Vendor manages all
aspects of the online program, revenue generated with this online program will pay for the
service that is provided by vendor. City of Fort Worth Water will be issued monthly payments
from vendor for revenue generated by Food Service Establishment (FSE), Waste Hauler, and
manifest fees.
Section 3: Claimed Sole-Source Exemption and Justification
NOTE -For any non-sole-source exemption, complete Section 2.
Please indicate the sole-source 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
0 *A procurement of items that are available from only one source, including:
• items that are available from only one source because of patents,copyrights,
secret processes, or natural monopolies;
Page 3 of 7
• films, manuscripts, or books;
• gas,water, and other utility services;
• captive replacement parts or components for equipment;
• books, papers, and other library materials for a public library that are
available only from the persons holding exclusive distribution rights to the
materials; and
• management services provided by a nonprofit organization to a municipal
museum, park, zoo, or other facility to which the organization has provided
significant financial or other benefits;
How did you determine that the item or service is only available from one source?
Attach screenshots and provide an explanation of any independent research you conducted,
through internet searches,searching cooperatives, or discussions with others knowledgeable on
the subject matter that corroborate that the item is available only from a single source.
Did you attach a sole source justification letter? ❑ Yes ❑ No
Describe the uniqueness of the item or service (e.g. compatibility or patent issues, etc.).
Section 4:Attorney De to rminatio n
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? N Yes 0 No.
Was there anything attached to this form that was relied on in making this determination?
0 Yes No.
If yes,please explain:[DESCRIBE ATTACHMENTS CONSIDERED]
Was there anything not included on this form or attached hereto that was relied on in making this
determination? Q Yes ®.No.
If yes,please explain:[EXPLAIN OUTSIDE SOURCE OF INFORMATION]
Will the standard terms and conditions apply? Yes 0 No.
Page 4of 7
Will the contract require special terms? 0 Yes 0 No.
Will the contract require review by the department attorney? N Yes 0 No.
Approve d By:
Date: 4.6.22
Ta or Paris/Jessika Williams
Assistant City Attorney
Page 5 of 7
EXEMPTION FORM PRIMER
Below are explanations and examples of common exemptions that could apply to City purchases.
If you have questions about the information provided or need additional information, please
contact your department's assigned attorney or the appropriate purchasing attorney.
1. A procurement necessary to preserve or protect the public health or safety of the
municipality's residents;
Examples of activities that have been found to fall within this exception include ambulance
services; solid waste collection and disposal; and first-responder safety equipment such as
breathing apparatus for firefighters and bullet-proof vests for police officers.
2. A procurement necessary because of unforeseen damage to public machinery, equipment,
or other property;
Examples of this type of procurement would include repairing or replacing roofs and
windows damaged by hail or a tornado. But parts and services for routine maintenance or
replacement of old, worn out roofs or windows would not meet this exception.
3. A procurement for personal, professional, or planning services;
Personal services are ones that are unique to the individual providing them. Therefore
personal services contract cannot generally be subcontracted or assigned.
Professional services are not defined under Chapter 252, so there is no precise definition
to follow. There is no universal definition of this term, however, "several cases suggest
that it... 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.
4. 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.A sole source does not exist solely
on the basis of personal or departmental preference or a desire to keep all units the same
brand or make. The information needed to support this exemption is that no other provider
Page 6 of 7
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.
Page 7 of 7
SWIFT
DOMPLY
Providers of
Water Quality, Distribution, Pretreatment & Wastewater Software
Backflow Prevention/Hydrant/Valve/Meter/Reclaimed/Fats, Oils&Grease/Pretreatment
SwiftComply FOG, SwiftComply Pretreatment, SwiftComply Backflow,XC2 Backflow, XC2 Live
January 3, 2022
Subject: Sole Source of SwiftComply and XC2 Software
To Whom It May Concern,
This letter is to confirm that SwiftComply and XC2 Software are "sole source" software
products, developed, sold and distributed in the United States by SwiftComply US OpCo Inc,
a subsidiary of SwiftComply TopCo Ltd.These products and their associated modules must
be purchased directly by organizations from SwiftComply/XC2 Software. There are no
outside agents or dealers authorized to represent this product, provide upgrades, or act as
authorized technical support service centers.
There exist no authorized organizations, persons or agencies outside of SwiftComply/XC2
Software who are capable of providing training for the use of, installation, maintenance,
upgrades or setup of SwiftComply and XC2 Software. In the event that any other person or
organization not directly authorized by SwiftComply/XC2 Software provides any of the above
stated services, any warranties regarding SwiftComply or XC2 Software will be null and void.
If you desire additional information, please feel free to contact our Support Department at
800.761.4999 or visit our website at
Thank you for your interest in our products. We are happy to be of service.
Sincerely,
Michael O'Dwyer, CEO
michael@swiftcomply.com
SwiftComply US OpCo Inc SwiftComply TopCo Ltd
6701 Koll Center Pkwy,Suite 250,Pleasanton CA 94566 USA 30/31 Francis Street, Dublin 8,Ireland
EIN: 35-2594233 Registered Company Number: 582983