HomeMy WebLinkAboutContract 55411CSC No. 55411
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CONFIDENTIALITY AND SOFTWARE SUBSCRIPTION AGREEMENT
THIS AGREEMENT made as of the date written below between
City of Fort Worth, Texas, 200 Texas Street, Fort Worth, Texas 76102 (the "City")
and
eight20 consulting (DBA ZacTax), 141 Ethan Drive, Hudson Oaks, Texas 76087 ("Consultant")
WHEREAS, City and Consultant are entering into a relationship such that Consultant will provide
analytical services ("ZacTax") for City's confidential sales tax data and property tax data; and
WHEREAS, Texas Tax Code Section 322.3022 defines said sales tax data as not subject to public
inspection, and prohibits the public release of confidential sales tax data; and
WHEREAS, the City is willing to provide this proprietary information only on the condition that
Consultant keep such information confidential in accordance with Texas Tax Code Section 322.3022, and
that Consultant agree that access to said data shall be revoked should City choose not to retain
Consultant for analytical services;
WHEREAS, the City has been provided a free demonstration period of an Internet-based sales
tax analysis application called "ZacTax", available at https://www.zactax.com, and wishes to continue
with an annual subscription for this service;
NOW THEREFORE, in consideration of the mutual promises contained herein and for other good
and valuable consideration, City and Consultant agree as follows:
1. City will provide to Consultant authorization to request certain confidential sales tax
information released by the Texas Comptroller; however, City may revoke said access at any
time without notice;
2. Consultant acknowledges that the sales tax data received is confidential under Texas Tax Code
Section 322.3022;
3. Consultant shall use the confidential sales tax data in compliance with Texas Tax Code Section
322.3022;
4. Consultant shall use the confidential data sales tax data to populate the analytical application
known as "ZacTax", a wholly owned product of Consultant.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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5. City shall be billed annually for use of the sales tax and property tax module based on a
population of over 200,000 at $36,000 (population figures are based on the most recent
American Community Survey and/or Census survey). Should Consultant increase ZacTax
subscription fees in the future, such increases shall be communicated to City at least ninety (90)
days in advance of their implementation;
6. The City may also request access to the following optional modules at the cost listed below:
a. The mixed beverage tax module for an additional annual fee of $3,000.
b. The state level hotel tax module at no additional charge.
c. The addition of short-term rental data at a charge of $6,000 per year.
7. Upon request by City at any time, Consultant will immediately deliver to City's designated
representative all proprietary information and other property, materials, and records of any
kind relating to City's business and customers, including copies of same, that may be in
Consultant's possession or control;
8. The provisions of this agreement shall be enforced independently of any other agreement
between City and Consultant. The provisions of this agreement shall not be dependent upon the
completion of the transaction or continuation of services. The existence of any claim or action
by Consultant against City, whether related to this agreement or otherwise, shall not constitute
a defense to the enforcement of this agreement by City;
9. This agreement shall be binding upon and inure to the benefit of the parties hereto and their
owners, shareholders, partners, directors, officers, employees, agents, principals, contractors,
heirs, personal representatives, successors, and assigns;
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10. Any modification of this agreement shall be effective only if in writing and signed by the
parties. The laws of the State of Texas shall govern this agreement.
11. The initial term of this agreement shall be one year and will renew for consecutive one-year
terms and may be cancelled by either party at the end of the term without notice. Should the
City not make an annual payment, the service will be cancelled and all proprietary information
will be returned to the City.
[Executed effective as of the date signed by the Assistant City Manager below.] /[ACCEPTED
AND AGREED:]
City:
By:
Name
Title:
Date:
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Fernando Costa (Mar 15, Z02110:58 CDT)
Fernando Costa
Assistant City Manager
Mar 15, 2021
Vendor:
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BV: PatnckLawler(Mar4,20Z109:OlCST)
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Name: Patrick Lawler
Title: Chief Operating Offcer
Date: M a r 4, 2021
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
ADDENDUM TO CONFIDENTIALITY AND SOFTWARE
SUBSCRIPTION AGREEMENT
BETWEEN
THE CITY OF FORT WORTH
AND
EIGHT20 CONSULTING DBA ZACTAX
This Addendum to Confidentiality and Software Subscription Agreement ("Addendum")
is entered into by and between eight20 consulting DBA ZacTaX ("Vendor") and the City of Fort
Worth ("City"), collectively the "parties", for a purchase of licenses.
The Contract documents shall include the following:
1. The Confidentiality and Software Subscription Agreement; and
2. This Addendum.
Notwithstanding any language to the contrary in the attached Confidentiality and Software
Subscription Agreement (the "Agreement"), the Parties hereby stipulate by evidence of execution
of this Addendum below by a representative of each party duly authorized to bind the parties
hereto, that the parties hereby agree that the provisions in this Addendum below shall be applicable
to the Agreement as follows:
1. Term. The Agreement shall become effective upon the signing of the Agreement
by an Assistant City Manager of the City (the "Effective Date") and shall expire one (1) year after
the Effective Date (the Expiration Date"), unless terminated earlier in accordance with the
provisions of the Agreement or otherwise extended by the parties. The Agreement may be renewed
consecutively in unlimited one year (1) terms at City's option, each a"Renewal Term." City shall
provide Vendor with written notice of its intent to renew at least thirty (30) days prior to the end
of each term.
2. Termination.
a. Convenience. Either City or Vendor may terminate the Agreement at any
time and for any reason by providing the other party with 30 days written notice of
termination.
b. Breach. If either party commits a material breach of the Agreement, the non-
breaching Party must give written notice to the breaching party that describes the breach
in reasonable detail. The breaching party must cure the breach ten (10) calendar days after
receipt of notice from the non-breaching party, or other time frame as agreed to by the
parties. If the breaching party fails to cure the breach within the stated period of time, the
non-breaching party may, in its sole discretion, and without prejudice to any other right
under the Agreement, law, or equity, immediately terminate this Agreement by giving
written notice to the breaching party.
Addendum Page 1 of 6
c. Fiscal Funding Out. In the event no funds or insufficient funds are
appropriated by City in any fiscal period for any payments due hereunder, City will notify
Vendor of such occurrence and the Agreement shall terminate on the last day of the fiscal
period for which appropriations were received without penalty or eXpense to the City of
any kind whatsoever, except as to the portions of the payments herein agreed upon for
which funds have been appropriated.
d. Duties and Obligations of the Parties. In the event that the Agreement is
terminated prior to the Expiration Date, City shall pay Vendor for services actually
rendered up to the effective date of termination and Vendor shall continue to provide City
with services requested by City and in accordance with the Agreement up to the effective
date of termination. Upon termination of the Agreement for any reason, Vendor shall
provide City with copies of all completed or partially completed documents prepared under
the Agreement. In the event Vendor has received access to City information or data as a
requirement to perform services hereunder, Vendor shall return all City provided data to
City in a machine readable format or other format deemed acceptable to City.
3. Attorneys' Fees, Penalties, and Liquidated Dama�es. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties
or liquidated damages in any amount, City objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect.
4. Law and Venue. The Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed in accordance with the laws of the United States and state of
Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement
shall be in a court of competent jurisdiction in Tarrant County, Texas. To the extent the Agreement
is required to be governed by any state law other than Texas or venue in Tarrant County, City
objects to such terms and any such terms are hereby deleted from the Agreement and shall have
no force or effect.
5. Linked Terms and Conditions. If the Agreement contains a website link to terms
and conditions, the linked terms and conditions located at that website link as of the effective date
of the Agreement shall be the linked terms and conditions referred to in the Agreement. To the
extent that the linked terms and conditions conflict with any provision of either this Addendum or
the Agreement, the provisions contained within this Addendum and the Agreement shall control.
If any changes are made to the linked terms and conditions after the date of the Agreement, such
changes are hereby deleted and void. Further, if Vendor cannot clearly and sufficiently
demonstrate the exact terms and conditions as of the effective date of the Agreement, all of the
linked terms and conditions are hereby deleted and void.
6. Insurance. The City is a governmental entity under the laws of the state of Texas
and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self-Insurance by
Governmental Units," is self-insured and therefore is not required to purchase insurance. To the
eXtent the Agreement requires City to purchase insurance, City objects to any such provision, the
parties agree that any such requirement shall be null and void and is hereby deleted from the
Addendum Page 2 of 6
Agreement and shall have no force or effect. City will provide a letter of self-insured status as
requested by Vendor.
7. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign
immunity. To the extent the Agreement requires City to waive its rights or immunities as a
government entity; such provisions are hereby deleted and shall have no force or effect.
8. Limitation of Liability and IndemnitX. To the extent the Agreement, in any way,
limits the liability of Vendor or requires City to indemnify or hold Vendor or any third party
harmless from damages of any kind or character, City objects to these terms and any such terms
are hereby deleted from the Agreement and shall have no force or effect.
9. IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its
own cost and expense, including the payment of attorney's fees, any claim or action against
the City for infringement of any patent, copyright, trade mark, service mark, trade secret,
or other intellectual property right arising from City's use of the Deliverable(s), or any part
thereof, in accordance with this Agreement, it being understood that this agreement to
indemnify, defend, settle or pay shall not apply if City modifies or misuses the
Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions
against the City pursuant to this section 8, Vendor shall have the right to conduct the defense
of any such claim or action and all negotiations for its settlement or compromise and to settle
or compromise any such claim; however, City shall have the right to fully participate in any
and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest,
and City agrees to cooperate with Vendor in doing so. In the event City, for whatever reason,
assumes the responsibility for payment of costs and expenses for any claim or action brought
against the City for infringement arising under 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, Vendor shall fully
participate and cooperate with the City in defense of such claim or action. City agrees to give
Vendor timely written notice of any such claim or action, with copies of all papers City may
receive relating thereto. Notwithstanding the foregoing, the City's assumption of payment of
costs or expenses shall not eliminate Vendor's duty to indemnify the City under 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, Vendor shall, at its own expense and as City's sole remedy,
either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the
Deliverable(s) to make them/it non-infringing, provided that such modification does not
materially adversely affect City's authorized use of the Deliverable(s); or (c) replace the
Deliverable(s) with equally suitable, compatible, and functionally equivalent non-infringing
Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is
reasonably available to Vendor, terminate this Agreement, and refund all amounts paid to
Vendor by the City, subsequent to which termination City may seek any and all remedies
available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE
SECURED BY THE REQUISITE INSURANCE COVERAGE AND AMOUNTS SET
FORTH IN SECTION 10 OF THIS AGREEMENT.
Addendum Page 3 of 6
10. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the availability of funds.
If such funds are not appropriated or become unavailable, City shall have the right to terminate the
Agreement except for those portions of funds which have been appropriated prior to termination.
11. Confidential Information. City is a government entity under the laws of the State
of TeXas and all documents held or maintained by City are subject to disclosure under the TeXas
Public Information Act. To the extent the Agreement requires that City maintain records in
violation of the Act, City hereby objects to such provisions and such provisions are hereby deleted
from the Agreement and shall have no force or effect. In the event there is a request for information
marked Confidential or Proprietary, City shall promptly notify Vendor. It will be the responsibility
of Vendor to submit reasons objecting to disclosure. A determination on whether such reasons are
sufficient will not be decided by City, but by the Office of the Attorney General of the State of
Texas or by a court of competent jurisdiction.
12. Addendum Controllin�. If any provisions of the attached Agreement, conflict with
the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or
ordinance of City, the terms in this Addendum shall control.
13. Immigration Nationality Act. Vendor shall 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 shall provide City
with copies of all I-9 forms and supporting eligibility documentation for each employee who
performs work under this Agreement. Vendor shall adhere to all Federal and State laws as well as
establish appropriate procedures and controls so that no services will be performed by any Vendor
employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY
CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR
LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S
ElVIPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice
to Vendor, shall have the right to immediately terminate this Agreement for violations of this
provision by Vendor.
14. No Boycott of Israel. If Vendor has fewer than 10 employees or the Agreement is
for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with
Chapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with
a company for goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the
contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those
terms in Section 808.001 of the TeXas Government Code. By signing this Addendum, Vendor
certifies that T�endor's signature provides written verification to City that T�endor: (1) does not
boycott Israel; and (2) will not boycott Israel during the term of the Agreement.
15. Ri�ht to Audit. Vendor agrees that City shall, until the expiration of three (3) years
after final payment under the Agreement, have access to and the right to eXamine any directly
pertinent books, documents, papers and records of Vendor involving transactions relating to the
Agreement. Vendor agrees that City shall have access during normal working hours to all
Addendum Page 4 of 6
necessary Vendor facilities and shall be provided adequate and appropriate workspace in order to
conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable
advance notice of intended audits.
(signature page follows)
Addendum Page 5 of 6
ACCEPTED AND AGREED:
CITY:
City of Fort Worth
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By:
Fernando Costa (Mar 15, 2021 10:58 CDT)
Name: Fernando Costa
Title: Assistant City Manager
Date: M a r 15, 2021
Approval Recommended:
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Name: Mark McAvoy
Title: Director of P&DA
Attest:
By: ��/���e��
Name: Mary J. Kayser
Title: City Secretary
VENDOR:
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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.
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B Ashley Clement (Mar 4, 2021 09:04 CST)
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Name: Ashley Clement
Title: Sr Budget Analyst
Approved as to Form and Legality:
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By. JB Strong (Mar , 2021 10:03 CDT)
Name: John B. Strong
Title: Assistant City Attorney
Contract Authorization:
M&C: NA
eight20 consulting DBA ZacTax
By:
Name
Title:
Date:
�Gi��%G� L��/���
Patrick Lawler (Mar4, 2021 09:01 CST)
Patrick Lawler
Chief Operating Officer
M a r 4, 2021
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Addendum Page 6 of 6