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HomeMy WebLinkAboutContract 51681 CITY SECRETARY CONTRACT N0._ $ 4 o o PERFORMANCE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE FORT WORTH SYMPHONY ORCHESTRA TO PERFORM AT THE CENTRAL FORT WORTH LIBRARY This PERFORMANCE AGREEMNT ("Agreement") is made and entered into this 5'h of December, 2018, by and between the CITY OF FORT WORTH, a home-rule municipal corporation of the State of Texas ("City"), acting by and through its duly authorized Assistant City Manager,and The Fort Worth Symphony Orchestra("FWSO"),an Artist. WHEREAS, the City is hosting Sounds of the Season ("Event") on Thursday, December 20 at 6:00 PM at the Fort Worth Central Library located at 500 W. 3' Street, Fort Worth,Texas;and WHEREAS, with the support of the Arts Council of Fort Worth and the Gary Patterson Foundation, the FWSO has offered to provide a musical experience at no charge at the Central Fort Worth Library;and WHEREAS, among other activities, the City desires to feature live performances at the Event and wishes to contract with the FWSO to provide for such services. NOW, THEREFORE, the City and the FWSO for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: I. TIME AND PLACE OF PERFORMANCE 1. The FWSO agrees to provide a musical performance ("Performance") to the City on December 20,2018 ("Event Date") at the Central Fort Worth Library located at 500 West 3'd Street, Fort Worth,Texas ("Event Site"). This performance is more specifically described in Exhibit A. 2. The Event may be rescheduled as necessary by mutual agreement of the parties. II. FWSO'S OBLIGATIONS 1. FWSO agrees to arrive at the Event Site no later than 4:00 p.m. on the Event Date for the setup of equipment and sound check and to and stay until the end of the performance. In the event that FWSO will not be able to arrive by 4:00 p.m. on the Event Date, the FWSO agrees to contact Jennifer Demas at Fort Worth Central Library as soon as the FWSO is aware of such delay. City and FWSO shall confirm equipment delivery and production details in advance of the performance date. 2. The FWSO shall supply all stage props, musical and performance instruments, music, equipment, and personnel required for the Event, except that City shall supply all stage risers available at the Central Fort Worth Library, and shall remove all such supplies at the conclusion of the term of the Agreement. City shall notify FWSO in advance of the performance of how many stage riser will be provided by City. O FFICIAL REC�fO1RD Agreement between CoFW and FWSO Y Sa—.1URt-IAKa- WORTH,TK 3. The FWSO shall provide all personnel necessary to facilitate the safe and enjoyable participation by the public at the Event. III. CITY'S OBLIGATIONS 1. City agrees to designate a representative to coordinate all services to be performed pursuant to this Agreement. 2. City agrees that it will provide all stage risers available at the Central Fort Worth Library. City shall notify FWSO in advance of the performance of how many stage riser will be provided by City. 3. City must ensure that the performance space is cooled or heated to a temperature between 70 and 80 degrees Fahrenheit,which 75 degrees Fahrenheit being the ideal temperature. The FWSO shall not be required to perform if the temperature is outside of this range. IV. COMPENSATION AND CONSIDERATION FWSO shall provide the performance at no charge to City. City shall not be required to pay any cost, fee,or charge of any nature for the performance. The City represents that for consideration of its obligations under this Agreement,that the FWSO is providing a unique and important experience free of charge for the citizens of Fort Worth to enrich its citizenry and allow for more citizens to experience the arts. The FWSO represents that for consideration of its obligations under this Agreement, the City is providing a space for such presentation to occur in an effort to provide an opportunity for its citizens to experience the arts free of charge at an accessible location. Both parties agree as a condition precedent of this Agreement that both parties have exchanged good and valuable consideration. V. DUTY TO PERFORM/FORCE "EURE The City reserves the right to cancel the Event due to acts of Force Majeure on or near the day of the Event. Acts of Force Majeure shall include, without limitation, severe weather events such as hurricanes, tornadoes, floods, ice storms, or hail, and disasters such as fires, acts of public enemy, acts of superior governmental authority, epidemics, pandemics, riots, rebellion, sabotage, or any similar circumstances not within the reasonable control of either party. Neither City nor FWSO shall be deemed in breach of this Agreement if it is prevented from performance by Force Majeure. VI. PERMISSION TO USE PHOTOGRAPHS &VIDEOS OR FILMS No audio or video recording shall be permitted. Still photography shall be permitted without flash. By entering into this Agreement, the FWSO hereby gives its consent and permission to City to use any photographs City has of the FWSO performing. Use includes, but is not limited to, publishing, posting on an official web site or putting on television, either network or cable or at neighborhood meetings. Agreement between CoFW and FWSO Page 2 of 10 VII. INDEPENDENT CONTRACTOR The F`X'SO shall operate under this Agreement as an independent contractor and not as an officer, agent, servant, or employee of City. The FWSO shall have the exclusive right to control the details of the work and the services performed hereunder. City shall have no right to exercise any control over or to supervise or regulate the FWSO in any way other than stated herein. The doctrine of Respondeat Superior shall not apply as between the parties, and nothing herein shall be construed as creating a partnership or joint enterprise between the parties. VIII. TERMINATION 1. 1,ither party may terminate this agreement with fourteen (14) days' written notice to the other party. 2. If, for any reason, at any time during any term of this Agreement, the Fort Worth City Council fails to appropriate funds sufficient for City to fulfill its obligations under this Agreement, City may terminate this Agreement to be effective on the later of (i) thirty (30) days following delivery by City to the FWSO of written notice of City's intention to terminate or (ii) the last date for which funding has been appropriated by the Fort Worth City Council for the purposes set forth in this Agreement. IX. LIABILITY/INDEMNIFICATION 1. LIABILITY. THE FWSO 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 ACT(S), ERRORS, OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF THE FWSO, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 2. GENERAL INDEMNIFICATION. FWSO COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS OF DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, LIABILITIES, AND/OR SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR OMMISSIONS OF FWSO AND/OR FWSO'S SUBCONTRACTORS AND Agreement between CoFW and FWSO Page 3 of 10 CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. 3. Intellectual Property. The FWSO agrees to assume full responsibility for complying with all State and Federal Intellectual Property Laws and any other regulations, including, but not limited to, the assumption of any and all responsibilities for paying royalties that are due for the use of other third-party copyrighted works by FWSO. City expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by FWSO without the appropriate licenses or permission being secured by FWSO in advance. IT IS FURTHER AGREED THAT FWSO SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF FWSO'S USE OF ANY COPYRIGHTED MATERIAL BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP,AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of the FWSO. 4. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THE FWSO, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT THE FWSO'S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. 5. IT IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW OR HEREAFTER IN EFFECT AND AFFECTING THE VALIDITY OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATION UNDER THIS SECTION, SUCH LEGAL LIMITATIONS ARE MADE A PART OF THE INDEMNIFICATION OBLIGATION AND SHALL OPERATE TO AMEND THE INDEMNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO BRING THE PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT. 6. FWSO agrees to and shall release City from any and all liability for injury, death, damage, or loss to persons or property sustained or caused by FWSO in connection with or incidental to performance under this Agreement. 7. FWSO shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 8. All indemnification provisions of this Agreement shall survive the termination or expiration of this Agreement. X. Agreement between CoFW and FWSO Page 4 of 10 CORRESPONDENCE All notices required or permitted under this Agreement shall be conclusively determined to have been delivered when (i) hand-delivered to the other party, or its authorized agent, employee, servant, or representative, or (ii) received by the other party or its authorized agent, employee, servant, or representative by reliable overnight courier or United States Mail, postage prepaid, return receipt requested, at the address stated below or to such other address as one party may from time to time notify the other in writing. CITY FWSO City of Fort Worth Lindsey Stortz Branch Library Director 330 E. 4`h Street 500 W 3"' Street, Fort Worth,TX 76102 Fort Worth,Texas 76102 LBranch@fwsymphony.org With copy to: Assistant City Attorney 200 Texas Street Fort Worth,Texas 76102 The FWSO and CAN, agree to notify the other party of any changes in addresses. XI. NON-ASSIGNABILITY This Agreement is non-assignable, and any unauthorized purported assignment or delegation of any duties hereunder, without the prior written consent of the other party, shall be void and shall constitute a material breach of this Agreement. XII. ENTIRETY This Agreement, including Exhibit A, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and no amendment, alteration, or modification of this Agreement shall be valid unless in each instance such amendment, alteration or modification is expressed in a written instrument, duly executed and approved by each of the parties. There are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. In the event of any conflict between the terms of this Agreement and Exhibit A, the terms of this Agreement shall control. XIII. MODIFICATION No amendment, modification, or alteration of the terms of this Agreement shall be binding unless the same is in writing, dated subsequent to the date hereof, and duly executed by the parties hereto. Agreement between CoFW and FWSO Page 5 of 10 XIV. SEVERABILITY Should any portion, word, clause, phrase, sentence or paragraph of this Agreement be declared void or unenforceable, such portion shall be modified or deleted in such a manner as to make this Agreement, as modified, legal and enforceable to the fullest extent permitted under applicable law. XV. GOVERNING LAW/VENUE If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. XVI. WAIVER No waiver of performance by either party shall be construed as or operate as a waiver of any subsequent default of any terms, covenants, and conditions of this Agreement. The payment or acceptance of fees for any period after a default shall not be deemed a waiver of any right or acceptance of defective performance. XVII. NO THIRD-PARTY BENEFICIARIES The provisions and conditions of this Agreement are solely for the benefit of City and the FWSO, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. XVIII. CONTRACT CONSTRUCTION The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. XIX. AUDIT The City shall have the right to Audit financial records that are related to the exchange of money from the City to the FWSO, if any, required under the terms of this Agreement for one year following the expiration or termination of this agreement. Agreement between CoFW and FWSO Page 6 of 10 XX. COUNTERPARTS AND ELECTRONIC SIGNATURES This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. XXI. NON-DISCRIMINATION In the execution, performance, or attempted performance of this Agreement, the FWSO will not discriminate against any person or persons because of disability, age, familial status, sex, race, religion, color, national origin, or sexual orientation, nor will the FWSO permit its officers, agents, servants, employees, or subcontractors to engage in such discrimination. This Agreement is made and entered into with reference specifically to Chapter 17, Article 111, Division 3, of the City Code of the City of Fort Worth ("Discrimination in Employment Practices"), and the FAVSO hereby covenants and agrees that the 17WSO, its officers, agents, employees, and subcontractors have fully complied with all provisions of same and that no employee or employee-applicant has been discriminated against by either the FWSO, its officers, agents, employees, or subcontractors. XXII. GOVERNMENTAL POWERS Both Parties agree and understand that the City does not waive or surrender any of its governmental powers by execution of this Agreement. XXIII. HEADINGS NOT CONTROLLING Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. XXIV. 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 shall not be employed in the interpretation of this Agreement or exhibits hereto. XXV. LICENSES, PERMITS AND FEES/COMPLIANCE WITH LAWS 1. The FWSO agrees to obtain and pay for all applicable licenses, permits, certificates, Agreement between CoFW and FWSO Page 7 of 10 inspections, and all other fees required by law necessary to perform the services prescribed for the FWSO to perform hereunder. 2. This Agreement is subject to all applicable federal, state, and local laws, ordinances, rules, and regulations, including, without limitation, all provisions of the City's Charter and ordinances, as amended. XXVI. CONDITION OF THE FACILITY/WARRANTIES EXCLUDED The FWSO hereby represents that she has inspected the facilities at the Event Site intended for the performance, including any improvements thereon, and that the FWSO finds same suitable for all activities and operations agreed to hereunder, and that the FWSO does so on an "as is" condition. The City hereby expressly excludes any and all warranties in regard to the facilities, including, without limitation, fitness for any particular purpose. XXII. INSURANCE During the term of this Agreement, the FWSO shall maintain in full force and effect, at her own cost and expense, Commercial General Liability Insurance in at least the minimum amount of $1,000,000 per occurrence with an annual aggregate limit of not less than $2,000,000, and the City shall be named as an additional insured on the insurance policy. The FWSO shall be responsible for any and all wrongful or negligent acts or omissions of its employees and agents and for any causes of action arising under strict liability. XXIII. SIGNATURE AUTHORITY The person signing this Agreement hereby warrants that he or she has the legal authority to execute this Agreement on behalf of his or her respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the person or entity. The other Party is fully entitled to rely on this warranty and representation in entering into this Agreement. Should that person or entity not be authorized, the terms and conditions of this Agreement shall be binding as against the signatore and he/she/it shall be subject to the terms and conditions of this Agreement. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGE FOLLOWS] Agreement between CoFW and FWSO Page 8 of 10 IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples, this i qth day of November; 2018. 'December CITY OF FORT WORTH FWSO by: v 'INAby: 64tAL4;�t Jesus Ch l2Name: Beck y T in J A00/10 5Assistant City Manager Title:Vice Pres ent of Artistic Operations Recommended by: Assistant Di ctor Library Department APPROVED A O FORM AND LEGALITY by. Joe e Assi nt City Attorney '''OR ATTEST: glary ays City Secreta S M&C—No M&C Required <insert contract manager block> OFFICIAL RECORD Agreement between CoFW and FWSO CiT9t9"ARY FT. WORTH,TX Exhibit A Performance: Thursday, December 20, 2018 at 6:00 PM The performance by the Fort Worth Symphony will last approximately 60 minutes. Venue: Central Fort Worth Library 500 W. 3rd Street Fort Worth,Texas 76102 Venue Access: The FWSO requires access to the performance area at least two (2) hours prior to the performance start time. Temperature: The performance space must be cooled or heated to a temperature between 70°F and 80°F,with 75°F being the optimal temperature. Contractually, our musicians will refuse to play if the temperature is outside of this range. Recording: Audio and video recording of this performance is strictly prohibited. Still photography is permitted without flash. Equipment: Venue agrees to provide their full complement of additional stage risers. All other equipment required for the performance will be provided by the FWSO, including chairs and music stands. Production: The FWSO's Director of Operations, Lisa Stallings (lstallings@fwsymphony.org),will contact you in advance of the performance date to confirm equipment delivery and other production details. Sponsors: These performances are provided at no cost to the PRESENTER and are sponsored by the Arts Council of Fort Worth. Additional support is provided by the Gary Patterson Foundation. Presenter confirms they have read and agree to be bound by the terms and conditions listed in this agreement. Agreement between CoFW and FWSO Page 10 of 10 Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ens»ring all performance and reporting requirements. a rT R6ICIAL �� ,��� �; ;��Y SECRE`A,. WORTH TX