HomeMy WebLinkAboutContract 53153 C' 1_ ,sly E7ARY
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PERFORMANCE AGREEMENT BETWEENT THE CITY OF FORT WORTH AND
FUNK COMMUNICATION TECHNOLOGIES, INC. TO PERFORM AT THE FORT
WORTH PUBLIC LIBRARY
This PERFORMANCE AGREEMENT ("Agreement") is made and entered into 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 Funk
Communication Technologies, Inc., an incorporation ("Performer").
WHEREAS, among other activities, the City desires to feature live performances at The
Fort Worth Public Library; and
WHEREAS, the City wishes to contract with the Performer to provide a children's music
and movement program which features awesome animal-themed rock-n-roll songs and fun-filled
dances designed in line with State Standards for Physical Education and Performer can provide
those services.
NOW,THEREFORE,the City and the Performer 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 Performer agrees to provide a children's music and movement program which features
awesome animal-themed rock-n-roll songs and fun-filled dances designed in line with State
Standards for Physical Education. ("Performance") to the City on as described in Attachment A.
The performance shall occur at the times, locations, and dates specified in Attachment B, unless
changed in accordance with this Agreement.
2. If the Performance is rescheduled, for any reason, the parties agree to execute an amendment
to this Agreement setting forth the rescheduled Performance date. If the Performer cannot perform
on the rescheduled Performance date, then the City may terminate this Agreement without penalty
and Performer shall fully refund any and all deposits paid to the Performer by the City within thirty
(30) days of written request. The City shall have sole discretion to determine the rescheduled
Performance date.
II.
PERFORMER'S OBLIGATIONS
1. Performer agrees to arrive at the Performance site no later than thirty minutes (30) prior to
start time on the Performance date. In the event that Performer will not be able to arrive by ten
minutes (10) prior to start time on the Performance date, the Performer agrees to contact Youth
Services at 817-392-7720 as soon as the Performer is aware of such delay. If the Performer arrives
after the stated program time on the Performance date and the Performance cannot take place, as
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OFFM�L ECORD
o
RECENEa CITY SECRETARY
DEC-3 2019 FT WORTH, TX
determined by City in its sole discretion, the Performer acknowledges and agrees that Performer will
not be paid for the Performance.
2. The Performer agrees to follow the presentation outline,attached hereto as Attachment A and
incorporated into this Agreement by reference as if fully set forth herein. The performer shall perform
on the dates and times and at the locations as set out in Attachment B, which is attached hereto and
incorporated for all purposes.
4. The Performer shall supply such stage props, musical and performance instruments, music,
equipment,and personnel as specified in Attachment C for the Performance and shall remove all such
supplies at the conclusion of the term of the Agreement.
5. The Performer shall sign up as an official City vendor via the City of Fort Worth website no
later than November 15, 2019.
6. The Performer shall provide all personnel necessary to facilitate the safe and enjoyable
participation by the public at the Performance.
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 stage props,musical and performance instruments, equipment,
and support services,if any, as specified in Attachment D on the Performance date.
IV.
COMPENSATION
As fair compensation for the services provided by the under this Agreement, the City shall pay the
Performer a total amount of$ 1,800.00 for six (6) performances by the Performer. The performer
will be paid within 30 days of the last performance.
V.
DUTY TO PERFORM/FORCE MAJEURE
1. The City reserves the right to cancel the Performance due to acts of Force Majeure on or near
the day of the Performance. 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 Performer shall be deemed in breach of this Agreement if it is prevented from performance by
Force Majeure; however, Performer shall not be entitled to retain the deposit paid to the Performer
by the City,which deposit must be returned to the City within thirty (30) days after written request by
the City.
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2. In the event Performer is unable to perform, as described herein, due to sickness, accident or
other conditions beyond the control of the Performer and proven to City, then Performer shall fully
refund any and all deposits paid to the Performer by the City within thirty (30) days of written request.
VI.
PERMISSION TO USE PHOTOGRAPHS &VIDEOS OR FILMS
By entering into this Agreement, the Performer hereby gives its consent and permission to City to use
any photograph,video or film City has of the Performer 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.
VII.
INDEPENDENT CONTRACTOR
The Performer shall operate under this Agreement as an independent contractor and not as an officer,
agent, servant,or employee of City. The Performer 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 Performer 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. This Agreement may be terminated by the City without cause with fourteen (14) days written
notice to the Performer. This Agreement may also be terminated at any time by the City for cause and
upon notice to the Performer.
2. If the City terminates this Agreement pursuant to section one of VIII, City shall not owe any
compensation to the Performer and Performer shall return the deposit paid by the City within thirty
(30) business days after written request.
3. If the City fails to provide at least fourteen (14) days' notice of cancellation, Performer shall
be entitled to keep the deposit, except in cases of Force Majeure, but shall not be entitled to any
additional compensation from City.
IX.
LIABILITY/INDEMNIFICATION
1. LIABILITY. THE PERFORMER 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 HIND OR
CHARACTER,WHETHER REAL ORASSERTED,TO THE EXTENT CAUSED BYTHE
ACT(S), ERRORS, OR OMISSION(S), MALFEASANCE OR INTENTIONAL
MISCONDUCT OF THE PERFORMER, ITS OFFICERS, AGENTS, SERVANTS OR
EMPLOYEES.
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2. GENERAL INDEMNIFICATION. PERFORMER 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 PERFORMER AND/OR PERFORMER'S SUBCONTRACTORS AND
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 Performer 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 Performer. 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 Performer
without the appropriate licenses or permission being secured by Performer in advance. IT IS
FURTHER AGREED THAT PERFORMER 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 PERFORMER'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 Performer.
4. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST
THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THE
PERFORMER, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR
PROCEEDING, AT THE PERFORMER'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
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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. Performer 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 Performer in connection with or incidental to
performance under this Agreement.
7. Performer 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.
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 PERFORMER
City of Fort Worth Funk Communication Technologies
Library Director 6387-B Camp Bowie #403
500 W 3rd Street, Fort Worth,Texas 76117
Fort Worth,Texas 76102
With copy to:
Assistant City Attorney
200 Texas Street
Fort Worth,Texas 76102
The Performer and City 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.
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XII.
ENTIRETY
This Agreement 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.
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.
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 Performer,
and any lawful successor or assign,and are not intended to create any rights,contractual or otherwise,
to any other person or entity.
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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.
FISCAL FUNDING OUT
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 Performer 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.
XX.
PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL
Performer acknowledges that in accordance with Chapter 2270 of the Texas Government Code,the
City is prohibited from entering into a contract with a company for goods or services unless the contract
contains a written verification from the company that it: (1)does not boycott Israel;and(2)will not boycott
Israel during the term of the contract. The terms "boycott Israel" and"company" shall have the meanings
ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this contract,
Performer certifies that Performer's signature provides written verification to the City that Performer: (1)
does not boycott Israel; and(2) will not boycott Israel during the term of the contract.
XXI.
AUDIT
The Performer agrees that City will have the right to audit the financial and business records of the
Performer that relate to this Agreement (collectively "Records") at any time during the Term of this
Agreement and for three (3) years thereafter in order to determine compliance with this Agreement.
Throughout the Term of this Agreement and for three (3) years thereafter, the Performer shall make
all Records available to City on 1000 Throckmorton Street, Fort Worth, Texas or at another location
in City acceptable to both parties following reasonable advance notice by City and shall otherwise
cooperate fully with City during any audit. Notwithstanding anything to the contrary herein, this
section shall survive expiration or earlier termination of this Agreement.
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XXII.
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.
XXIII.
NON-DISCRIMINATION
In the execution, performance, or attempted performance of this Agreement, the Performer 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 Performer 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 III, Division 3, of the City Code of the City of
Fort Worth ("Discrimination in Employment Practices"), and the Performer hereby covenants and
agrees that the Performer,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 Performer,its officers, agents, employees, or subcontractors.
XXIV.
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.
XXV.
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.
XXVI.
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.
XXVII.
LICENSES, PERMITS AND FEES/COMPLIANCE WITH LAWS
1. The Performer agrees to obtain and pay for all applicable licenses, permits, certificates,
inspections, and all other fees required by law necessary to perform the services prescribed for the
Performer to perform hereunder.
2. This Agreement is sub)ect to all applicable federal, state, and local laws, ordinances, rules,
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and regulations,including,without limitation, all provisions of the City's Charter and ordinances, as
amended.
XXVIII.
CONDITION OF THE FACILITY/WARRANTIES EXCLUDED
The Performer hereby represents that she has inspected the facilities at the Performance site intended
for the performance,including any improvements thereon,and that the Performer finds same suitable
for all activities and operations agreed to hereunder, and that the Performer 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.
XXIX.
INSURANCE
During the term of this Agreement, the Performer 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 Performer 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.
Additional Insurance Requirements:
1. Certificates of Insurance evidencing that the Performer has obtained all required insurance
shall be delivered to the City prior to Performer proceeding with the Agreement.
2. Applicable policies shall be endorsed to name the City an Additional Insured thereon, as its
interests may appear. The term City shall include its employees, officers, officials,agents, and
volunteers as respects the Contracted services.
3. Certificate(s) of Insurance shall document that insurance coverage specified herein are
provided under applicable policies documented thereon.
4. Any failure on part of the City to request required insurance documentation shall not
constitute a waiver of the insurance requirements.
5. A minimum of thirty (30) days' notice of cancellation or material change in coverage shall be
provided to the City. A minimum ten (10) day notice shall be required in the event of non-
payment of premium. Such terms shall be endorsed onto the Performer's insurance policies.
Notice shall be sent to Department of Risk Management, City of Fort Worth, 1000
Throckmorton Street, Fort Worth,Texas 76102.
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a. Insurers for all policies must be authorized to do business in the state of Texas or be
otherwise approved by the City; and, such insurers shall be acceptable to the City in
terms of their financial strength and solvency.
b. Deductible limits, or self-insured retentions, affecting insurance required herein shall
be acceptable to the City in its sole discretion;and,in lieu of traditional insurance, any
alternative coverage maintained through insurance pools or risk retention groups must
be also approved. Dedicated financial resources or Letters of Credit may also be
acceptable to the City.
C. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the
City as respects the Contract.
d. The City shall be entitled, upon its request and without incurring expense, to review
the Performer's insurance policies including endorsements thereto and, at the City's
discretion; the Performer may be required to provide proof of insurance premium
payments.
e. The Commercial General Liability insurance policy shall have no exclusions by
endorsements unless the City approves such exclusions.
f. The City shall not be responsible for the direct payment of any insurance premiums
required by the Agreement. It is understood that insurance cost is an allowable
component of Performer's overhead.
g. All insurance required above shall be written on an occurrence basis in order to be
approved by the City.
h. Subcontractors to the Performer shall be required by the Contractor to maintain the
same or reasonably equivalent insurance coverage as required for the Performer.When
subcontractors maintain insurance coverage, Contractor shall provide City with
documentation thereof on a certificate of insurance. Notwithstanding anything to the
contrary contained herein, in the event a subcontractor's insurance coverage is
canceled or terminated, such cancellation or termination shall not constitute a breach
by the Performer of the Agreement.
XXX.
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.
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[SIGNATURE PAGE FOLLOWS]
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IN WITN SS WHEREOF,the parties hereto have executed this agreement in multiples,this
day of Nda,»121 2019.
CITY OF FORT WORTH PERFORMER
by:_ by:
— 'Z
Jesus J. Chapa N : Kei n Scott
Assistant City Manager Title: er
Recommended by:
Mari 14larvi
Assis t Liltary irector
APPROVED AS TO F RM AND LEGALITY
by:
Jo A ate . 0 .,
?rss' tant City attorney R,
.:• ........
ATTEST.
U
\,iary Kayse 1
City Secretaryht�s
TM&C—No NA&C Required
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract,including
enstuipg all performance and r orting requirements.
ti
Marilyn arvin
Assistant Library Hec
or
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OFFICIAL.RECORD
CITY SECRETARY
FT. WORTIi,TX
Attachment A
Presentation Outline
This exciting children's music and movement program features awesome animal-themed rock-n-roll
songs and fun-filled dances designed in line with State Standards for Physical Education (PreK-1st
grade). Created to fight the trend in childhood obesity, Zoomeez instructors lead children and engage
parents through a program of super-fun dances, action-packed challenges, and entertaining animal
trivia.
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Attachment B
Performance Dates and Locations
2:00 p.m.,Wednesday, Cambridge Court (CAM)
October 16, 2019 8124 Calmont Ave
Fort Worth,TN 76116
817-392-2369
3:30 p.m.,Wednesday, Seminary Branch (SEl)
October 23, 2019 501 East Bolt Street
Fort Worth,IN, 76110
817-926-6258 or 817-392-5491
10:30 a.m.,Tuesday, Summerglen Branch (SGN)
November 12, 2019 4205 Basswood BLVD
Fort Worth Texas 76137
817-232-1059 or817-392-5970
1:00 p.m.,Tuesday, Central Library Youth Center
November 12, 2019 500 West 3`d Street
Fort Worth,IN, 76102
817-392-7745 or 817-392-1871
10:30 a.m., Friday, Ridglea Branch Library (RDG)
November 22, 2019 3628 Bernie Anderson Drive
Fort Worth,IN, 76116
817-738-1129 or 817-392-6631
11:00 a.m., Tuesday, Southwest Regional Library (SWTR)
November 26, 2019 4001 Library Lane
Fort Worth, IN 76109
817-732-0224 or817-392-5861
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Attachment C
Materials Provided by Performer
PA system to play music and all other music and items necessary to effectuate the Performance.
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Attachment D
City's Obligations
Access to electricity.
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