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HomeMy WebLinkAboutContract 39755CITY SECRETARY STATE OF TEXAS § CONTRACT NO COUNTY OF TARRANT § This Agreement is made and entered into between the City of Fort Worth, a home -rule municipal corporation situated in Tarrant County, Texas (hereinafter referred to as "City"), acting herein by and through Fernando Costa, it's duly authorized Assistant City Manager, and Radio Disney Dallas, LLC, on behalf of KMKI (AM), a limited liability corporation doing business in Texas, whose principal place of business is located at 2221 East Lamar Boulevard, Arlington, Texas 76006 (hereinafter referred to as "Contractor"). WHEREAS, the City is hosting a volunteer appreciation party on April 10, 2010 for the City's 2010 Cowtown Great American Cleanup (the "Festival"). NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the parties agree as follows: SECTION 1. CONTRACTOR'S SERVICE Contractor shall operate and complete a two (2) hour on -site radio presentation appearance at the Festival, to be located at the City's Forest Park Pavilion, in Fort Worth, Texas featuring Contractor's Local Host Jay Jenson or Tera Beall. (a) Contractor shall supply its own tent, scrim, table, PA system and music for the Festival. (c) Contractor shall also provide prizes such as tattoos, stickers, candy and book covers as well as Disney DVD's, toys and tickets to upcoming Disney events and concerts at the Festival. (d) The Contractor shall include and publicize the Festival on Contractor's website and on the Kid Konnection Hotline, 817-695-3570. (e) Contractor acknowledges that the operating hours of the remote appearances shall be from 12 p.m. (noon) to 2:00 p.m. on April 10, 2010. In no event shall the City be billed for any time spent after 2:00 p.m. Contractor shall also begin set-up of the remote appearances at a time which will allow Contractor to be ready to begin the Festival for public participation at 12 p.m. (noon.) (f) Contractor shall provide all persons necessary enjoyable participation by the public at the Festival. to facilitate the safe and OFFICIAL RECORD CIY"Y SECRET/�RY E T. WORTH, TX Radio Disr7ey Conh•act 1 c CRR01.06.10 �__ _ (g) City shall have the right to use Contractor's logo, as provided by Contractor to City and only upon the prior written approval of Contractor for each requested use by the City, to advertise the Festival. SECTION 2. TERM (a) The terms of the Agreement shall apply to the Festival scheduled to be on April 10, 2010 at 12:00 p.m. (noon) until 2@00 p.m. (b) The City reserves the right to cancel either event for any reason upon ten (10) days notice to the Contractor and shall not be required to pay for those services described herein. SECTION 3. PAYMENTS TO CONTRACTOR (a) The City shall pay to the Contractor, an amount not -to -exceed of three thousand five hundred dollars ($3,500) for total services to be provided on April 10, 2010. Within ten (10) days after the full execution of this Agreement but before the Festival, the City shall pay Contractor one thousand five hundred dollars and no cents ($1,750.00), upon receiving an invoice from the Contractor. Thereafter, City shall pay Contractor one thousand five hundred dollars and no cents ($1,750.00) within seven (7) days from receiving an invoice from Contractor prior to the performance of Contractor's services herein, as described in Section 2. However, if the Contractor does not perform such services under the terms of this Agreement then City shall be entitled to a full and complete refund of three thousand dollars ($3,500) immediately upon demand. (b) The City shall have the right to cancel the event if there is severe weather or a level orange or red security incident as determined by the City. If the City cancels an event there shall be no cancellation fee and Contractor shall reschedule the event with the City as long as it is reasonably practicable and allowable by all applicable laws and regulations SECTION 4. INSURANCE AND RESPONSIBILITY (a) During the term of this Agreement, Contractor shall maintain in full force and effect, at his 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. Radio Disney Conb•act 2 CRR01.06.10 (b) Contractor shall be responsible for any and all wrongful or negligent acts or omissions of its employees and agents. (c) Additional Insurance Requirements 1. The City, its officers, employees and servants shall be endorsed as an additional insured on all insurance policies excepting employer's liability insurance coverage under Contractor's workers' compensation insurance policy. 2. Certificates of insurance shall be delivered to the City of Fort Worth, Parks and Community Services Department, Attn: Park Reservationist, 4200 South Freeway Suite 2200, Fort Worth, TX 76115, contemporaneously with the execution of the contract. 3. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. 4. Each insurance policy shall be endorsed to provide the City a minimum thirty days notice of cancellation, non -renewal, and/or material change in policy terms or coverage. A ten (10) days notice shall be acceptable in the event of non-payment of premium. 5. Insurers must be authorized to do business in the State of Texas and have a current A.M. Best rating of A: vIl or equivalent measure of financial strength and solvency. 6. Other than worker's compensation insurance, in lieu of traditional insuranceI City may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups. The City must approve in writing any alternative coverage. 7. Workers' compensation insurance policy(s) covering employees employed during the remote appearances shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the City. 8. City shall not be responsible for the direct payment of insurance premium costs for insurance. 9. All insurance policies shall each be endorsed to provide that such insurance is primary protection and any self -funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. Radio Disney Conb•act 3 CRR01.06.10 10. During the term of the contract, all known loss occurrence which could give rise to a liability claim or lawsuit or which could result in a property loss shall be reported to the Environmental Management Department. 11. Contractor's liaty shall not be limited to the specified amounts of insurance required herein. SECTION 5. INDEMNIFICATION CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT RELATE TO, ARISE OUT OF OR ARE OCCASIONED BY (i) CONTRACTOR'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF CONTRACTOR IN CONNECTION WITH THE PERFORMANCE OF ITS SERVICES HEREUNDER, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY TO THE EXTENT RESULTING FROM THE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH CONTRACTOR AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. SECTION 6. MAINTENANCE; ALTERATION TO PREMISES (a) Contractor shall not make or cause to be made any alterations, additions or improvements, or make any changes or additions to the areas) which the City shall designate for the Festival Presentation without prior written consent of the City. (b) All alterations, decorations, additions, and improvements made by Contractor shall remain the property of Contractor during the term of the contract. Such alterations, decorations, additions and improvements shall not be removed from the property prior to the end of the term without the prior written consent of the City. At the end of each festival, Contractor shall remove trade fixtures and all such alterations, decorations, additions and improvements and shall restore the property to the same condition as it was in at the commence of the festival, ordinary wear and tear excluded. Radio Disney Conb•act 4 CRR01.06.10 SECTION 7. FORCE MAJEURE Neither City nor Contractor shall be deemed in breach of this Agreement if it is prevented from performance by Acts of God, acts of public enemy, acts of superior governmental authority, strikes or labor disputes, floods, riots, rebellion, sabotage, or any similar circumstances not within the reasonable control of either party nor reasonably expected weather for the regional area. SECTION 8. RECORDS AND AUDITS To the extent applicable, Contractor shall keep full, complete and proper books, records and accounts of gross receipts, both for cash and on credit, of each separate activity, and shall report the same monthly to City. To the extent applicable, said books, records and accounts, including any sales tax reports that Contractor may be required to furnish to any government or governmental agency, shall at all reasonable times be available for inspection by the City and its authorized representatives and agents. To the extent applicable, Contractor agrees to maintain his financial records pertaining to the operation and management of the Radio Disney Presentation and related activities for a period of three (3) years after the conclusion of this Agreement. SECTION 9. NON-DISCRIMINATION/EQUAL OPPORTUNITY Contractor shall not discriminate on the basis of race, color, creed, religion, sex, age, military status, disability status, sexual orientation or national origin in the performance of this contract. Contractor shall comply with all applicable local, state and federal laws, rules and regulations pertaining to non -discriminate and equal opportunity in the areas of employment, subcontracting and use of City of Fort Worth facilities. SECTION 10. AMERICANS WITH DISABILITIES ACT In accordance with the provisions of the Americans With Disabilities Act of 1990 (ADA), Contractor warrants that he and any and all of his subcontractors will not unlawfully discriminate on the basis of disability in the provision of services to the general public, nor in the availability, terms and/or conditions of employment for applicants for employment with, or employees of the Contractor or any of his subcontractors. Each party warrants that it will fully comply with ADA's applicable provisions and any other applicable federal, state and local laws concerning disability and will defend, indemnify and hold the other party harmless against any claims or allegations asserted by third parties or subcontractor's alleged failure to comply with the above -referenced laws concerning disability discrimination in the performance of this Agreement. Radio Disney Contract 5 CRR01.06.10 SECTION 11, ASSIGNMENT Neither party shall assign, subcontract, sublet or transfer any or all of its respective rights or responsibilities under this contract without the prior written consent of the other party, and any attempted assignment, subcontract, sublease or transfer of all or any part hereof without such prior written consent shall be void. SECTION 12. INDEPENDENT CONTRACTOR Contractor shall operate under this Agreement as an independent contractor as to all rights and privileges contained in this contract, and not as an agent, representative, servant or employee of the City. Subject to the terms of this Agreement, Contractor shall have the right to control the details of performance hereunder. City and Contractor agree that the doctrine of respondeat superior shall not apply as between City and Contractor, and that each party shall be solely responsible for its acts or omissions in connection with the Festival, and that nothing herein shall be construed as creating a partnership or joint enterprise between City and Contractor. In the event of a dispute, any doubt as to the construction of this Agreement shall be resolved so as to maintain Contractor's status as an independent contractor. SECTION 13. NATURE OF CONTRACT It is expressly understood and agreed that this Agreement is a contract for the operation and management of the Festival Presentation and related activities by Contractor as set forth herein, and not a lease or conveyance of any interest in the property. SECTION 14. CONDITION OF THE FOREST PARK PAVILION; WARRANTIES EXCLUDED Contractor hereby represents that he/she has inspected the Forest Park Pavilion and improvements thereon, that Contractor finds same suitable for all activities and operations agreed to contemplated hereunder, and that he does so on an "as is" condition. City hereby expressly excludes any and all warranties in regard to the Forest Park Pavilion, including without limitation fitness for any particular purpose. SECTION 15. COMPLIANCE WITH LAWS Each party, its respective officers, agents, servants, employees, contractors and subcontractors, shall abide by and comply with all applicable federal, state and local laws, rules and regulations, including Charter and all ordinances, rules and regulations Radio Disney Contract CRR01.06.10 of the City of Fort Worth in or related to the operation and management of the City parks, lakes, and associated facilities. In the event of its non-compliance, Contractor shall immediately correct the same at his/her own cost and expense. SECTION 16. TERMINATION AND REMEDIES If either party fails to perform any of the obligations set forth in this contract, and such party does not cure such default upon notice by the other party within a reasonable cure period, the non -defaulting party may elect to terminate this contract immediately and seek all other remedies provided under law and equity. The right to terminate this contract pursuant to this section shall be cumulative of any other remedies available to the City or Contractor at law or in equity for a breach of this contract. All such remedies may be exercised concurrently and whenever and as often as need therefore arises. Waiver of any breach does not constitute any continuing waiver or a waiver of any subsequent breach of this contract. SECTION 17. LICENSES, PERMITS AND FEES Contractor 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 Contractor to perform hereunder. SECTION 18. All terms, covenants and agreements contained in this contract shall be binding upon and inure to the benefit of the successors and assign of the respective parties hereto. SECTION 19. APPLICABLE LAW; VENUE This contract and relationship of the parties created hereby and shall be construed in accordance with and be governed by the laws of the State of Texas. Venue for any suit, at law or in equity, shall lie exclusively in Tarrant County, Texas. SECTION 20. NOTICES All notices, demands, requests or replies provided for or permitted in this contract shall be in writing and maybe delivered by one of the two following methods: By personal delivery with receipt acknowledged in writing; or Radio Disney Conh•act CLZR01.0610 7 By deposit with United States postal service as certified or registered mail, return receipt requested, postage prepaid to addresses stated below. For purposes of notice, demand, request, reply or payment the addresses of the parties shall be: City: Brian Boerner, Director %J Environmental Management 1000 Throckmorton Street Fort Worth, Texas 76102 With copy to: City Attorney at same address Contractor: Jamie Ramsey General Manager 221 East Lamar Boulevard Arlington, TX 76006 Each party shall have the right to designate a different address within the United States of America by the giving of notice in conformity with this section. SECTION 21. SECTION HEADINGS The section headings contained in this contract are for convenience in reference only and are not intended to define or limit the scope of any provision of this Agreement. IN WITNESS WHF�REOF, the parties hereby have executed this Agreement in triplicate on this date, the CITY OF FORT WORTH Fernando Costa Assistant City Manager ATTEST: ' Marty Hend City Secretary YTV RADIO DISNEY DALLAS , LLC OFFIC��L RECORD' CITY S�CRET�►RY Radio Disney Contract g cRRol.o6.io FT. WORTH, TX APPROVED AS I FORM AND LEGALITY: Assistant Mty Attorney clF�ic�i1�l. 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