Loading...
HomeMy WebLinkAboutContract 45573.�U Mayfest Participant Agreement THIS MAYFEST PARTICIPANT AGREEMENT (this "Agreement") is entered into by and between MAYFEST, INC., a Texas non-profit corporation, ("Mayfest") located at 6115 Camp Bowie Blvd., Suite 160, Fort Worth, Texas 76116 and City ofFort Worth ("Participant"), a home -rule municipal corporation of the State ofTexas, located at 1000 Throckmorton Street, Fort Worth, Texas 76102. WHEREAS, Mayfest plans to hold its river festival in Trinity Park in Fort Worth, Texas, from May 1, 2014 through May 4, 2014 (the "Mayfest Festival"); WHEREAS, Mayfest has a license agreement with the City of Fort Worth permitting it to do so; WHEREAS, City desires to promote its interests at the Mayfest Festival; and WHEREAS, Mayfest is agreeable to permit Participant to promote its interests at the Mayfest Festival but only if Participant complies fully with all of the terms and conditions herein contained; NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency ofwhich is acknowledged by all the parties to this Agreement, the parties to this Agreement do hereby agree and bind themselves as follows: 1. Mayfest hereby grants to Participant the right to promote its interests at the Mayfest Festival according to Appendices A and B, which are attached hereto and incorporated herein for all purposes ("Leisure Time Stage"). The exact location of the area in which Participant will promote its interests shall be determined by Mayfest in its sole determination. No representation is being made by Mayfest as to such location. Participant understands and agrees that Mayfest may allow other participants to promote interests similar to those promoted by Participant, and Mayfest is in no way restricted or limited from doing so. Participant will not move its location without the prior written consent of Mayfest. It is agreed and understood that Mayfest is not endorsing any promotion made by Participant and Participant will not make any representation to that effect, either express or implied. In the event that Mayfest determines that the manner in which Participant is conducting itself may imply that Mayfest is endorsing any such promotion, Participant will take whatever reasonable steps Mayfest deems necessary and appropriate to prevent such from occurring. 2. In the event City determines to promote and/or advertise goods, services, and/or products of any third party while City is located at the Mayfest Festival, any such promotions and/or advertisements must be approved in advance in writing by Mayfest, Inc.'s Executive Director or that person's authorized designee. City recognizes that the manner in which it operates its Leisure Time Stage will reflect on the reputation of Mayfest, and, therefore, agrees at all times to comply with all rules, specifications, and special instructions established by Mayfest, including, without limitation, the appearance and operation of the Leisure Time Stage and policies regarding entering and exiting the Mayfest Festival. City agrees that it will operate its Leisure Time Stage solely within the space identified by Mayfest, and further agrees that repeated non-compliance may result in removal from the Mayfest Festival. Without limiting the foregoing, City agrees that any City employee operating any form of motorized vehicle (car, truck, golf cart, etc.) within the Mayfest Festival grounds must be at least eighteen (18) years of age and have a valid driver's license. All motor vehicles must be appropriately insured and registered as required by state law. 3. In dealing with Mayfest's agents and representatives, Participant agrees that Participant will be cooperative, courteous and professional at all times. In the event in Mayfest's reasonable opinion Participant has failed to comply fully with all ofthe provisions ofthis Agreement, including, without limitation, ifParticipant is otherwise uncooperative, discourteous, or verbally or physically abusive to Mayfest's agents or representatives, Mayfest may, in its sole determination and without prior notice, terminate this Agreement and require Participant to immediately close the Leisure Time Stage or area of operation and depart the Mayfest Festival, in which event Participant agrees to do so immediately. In such event, Participant shall forfeit all sums paid hereunder to Mayfest. In the event Participant fails to comply with the provisions ofthis Paragraph 3, Participant shall reimburse Mayfest for all its actual and reasonable expenses incurred in removing or having Participant removed from the premises, and in the event such forced removal is necessary, Mayfest MAYFEST PARTICIPANT AGREEMENT: 2014 [r`Ud �iIORTH, TX and its agents and other representatives shall not be liable for any losses suffered by Participant in connection with such forced removal. 4. Mayfest has made and makes no representation or warranty that security or insurance will be provided for any losses for any property whatsoever placed within the premises of the Mayfest Festival (including without limitation any musical instruments, audio and technical equipment, costumes, vehicles or livestock and any other personal property) and Mayfest assumes no responsibility or liability for such property. Participant acknowledges and agrees that Mayfest has no responsibility or liability for such property and hereby waives any claims related thereto. Participant hereby expressly releases and discharges Mayfest from any and all liability for any loss, injury, or damage to persons or property that may be sustained by the use or occupancy of such property or in any way relating thereto except to the extent caused by any negligence or willful misconduct of Mayfest or its officers, directors, agent, representative, employees, and volunteers. 5. Participant shall comply with all laws (federal, state and local), including all ordinances of the City of Fort Worth, all rules, regulations and requirements of the police and fire departments, park and recreation board„ and any and all requirements specifically made by the Fire Marshal in connection with Mayfest and shall obey all other regulations of the of the City of Fort Worth. Participant shall obtain and pay for all necessary permits, licenses, and taxes payable as a result of the operation of its activity at the Mayfest Festival. Participant recognizes that the manner in which it operates it event will reflect on the reputation of Mayfest, and, therefore, agrees at all times to comply with all rules, specifications, and special instructions established by Mayfest, including but not limited to, policies on entering and exiting the park. 6. Mayfest shall have no obligation to pay or reimburse Participant for any expenses incurred in conjunction with participation in this event. 7. Participant shall at all times hereunder act as an independent contractor with respect to Mayfest and the Mayfest Festival, and not as an employee or agent of Mayfest. Nothing contained in this Agreement shall be construed to create a joint venture, partnership, association, or other affiliation between the parties, it being specifically agreed that the relationship is and shall remain that of independent parties to a contractual relationship as set forth in this Agreement. Mayfest shall neither have nor exercise any specific control or direction over the particular methods by which Participant shall perform under this Agreement, except as otherwise set forth in Paragraph 5 above. Neither party shall be liable for the debts or obligations of the other except as otherwise specifically provided in this Agreement. 8. It is understood and agreed that Mayfest, acting by and through its authorized agents and representatives, shall have at any and all times the full and unrestricted right to enter Participant's area of operation for the purpose of insuring that Participant is complying with all the provisions of this Agreement. 9. No term or condition of this Agreement shall be deemed to have been waived, and no party hereto shall be estopped to enforce any provision ofthis Agreement, except by written instruments of the party charged with such waiver or estoppel. 10. Neither party shall be liable for any failure of or delay in performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of God, acts of a public enemy, fires, floods, wars, civil disturbances, sabotage, accidents, insurrections, blockades, embargoes, storms, explosions, damage to its plants, labor disputes (whether or not the employees' demands are reasonable and within the party's power to satisfy), acts of any governmental body (whether civil or military, foreign or domestic), including but not limited to acts by the City of Fort Worth or Tarrant County, which result in the temporary or total cancellation of the Mayfest Festival, all perils of the seas and other waters, failure or delay of third parties or governmental bodies from whom any party is obtaining or must obtain rights of way, easements, franchises, permits, machinery, materials, equipment, transportation, independent contracting, or supplies to grant or deliver the same, or inability to obtain labor, materials, equipment, or transportation (collectively referred to herein as "Force Majeure"), nor shall any such failure or delay give the other party the right to terminate this Agreement. Each party shall use its best efforts to minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event. In the event the Festival is cancelled or limited in any way due to a Force Majeure event Particpant agrees that Mayfest shall not be responsible for any refunds to Participant or for any losses suffered by Participant due to cancellation. MAYFEST PARTICIPANT AGREEMENT: 2014 Page 2 11. The parties hereto hereby irrevocably consent to the jurisdiction of the courts of the State of Texas and of any federal court located in such State in connection with any action or proceeding arising out of or relating to this Agreement, any document or instrument delivered pursuant to, in connection with, or simultaneously with this Agreement, or a breach of this Agreement or any such document or instrument. 12. The obligations under the terms of this Agreement are performable in Tarrant County, Texas, and any and all payments under the terms of this Agreement are to be made in Tarrant County, Texas. 13. The parties hereto consent that venue of any action brought under this Agreement shall be in Tarrant County, Texas, provided, however, that venue of such action is legally proper in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 14. This Agreement may be executed in any number of counterparts, each ofwhich shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement shall become binding upon the parties hereto when one or more counterparts hereof, individually or taken together, bear the signatures of all of the parties hereto. 15. Any notice required or permitted by any party to this Agreement shall be in writing and may be delivered personally to the party being given notice or to the person in charge of the office of the party being given notice or by certified mail, return receipt requested, and any notice will be effective upon delivery in the case of personal delivery and upon deposit in the mail, postage prepaid, in the case of delivery by mail. The names and addresses of persons to receive notice as stated in this section may be changed by notice given in accordance with this section. 16. The Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to conflict of laws. 17. The headings in this Agreement are solely for the convenience of reference and shall be given no effect in the construction or interpretation of this Agreement. Wherever required by context, any gender shall include any other gender, the singular shall include the plural and the plural shall include the singular. 18. This Agreement, including any provision hereof, may be amended only by written agreement executed by all of the parties to this Agreement. 19. This Agreement shall not be assignable by any party to this Agreement without the express prior written consent of all other parties to this Agreement and, in the event of an attempted assignment by one party to this Agreement without the express prior written consent of all other parties, such attempted assignment shall be void and without effect. 20. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto, and their respective successors, legal representatives, heirs and permitted assigns, and no other person shall have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any provision herein contained. 21. To the extent that any provision herein is inconsistent with or in violation of any applicable law, rule or regulation, such provision shall be deemed modified so as to comply with such applicable law, rule or regulation, and shall not otherwise affect any other provisions of this Agreement. Any provision of this Agreement that is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining provisions of this Agreement or affecting the validity or enforceability of that provision or of any of the other provisions of this Agreement in any other jurisdiction. 22. At any time and from time to time, each party agrees, without further consideration, to take such actions and to execute and deliver such documents as may be reasonably necessary to effectuate the purposes of this Agreement. 23. The parties acknowledge that each party has reviewed this Agreement and has had an opportunity to have the Agreement reviewed by their respective attorneys and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation ofthis Agreement or MAYFEST PARTICIPANT AGREEMENT: 2014 Page 3 any amendments or exhibits attached hereto and the language of this Agreement shall be construed according to its fair meaning and not strictly for or against either party. 24. Unless otherwise specifically provided to the contrary or unless the text of this Agreement clearly indicates otherwise, each of the representations, warranties, covenants and agreements of the parties hereto contained in this Agreement shall survive the closing of the transactions contemplated hereby and the execution and delivery of this Agreement and shall be fully enforceable against the party or parties sought to be charged with any breach hereof. 25. All attachments, exhibits or annexes referred to and attached to this Agreement are incorporated by reference herein and made a part hereof for all purposes, the same as if written in full in this Agreement. 26. The remedies provided herein shall be cumulative and shall not preclude assertion by any party of any other rights. 27. This Agreement and the instruments called for by this Agreement constitute the whole agreement ofthe parties and supersedes any commitment, agreement, memorandum or understanding previously made by the parties, or any of them, with respect to the subject matter of this Agreement. 28. In the event any litigation is maintained or initiated by any party to this Agreement against another party to enforce or interpret any of the terms of this Agreement or to seek remedy for any breach hereof, then the prevailing party in such litigation shall be entitled to recover from the non -prevailing party all cost and expense incurred in relation thereto, including, but not limited to, reasonable attorney's fees. 29. The parties hereto agree that no partnership, joint venture or joint enterprise of any kind is created by this Agreement. Nothing contained in this Agreement shall authorize, empower or constitute any party to this Agreementthe agent of any other party of this Agreement, nor authorize or empower any party to this Agreement to assume or create any obligation or responsibility on behalf of any other party to this Agreement. Executed to be effective as of the T ! 2014. MAYFEST, INC. CITY OF FORT WORTH By: By: Elizabeth Bashram�, Executive Director Date: MAYFEST PARTICIPANT AGREEMENT: 2014 Susan`Alarris, Assistant City Manager Date: I ( 0�v APPROVED AS TO FORM AND T,F,(tALTTY: Appendix A Organization Name: City of Fort Worth Contact Person: Monique L. Hill, Community Services District Superintendent, Parks and Community Services Department Address: 4200 S Freeway Suite #2200 ,Fort Worth, Texas 76115 Contact Number: 817-392-5775 Email: Monique.Hill@fortworthtexas.gov Tax ID# 75-6000528 Description of Booth: Leisure Time Stage allows community groups, organizations, instructors and individuals who collaborate with the City of Fort Worth's Parks and Community Services Department (PACS) Community Centers to perform on a stage provided by the City. Leisure Time Stage allows PACS community center participants to display skills learned by participating in classes offered at local community centers. In addition, PACS collaborates with the Fort Worth Independent School District ("FWISD"), allowing students to perform skills obtained through their participation in enrichment programs. The community groups, organization, instructors, individuals, and FWISD students (collectively, "Performers") are not affiliated with the City of Fort Worth and shall not be deemed as employees, representatives, agents, officers, or representatives of the City of Fort Worth for any purpose whatsoever. Leisure Time Stage provides an opportunity to allow PACS to interact with community members who may be unaware of programs, services and activities offered at the City's community centers. Stage time allows contract instructors to market classes through demonstrating class objectives while keeping Mayfest visitors engaged. Written and promotional material regarding youth, adult and aging population classes, activities and special events will be provided to persons visiting Leisure Time Stage Area. PACS staff will also provide activities on "Special Needs" day. PALS will be responsible for supplies and will arrange with Mayfest staff to delivery of equipment and supplies. No fees for equipment will be assessed, PACS will provide trailer and stage for the event. a. Participant will sufficiently staff stage during following hours during the Mayfest Festival: Thursday, May ls`: 6:00 p.m. —10:00 p.m. Friday, May 2nd: Special Needs Day: 3:30 p.m. —10:00 P.M. Leisure Time Stage: 6:00 pm — 10:00 p.m. Saturday, May 3rd: 11:00 a.m. — 10:00 P.M. Sunday, May 4th: 11:00 a.m. — 7:00 p.m. d. Donation solicitation will not be permitted. e. May not recruit for volunteers. f. Follow agreed upon festival and stage rules and roles and responsibilities of both parties. (Appendix B) g. Release of Liability and Waivers form must be signed and submitted by all performers or the performer's legal guarding if a minor prior to performing on stage MAYFEST PARTICIPANT AGREEMENT: 2014 Page 5 Appendix B Leisure Time Stage ROLES AND RESPONSIBILITIES Mayfest Basic Information No outside food, beverage or coolers. Pets are not allowed. Distribution and content of information for the Mayfest Leisure Time Stage must be approved in advance by Mayfest Any and all communication with onsite police must be channeled through Mayfest, Inc. Executive Director. Festival Hours: Thursday, May 1, 2014 - 3:30-10:00pm Friday, May 2, 2014 - 3:3040:00pm Saturday, May 3, 2014 - 10:OOam40:00pm Sunday, May 4, 2014 - 11:OOam-7:OOpm Mayfest Stage Rules Performers are not allowed to sell any product, including CDs. Allow performers the proper amount of time to set up, performances should not begin until 30 minutes after Mayfest has opened the gates to the public. Allow fifteen minutes of scheduled downtime between each performance group for set up. Mayfest retains the right to control the volume of any sound amplification. Mayfest staff will need to be notified of any group that is riding the free shuttle bus from La Grave parking lot and will be bringing equipment on the bus. Mayfest will then contact the bus company. Any performer not on the list will not be allowed to bring equipment on the bus. Performers are not allowed to "roam" festival grounds to promote their performance or to perform. Mayfest does not allow outside food, beverage or coolers for performers except for the FWISD child performers. No more than 6 pieces of equipment will be allowed on the Mayfest bus that transports Participant and Performers from La Grave field to the Mayfest Festival Mayfest will provide: A changing tent with 1 table and a privacy fence 2 Tables and 4 chairs Headquarters access for approved FWISD District Superintendents plus one PACS point person if it chooses. Participant will pay Mayfest a total amount not to exceed $100.00 for meals and drinks provided to the Participant by Mayfest during the Mayfest Festival . This is not transferable. 1 Mayfest Central Committee parking pass each for two PACS point people. 1 PACS Delivery pass to transport elderly Performers MAYFEST PARTICIPANT AGREEMENT: 2014 Page 6 1 FWISD Delivery pass for equipment and/or stage props Parking passes will be issued to PACS employees working at the stage based on the "PACS Stage Information Booth" schedule. Parking passes will only be valid for the times the employee is working. *Limit of 25 total vendor parking passes. Printed sign with the performance schedule of the Performers for placement at the stage if received by established deadline. Performance schedule included in the Event Guide and website if received by established deadline. An updated copy of the Mayfest Closure Procedure and a list of announcements for PACS employees to make during a closure. One complimentary ticket for each Performer and an additional ticket for every performer under the age of 18. Mayfest is able to provide up to 1,500 complimentary tickets. Link from Mayfest website to PACS website Participation during Special Needs Day. o Provide 3 tables and 6 chairs for PACS staff providing arts and crafts activity and/or recreation activity. Mayfest will not provide: Water for staff working the stage. Golf cart(s) for Mayfest Leisure Time Stage use. Any additional tickets or parking passes after April 21, 2014. PACS will provide: Stage Trailer and chairs Microphones, sound system or any additional equipment for performances Golf cart for transportation of equipment only, must be driven by PACS employee. Any information provided to performers to Mayfest for review and approval PACS may provide water for staff working the Mayfest Leisure Time Stage. PACS may provide pre packaged snacks for FWISD youth Performers. Check List (Must have before set up) Approval of handouts Anything to be distributed during Mayfest must be approved by the Mayfest, Inc. Executive Director. Please submit a copy of handout(s) on or before April 21st, 2014. Performance schedule included in the event guide and website if received by April 1, 2014. List of all employees assisting with Mayfest Leisure Time Stage by established deadline. Updated organizational chart of PACS and a phone list of direct supervisors MAYFEST PARTICIPANT AGREEMENT: 2014 Page 7