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HomeMy WebLinkAboutContract 55757CSC No. 55757 PERFORMANCE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND BROWN BOOKS PUBLISHING ON BEHALF OF MARK HUFFMAN TO PERFORM FOR 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") and BROWN BOOKS PUBLISHING ("Publisher") acting as booking agent to MARK HUFFMAN ("Author"), each individually referred to as a"party" and collectively referred to as the "parties." WHEREAS, the City desires to offer programs at the Fort Worth Public Library ("Library") that contribute to the Library's goal of becoming the literary hub for the City; and WHEREAS, the City is sponsoring an virtual author visit ("Event") on July 17, 2021; and WHEREAS, the City desires to host a virtual Author visit to include a discussion of the Author's books, "The Toot Fairy" and "Cheesemaker Durdsden"; and WHEREAS, the City wishes to contract with the Publisher for the Author to speak in a virtual program for the Fort Worth Public Library and participate in a question and answer session; and WHEREAS, the Parties agree that the City is retaining the services of Author, not Publisher. Publisher only has authority to negotiate and sign on Author's behalf in connection with the Event. The Parties acknowledge and agree that Publisher shall not be responsible in any way for Authors' acts, omissions, statements or any commitments made by Author. NOW, THEREFORE, the City and the Publisher, for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: I. TIMELINE OF PERFORMANCE 1. Publisher will arrange for Author to appear and speak about his writings and participate in a question and answer session ("Performance") with the audience at 4 p.m. CT on July 17, 2021, ("Performance Date") in an online, virtual platform provided by the Ciry ("Performance Site"). 2. The Parties mutually agree to allow public online attendance. 3. The Performance Date may be changed by mutual agreement of the Parties in writing within 30 days and any such rescheduled Performance shall be subject to the terms and conditions of this Agreement. If the Author cannot perform on the rescheduled Performance Date, then the City may terminate this Agreement without penalty. The City shall have sole discretion to determine the rescheduled Performance Date. II. COMPENSATION 1. Publisher shall arrange for the Author to provide the Performance at no charge to City. City sha11 not be required to pay any cost, fee, or charge of any nature for the Performance. Perfarmance Agreement OFFICIAL REC�RD CITY SECRETARY FT. W�RTH, TX 2. The City represents that for and in consideration of its obligations under this Agreement, that the Author is providing a unique and important experience free of charge for the citizens of Fort Worth to promote literacy and interest in reading and writing. The Publisher represents that for and in consideration of its obligations under this Agreement, the City is providing a space for such presentation to occur which will provide exposure for the Publisher, the Author and the Author's works. All parties agree as a condition precedent of this Agreement that all parties have exchanged good and valuable consideration. III. PUBLISHER'S OBLIGATIONS 1. Publisher agrees to ensure that Author connects to the online, virtual platform no later than 3:50 p.m. ("Performance Time") on the Performance Date unless the Performance Time is mutually changed by both Parties in writing. In the event that Author will not be able to connect by the designated Performance Time on the Performance Date, the Publisher or its agent, including Author, shall contact Jennifer Demas at 682-287-4306 as soon as the Author is aware of such delay. 2. The Publisher shall ensure that Author is present to speak about his writings and participate in a question and answer session with the audience at the Performance. 3. The Publisher sha11 provide a11 personnel necessary to facilitate the safe and enjoyable participation by the public at the Performance. IV. CITY'S OBLIGATIONS 1. City agrees to designate a representative to coordinate all services to be performed pursuant to this Agreement. 2. City will provide the necessary access and licenses to host the Performance online. City will provide log-in information to the Author prior to each Performance Date. V. DUTY TO PERFORM/FORCE MAJEURE The Ciry reserves the right to cancel the Event due to acts of Force Majeure on or near the Performance Due Date. 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 Author sha11 be deemed in breach of this Agreement if it is prevented from performance by Force Majeure. VI. PERMISSION TO USE PHOTOGRAPHS & VIDEOS OR FILMS Performance Agreement Page 2 of 11 By entering into this Agreement, the Publisher and the Author hereby grant the City permission to virtually broadcast the Performance on the Performance Date as outlined above, utilizing the Ciry's licensed webinar solution, and gives its consent and permission to Ciry to use, display, and publicly play the Performance in perpetuity. Use includes, but is not limited to, publishing, posting on an official web site, social media outlets or putting on television, either network or cable or at neighborhood meetings. Author sha11 require a11 of its subcontractors to agree in their subcontracts to allow Ciry use the Performance as included above. VII. INDEPENDENT CONTRACTOR The Publisher shall operate under this Agreement as an independent contractor and not as an officer, agent, servant, or employee of City. The Publisher shall have the exclusive right to control the details of the work, its subcontractors, and the services performed hereunder. City shall have no right to exercise any control over or to supervise or regulate the Publisher 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 Publisher. This Agreement may also be terminated at any time by the Ciry for cause and upon notice to the Publisher. Publisher may terminate this Agreement with thirty (30) days written notice. 2. If the City terminates this Agreement pursuant to section one of VIII for any reason, City shall not owe any compensation to the Publisher. IX. LIABILITY/INDEMNIFICATION 1. LIABILITY. THE PUBLISHER 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 ORASSERTED, TO THE EXTENT CAUSED BYTHE ACT(S), ERRORS, OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF THE PUBLISHER, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 2. GENERAL INDEMNIFICATION. PUBLISHER 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' Performance Agreement Page 3 of 11 COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND OR PERSONAL INJURY (INCLUD NG, 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 PUBLISHER AND OR PUBLISHER'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. THIS SHALL ALSO INCLUDE ANY CLAIMS BY ANY SUBCONTRACTORS BROUGHT AGAINST CITY FOR ANY USE OF PHOTOGRAPHS, VIDEOS, OR RECORDINGS OF THE PERFORMANCE AND SHALL ALSO INCLUDE ANY CLAIMS AGAINST CITY BY A SUBCONTRACTOR FOR ANY CLAIM RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, EXCEPT THAT THIS SHALL NOT INCLUD ACTIONS CAUSED BY THE CITY'S O�UN NEGLIGENCHJt�R WILLFUL COND CT. 3. Intellectual Pro�erttT. The Publisher 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 Publisher. Ciry 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 Publisher without the appropriate licenses or permission being secured by Publisher in advance. IT IS FURTHER AGREED THAT PUBLISHER SHALL RELEASE, DEFEND IND MNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUD NG, BUT NOT LIMITED TO, ATTORN$Y'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF PUBLISHER'S USE OF ANY COPYRIGHTED TERIAL BY REASON OF AN ALLEGED 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 sha11 be the exclusive obligation of the Publisher. 4. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THE PUBLISHER, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT THE PUBLISHER'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 FFECTING THE VALIDITY OR ENFORCEABILITY OF THE IND MNIFICATION OBLIGATION UND R THIS SECTION, SUCH LEGAL LIMITATIONS ARE MADE A PART OF THE IND MNIFICATION OBLIGATION AND SHALL OPERATE TO AMEND THE IND MNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO BRING THE PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF Performance Agreement Page 4 of 11 SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT. 6. Publisher 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 Publisher in connection with or incidental to performance under this Agreement. 7. Publisher 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 City of Fort Worth Library Director 500 W 3`d Street, Fort Worth, Texas 76102 With copy to: Assistant Ciry Attorney 200 Texas Street Fort Worth, Texas 76102 PUBLISHER Brown Books Publishing 16250 Knoll Trail Drive, Suite 100 Dallas, TX, 75248 The Publisher 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. This provision shall not be construed to prohibit the Publisher from hiring subcontractors. XII. ENTIRETY Performance Agreement Page 5 of 11 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 sha11 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 sha11 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 sha11 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 Publisher, and any lawful successor or assign, and are not intended to create any rights, contractual or otherwise, to any other person or entity. The Parties expressly agree that Publisher's subcontractors are not third- parry beneficiaries and that to the extent any claim is made by a subcontractor, Publisher sha11 indemnify and defend City fully in accordance with section IX of this agreement. XVIII. CONTRACT CONSTRUCTION Performance Agreement Page 6 of 11 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 Ciry 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 Publisher 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 If Publisher has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Publisher 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, Publisher certifies that Publisher's signature provides written verification to the Ciry that Publisher: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. XXI. AUDIT The Publisher agrees that City will have the right to audit the financial and business records of the Publisher 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 Publisher shall make all Records available to City on 200 Texas 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 Ciry during any audit. Notwithstanding anything to the contrary herein, this section shall survive expiration or earlier termination of this Agreement. 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 Performance Agreement Page 7 of 11 In the execution, performance, or attempted performance of this Agreement, the Publisher 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 Publisher 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 Ciry Code of the Ciry of Fort Worth ("Discrimination in Employment Practices"), and the Publisher hereby covenants and agrees that the Publisher, 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 Publisher, 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 Publisher agrees to obtain and pay for all applicable licenses, permits, certificates, inspections, and a11 other fees required by law necessary to perform the services prescribed for the Publisher 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. XXVIII. CONDITION OF THE FACILITY/WARRANTIES EXCLUDED If the Performance occurs on City property or is provided by the City, the following provision shall apply. The Publisher hereby represents that she has inspected the facilities at the Event Site intended for the performance, including any improvements thereon, and that the Publisher finds same suitable for all activities and operations agreed to hereunder, and that the Publisher does so on an "as is" Performance Agreement Page 8 of 11 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 Publisher 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 sha11 be named as an additional insured on the insurance policy. The Publisher 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 Publisher has obtained all required insurance shall be delivered to the Ciry prior to Publisher 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 thirry (30) days' notice of cancellation or material change in coverage shall be provided to the Ciry. A minimum ten (10) day notice sha11 be required in the event of non- payment of premium. Such terms shall be endorsed onto the Publisher's insurance policies. Notice shall be sent to Department of Risk Management, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, Texas 76102. 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 Ciry sha11 be entitled, upon its request and without incurring expense, to review the Publisher's insurance policies including endorsements thereto and, at the City's Performance Agreement Page 9 of 11 discretion; the Publisher 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. £ 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 Publisher'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 Publisher shall be required by the Contractor to maintain the same or reasonably equivalent insurance coverage as required for the Publisher. 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 Publisher of the Agreement. XXX. SIGNATURE AUTHORITY The person signing this Agreement hereby warrants that 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 entiry. The other Parry 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 she shall be subject to the terms and conditions of this Agreement. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGE FOLLOWS] Performance Agreement Page 10 of 11 IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples, this z4 day of "'aY , 2021. CITY OF FORT WORTH by:' �/���-� Manya Shorr Library Director Recommended by: ����� Marilyn Marvin Assistant Library Director APPROVED AS TO FORM AND LEGALITY �/��`�,�� _ by:�� Jessika J. Williams Assistant Ciry Attorney Ordinance No. 24161-04-2020 ATTEST: I �/'�/� v • t�� Mary Kayser City Secretary M&C — No M&C Required b,o,�-FORT "a� p O�000000Opo� � ��o ooO�' �o o=�o 0 o ° � ° o F d ° � a o0 0 � ��� �EXAS�A'p PUBLISHER bv:Am� e�1�4 13:10 CDT) Amy Goppert Senior Publicist 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. �5�� � Timothy Shidal Administrative Services Manager OFFICIAL RECORD CITY SECRETARY FT. W�RTH, TX Perfarmance Agreement Page 11 of 11