HomeMy WebLinkAboutContract 46434 cmr=WfAw o �3
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STATE OF TEXAS §
§ KNOWN ALL BY THESE PRESENTS
COUNTY OF TARRANT §
CONTRACT FOR ARTISTIC PERFORMANCE
CITY TO CITY MUSIC, LLC DBA VOCAL TRASH
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 Charles W. Daniels, it's duly authorized Assistant
City Manager, and City to City Music, LLC, dba Vocal Trash, a Texas limited liability
company (hereinafter referredto as "Contractor"), acting by and through Kelsey Shaw,
its duly authorized Manager.
WHEREAS the City is hosting a volunteer appreciation party on Saturday, March 28,
2015 for the City's 2015 Cowtown Great American Cleanup (the "Festival"), and
WHEREAS the City will provide a musical performance in appreciation of the volunteers
and public at the event,
NOW THEREFORE, in consideration of the mutual covenants herein expressed, the
parties agree as follows:
SECTION 1.
DEFINITIONS
City means the City of Fort Worth.
Contractor means City to City Music, LLC dba Vocal Trash.
Festival means the Fort Worth Cowtown Cleanup event.
SECTION 2.
CONTRACTOR'S SERVICE
M
M Contractor shall operate and complete a one hour (1 hour) music performance at the
.%-- Festival, to be located at Magnolia Green in Fort Worth, Texas featuring the music
d group Vocal Trash.
rn
(a) Contractor shall supply its own props, musical and performance instruments,
music, table, PA system, equipment, and personnel for the Festival.
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City to City Music, LLC dba Vocal Trash CITY SECRE'T'ARY
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(b) Contractor acknowledges that the hours of the 1 hour performance shall be
within the time window of 12:15 p.m. to 1:15 p.m. on March 28, 2015. In no
event shall the City be billed for any time spent other than as specified herein.
Contractor shall begin set-up of the remote appearances at a time which will
allow Contractor to be ready to begin the performance and allow the Festival to
open for public participation at 12:15 p.m.
(c) Contractor shall provide all personnel necessary to facilitate the safe and
enjoyable participation by the public at the Festival.
(d) 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.
(e) This date, time, and location of the performance may be amended by mutual
written modification of this agreement by the parties and duly authorized by the
City Manager or Assistant City Manager.
SECTION 3.
TERM
(a) This agreement shall apply to the Festival scheduled to be on March 28,
2015 or until the completion of the work contemplated herein should the event
be rescheduled, however any provision necessary to fulfill or enforce the
terms of the contract, including but not limited to insurance and indemnity,
shall survive.
(b) The City reserves the right to cancel either event for any reason upon ten (10)
days notice to the Contractor and in which event the City shall not be required
to pay for those services described herein nor any penalty or damages.
SECTION 4.
PAYMENTS TO CONTRACTOR
(a) The City shall pay to the Contractor, an amount not-to-exceed three thousand
and three hundred dollars ($3,300) for total services to be provided.
(b) The City shall have the right to cancel or reschedule the event due to
inclement weather, for security or safety reasons, or any reasonable cause as
determined by the City. In the event the scheduled performance is cancelled
and not rescheduled, no compensation shall be paid by the City.
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SECTION 5.
INTELLECTUAL PROPERTY
Contractor represents that it has the appropriate rights to any intellectual property used
in performance of this contract and that contractor shall not infringe on the intellectual
property of any third party at the event. Contractor shall indemnify the City against any
claims for infringement of intellectual property arising out of the performance of this
contract in accordance with the terms of Section 7 (Indemnification) herein.
SECTION 6.
INSURANCE AND RESPONSIBILITY
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.
Contractor 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.
equirements:1. Certificates of Insurance evidencing that the Contractor has obtained all required
insurance shall be delivered to the City prior to Contractor proceeding with the
Contract.
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 Contractor'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 Contractor's insurance policies including endorsements thereto
and, at the City's discretion; the Contractor 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 contract. It is understood that insurance cost is an
allowable component of Contractor'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 Contractor shall be required by the Contractor to
maintain the same or reasonably equivalent insurance coverage as required
for the Contractor. 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 Contractor of the
contract.
SECTION 7.
INDEMNIFICATION
CONTRACTOR(S) AGREE 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 OR DEATH, VIOLATIONS OF LAWS, INFRINGEMENT
OF CIVIL RIGHTS OR INTELLECTUAL PROPERTY RIGHTS, THAT RELATE TO,
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ARISE OUT OF OR ARE OCCASIONED BY (i) ANY BREACH OF ANY OF THE
TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR
OMISSION, OR ANY INTENTIONAL MISCONDUCT, OR (iii) ANY ACTION OR
OMISSION TRIGGERING STRICT LIABILITY, OR AN INFRINGEMENT OF
INTELLECTUAL PROPERTY, ANY OF THE FOREGOING DUE TO OR BY
CONTRACTOR(S), ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, OR THE
CITY. SUBJECT ONLY TO THE LIMITATIONS PROVIDED BY SECTION 2254.0031
OF THE TEXAS GOVERNMENT CODE, IT IS THE INTENTION OF THE PARTIES
THAT THE TERMS OF THIS INDEMNITY AGREEMENT SHALL APPLY EVEN IF
SUCH INJURY, DEATH OR PROPERTY DAMAGE, LIABILITY OR INFRINGEMENT IS
CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE, GROSS NEGLIGENCE,
INTENTIONAL ACT OR OTHER FAULT OF THE CITY OF FORT WORTH OR ITS
EMPLOYEES, AGENTS, OFFICERS, OFFICIALS, VOLUNTEERS, CONTRACTOR(S)
OR OTHER PERSONS CONNECTED WITH, OR IN PRIVITY WITH, THE CITY OF
FORT WORTH.
The obligations of the Contractor under this Article shall include, but not be limited to,
the burden and expense of defending all claims, suits and administrative proceedings
(with counsel reasonably approved by the City), even if such claims, suits or
proceedings are groundless, false, or fraudulent, and conducting all negotiations of any
description, and paying and discharging, when and as the same become due, any and
all judgments, penalties or other sums due against such indemnified persons.
Upon learning of a claim, lawsuit, or other liability which Contractor is required
hereunder to indemnify, City shall provide Contractor with reasonable timely notice of
same.
All Contractors under this contract agree that they assume joint and several liability for
any claim by the City or for a third party claim against the City for damages caused by
any of the Contractors herein.
The obligations of the Contractor under this paragraph shall survive the expiration or
termination of this Agreement and the discharge of all other obligations owed by the
parties to each other hereunder.
SECTION 8.
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 area(s) 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
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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.
SECTION 9.
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, epidemic, floods, riots, rebellion, sabotage, inclement weather,
or any similar circumstances not within the reasonable control of either party.
SECTION 10.
RECORDS AND AUDITS
City and Contractor agree that, until the expiration of three (3) years after the final
payment under this Contract, the City shall have access to and the right to examine any
directly pertinent books, documents, papers and records of the Contractor involving
transactions relating to this Contract. Contractor further agrees to include in all its
subcontracts hereunder a provision to the effect that the subcontractor agrees that the
City shall, until the expiration of three (3) years after final payment under the
subcontract, have access to papers and records of such subcontractor involving
transactions relating to the subcontract. The term "subcontract" as used herein includes
purchase orders.
SECTION 11.
NON-DISCRIMINATION/EQUAL OPPORTUNITY
During the performance of this contract, Contractor shall not discriminate in its
employment practices and shall comply with all applicable provisions of Chapter 17,
Article II I of the Code of the City of Fort Worth.
Contractor agrees not to discriminate against any employee or applicant for
employment because of because of age, race, color, religion, sex, disability, national
origin, sexual orientation, transgender, gender identity or gender expression in any
manner involving employment, including the recruitment of applicants for employment,
advertising, hiring, layoff, recall, termination of employment, promotion, demotion,
transfer, compensation, employment classification, training and selection for training or
any other terms, conditions or privileges of employment.
Contractor agrees to post in conspicuous places, available to employees and applicants
for employment, notices setting forth the provisions of the non-discrimination clause.
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Contractor also agrees that in all solicitations or advertisements for employees placed
by or on behalf of this contract, that Contractor is an equal opportunity employer.
Notices, advertisements, and solicitations placed in accordance with federal law, rule or
regulation shall be deemed sufficient for the purpose of meeting the requirements of this
section.
SECTION 12.
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.
SECTION 13.
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 14.
MODIFICATION
No modification of this Contract shall be binding on the Contractor or the City unless set
out in writing and signed by both parties. No modification shall be binding upon the City
unless signed by the City Manager or an Assistant City Manager of the City of Fort
Worth. Any changes to the scope of work or compensation must be in the form of a
written, formal, authorized modification of this contract that is in accordance with all
applicable state and city laws, regulations, and ordinances.
This contract may not be orally modified by any City employee, contractor, agent,
or any other person. In no event shall any verbal authorization changing the
scope of work, nor shall verbal authorization for additional compensation be
binding upon the City.
Contractor expressly agrees a) not to make changes to its legal, financial, or logistical
position on any matter based on any oral representation by an employee, contractor, or
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agent of the City prior to obtaining a written modification to this contract; b) that it waives
any claim based upon reliance or estoppel as a result of acting or not acting due to an
alleged oral change to a material term of this contract from the City, its employees,
contractors, or agents; and c) that it waives any claim for compensation for work
performed based upon an alleged oral change to a material term of this contract from
the City, its employees, or agents.
SECTION 15.
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 16.
NATURE OF CONTRACT
It is expressly understood and agreed that this Agreement is a contract for services and
related activities by Contractor as set forth herein, and not a lease or conveyance of any
interest in the property.
SECTION 17.
CONDITION OF THE FACILITY;
WARRANTIES EXCLUDED
Contractor hereby represents that he/she has inspected the facilities intended for the
performance including the improvements thereon, and that Contractor finds same
suitable for all activities and operations agreed to hereunder, and that Contractor does
so on an "as is" condition. City hereby expressly excludes any and all warranties in
regard to the facilities, including without limitation fitness for any particular purpose.
SECTION 18.
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
of the City of Fort Worth in or related to the operation and management of the City
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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 19.
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 20.
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 21.
SUCCESSORS AND ASSIGNS
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 22.
NO THIRD-PARTY BENEFICIARIES
This Agreement shall inure only to the benefit of the parties hereto and third persons not
privy hereto shall not, in any form or manner, be considered a third party beneficiary of
this Agreement. Each party hereto shall be solely responsible for the fulfillment of its
own contracts or commitments.
SECTION 23.
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.
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SECTION 24.
NOTICES
All notices, demands, requests or replies provided for or permitted in this contract shall
be in writing and may be delivered by one of the two following methods:
By personal delivery with receipt acknowledged in writing; or
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.. Kim Mote
Code Compliance Department
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Contractor:
Kelsey Shaw
221 W Lancaster Ave #5004
Fort Worth, TX 76102
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 25.
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.
In the event of any discrepancy between this contract and any other contract
documents, this contract shall prevail and control.
SECTION 26.
HEADINGS
The headings contained herein are for the convenience in reference and are not
intended to define or limit the scope of any provision of this Agreement.
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SECTION 27.
COUNTERPARTS
This Agreement may be executed in one or more counterparts and each counterpart
shall, for all purposes, be deemed an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 28.
SEVERABILITY
The provisions of this Agreement are severable, and if any word, phrase, clause,
sentence, paragraph, section or other part of this Agreement or the application thereof
to any person or circumstance shall ever be held by any court of competent jurisdiction
to be invalid or unconstitutional for any reason, the remainder of this Agreement and the
application of such word, phrase, clause, sentence, paragraph, section, or other part of
this Agreement to other persons or circumstances shall not be affected thereby and this
Agreement shall be construed as if such invalid or unconstitutional portion had never
been contained therein.
SECTION 29.
RIGHTS AND REMEDIES NOT WAIVED
In no event shall the making by the City of any payment to Contractor constitute or be
construed as a waiver by the City of any breach of covenant, or any default which may
then exist, on the part of Contractor, and the making of any such payment by the City
while any such breach or default exists shall in no way impair or prejudice any right or
remedy available to the City with respect to such breach or default. Any waiver by
either party of any provision or condition of the contract shall not be construed or
decreed to be a waiver of any other provision or condition of this Contract, nor a waiver
of a subsequent breach of the same provision or condition, unless such waiver be
expressed in writing by the party to be bound.
All costs and attorney's fees incurred by the City in the enforcement of any provision of this
contract shall be paid by the Contractor.
The remedies provided for herein are in addition to any other remedies available to the
City elsewhere in this contract and by law.
SECTION 30.
AUTHORITY AND EXECUTION
By signing this contract Contractor warrants that it has had the opportunity 1) to
examine this contract in its entirety, 2) to have its legal counsel examine and explain the
content, terms, requirements, and benefits of this contract if Contractor so chooses, and
3) to negotiate the terms of this contract within the bounds of applicable law.
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The signatory to this contract represents that he or she is legally authorized by the
Contractor to enter into a binding agreement on behalf of the Contractor.
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SIGNATURE PAGE
CONTRACT FOR ARTISTIC PERFORMANCE
CITY TO CITY MUSIC, LLC DBA VOCAL TRASH
IN WITNESS WHEREOF, the parties hereby have executed this Agreement in triplicate.
CITY OF FORT WORTH CITY TO CITY MUSIC, LLC
BY: �, ( ,v�L BY:
Charle
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�cuy Jai u[soN Ke y hlaw
1(v7FR%,o— Assistant City Manager Manager
Date: 4U
O DED: WITNESS:
M to
Assistant Director, Code Compliance
APPROVED AS TO FORM
AND LEGALITY:
Arthur N. Bashor
Assistant City Attorney
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ATT ST: g to
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Mary ka �'°DOOOO40U
City Secreta T'��.
OffiCia RECORD
CITY SEC TX
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