HomeMy WebLinkAboutContract 31885 CITY SECRETARY
CONTRACT NO. 3
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STATE OF TEXAS §
COUNTY OF TARRANT §
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this JLP day of May,
2005, by and between Moroch Partners, a r QCtAf, corporation located at 3625
N. Hall Street #1100, Dallas Texas, 75219 '(hereinafter referred to as "Moroch"), on behalf and
representing McDonalds Corporation, a corporation and global foodservice
retailer (hereinafter referred to as "McDonald's") and the City of Fort Worth, Texas (hereinafter
referred to as the "City"), a home-rule municipal corporation situated in Tarrant, Denton, and Wise
counties.
WHEREAS, McDonalds of Greater North Texas has agreed to work with the City of Fort
Worth Parks and Community Services Department to create awareness and motivate the Fort Worth
community to pursue a balanced, active lifestyle;
WHEREAS, Moroch Partners, an advertising agency located in Dallas Texas, is
representing McDonalds Corporation in promoting a"Summer of Family Fitness";
WHEREAS; the City of Fort Worth has agreed to allow Moroch and McDonald's
Corporation to use the official city logo for the limited purposes as stated in this Agreement;
NOW THEREFORE the City of Fort Worth, Moroch Partners do hereby agree to the
following terms and conditions set forth in this Agreement:
1. Term. The term of this Agreement shall commence on May 28, 2005 through
August 31, 2005.
2. Use of Official City Logo. For and in consideration of the use of the official City's
logo, attached as Exhibit" A" and the performance of the mutual covenants and agreements
contained herein, the City hereby covenants and agrees to permit Moroch and McDonald's to have
use of the official Fort Worth City logo for the limited purpose of distributing tray liners at
McDonald's restaurants, as approved by the City, at 85 retail outlet McDonald's restaurants within
Tarrant, Johnson, Parker and Wise to promote fitness and a balanced lifestyle, the City's summer
day camp and other City park and recreational programs.
The City grants Moroch and McDonald's the right to use the official city logo in
conjunction with the official McDonald's logo. In no event shall the City's logo be printed or
distributed without the express written prior approval of the City.
3. Participation: Moroch, McDonald's and the City shall each participate in the
promotion of"Summer of Family Fitness" as outlined in Exhibit `B" attached and incorporated into
this Agreement.
4. Production Plan. Moroch shall incur all costs associated with the ,nr
distribution of the tray liners as attached as Exhibit B. City will provide bs c'assistance;�i-n t� heir
discretion and as available, to Moroch for the production of the tray liners, but the City shall have
final approval of the use of the City logo. City acknowledges that all right, title, ownership and
interest in the tray liners shall remain the property of McDonald's and Moroch.
5. Representation and Warranties. Moroch represents and warrants to the City as
follows: (i) Moroch has the requisite power and authority to enter into this Agreement on behalf
McDonald's and to consummate the transactions and perform its obligations contemplated hereby;
(ii) Moroch or McDonald's shall not cause or authorize the duplication of the official City logo by
third parties or any portion thereof or the use of the official City logo for any purposes other than
the purposes set forth herein; and (iii) Moroch's and/or McDonald's performance of its obligations
under this Agreement shall not violate any law or regulation.
6. Copyright and Image Protection. Moroch, McDonald's, its respective designees
or assignees, shall not use, any designated marks, logo or copyrights of the City of Fort Worth,
photographs and/or recordings, or sell, transfer, or give any original prints or reproductions for
circulation and/or publication for use by a third party, in any manner that reflects unfavorably upon
the good name, goodwill, reputation, or image of the City of Fort Worth. Moroch and/or
McDonald's, its respective designees or assignees, shall not use the any designated marks,
copyrights, photographs and/or recordings in any manner that would cause confusion in the public
mind as to the permitted use for which Moroch and McDonald's has been granted such rights. None
of the designated marks or copyrights of the City of Fort Worth shall be incorporated into a common
graphic or be associated with third party trade names or marks, except as provided in this
Agreement. Moroch and/or McDonald's, its respective designees or assignees, may not use any of
the designated marks or copyrights of the City of Fort Worth or authorize such use on any World
Wide Web site or on any other on-line site, except as specifically approved by the City of Fort
Worth. Moroch or McDonald's, its respective designees or assignees, shall not have the right or
license to manufacture or case the production of merchandise items bearing the designated marls or
copyright except by prior written approved of the City.
7. Federal Copfright Act. Moroch agrees to assume full responsibility for complying
with the Federal Copyright Law of 1978 (17 U.S.C. 101, et seq.) and any regulations issued,
including, but not limited to, the assumption of any and all responsibilities for paying royalties
which are due for the use of copyrighted works in Moroch and McDonald's performances or
exhibitions to the copyright owner, or representative or said copyright owner. _ City expressly
assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or
financial obligations. City specifically does not authorize, permit, or condone the performance,
reproduction, or other use of copyrighted materials by Moroch, McDonald's or its respective agents
without the appropriate licenses or permission being secured by Moroch and/or McDonald's in
advance. It is further agreed that Moroch and McDonald's shall defend, indemnify and hold
City harmless for any claims arising from nonpayment to licensing agencies, including, but
not limited to, ASCAP, BMI, and SESAC or damages arising out of Moroch's or McDonald's
infringement or violation of the Copyright Law and/or Regulations. City expressly assumes no
obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive
obligation of the Moroch or McDonald's. Moroch and McDonald's understand that they are
responsible for securing any and all licenses by artists/performers giving permission for any
recordings. Moroch and McDonald's are responsible for both reporting and payment of any music
licensing fees that may be required by law.
Moroch and McDonald's understand and agree that without the proper license
obtained by Moroch or McDonald's, there is a risk of an injunction or money daages arising from .
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a copyright lawsuit brought by ASCAP, BMI, SESAC or any other licensing agency.
8. Content of Material Published. The City assumes no responsibility or liability with
respect to the content of any material published by Moroch or McDonald's, its respective designees
or assigns, other than the material approved in writing in advance by the City. Moroch and
McDonald's, its respective designees or assignees, shall be responsible for all such content, and
shall indemnify and hold the City harmless with respect to such content and use.
9. Indemnification. MOROCH 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 PR OPER TY DAMA GE OR
LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY
RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT
MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) MOROCH 'S OR
MCDONLD'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL
MISCONDUCT OFMOROCH AND MCDONLD'S, ITS RESPECTIVE OFFICERS, AGENTS,
ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR
S UB CONTRA CTORS, RELA TED TO THE PROD UCTION OF TRA Y LINERS, PROMOTION
EVENTS OR THE PERFORMANCE OF THIS AGREEMENT, EXCEPT THAT THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY
LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS
OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE
EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH MOROCH,
MCDONLD'S AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED
COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S
GOVERNMENTAL IMMUNITY AS FURTHER PROVIDED BY THE LAWS OF TEXAS.
If more than one party is named under this Agreement, the obligation of all such parties
shall be, and is joint and several.
The City of Fort Worth assumes no responsibility for any property placed on city owned
property, and Moroch expressly releases and discharges City from any and all liability for any loss,
injury, or damage to persons or property that may be sustained.
10. Force Majeure. If, by reason of Force Majeure as hereinafter defined, any party shall
be rendered wholly or partially unable to carry out its obligations under this Agreement, then such
party shall give written notice of the particulars of such Force Majeure to the other party within a
reasonable time after the occurrence thereof. The obligations of the party giving such notice, to the
extent affected by such Force Majeure, shall be suspended during the continuance of the inability
claimed and for no longer period, and any such party shall be in good faith exercise its best efforts to
remove and overcome such inability.
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The term "Force Majeure" as utilized herein shall mean and refer to acts of God; strikes,
lockouts or other industrial disturbances; acts of public enemies; orders of any kind of the
government of the United States, the State of Texas, or any other civil or military authority;
insurrections; riots; epidemics; landslides; earthquakes; lightning; fires; hurricanes; storms; floods;
washouts; or other natural disasters; arrest; restraint of government and people; civil disturbances;
explosions; breakage or accidents to machinery, pipelines or canals; or other causes not reasonably
within the control of the party claiming such inability.
11. Notices. Unless otherwise provided, all notices or communications required or
permitted to be given shall be in writing and shall be delivered personally, by facsimile, or
deposited in a regularly maintained receptacle for United States mail and sent certified or registered
mail, postage prepaid. Any notice so given shall be deemed to have been received when deposited
in the United States mail so addressed with postage prepaid and addressed to:
MOROCH PARTNERS:
3625 N. Hall Street, #1100
Dallas, Texas, 75219
CITY OF FORT WORTH:
Director, Parks and Community Services Department
4200 South Freeway, Suite 2200
Fort Worth, Texas 76115
With copy to:
Sarah J. Fullenwider, Assistant City Attorney
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Notices shall be deemed effective on hand delivery or on the date sent if sent by facsimile or
certified or registered mail. Addresses may be changed in the manner provided for notices.
12. Paragraph Headings. The paragraph headings contained herein are for the
convenience in reference and are not intended to define or limit the scope of any provision of this
Contract.
13. Entire Agreement. This Agreement contains the entire agreement of the parties
with respect to the subject matter hereof. No promise, representation, warranty or covenant not
included in this Agreement has been or is being relied on by any party. Each party has relied or is
relying on its own examination of this Agreement, the counsel of its own advisors, and the
warranties, representations, duties and covenants contained in this Agreement itself.
14. Modification. This Agreement may not be modified or amended except in a writing
signed by City and Moroch.
15. Governing Law. This Agreement has been executed and delivered in the State of
Texas. This Agreement will be governed by, construed and enforced in accordance with the laws of
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the State of Texas. The parties agree that the proper venue and jurisdiction for any cause of action
relating to the agreement will be in the state courts located in Tarrant County, Texas or the United
States District Court for the Northern District of Texas, Fort Worth Division.
16. Independent Contractor. Moroch shall perform all work and services hereunder as
an independent contractor, and not as an officer, agent, servant or employee of the City of Fort
Worth. Moroch shall have exclusive control of, and the exclusive right to control the details of the
work performed hereunder, and all persons performing same, and shall be solely responsible for the
acts and omissions of its officers, agents, employees and subcontractors. Nothing herein shall be
construed as creating a partnership or joint venture between the City of Fort Worth and Moroch, its
officers, agents, employees and subcontractors, and doctrine of respondent superior has no
application as between the City of Fort Worth and Moroch.
17. Charitable Organization. Moroch agrees that if it is a charitable organization,
corporations, entity or individual enterprise having, claiming or entitled to any immunity,
exemption (statutory or otherwise) or limitation from and against liability for damage or injury to
property or persons under the provisions of the Charitable Immunity and Liability Act of 1987, C.P.
R.C., § 84.001 et seq., or other applicable law, that Licensee hereby expressly waives its right to
assert or plead defensively any such immunity or limitation of liability as against City.
18. Waiver. The failure of a party to seek redress for the violation of or to insist on strict
performance of any provision of this Agreement shall not prevent or dilute such party's right to
insist later on such performance of the same or a similar provision or to have redress for the same or
a similar violation, regardless of such party's prior knowledge or lack of knowledge.
19. 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.
20. Successors and Assigns. This Agreement shall be binding upon the parties hereto
and their respective executors, administrators, legal representatives, heirs, successors and assigns,
and shall inure to the benefit of the parties hereto and their respective executors, administrators,
legal representatives, heirs, successors and assigns.
21. Compliance with Law. Moroch, its officers, agents, employees, contractors and
subcontractors, shall abide by and comply with all laws, federal, state and local, including the
Charter and all ordinances, rules and regulations of the City. It is agreed and understood that, if
City calls the attention of Contractor to any such violations on the part of Contractor, its officers,
agents, employees, contractors or subcontractors, then Contractor shall immediately desist from and
correct such violation.
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22. 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.
23. 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
fitlfillment of its own contracts or commitments.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of
the date first above written.
EXECUTED on this the day of I� t , 2005.
CITY OF FORT WORTH MOROCH PARTNERS.
BY G�Cc c �/ — BY I
Libby atson,
Assistant City Manager
ATTEST: ATTEST:
City Secretary i Corporate Secretary
APPROV AS TO FORM AND LEGALITY
Assistant City Attorney
NO M&C IIJE,QUIRED
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Exhibit "A"
FORT WORTH
Exhibit "B"
I'm loviin' it
McDonald's-- "Summer of Famiiv.Fitnese
City of'Fort'Worth Parks and Community Services Department
AGREEMENT OF PARTICIPATION
Promotional Activation Timing (Phase 1)
May 28 — July 30, 2005
Promotional Overview
McDonald's of Greater North Texas desires to work with the Fort Worth Parks and Community
Services Department to create a "Summer of Family Fitness" program. The primary goal of
the program is to create awareness for and motivate the Fort Worth community to pursue a
balanced, active lifestyle.
McDonald's will provide 85 retail outlets within the city limits of Fort Worth to distribute and
support "Summer of Family Fitness", totaling approximately 234,000 tray liner impressions in
total.
Kick-Off Press Conference — Summer Day Camp
• Date/Time: May 28th, 2005 at 12:00 pm (tentative)
• Location: Forest Park Pool
• McDonald's will provide, at an estimated value of $4,000.00, the following:
o McDonald's Inflatable Kids Zone with basketball and soccer activities
o Ronald McDonald to be present with his "Get Moving with Ronald" show
o Olympic athlete will be present
o Event show flow and other details necessary in conjunction with Fort Worth
Parks and Community Services Department in the planning and delivery of this
event.
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o Registered and licensed bilingual dietitian to handle nutrition-related inquiries
o Nutrition information
• Fort Worth Parks and Community Services Department will provide:
o Local media —The Parks and Community Services Department will issue press
releases and use local media contacts to get as many local media to cover the
event as reasonably possible.
o Local dignitaries, including, if possible, the Mayor of Fort Worth
o Representative staff and youth from each community center operated by the City.
The youth present will be based on their availability and the consent of parents or
guardians. Reasonable efforts will be made by the Fort Worth Parks and
Community Services Department to insure the presence of a crowd for this
event.
o Staff from Moroch will meet with key City and Fort Worth Parks and Community
Services Department communications staff to ensure effective media attention
and communication. Meetings will be coordinated weekly and as needed.
City Council Proclamation Declarinq this the "Summer of Family Fitness"
• Date/Time: July 5 or 12th, 2005 at 7:00 p.m.
• Location: City Hall —Council Chambers/ 1000 Throckmorton
• McDonald's will provide:
o Fruit `n Walnut Salad, Premium Grilled Chicken Salads and beverages for City
Council members and meeting attendees served at Pre-Council. Everyone over
the age of 18 will be provided food and it will be served as a mid afternoon snack
for the Council.
o Nutrition information and free salad coupons will be provided to all attendees of
the pre-council meeting.
• Fort Worth Parks and Community Services Department will provide:
o Estimated # of attendees for McDonalds food forecasting needs
o Organization and delivery of this event in coordination with Moroch.
o Media communication- The local media will be notified by press release and the
City will use its influence to try to achieve local media coverage of the event.
o Proclamation of Summer of Family Fitness.
o Meeting with key City and Fort Worth Parks and Community Services
Department communications staff to ensure effective media attention and
communication. Meetings will be scheduled on a weekly or as needed basis.
Radio Remotes - May 28, 2005 Radio Disney or ABC Stations
Radio remotes will be used to support in-market activities, including Fort Worth Parks and
Community Services Department events, possible on-site sampling/activity days, etc.
McDonald's will provide, at a value of$14,000:
• A minimum of two Radio remotes at events identified in conjunction with Fort Worth Parks
and Community Services
• Two remotes including talent provided by the radio station sponsor or Moroch
• 15 pre-promotional liners
• Day-of event live call-ins
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• Radio partner website mentions of Fort Worth Parks and Community Services Department
activities
Events
Daycamper's Special Event Day
• Date/Time: June 15, 2005 at
• Location: Sycamore Community Center (TBD)
McDonald's will provide:
• McDonald's Inflatable Kids Zone with soccer and basketball activities will be on site and
available to the public for the duration of the event. The City and Moroch will mutually
agree to the time and duration of the event.
• Ronald McDonald will be present with his "Get Moving with Ronald" show and
participate in the parade at times to be mutually agreed to by Moroch and the City.
Fort Worth Parks and Community Services Department will provide:
• Recognition of McDonald's support in all event materials and communication including
press releases.
City of Ft. Worth Employee Wellness Fair
• Date/Time: June 22, 2005 from 9:00 a.m. to 3:00 p.m.
• Location: Will Rogers Coliseum
• Estimated number of attendees: 600
McDonald's will provide:
• Nutrition information
• Coupons for Fruit `n Walnut Salad
• VALUE (TBD)
Fort Worth Parks and Community Services Department will provide:
• A booth with tables in a prominent location.
• Recognition of McDonald's support in all event materials and communication including
press releases.
Communication/Promotional Materials
Fort Worth Parks and Community Services Dept. will provide:
• An "Ask the Dietitian" column in the June — September: City and Parks and Community
Services Department employee newsletters for nutrition-related questions from a
dietitian provided by McDonald's.
• Promotion of McDonald's partnership in all internal and external City and Parks and
Community Services Department newsletters (Pacesetter, etc.) as allowed by City
policy for months of June and July.
McDonald's will provide:
• Prime communication of Fort Worth Parks and Community Services Department events
and messaging to hundreds of thousands of residents in and around Tarrant County
through the provision of tray liners at 85 retail outlets in Fort Worth and surrounding
counties.
• Local registered and licensed dietitian professional to provide expert information on
nutrition-related questions in newsletter articles as allowed under City policy during the
months of June, July, and August.
• Trayliners* (printed and delivered by McDonald's)
- Creative message supporting overall program and partner activities
• Poster#2**, featuring partner activities (Parks and Rec.) (Final value will be based on
final quantities)
*All materials provided for 85 DFW McDonald's restaurants (list provided by Moroch).
** Fort Worth Parks and Community Services Representative will approve all print materials
before printing.
During the term of this agreement the City and Moroch agree to plan for future
promotional activities that could be part of a future agreement to further promote
healthy balanced lifestyles.
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