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HomeMy WebLinkAboutContract 53184 CITY SECRETARY PERFORMANCE AGREEMENT BETWEENT THE CITY OF FORT WORTH AND DAVID LEE JONES,JR. TO PERFORM AT 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"),acting by and through its duly authorized Assistant City Manager,and David Lee Jones,Jr., a sole proprietor ("Performer"). WHEREAS, among other activities,the City desires to feature live performances at The Fort Worth Public Library and wishes to host programs that further the goals and mission of the Library; and WHEREAS, City wishes to contract with the Performer to provide for five saxophone performances and Performer can provide such services. NOW,THEREFORE,the City and the Performer for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: I. TIME AND PLACE OF PERFORMANCE 1. The Performer agrees-to provide up to five saxophone performances ("Performance") to the City on as described in Attachment A. The performance shall occur at the times, locations, and dates specified in Attachment B,unless changed in accordance with this Agreement. 2. If the Performance is rescheduled, for any reason, the parties agree to execute an amendment to this Agreement setting forth the rescheduled Performance date. If the Performer cannot perform on the rescheduled Performance date, then the City may terminate this Agreement without penalty and Performer shall fully refund any and all deposits paid to the Performer by the City within thirty (30) days of written request. The City shall have sole discretion to determine the rescheduled Performance date. II. PERFORMER'S OBLIGATIONS 1. Performer agrees to arrive at the Performance site no later than 6:15pm on the Performance date. In the event that Performer will not be able to arrive by 6:15pm on the Performance date, the Performer agrees to contact Jana Hill, Adult Services Manager, at 817-739-1681 as soon as the Performer is aware of such delay. If the Performer arrives after the stated program time on the Performance date and the Performance cannot take place,as determined by City in its sole discretion, the Performer acknowledges and agrees that Performer will not be paid for the Performance. 2. The Performer agrees to follow the presentation outline,attached hereto as Attachment A and incorporated into this Agreement by reference as if fully set forth herein. The Performer shall perform on the dates and times and at the locations as set out in Attachment B, which is attached hereto and incorporated for all purposes. OFFICIAL RECORD CITE'SEA Ft WORTH �� RECEIVED DEC-6 2019 myonoffrwon rmrsrr.R�rernr 3. The Performer shall supply such stage props, musical and performance instruments, music, equipment,and personnel as specified in Attachment C for the Performance and shall remove all such supplies at the conclusion of the term of the Agreement. 4. The Performer shall sign up as an official City vendor via the City of Fort Worth website no later than December 5, 2019. 5. The Performer shall provide all personnel necessary to facilitate the safe and enjoyable participation by the public at the Performance. III. CITY'S OBLIGATIONS 1. City agrees to designate a representative to coordinate all services to be performed pursuant to this Agreement. 2. City agrees that it will provide stage props,musical and performance instruments, equipment, and support services,if any, as specified in Attachment D on the Event Date. IV. COMPENSATION As fair compensation for the services provided by the under this Agreement, the City shall pay the Performer a total amount of up to $500.00 ($100.00 per Performance). The performer will be paid for each Performance within 30 days of the Performance. V. DUTY TO PERFORM/FORCE MAJEURE 1. The City reserves the right to cancel the Performance due to acts of Force Majeure on or near the day of the Performance. 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 Perforrer shall be deemed in breach of this Agreement if it is prevented from performance by Force Majeure; however, Performer shall not be entitled to retain the deposit paid to the Performer by the City,which deposit must be returned to the City within thirty (30) days after written request by the City. 2. In the event Performer is unable to perform, as described herein, due to sickness, accident or other conditions beyond the control of the Performer and proven to City, then Performer shall fully refund any and all deposits paid to the Performer by the City within thirty (30) days of written request. VI. PERMISSION TO USE PHOTOGRAPHS &VIDEOS OR FILMS By entering into this Agreement, the Performer hereby gives its consent and permission to City to use any photograph, video or film City has of the Performer performing. Use includes, but is not limited Page 2 of 14 to, publishing, posting on an official web site or putting on television, either network or cable or at neighborhood meetings. VII. INDEPENDENT CONTRACTOR The Performer shall operate under this Agreement as an independent contractor and not as an officer, agent, servant, or employee of City.The Performer shall have the exclusive right to control the details of the work and the services performed hereunder. City shall have no right to exercise any control over or to supervise or regulate the Performer 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 Performer.This Agreement may also be terminated at any time by the City for cause and upon notice to the Performer. 2. If the City terminates this Agreement pursuant to section one of VIII, City shall not owe any compensation to the Performer and Performer shall return the deposit paid by the City within thirty (30) business days after written request. 3. If the City fails to provide at least fourteen (14) days' notice of cancellation, Performer shall be entitled to keep the deposit, except in cases of Force Majeure, but shall not be entitled to any additional compensation from City. IX. LIABILITY/INDEMNIFICATION 1. LIABILITY. THE PERFORMER 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 BY THE ACT(S), ERRORS, OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF THE PERFORMER, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 2. GENERAL INDEMNIFICATION. PERFORMER 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' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) Page 3 of 14 AND/OR PERSONAL INJURY (INCLUDING, 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 PERFORMER AND/OR PERFORMER'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. 3. Intellectual Property. The Performer 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 Performer. 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 reproduction or use of copyrighted materials by Performer without the appropriate licenses or permission being secured by Performer in advance. IT IS FURTHER AGREED THAT PERFORMER SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF PERFORMER'S USE OF ANY COPYRIGHTED MATERIAL BY REASON OF AN ALLEGED OR 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 shall be the exclusive obligation of the Performer. 4. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THE PERFORMER, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT THE PERFORMER'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 AFFECTING THE VALIDITY OR ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATION UNDER THIS SECTION, SUCH LEGAL LIMITATIONS ARE MADE A PART OF THE INDEMNIFICATION OBLIGATION AND SHALL OPERATE TO AMEND THE INDEMNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO BRING THE PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT. 6. Performer 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 Performer in connection with or incidental to performance under this Agreement. Page 4 of 14 7. Performer 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. S. 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 PERFORMER City of Fort Worth David Lee Jones,Jr. Library Director 4117 Brookway Drive 500 W 3rd Street, Fort Worth,Texas, 76123 Fort Worth,Texas 76102 With copy to: Assistant City Attorney 200 Texas Street Fort Worth,Texas 76102 The Performer 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. XII. ENTIRETY 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 shall 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. Page 5 of 14 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 shall 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 he 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 shall 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 Performer, and any lawful successor or assign,and are not intended to create any rights, contractual or otherwise, to any other person or entity. XVIII. 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. Page 6 of 14 XIM 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 City 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 Performer 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 Performer 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, Performer certifies that Performer's signature provides written verification to the City that Performer: (1) does not boycott Israel; and(2)will not boycott Israel during the term of the contract. XXI. AUDIT The Performer agrees that City will have the right to audit the financial and business records of the Performer 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 Performer shall make all Records available to City on 1000 Throckmorton 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 City 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 In the execution, performance, or attempted performance of this Agreement, the Performer will not discriminate against any person or persons because of disability, age, familial status, sex,race,religion, color,national origin,or sexual orientation,not will the Performer permit its officers,agents, servants, Page 7 of 14 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 City Code of the City of Fort Worth ("Discrimination in Employment Practices"), and the Performer hereby covenants and. agrees that the Performer,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 Performer,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 Performer 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 the Performer 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 The Performer hereby represents that she has inspected the facilities at the Performance site intended for the performance,including any improvements thereon,and that the Performer finds same suitable for all activities and operations agreed to hereunder, and that the Performer does so on an "as is" condition. The City hereby expressly excludes any and all warranties in regard to the facilities, including,without limitation, fitness for any particular purpose. Page 8 of 14 XXIX. INSURANCE Intentionally omitted. XXX. SIGNATURE AUTHORITY The person signing this Agreement hereby warrants that he or 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 entity. The other Party 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 he/she/it shall be subject to the terms and conditions of this Agreement. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGE FOLLOWS] Page 9 of 14 IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples, this C-Wday of , 2019. CITY OF FORT WORTH PERFORMER by: by: Jesus J. Chapa e. David Lee Jo , Assistant City Manager Title: Performer Recommended by: M ilyn arvin Assista: t Library Director APPROVED S T FORM AND LEGALITY by: Jo Ann to Assista City Attorney ATTEST: �� /, °`r': i -A Mary Kayse f ti City Secretary •,.. )(AS', M&C—No M&C Required 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. �U Timothy S idal OFFIC L Administrative Services Manager CQTY SECRETARY FT WORT ka,—27 Attachment A Presentation Outline Saxophonist David Lee Jones,Jr. will perform holiday and jazz compositions at up to five library branches. Each performance will last approximately one hour. Page 11 of 14 Attachment B Performance Dates and Locations Thursday, December 5, 2019; 6:30-7:30pm—Southwest Regional Library Tuesday, December 10, 2019; 6:30-7:30pm—Summerglen Branch Library Thursday, December 12, 2019; 6:30-7:30pm—East Berry Branch Library Tuesday, December 17, 2019; 6:30-7:30pm—Central Library Thursday,December 19, 2019; 6:30-7:30pm—eSkills Branch Library Page 12 of 14 Attachment C Materials Provided by Performer Performer provides all musical instruments, amplifiers, and related equipment. Page 13 of 14 Attachment D City's Obligations None Page 14 of 14