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HomeMy WebLinkAboutContract 53803 APR R�CEIVF� CONTRACT NO. -&3_ _u. ciry'Op't,1q 2020 s�ORr"'9ryPERFORMANCE AGREEMENT BETWEENT THE CITY OF FORT WORTH AND WILLIAM MAGNUSON TO PERFORM AT FORT WORTH CENTRAL 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 William Magnuson, a sole proprietor("Author"). WHEREAS, the City is sponsoring an author visit on January 28, 2021 at the Fort Worth Central Library located at 500 W Third Street,Fort Worth,Texas;and WHEREAS,Author has written a book called `Blockchain Democracy" and has agreed to discuss this book to help promote literacy and interest in reading and writing;and WHEREAS, City wishes to contract with the Author to speak at the Central Library, sign books,and participate in a question and answer session. NOW, THEREFORE, the City and the Author 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 Author agrees to speak about her writing, sign books, and participate in a question and answer session ("Performance") with the audience at 6:30 pm on January 28, 2021, ("Performance Date")at Fort Worth Central Library located at 500 W Third Street,Fort Worth,Texas ("Performance Site"). 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 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. Author shall provide the performance at no charge to City. City shall not be required to pay any cost, fee, or charge of any nature for the performance. 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 Author represents that for and in consideration of its obligations under this Agreement, the City is providing a space for such presentation to occur in an effort to provide an opportunity for its citizens to experience the arts free of charge at an accessible location.Both parties agree as a condition precedent of this Agreement that both parties have exchanged good and valuable consideration. GAL RE—001,, r AGREEMENT between the City of Fort Worth,TX and William Magnuson Page 1 of 10 III. AUTHOR'S OBLIGATIONS 1. Author agrees to arrive at the Event Site no later than 6:15 pm on the Performance Date. In the event that Author will not be able to arrive by 6:30 pm on the Performance Date, the Author agrees to contact Jennifer Demas at (817) 392-7318 as soon as the Author is aware of such delay. 2. The Author agrees to speak about his writing, sign copies of her books or other items if requested and participate in a question and answer session with the audience at the Performance. IV. CITY'S OBLIGATIONS 1. City agrees to designate a representative to coordinate all services to be performed by City pursuant to this Agreement. 2. The City shall provide a clean, climate controlled, well-lighted for the Performance Event including a podium with a microphone. 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 not Author shall be deemed in breach of this Agreement if it is prevented from performance by Force 1VIaj cure. VI. PERMISSION TO USE PHOTOGRAPHS &VIDEOS OR FILMS By entering into this Agreement, the Author hereby gives its consent and permission to City to use any photograph,video or film City has of the Author performing. Use includes,but is not limited to, publishing, posting on an official web site or putting on television, either network or cable or at neighborhood meetings. VII. INDEPENDENT CONTRACTOR The Author shall operate under this Agreement as an independent contractor and not as an officer, agent,servant,or employee of City.The Author 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 Author 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. AGREEMENT between the City of Fort Worth,TX and William Magnuson Page 2 of 10 VIII. TERM AND TERMINATION 1. This Agreement shall begin upon execution by both Parties and shall continue in full force and effect until February 28,2021,unless terminated earlier in accordance with this Agreement. 2. This Agreement may be terminated by the City without cause with fourteen (14) days written notice to the Author. This Agreement may also be terminated at any time by the City for cause and upon notice to the Author. IX. LIABILITY/INDEMNIFICATION 1. LIABILITY. THE AUTHOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH,TO ANYAND ALL PERSONS,OF ANY HIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE ACT(S), ERRORS, OR OMISSION(S),MALFEASANCE OR INTENTIONAL MISCONDUCT OF THE AUTHOR,ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES. 2. GENERAL INDEMNIFICATION. AUTHOR 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) AND/OR PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANYAND 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 AUTHOR AND/OR AUTHOR'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 Proper . The Author 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 Author. 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 Author without the appropriate licenses or permission being secured by Author in advance. IT IS FURTHER AGREEMENT between the City of Fort Worth,TX and William Magnuson Page 3 of 10 AGREED THAT AUTHOR 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,ATTORNEYS FEES,TO WHICH THEY MAY BE SUBJECTED ARISING OUT OF AUTHOR'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 Author. 4. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THE AUTHOR, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT THE AUTHOR'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. Author 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 Author in connection with or incidental to performance under this Agreement. 7. Author 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. AGREEMENT between the City of Fort Worth,TX and William Magnuson Page 4 of 10 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 AUTHOR City of Fort Worth William Magnuson Library Director 1504 West 30th St. 500 W 3 d Street, Austin,TX 78703 Fort Worth,Texas 76102 With copy to: Assistant City Attorney 200 Texas Street Fort Worth,Texas 76102 The Author 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. 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. AGREEMENT betriveen the Cite of Fort Worth,TX and William Magnuson Page 5 of 10 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 LAWNVENUE 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 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 Author, 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. 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 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 Author 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. AGREEMENT between the City of Fort Worth,TX and William Magnuson Page 6 of 10 XX. PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL If Author has fewer than 10 employees or this Agreement is for less than$100,000,this section does not apply. Author 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,Author certifies that Author's signature provides written verification to the City that Author: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. XXI. AUDIT The Author agrees that City will have the right to audit the financial records of the Author that relate to payment by City to Author in connection with 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. The Parties acknowledge that no payment is being exchanged in connection with 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 Author 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 Author 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 City Code of the City of Fort Worth("Discrimination in Employment Practices"),and the Author hereby covenants and agrees that the Author, 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 Author,its officers,agents,employees,or subcontractors. AGREEMENT between the City of Fort Worth,TX and William Magnuson Page 7 of 10 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 tides 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 Author 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 Author 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 Author hereby represents that he has inspected the facilities at the Event Site intended for the performance, including any improvements thereon, and that the Author finds same suitable for all activities and operations agreed to hereunder, and that the Author 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. AGREEMENT between the City of Fort Worth,TX and William Magnuson Page 8 of 10 XXIX. SIGNATURE AUTHORITY The person signing this Agreement hereby warrants that she or he 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 shall be subject to the terms and conditions of this Agreement. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGE FOLLOWS] AGREEMENT between the City of Fort Worth,TX and William Magnuson Page 9 of 10 IN WITNESS WHEREOF,the parties hereto have executed this agreement in multiples, this day of ,2020. CITY OF FORT WORTH AUTHOR by: by: �— Jesus Chapa Name:William Magnuson Assistant City Manager Title:Author Recommended by: i� lo-— M rily Marvin Assistant Library Director APPROVED AS TO FORM AND LEGALITY by: Jo 44n Pate Assistant City Attorney f VO "ki ATTEST: MaryK '<�rtio (► !•••.�y s�)�T�lI , City Secretary 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. Timothy Shidal `" ` Administrative Services Manager AGREEMENT between the City of Fort Worth,TX and William Magnuson Page 10 of 10