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HomeMy WebLinkAboutContract 41531 (2)STATE OF TEXAS COUNTY OF TARRANT CITY SECRETARYII roNTRAcT Mat `�t� 3l-- KNOWN ALL BY THI-SE PRESENTS CONTRACT FOR ARTISTIC P' :RFOMANCE 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 Daniels, it's duly authorized Assistant City Manager, and City to City Music, LLC, dba Vocal Trash, a Texas limited liability corporation (hereinafter referred to as "Contractor"), acting by and through Kelsey Shaw, its duly authorized Manager. WHEREAS the City is hosting a volunteer appreciation party on Saturday, April 2, 2011 for the City's 2011 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 Contractor shall operate and complete a one and one-half hour (1 1/2 hour) music performance at the Festival, to be located at Trinity Park in Fort Worth, Texas featuring the music group Vocal Trash. (a) Contractor shall supply its own stage props, musical and performance instruments, music, table, PA system, equipment, and personnel for the Festival. The City will provide a tent or enclosure. Artistic Performance Contract City to City Music, LLC dba Vocal Trash OFFICIAL RECORii CITY SECRETARY FligiAIOR'TIM, TX (b) Contractor acknowledges that the hours of the 1 '/2 hour performance shall be within the time window of 12 p.m. (noon) to 2:00 p.m. on April 2, 2011. In no event shall the City be billed for any time spent other than as specified herein. Contractor shall begin setup 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 p.m (noon). (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 April 2, 2011 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 of two thousand five hundred dollars ($2,500) for total services to be provided. (b) The City shall have the right to cancel the event if there is severe weather or a level orange or red security incident as determined by the City. If the City cancels an event there shall be no cancellation fee and Contractor shall reschedule the event with the City as long as it is reasonably practicable and allowable by all applicable laws and regulations SECTION 5. INTELLECTUAL PROPERTY Artistic Performance Contract City to City Music, LLC dba Vocal Trash OFFICIAL RECORD CIT tT of ' 2ARY Ft WORTH, TX 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. 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. 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. RECORD Artistic Performance Contract ;Page oaf ,1 rrARY City to City Music, LLC dba Vocal Trash FT, WORTH, TX 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 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 PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT RELATE TO, ARISE OUT OF OR ARE OCCASIONED BY (i) CONTRACTOR'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF CONTRACTOR IN CONNECTION WITH THE PERFORMANCE OF ITS SERVICES HEREUN[ Artistic Performance Contract City to City Music, LLC dba Vocal Trash ER, OR BY ITS' OFFiCIAL RECORD CFPIPSECFtiTARY FT. WORTH, TX OFFICI :I4S, AGENTS, ASSOCIAT 1=S, [MI'LOYEES; FXCI.1)T THAT THE INDEMNITY PROVIDFD FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY TO THE EXTTNT RESULTING FROM THE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR THE CITY'S SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCF OF BOTH CONTRACTOR AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVFLY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 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 general or environmental 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 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 Artistic Performance Contract City to City Music, LLC dba Vocal Trash OFFICIAL RECORD CIttggeRIEWARY FT. WORTH, TX 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, severe weather, or any similar circumstances not within the reasonable control of either party nor reasonably expected weather for the regional area. SI,CTION 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 III 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. 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 Artistic Performance Contract City to City Music, LLC dba Vocal Trash OFFICIAL RECORD -.\ t' t7 f-. P °TA►RY Page 6'of 12 T. WORTH, TX 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 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 Artistic Performance Contract City to City Music, LLC dba Vocal Trash OFFICIAL RECORD CI'PNgstr NARY ei'. WORTH, TX Artistic Performance Contract City to City Music, LLC dba Vocal Trash 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 at Trinity Park 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 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 Page 8 of 12 FOR CITY sEcit CARY FT. WORTH, TX 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. SFCTION 20. LICI_,NSES, ICI RMI T S AND FI ES 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. SUCESSORS 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. 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. Artistic Performance Contract City to City Music, LLC dba Vocal Trash P1CIAL RECORD ;,Page9of 12mY Ft WoRld, TX 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 City to City Music, LLC 8334 Flat Rock Court North Richland Hills, TX 76180 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. 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 app�licaton tial th J-eof Artistic Performance Contracte 1 t ' A ff feAr -•,-sN " PM Pr la !Ay Page 10 of 12 City to City Music, LLC dba Vocal Trash iw', i HI` °X 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 REMI .DI.;S 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 attorneys 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. Having had the opportunity to submit its bid and also to specifically negotiate the terms of this contract, Contractor agrees to be bound by this contract and expressly agrees to the terms of this contract, including terms that may vary from those of the Invitation to Bid or the Contractor's proposal. 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. Artistic Performance Contract City to City Music, LLC dba Vocal Trash OFFICIAL litEGURD CITY SECRETARY SIGNATURE PAGE CONTRACT FOR ARTISTIC PERFOMANCE CITY TO CITY MUSIC, LLC DBA VOCAL TRASH IN WI I NESS WHEREOF, the on this date, the j \Pt( of CITY OF FORT WORTH BY: /2, Charlsaniels Assistant City Manager R GOM EN-D D: a,lies hereby have executed this Agreement in triplicate Kim Mote Assistant Director, Code Compliance APPROVED AS TO FORM AND LEGALITY: rne% n- Arthur N. Bashor Assistant City Attorney ATTEST: 1 f� dt Marty Hendrix City Secretary NO Willict R E Q X D Date 3 M&C Artistic Performance Contract City to City Music, LLC dba Vocal Trash , 2011. CITY TO CITY BY: Kelsey $: Manager a WITNESS ,1 1 (J oo 0 0� -PI }` 0 t OJp.,, �� Van, 0 - �., 71 X 0. CC1/4 en OW a re OFFICIAL RECORD CITY SECRETARY FT, WORTH, TX Page 12 of 12