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HomeMy WebLinkAboutContract 43338 (2)crrt sECRETARY CONTRACT NO. PERSONAL SERVICES AND LICENSE AGREEMENT THIS PERSONAL SERVICES AND LICENSE AGREEMENT ("Agreement") is made and entered into on this of j u tt j , 2012 ("Effective Date") 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 Kelli McKandless, an individual ("Provider") (collectively, the "Parties"). WHEREAS, the City owns and operates Rockwood Golf Course, located at 1851 Jacksboro Highway Fort Worth, Texas 76114 ("RWGC") and Pecan Valley Golf Course, located at 6400 Pecan Drive, Fort Worth, Texas 76132 ("PVGC") and that are open for public play; WHEREAS, Provider is a golf instructor that specializes in player development programs that are designed to expand and increase participation in the game of golf through, among other things, active participation in golf clinics, classes, and lessons; and WHEREAS, the City wishes to engage Provider to expand and increase participation in the game of golf at the City's Golf Courses through implementation of a Player Development Program. NOW, THEREFORE, for and in consideration of the mutual agreements stated herein, the Parties agree as follows: 1. Services a) Provider shall, with good faith and due diligence, expand and increase participation and awareness in the game of golf at RWGC and PVGC through golf clinics for beginner and advanced golfers, specialty classes targeting specific aspects of the golf game, beginning golfer leagues, individual golf lessons, and "Introduction to Golf' classes to attract prospective golfers. b) Provider shall coordinate, schedule, and provide private and group golf lessons and clinics, video golf lessons, and golf classes (collectively, "Lessons"). Provider shall be responsible for coordinating with the City's Assistant Director — Golf Division or his/her designee ("Golf Director") to schedule these Lessons. Lessons shall be for the benefit of the public, and all fees for such services must be approved by the Golf Director prior to the start of any Lessons for the year 2012 and on or before January 1 of each following year that this Agreement or any renewal is in effect. c) Provider shall provide any and all supplies necessary to conduct the Lessons, including, but not limited to, golf clubs. City shall provide all practice balls for lessons and clinics at no charge. d) Provider shall be responsible for all Lesson fee collections and timely payment of all amounts due to the City under Section 4. e) Provider shall furnish a report of "gross receipts" to the City's Golf Director at the time payment is due under Section 4. For purposes of this Agreement, "gross receipts" shall mean and includes the total amount of money received or to be received by the Provider or by any agent, employee, or subcontractor of the Provider from all sales, whether for cash or credit, whether collected or uncollected, made as a result of the rights granted under this Agrccment. Furthermore, "gross receipts" shall include all monies paid or to be paid by a purchaser of any services provided by the Provider, including, but not limited to, rental equipment. 0 Provider shall hold a minimum of two (2) "Introduction to Golf ' classes per month from March 1 through June 30 of each year of this Agrccment beginning in 2013 at no charge to the general public. These classes shall be for the purpose of introducing the game of golf to the general public and availing 06-20-12 P03:05 I N OFFICIAL RECO;t D CITY SECRETARY FtI'U! , TX them of the opportunity to register for structured golf classes with the Provider. The Golf Director reserves the right to increase or decrease the frequency of classes offered and whether a fee may be charged. g) Provider shall be responsible for all marketing of the Player Development Program to the general public which shall include, but not be limited to, creating and distributing collateral materials for the Player Development Program. Collateral materials include brochures, educational materials promotional matei ials, and the like. The City may assist with marketing efforts through printing and distribution of these materials and through email blasts to its current customer database The City shall have final approval authority of all marketing material prior to its production and distribution. (See also Section 33) h) Provider shall assist (without fee) the City in a minimum of one (1) and no more than three (3) equipment demonstration days or "demo days" in each calendar year of that this Agreement or any renewal is in effect. i) Provider shall promote the use of Fort Worth Municipal Golf Courses and promote the sale of all golf equipment and apparel from the RWGC and PVGC Shops to her students. j) Provider shall prepare and submit to the Golf Director documentation concerning the amount of time spent promoting herself and the Player Development Program. k) Provider shall, upon request of the Golf Director, assist with tournaments at RWGC. In no event shall the Provider be required to assist more than five (5) hours per month. Fhe Golf Director shall provide at least five (5) days written notice of the time and date upon which the Piovider is expected to assist. I) The actions and objectives contained in this Section 1 are referred to collectively in this Agreement as the "Services." m)Provider shall perform all Services in accordance with the prevailing professional standards in the industry for the same or similar services, including reasonable informed judgments and prompt, timely action. If Provider is representing that it has special expertise in one or more areas to be utilized in this Agreement, then Piovider agrees to perform those special expertise services to the appropriate local, regional or national professional standards. n) Provider shall pay any applicable taxes and shall obtain and keep in effect at her own cost and expense all licenses and permits necessary for the Services. 2. Term This Agreement shall commence on the Effective Date and terminate on the 30th day of June, 2013 unless terminated earlier in accordance with the terms of this Agreement. This Agreement may be renewed for additional one-year periods by mutual written agreement of the Parties. 3. License for Use of the Premises The City hereby grants a non-exclusive license to Provider for the use of certain real property (hereinafter referred to as 'Premises"), during the term of this Agreement and any extension or renewal thereof being space at the RWGC and PVGC in areas to be designated by the Golf Director. a) Provider shall use the Premises for the sole purposes of fulfilling the Services set forth in this Agreement. Personal Services and License Agreement 2 of 13 b) Provider covenants and agrees that she will not engage in any business or activity on the Premises or do anything in connection therewith that shall be in violation of any existing State, Federal, or local law. c) Provider will have the right to utilize the Premises at such times and on such days as may be approved by the Golf Director. The use of the Premises by Provider will be limited to such times as shall not be in conflict with use by the City. It is expressly understood by Provider that from time -to -time due to the necessity of rescheduling for the benefit of the citizens of Fort Worth the Premises may not be available for use by Provider. In addition, this Agreement is nonexclusive and City may contract with any other persons or entities foi the same or similar services as provided under this Agreement. 4. Consideration a) As consideration for the rights and privileges herein granted, Provider shall pay to the City fifteen percent (15%) of "gross receipts" from all Lessons All payments due City shall be due and payable without demand by check at the office of the Golf Director, or at such other place in Tarrant County, Texas as the City may hereafter notify Provider and shall be made in legal tender of the United States. Payments shall be submitted no later than 4:00 p.m. on the first (1St) and fifteenth (15th) of every month. If these dates fall on a weekend holiday, or other date in which the City's offices are closed, then payment shall be due on the next business day in which the City's offices are open. For example, if the City's offices are closed on a Monday, May 28, 2012 foi Memorial Day, then payment would be due to the City on Tuesday, May 29, 2012. b) As additional consideration for the rights and privileges herein granted, City agrees to pay Provider Five Hundred Dollars and No Cents ($500.00) per month for a twelve consecutive month period, enabling the Provider to establish and promote herself and the Player Development Program within the community. The first payment shall be made within thirty (30) days following the Effective Date with the remaining eleven (11) payments to be made on or before the final day of each month thereafter. 5. Equipment and Inventory Equipment and supplies required for Provider's services under this Agreement will be provided by the Provider. Provider shall be responsible for maintenance and repair of equipment. Provider agrees to maintain all equipment in a safe condition. The Provider shall be responsible for inventory of all equipment and supplies. 6. Maintenance of Premises and Assumption of Risk Provider shall be solely responsible for the inspection and maintenance of the Premises during the period of Provider's use of the Premises and will notify the Golf Director of any existing or developing hazardous or dangerous condition on the Premises. Provider agrees to maintain the Premises in a sanitary, safe, and clean condition, but only during the period of Provider's use of the Premises Provider also agrees to clean any areas on the Premises if and when Provider's activity o1 use results in or creates the need for such cleaning. Provider further agrees and covenants that the Premises and any and all improvements o1 removable property shall at all times be subject to inspection by the City. However, City has no duty to inspect the Premises during Provider's use of the Premises. Furthermore, Provider specifically assumes any and all hability that may arise due to premise defects upon any or all improvements that exist on the Premises at the time of execution of this Agreement or any and all improvements that are constructed thereafter related to or arising out of Provider's use. Provider also recognizes that the Premises may contain sporting equipment, items of clothing, and personal items strewn about that may pose a hazard to Provider and/or her property. Provider agrees to accept the Premises in the condition in which it is found. City hereby disclaims and Provider hereby accepts City's disclaimer of any warranty, express or implied, of the conditions or fitness for use of any portions of the Premises. Personal Services and License Agreement 3 of 13 7. City Access to Premises In addition to any other right of access provided in this Agreement, City also reserves the right for the Golf Director to enter upon and have access to any portion of the Premises at any and all times on any matters connected with RWGC and/or PVGC, including, but not limited to cleaning, repairs, and alterations as deemed necessary (but without obligation to do so) 8. Default If Provider fails to comply with any term, provision, or covenant of this Agreement, and does not cure such failure within five (5) days after receiving written notice thereof, this Agreement shall terminate and the Agreement shall be revoked. The termination of this Agreement and revocation of the license shall not preclude pursuit of any of the other remedies herein provided or any other remedies provided by law, nor shall the pursuit of any remedy herein provided constitute a forfeiture or waiver of any payment due to City hereunder or of any damages accruing to City by reason of the violation of any of the terms, provisions, and covenants herein contained No waiver by City of any violation or breach of any of the terms, provisions, and covenants herein contained shall be deemed or constitute a waiver of any other violation or breach of any of the terms provisions, and covenants herein contained. Forbearance by City to enforce one (1) or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default. Should City at any time terminate this Agreement for any default, in addition to any other remedy City may have City may recover from Provider all damages City may incur by reason of such default, including the cost of reasonable attorney's fees expended by reason of default 9. Termination a) b) The Provider must pass a thorough background investigation by an entity approved by the City prior to commencing any Lessons or Services set forth in this Agreement. The results of any background investigation must be submitted promptly to the City for review. Failure of any background investigation shall be determined by the City, in its sole discretion If the City determines that the Provider has failed any portion of the background investigation, then this Agreement shall terminate immediately with no payment due to the Pi ovider under this Agreement. Either party may, at its option and without prejudice to any other remedy it may be entitled at law or in equity, or otherwise under this Agreement, terminate the Agreement, in whole or in part, with or without cause by giving at least thirty (30) days prior written notice thereof to the other party. The parties agree that the Agreement shall terminate on the date specified on the notice and that Provider shall be responsible for any fees due and owing up to and through the termination date specified on the notice. 10. Indemnification a) PROVIDER SHALL AND DOES AGREE TO INDEMNIFY, PROTh,CT, DEFEND AND HOLD HARMLESS CITY AND CITY'S EMPLOYEES,REPRESENTATIVES, OFFICERS, AND SERVANTS (COLLECTIVELY INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES DAMAGES, LOSSES. L IENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND EXPENSES, (INCLUDING, BUT NOT LIMITED TO, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION), OF ANY NATURE, KIND OR DESCRIPTION ARISING OR ALLEGED TO ARISE BY REASON OF INJURY TO O R DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY (1) RELATING TO THE USE OR OCCUPANCY OF THE PREMISES BY PROVIDER, ITS EMPLOYEES, PATRONS, AGENTS, INVITEE LICENSEES AND ANY P ARTY USING THE PREMISES OR (2) BY REASON OF ANY OTHER CLAIM WHATSOEVER OF ANY PERSON OR PARTY OCCASIONED OR ALLEGED TO Personal Services and License Agreement 4 of 13 BE OCCASIONED IN WHOLE OR IN PART BY ANY ACT OR OMISSION ON THE PART OF PROVIDER OR ANY INVITEE, LICENSEE, EMPLOYEE, DIRECTOR, OFFICER, SERVANT, OR CONTRACTOR OF LICENSEE, OR ANYONE PROVIDER CONTROLS OR EXERCISES CONTROL OVER OR (3) BY ANY BREACH VIOLATION OR NONPERFORMANCE OF ANY COVENANT OF PROVIDER UNDER THIS LICENSE (COLLECTIVELY, ' LIABILITIES"), EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO THE CONCURRENT OR PARTIAL NEGLIGENCE OF ANY INDEMNITEE THE ONLY LIABILITIES WITH RESPECT TO WHICH PROVIDER'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DONS NOT APPLY IS WITH RESPECT TO L IABILITIES ARISING OUT OF OR RESULTING SOLELY FROM THE N EGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNITEE IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST ANY INDEMNITEE IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, P ROVIDER ON NOTICE FROM CITY SHALL DEFEND SUCH ACTION OR P ROCEEDING, AT PROVIDER S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY TO ALL ACTIVITIES OF PROVIDER WITH RESPECT TO THE USE AND OCCUPANCY OF THE PREMISES WHETHER OCCURRING BEFORE OR AFTER THE COMMENCEMENT DATE OF THE AGREEMENT TERM AND BEFORE OR AFTER THE TERMINATION OF THE AGREEMENT. THIS INDEMNIFICATION SHALL NOT BE LIMITED TO DAMAGES COMPENSATION OR BENEFITS PAYABLE UNDER INSURANCE P OLICIES, WORKERS COMPENSATION ACTS, DISABILITY BENEFIT ACTS O R OTHER EMPLOYEES' BENEFIT ACTS. b) 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 PARAGRAPH 9 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 O F SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION O BLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT. THIS P ROVISION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. 11. Waiver of Liability NO INDEMNITEE SHALL BE LIABLE IN ANY MANNER TO PROVIDER, ITS AGENTS, EMPLOYEES CONTRACTORS, OR ANY OTHER PARTY USING THE PREMISES, IN CONNECTION WITH THE USE OF THE PREMISES BY ANY OF THEM FOR ANY INJURY TO OR DEATH OF PERSONS UNLESS CAUSED SOLELY BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF AN INDEMNITEE. IN NO EVENT SHALL ANY INDEMNITEE BE LIABLE IN ANY MANNER TO PROVIDER OR ANY OTHER PARTY AS THE RESULT OF THE ACTS OR OMISSIONS OF PROVIDER, ITS AGENTS, EMPLOYEES CONTRACTORS, OR ANY OTHER PARTY USING THE PREMISES, IN CONNECTION WITH THE USE OF THE PREMISES BY ANY OF THEM. ALL VEHICLES AND ALL PERSONAL PROPERTY WITHIN VEHICLES USING THE PREMISES, WHETHER PURSUANT TO THIS AGREEMENT OR OTHERWISE SHALL BE AT THE RISK OF PROVIDER ONLY, AND NO INDEMNITEES SHALL BE LIABLE FOR ANY LOSS OR THEFT OF OR DAMAGE TO PROPERTY OF PROVIDER, ITS EMPLOYEES AGENTS, PATRONS, INVITEE OR TO OTHERS, REGARDLESS OF WHETHER SUCH Personal Services and License Agreement 5 of 13 PROPERTY IS ENTRUSTED TO EMPLOYEES OF CITY OR SUCH LOSS OR DAMAGE IS O CCASIONED BY CASUALTY, THEFT, OR ANY OTHER CAUSE OF WHATSOEVER N ATURE, EVEN IF DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE THIS PROVISION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. 12. Independent Contractor Provider covenants and agrees that he or she is a licensee or an independent contractor and not an officer, agent, servant or employee of City; that Pi ovider shall have exclusive control of and exclusive right to control the details of the work performed hereunder or in the manner and means of providing his or her services and all persons performing same, and shall be responsible for the acts and omissions of its officers, agents, employees contactors, subcontractors and consultants; that the doct ine of respondent superior shall not apply as between City and Provider, its officers, agents, employees, contractors, subcontractors and consultants, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Provider It is understood and agreed that Provider may conduct golf lessons at other facilities not owned by the City of Fort Worth and may otherwise work for multiple clients. 13. Insurance During the term of this Agreement, Provider shall procure and maintain at all times, in full force and effect, a policy or policies of insurance that provide the specific coverage set forth in this Section as well as any and all other public risks related to Provider's performance of its obligations under this Agreement. Provider shall specifically obtain the following types of insurance at the following limits: • Commercial General Liability (CGL) o $1,000,000 Each occurrence o $2,000,000 Aggregate limit o Coverage shall include but not be limited to, the following: premises o perations, independent contractors, products/completed operations, personal injury, and contractual liability. Insurance shall be provided o n an occurrence basis, and be as comprehensive as the current Insurance Services Office (ISO) policy. The policy shall name City as an additional insured. General Conditions Applicable to Required Insurance Certificates of insurance shall be delivered to the City of Fort Worth prior to commencement of work, addressed to the attention of the Risk Management Division 1000 Throckmorton Street, Fort Worth, Texas 76102 with a copy to the Golf Director at the Parks and Community Services Department office. The City's Risk Manager shall have the right to review and evaluate all required insurance coverage and to make reasonable requests or revisions pertaining to the types and limits of that coverage. Provider and its subcontractors shall comply with such requests or revisions as a condition precedent to the effectiveness of this Agreement. Personal Services and License Agreement 6 of 13 The City and its officers, employees, and servants shall be endorsed as an additional insured on all liability insurance policies required under this Agreement. Each insurance policy shall be endorsed to provide the City a minimum thirty (30) days' notice of cancellation, non -renewal, and/or material change in policy terms or coverage, provided, however, that a ten day notice shall be acceptable in the event of cancellation for non-payment of premium. All insurance policies required under this Agreement shall be endorsed with a waiver of subrogation in favor of the City. Insurers shall have no right of recovery of subrogation against City, it being the intention that the insurance policy shall protect all Parties to the agreement and be primary coverage for all losses covered by the policies. The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any future coverage, or to City s self -insured retention of whatever nature. Provider's insurance policies shall each be endorsed to provide that such insurance is primary protection and that any self -funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. On the request of City, Provider shall provide complete copies of all insurance policies required by this Agreement. Current and revised certificates of insurance shall be delivered to the Risk Management Division of the City of Foit Worth, 1000 Throckmorton Street, Fort Worth, Texas 76102 with copy to the Golf Director at the Parks and Community Services Department office. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. Insurers must be authorized to do business in the State of Texas and have a current A. M. Best rating of A VII or equivalent measure of financial strength and solvency. Deductible limits, or self -funded retention limits, on each policy must not exceed $10,000.00 per occurrence unless otherwise approved in writing by the City. The City may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups in lieu of traditional insurance. Prior to employing such alternative coverage, the Provider must obtain City's written approval. City shall not be responsible for the direct payment of insurance premium costs for the Provider's insurance. Provider may be required to provide City with proof of insurance premium payments. During any term of this Agreement, Provider shall report to the City's Risk Management Division in a timely manner any loss occurrence that could give rise to a liability claim or lawsuit or that could result in a property loss. The Provider's liability shall not be limited to the specified amounts of insurance required herein Provider shall not do or permit to be done anything in or upon any portion of any City real Personal Services and License Agreement 7 of 13 property, or bring or keep anything therein or thereupon that will in any way conflict with the conditions of any insurance policy on the City real piopeity, or any part thereof, or in any way increase the rate of fire insurance on the City real property or on personal property kept therein, or in any way obstruct or interfere with the rights of other users of the City real property, or injure or annoy them. Provider shall be responsible for providing the City with timely notice of any change to its Insurance covet age that amends or alters what is required by contract. 14. Applicable Laws This Agreement shall be construed in accordance with the internal laws of the State of Texas. If any action, whether real or asserted, at law or in equity is brought on the basis 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. 15. Severability If any clause or provision of this Agreement is or becomes illegal, invalid, or unenforceable because of present o1 future laws or any rule or regulation of any governmental body or entity, e ffective during the Term, the intention of the parties hereto is that the remaining parts of this Agreement shall not be affected thereby unless such invalidity is, in the sole determination of the City, essential to the rights of both parties, in which event City has the right, but not the o bligation, to terminate the Agreement on written notice to Provider. 16. Remedies No right or remedy granted herein or reserved to the parties is exclusive of any other right or remedy herein by law or equity provided or permitted; but, each shall be cumulative of every right or remedy given hereunder. No covenant of condition of this Agreement may be waived without consent of the parties. Forbearance or indulgence by City shall not constitute a waiver of any covenant or condition to be performed pursuant to this Agreement. 17. Entire Agreement This Agreement constitutes the entire agreement between the parties and no prior written or of al covenants or representations relating thereto not set forth herein shall be binding on either party hereto. This Agreement may not be amended, modified, extended, or supplemented e xcept by written instrument executed by both City and Provider. 18. Successors and Assigns Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all 01 any part hereof without such prior written consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of City and Provider and its respective successors and permitted assigns. 19. Non -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. Personal Services and License Agreement 8 of 13 20. Eaual Emnlovment Opnortunity Provider shall not engage in any unlawful discrimination based on race, creed, color, national origin, sex, age, religion, disability, marital status, citizenship status, sexual orientation or any other prohibited criteria in any employment decisions relating to this Agreement, and Provider represents and warrants that to the extent required by applicable laws, it is an equal opportunity employer and shall comply with all applicable laws and regulations in any employment decisions. In the event of Provider noncompliance with the nondiscrimination clauses of this Agreement, this Agreement may be canceled, terminated, or suspended in whole or in pait, and Provider may be debarred from further agreements with City 21. No Third Party Beneficiaries The provisions and conditions of this Agreement are solely for the benefit of City and Provider, and any lawful successor or assign, and are not intended to create any rights contractual or otherwise, to any other person or entity. 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. 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 Provider 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 Agieement. 24. Headings Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 25. Rieht to Audit Provider agrees that City will have the right to audit the financial and business records of Provider that relate to this Agieement (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, Provider 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. Personal Services and License Agreement 9 of 13 26. 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. 27. Surrender of Possession No notice to quit possession at the expiration date of the Agreement Term shall be necessary. Provider covenants and agrees that, at the expiration date of the Agreement Term, or at the earlier termination thereof, it will peaceably surrender possession of the Premises in good condition, reasonable wear and tear, and acts of God excepted, and City shall have the right to take possession of the Premises. 28. Notice Any notice hereunder must be in writing. Notice deposited in the United States mail, properly addressed, postage paid, shall be effective -upon deposit. Notice given in any other manner herein shall be effective upon receipt at the address of the addressee. For purposes of notice, the addresses of the parties shall, unless changed as hereinafter provided, be as follows: If to City, to: CITY OF FORT WORTH ATTN DIRECTOR OF PARKS AND COMMUNITY SERVICES DEPARTMENT 4200 SOUTH FREEWAY. SUITE 2200 FORT WORTH, TEXAS 76115 Copy to: CITY OF FORT WORTH CITY ATTORNEY'S OFFICE ATTN: ATTORNEY FOR PARKS AND COMMUNITY SERVICES DEPARTMENT 1000 THROCKMORTON STREET FORT WORTH, TEXAS 76102 If to Provider, to: KELLI McKANDLESS 32 S 1 Do -THAN �N , The parties hereto shall have the continuing right to change their respective address by giving at least ten (10) days' notice to the other party. 29. Damage to Facility or Property of City If, at any time during the Agreement Term, by the acts of omissions of the Provider, its employees, patrons, agents, invitees, of Provider, the Premises or any property therein is damaged or destroyed, Provider shall be obligated to pay on demand, all costs to repair same together. Personal Services and License Agreement 10 of 13 30. Repairs City has no obligation to make repairs of any sort to the Premises, City's sole obligation hereunder being to make the Premises available to Provider in accordance with and subject to the covenants, restrictions and limitations set forth herein; provided however that City shall maintain the Premises in good working condition. 31. Force Majeure If either Party is unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God; strikes lockouts, or other industrial disturbances; acts of public enemies; wars blockades; insurrections riots; epidemics; public health crises, earthquakes; fires; floods; restraints or prohibitions by any court, board, department commission, or agency of the United States or of any state declaration of a state of disaster o1 of emergency by the federal, state county, or City government in accordance with applicable law; issuance of a Level Orange or Level Red Alert by the United States Department of Homeland Security any arrests and restraints; civil disturbances; or explosions; or some other reason beyond the Party s reasonable control (collectively, "Force Majeure Event"), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event. 32. 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. 33. Trademarks and Copvriizhts No party shall obtain, by this Agreement, any right, title, or interest in the trademarks of the Parties, nor, except as provided het ein, shall this Agreement give any party the right to use, refer to, or incorporate in marketing or other materials the name, logos, trademarks or copyrights of the other Parties. a) Provider, its designees or assignees, shall not use, any designated Account Marks or copyrights of the City of Fort Worth, photographs and/or recordings, or sell, transfer, o r give any original prints o1 reproductions for circulation and/or publication for use by a third party, without the prior written consent of the City and in any manner that reflects unfavorably upon the good name, goodwill, reputation, or image of the City o f Fort Worth. Provider, its designees or assignees, shall not use any designated Account Marks, copyrights, photographs and/or recordings in any manner that would cause confusion in the public mind as to the permitted use for which Provider has been granted such rights. None of the designated Account 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 maiks. Provider, its designees or assignees, may not u se 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. Provider, its designees or assignees, shall not have the right or license to manufacture or case the production of merchandise items bearing the designated mark or copyright without the prior consent of the City. Personal Services and License Agreement 11 of 13 b) Provider agrees to assume full responsibility for complying with all State and Federal Copyright 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 u se of other third -party copyrighted works by Provider. City expressly assumes no o bligations, implied or otherwise, regarding payment or collection of any such fees o r financial obligations. City specifically does not authorize, permit, or condone the reproduction or use of copyrighted materials by Provider without the appropriate licenses or permission being secured by Piovidei in advance. IT IS FURTHER AGREED THAT PROVIDER SHALL RELEASE DEFEND. INDEMNIFY, AND HOLD HARMLESS CITY FROM AND AGAINST ANY AND ALL CLAIMS, L OSSES, 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 CITY'S USE OR P OSSESSION OF ANYTHING COVERED HEREIN BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF O WNERSHIP, AUTHORSHIP OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Provider. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Personal Services and License Agreement 12 of 13 IN WITNESS WHEREOF, the parties have executed this License on the Effective Date. CITY: B san Alanis ssistant City Manager APPROVED AS TO FORM AND LEGALITY: By: Tyler F. `Wallach Assistant City Attorney ATTES By: Mary Ka City Sectary REQUIREDNO M&C Personal Services and License Agreement PROVIDER: a� Q4ppGop�p�, a Ake `a �4 %XAS.ate Kelli McKandl - ss OFFICIAL RECORD CITY SECRETARY FT. WORTH; TN 13of13