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HomeMy WebLinkAboutContract 54858 CSC No. 54858 PERFORMANCE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND THE UNIVERSITY OF TEXAS AT ARLINGTON TO PROVIDE A PERFORMANCE VIDEO FOR THE FORT WORTH PUBLIC LIBRARY This PERFORMANCE AGREEMENT ("Agreement's is made and entered into by and between the CITY OF FORT WORTH, a home-rule municipality("City"),acting by and through its duly authorized Assistant City Manager, and UNIVERSITY OF TEXAS AT ARLINGTON, on behalf of its Planetarium("Performer"). WHEREAS,the City desires to offer programs at the Fort Worth Public Library("Library") that promote the strategic goal of"Education& Growth";and WHEREAS,the City is sponsoring an online program for youth entitled"Learn,Dream,Do: Sky Full of Stories";and WHEREAS, the City desires to feature an online video from a planetarium discussing constellations; and WHEREAS,the City wishes to contract with the Performer to provide for 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. TIMELINE OF PERFORMANCE 1. The Performer agrees to electronically deliver a pre-recorded video discussing constellations ("Performance") to the City by 5:00 p.m. on November 16,2020 ("Performance Due Date"). 2. If the Performer cannot electronically deliver the pre-recorded video by the Performance Due Date,then the City may terminate this Agreement without penalty. II COMPENSATION 1. Performer 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 Performer is providing a unique and important experience free of charge for the citizens of Fort Worth to attend a virtual program discussing constellations.The Performer represents that for and in consideration of its obligations under this Agreement, the City is providing a platform for such presentation to occur in an effort to provide an opportunity for its citizens to attend a virtual program discussing constellations free of charge to a virtual audience. Both parties agree as a condition precedent of this Agreement that both parties have exchanged good and valuable consideration. III. OFFICIAL RECORD PERFORMER'S OBLIGATIONS CITY SECRETARY FT. WORTH, TX Performance Agreement Page 1 of 10 1. Performer agrees to electronically deliver a pre-recorded video discussing constellations. 2. Performer shall supply all performance equipment and supplies required for the Performance. 3. Performer will deliver MP4 video files encoded using the H. 264 codec at 15-20Mbps for 1080p HD content. 4. Performer will deliver a copy of the video performance electronically via email or to an online file share. IV. CITY'S OBLIGATIONS 1. City agrees to designate a representative to coordinate all services to be performed pursuant to this Agreement. 2. City will provide the necessary access and licenses to host the Performance online. V. DUTY TO PERFORM/FORCE MAiEURE The City reserves the right to cancel the Performance due to acts of Force Majeure on or near the Performance Due Date. 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 Performer shall be deemed in breach of this Agreement if it is prevented from performance by Force Majeure. 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 and record the Performance provided by the Performer in perpetuity for non-profit educational purposes. Use includes,but is not limited to,publishing,posting on an official web site, social media outlets or putting on television,either network or cable or at neighborhood meetings. Performer shall require all of its subcontractors to agree in their subcontracts to allow City use the Performance as included above. The pre-recorded video and any other data or materials supplied by Performer in relation to this Agreement shall remain the property of Performer. 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, its subcontractors, and the services performed hereunder. City shall have no right to Performance Agreement Page 2 of 10 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 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.Performer may terminate this Agreement with thirty(30) days written notice. IX. LIABILITY/INDEMNIFICATION 1. LIABILITY. TO THE EXTENT ALLOWED BY THE CONSTITUTION AND LAWS OF THE STATE OF TEXAS AND WITHOUT WAIVER OF SOVEREIGN IMMUNITY, 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 OR ASSERTED, 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 DURING PERFORMANCE OF THIS AGREEMENT. 2. GENERAL INDEMNIFICATION. TO THE EXTENT ALLOWED BY THE CONSTITUTION AND LAWS OF THE STATE OF TEXAS AND WITHOUT WAVIER OF SOVEREIGN IMMUNITY, 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, ATTORNEYS 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 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. THIS SHALL ALSO INCLUDE ANY CLAIMS BY ANY SUBCONTRACTORS BROUGHT AGAINST CITY FOR ANY USE OF PHOTOGRAPHS,VIDEOS,OR RECORDINGS OF THE PERFORMANCE AND SHALL ALSO INCLUDE ANY CLAIMS AGAINST CITY BY A SUBCONTRACTOR FOR ANY CLAIM RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, EXCEPT Performance Agreement Page 3 of 10 THAT THIS SHALL NOT INCLUDE ACTIONS CAUSED BY THE CITY'S OWN NEGLIGENCE OR WILLFUL CONDUCT. 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 TO THE EXTENT ALLOWED BY THE CONSTITUTION AND LAWS OF THE STATE OF TEXAS AND WITHOUT WAVIER OF SOVEREIGN IMMUNITY, 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, TO THE EXTENT ALLOWED BY THE CONSTITUTION AND LAWS OF THE STATE OF TEXAS AND WITHOUT WAIVER OF SOVEREIGN IMMUNITY,THE PERFORMER, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING,AT THE PERFORMER'S EXPENSE. 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. SUBJECT TO SECTION 9 OF THIS AGREEMENT, EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH HEREIN,IF ANY, PERFORMER MAKES NO OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT), WITH RESPECT TO ANY PRODUCTS OR SERVICES OR THIS AGREEMENT.PERFORMER SHALL HAVE NO LIABILITY FOR FAULT OR IMPROPER APPLICATION OF ITS PRODUCTS. PERFORMER'S EXPRESS LIMITED WARRANTIES SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OR GROW OUT OF, PERFORMER'S RENDERING OF TECHNICAL ADVICE Performance Agreement Page 4 of 10 OR SERVICE IN CONNECTION WITH THE PRODUCTS OR SERVICES SUPPLIED OR OTHERWISE OUT OF THE PARTIES'COURSE OF DEALING IN CONNECTION HEREWITH. 7. To the extent allowed by the Constitution and laws of the State of Texas,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. S. 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. 9. 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 The University of Texas at Arlington Library Director James Bader 500 W Yd Street, 700 Planetarium Place Fort Worth,Texas 76102 Arlington,Texas 76019 With copy to: With copy to: Assistant City Attorney The University of Texas at Arlington 200 Texas Street 701 S. Nedderman Dr. Fort Worth,Texas 76102 Arlington,TX 76019 Attn:University Attorney 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.This provision shall not be construed to prohibit the Performer from hiring subcontractors. XII. Performance Agreement Page 5 of 10 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. 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 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 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. The Parties expressly agree that Performer's subcontractors are not third-party beneficiaries and that to the extent any claim is made by a subcontractor,Performer shall indemnify and defend City fully in accordance with section IX of this agreement. XVIII. Performance Agreement Page 6 of 10 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. 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(h)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 If Performer has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. 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 200 Texas Street,Fort Worth,Texas or at another location 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. Performance Agreement Page 7 of 10 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,nor will the Performer 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 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. RIGHTS AND OBLIGATIONS As an institution of higher education of the State of Texas the rights obh rations and approval of this document by Performer are subject to and limited by the laws of the State of Texas 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 Event 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, Performance Agreement Page 8 of 10 including,without limitation,fitness for any particular purpose. XXIX. INSURANCE Performer is a governmental entity under the laws of the state of Texas and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self-Insurance by Governmental Units," is self- insured and therefore is not required to purchase insurance. Performer will provide a letter of self- insured status upon request. 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 she shall be subject to the terms and conditions of this Agreement. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGE FOLLOWS] Performance Agreement Page 9 of 10 IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples,this 17 day of November , 2020. CITY OF FORT WORTH PERFORMER by.Dana Burghdoff(N090� by; Dana Burghdoff Nam C J An Hall Assistant City Manager Title: Nice President for Administration and Campus Operation Recommended b : Avrror®ASTaF0019V DN:cn=Kaally thedb,o=Tharine }' DN:cn=Katharine,o=The University of Texas at Arlington, n au=0=katha Legal Affairs, ASSIST NTA[wte emaii=katharine.adams@utasdu, A9SISTAMATTOIiEY c=US UNVBQM OF TEXAS AT ARMUTOI Date:2020,11,161455:M-06'00' Marilyn Marvin Assistant Library Director APPROVED AS TO FORM AND LEGALITY by:6 ' Jessika J.Williams Assistant City Attorney Ordinance No. 24161-04-2020 goon4un�� ATTEST: A`A7 F°F°Rro ° 'o �9dd Pvo ° oo° o �d o Mary Kayser P�44 n6Xoo p5daa� 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 OFFICIAL RECORD Administrative Services Manager CITY SECRETARY FT. WORTH, TX Performance Agreement Page 10 of 10