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HomeMy WebLinkAboutContract 55338 CSC No.55338 PERFORMANCE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND NORTH TEXAS COLLEGIATE CONSORTIUM TO PERFORM FOR THE FORT WORTH PUBLIC LIBRARY This PERFORMANCE AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH, a home-rule municipality ("City' , acting by and through its duly authorized Assistant City Manager,and North Texas Collegiate Consortium acting by and through its duly authorized Chair ("Vendor"). WHEREAS,the City desires to offer programs at the Fort Worth Public Library ("Library") that promote education&growth; and WHEREAS, the City is sponsoring a live, online, virtual college fair designed for adult, returning, and non-traditional students ("Event"); and WHEREAS,the City wishes to contract with the Vendor to provide for such services. NOW,THEREFORE, the City and the Vendor 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 Vendor agrees to provide presentations by knowledgeable higher education professionals from member institutions ("Presenters"). Presenters will participate in a live, online, virtual college fair ("Performance's to the City. The Performance shall occur at the times, locations, and dates specified in Attachment "A" ("Performance Dates', unless changed in accordance with this Agreement.Additional times may be added by written mutual agreement of the Parties and any such additional Performance shall be subject to the terms and conditions of this Agreement as though the Performance was included on Attachment"A"at the time of execution. 2. The Performance shall be made available through a virtual session at the date and time as listed in Attachment"A."Vendor shall use the City's virtual platform to provide the Performance.Vendor shall provide or ensure Presenters have computer and internet access. Except as specifically included herein,no other provisions of this Agreement shall be changed due to the Performance being required to be performed by virtual means. 3. If the Vendor cannot support a Performance as specified in Attachment "A" then the City may terminate this Agreement without penalty. The City shall have sole discretion to determine any rescheduled Performance date. II. TERM This Agreement shall begin on April 15, 2021 ("Effective Date' and shall expire on June 15, 2021 ("Expiration Date"),unless terminated earlier in accordance with this Agreement. III. OFFICIAL RECORD CITY SECRETARY Performance Agreement FT. WORTH, TX COMPENSATION 1. Vendor 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 Vendor is providing a unique and important experience free of charge for the citizens of Fort Worth to attend a virtual, college fair designed for adult,returning, and non-traditional students.The Vendor represents that for and in consideration of its obligations under this Agreement, the City is providing a space for such presentation to occur which will provide exposure for the Vendor and the Vendor's organization.Both parties agree as a condition precedent of this Agreement that both parties have exchanged good and valuable consideration. IV. VENDOR'S OBLIGATIONS 1. Vendor agrees to provide presentations by knowledgeable higher education professionals from member institutions for a virtual college fair designed for adult, returning, and non-traditional students. 2. Vendor agrees to coordinate topics of the Performance to ensure that attendees have the opportunity to learn more about local higher education opportunities that can be considered and used for self-advancement. 3. Vendor agrees that the college fair will be a virtual online event using City's licensed webinar solution. 4. Vendor shall ensure Presenters log-in to the City's virtual platform no later than the Start Time of the Performance Date as specified in Attachment "A." In the event that a Presenter will not be able to log-in by the Start Time on the Performance Date, the Vendor agrees to contact Jana Hill at (817) 392-8927 as soon as the Vendor is aware of such delay. 5. Vendor shall provide or ensure Presenters have a computer,Internet access,and any software needed to remotely join and deliver the Performance utilizing the City's online webinar environment. 6. Vendor agrees to collaborate with the City in promotion of the Performance and grant the City permission to use marketing materials for the term of this Agreement. V. 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. City will provide log-in information to the Vendor prior to each Performance Date as specified in Attachment «A 7, Performance Agreement Page 2 of 11 VI. DUTY TO PERFORM/FORCE MAJEURE The City reserves the right to cancel the Event 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 Vendor shall be deemed in breach of this Agreement if it is prevented from performance by Force Majeure. VII. PERMISSION TO USE PHOTOGRAPHS &VIDEOS OR FILMS By entering into this Agreement, the Vendor hereby gives its consent and permission to City to use and record the Performance provided by the Vendor in perpetuity.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. Vendor shall require all of its subcontractors to agree in their subcontracts to allow City use the Performance as included above. VIII. INDEPENDENT CONTRACTOR The Vendor shall operate under this Agreement as an independent contractor and not as an officer, agent, servant,or employee of City.The Vendor 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 exercise any control over or to supervise or regulate the Vendor 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. IX. TERMINATION 1. This Agreement may be terminated by the City without cause with fourteen (14) days written notice to the Vendor. This Agreement may also be terminated at any time by the City for cause and upon notice to the Vendor.Vendor may terminate this Agreement with thirty(30) days written notice. 2. If the City terminates this Agreement pursuant to section one of VIII prior to the Performance Due Date or due to force majeure, City shall not owe any compensation to the Vendor. X. LIABILITY/INDEMNIFICATION 1. LIABILITY. THE VENDOR 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), Performance Agreement Page 3 of 11 ERRORS, OR OMISSION(S),MALFEASANCE OR INTENTIONAL MISCONDUCT OF THE VENDOR,ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES. 2. GENERAL INDEMNIFICATION. VENDOR 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 VENDOR AND/OR VENDOR'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 THAT THIS SHALL NOT INCLUDE ACTIONS CAUSED BY THE CITY'S OWN NEGLIGENCE OR WILLFUL CONDUCT. 3. Intellectual Property. The Vendor 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 Vendor. 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 Vendor without the appropriate licenses or permission being secured by Vendor in advance. IT IS FURTHER AGREED THAT VENDOR 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 VENDOR'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 Vendor. 4. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THE VENDOR, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR Performance Agreement Page 4 of 11 PROCEEDING, AT THE VENDOR'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. Vendor 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 Vendor in connection with or incidental to performance under this Agreement. 7. Vendor 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. XI. 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 parry 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 VENDOR City of Fort Worth North Texas Collegiate Consortium Library Director Zachary Williams, Chair 500 W 3`d Street, 3000 Mountain Creek Parkway Fort Worth,Texas 76102 Dallas,Texas 75211 7 With copy to: Assistant City Attorney 200 Texas Street Fort Worth,Texas 76102 The Vendor and City agree to notify the other parry of any changes in addresses. XII. Performance Agreement Page 5 of 11 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 Vendor from hiring subcontractors. XIII. 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. XIV. 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. XV. 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. XVI. GOVERNING LAWNENUE 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. XVII. 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. XVIII. NO THIRD-PARTY BENEFICIARIES Performance Agreement Page 6 of 11 The provisions and conditions of this Agreement are solely for the benefit of City and the Vendor, 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 Vendor's subcontractors are not third- party beneficiaries and that to the extent any claim is made by a subcontractor,Vendor shall indemnify and defend City fully in accordance with section IX of this agreement. XIM 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. XX. 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 Vendor 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. XXI. PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL If Vendor has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Vendor 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,Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. XXII. AUDIT The Vendor agrees that City will have the right to audit the financial and business records of the Vendor 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 Vendor shall make all Records available to City on 200 Texas 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. Performance Agreement Page 7 of 11 XXIII. 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. XXIV. NON-DISCRIMINATION In the execution, performance, or attempted performance of this Agreement, the Vendor 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 Vendor 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 Vendor hereby covenants and agrees that the Vendor, 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 Vendor,its officers, agents, employees, or subcontractors. XXV. 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. XXVI. 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. XXVII. 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. )CXVIII. LICENSES,PERMITS AND FEES/COMPLIANCE WITH LAWS 1. The Vendor 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 Vendor 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 Performance Agreement Page 8 of 11 amended. XXIX. CONDITION OF THE FACILITY/WARRANTIES EXCLUDED If the Performance occurs on City property or is provided by the City, the following provision shall apply.The Vendor hereby represents that he has inspected the facilities at the Event Site intended for the performance, including any improvements thereon, and that the Vendor finds same suitable for all activities and operations agreed to hereunder,and that the Vendor 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. XXX. SIGNATURE AUTHORITY The person signing this Agreement hereby warrants that 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] Performance Agreement Page 9 of 11 IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples, this 24 day of February-, 2021. CITY OF FORT WORTH VENDOR ZGtGh �I IVQII,,twf by: by:Zachary Willia s(Feb 24,202108:53 CST) Manya Shorr Name: Zachary Williams Library Director Title: North Texas Collegiate Consortium, Chair Recommended by: �0-0d— Marilyn Marvin Assistant Library Director APPROVED AS TO FORM AND LEGALITY by:61- Jessika J.Williams Assistant City Attorney Ordinance No. 24161-04-2020 ATTEST: ° oRr�oad� oo 0 �° F no °cos=d °o. ° Mary Kayser aQ� i a ZXAI a' 00000 City Secretary �t 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. OFFICIAL RECORD Timothy Shidal CITY SECRETARY Administrative Services Manager FT. WORTH, TX Performance Agreement Page 10 of 11 Attachment A Performance Dates "Start Time" "Performance Date" Location 4:00 p.m. Aril 22,2021 Virtual Performance 4:00 p.m. Aril 23,2021 Virtual Performance 11:00 a.m. Aril 24,2021 Virtual Performance Performance Agreement Page 11 of 11