HomeMy WebLinkAboutContract 55791CSC No. 55791
PERFORMANCE AGREEMENT BETWEEN THE CITY QF FQRT WORTH AND
DYSON TO PERFORM FOR THE FORT WORTH PUBLIC LIBItARY
This PERFORMANCE AGREEMENT ("Agxeement"} is made and entered into hy and
between the CITY OF FORT WORTH, a home-rule mu�icipaliry ("City"}, acting by anc� tharough
its duly authorized Assistant City Manager, and MEiRIA1VNE DYSQN ("Author").
WHEREAS, the Cit-� desires to offer programs at the Fort Worrh Pub]ic I.i.brary ("Library")
tk�at contribute to the Library's goa� of becoming the iitera�y hub for the City; and
WHEREAS, the City desires to host a virte.�al Authar visit ta include a presentation involving
the history and future explaration of the Moon based on the Au�hor's books; and
WHEREAS, the City �shes to contract with rhe Author to pra�ride £ox such se:rvices.
N4W, THEREF�RE, the City and the Author fo� and in cons:ideration of the covenants
and agreements hexeinafter set forth, the sufficiency o� which is herebp ackxiowledged, agree as
�o�lows:
T.
TIMELINE OF PERFQRMANCE
1. The Authox agrees �o participate in a live 60 minute v3rhzal visit to include a presentation
involving the history and future exploration of the Moon ("Perfortnance") to the City at 6:30 p.m.
CDT on July 14, 202i ("Perforrnance Date").
2. Tf the Perfam�ance is reschedu�ed, for any reason, the parties agree to execute an amenc�nient
to this Agreement setting forth the rescheduled Perfortnance date. If the Author cannot perform on
the rescheduled Per£ormance Date, then �he City may ter�ninate this Agreement without penaJty. The
City shall have sole discretion �o detertrune the rescheduled Performance Date.
IX.
COMPENSATION
As fair compensation for the services provided by the Author to City utlder this Agreement, Czty shali
pay the Authar a tatal amaunt o£ Three Hund�ted Dollars ($300.00) for rhe one-time Performance
by the Author. The Author shall pxovide tihe City with a correct and accurate invoice by the tenth day
af the month following the campleted Performance. Author will be paid witl�iri 30 days o£ the City's
receipt of a correct and accurate invoice.
IIF.
AUTHOR'S OBLIGATIONS
1. Authar agxe�s to participate in a live 60 minute virt��.al visit to include a presentatian involving
the historp and future e�laration of the Moon. Attendees will learn how the zx�ooz� can be used ta
ensure long-tertn human su.nrival as well as for fian anc� profit.
OFFICIAL RECORD
CITY SECRETARY
FT. W�RTH, TX
Per£oxmance Agreement
2. Author ag�ees to collaborate with the City in promotion of the PerFormance by providing
current pho�ographs, A�thar biographies and pem�issian to use those items in marketing materials
for the term af this agxeenrxer�t.
3. Author agrees that the Performance will be an oniine event using City's licensed webinar
solu�ian.
4. Author shall provide al� zx�aterials neec�ed for th� Performance.
5. The Author shall provide a computer, Internet access, and any software needed to remotely
join and delive� the Pe�fox�tnaxzce utilizing thc Ci�y's onJ.ine webinar environment.
6. Author shall sign up as an official City vendor via the City of Forr Worth website no later than
the Performance.
N.
CITY'S OBLIGATIONS
1. City agrees to desigr�ate a representative to coordinate alI services to be performed pursuant
to thts Agreelnent.
2. City will pro-vide the necessary access and licenses to host tlie Performance online_ City will
pro�vide log-iri information to the Author prior to each Performance Date.
V.
DUTY TQ PERFQRM/FORCE MAJEURE
The City reserves the right to can.cel the Event due to acts o� Force Ma�eure on or near �he
Per Eormance Due Date. Acts of Force Majeure shall inclu.de, withaut lixxutation, severe weather events
such as hurricanes, torr�adoes, floods, ice stornzs, or hail, and disasters such as fires, acts of public
enemy, acts af superiox governmental authority, epidemics, paridemics, riots, rebeilion, sabotage, or
any sit�v.lar circumstances not �itivt� the xeasonable control o� either parky. Neither City nor Authar
shall be deerned in breach af this Agreement zf it is prevented fxom perfar�ance b}T Force Majeure.
VI.
PERMISSI�N TO USE PHOTOGRAPHS & VIDEOS OR FILMS
By entering into tl�is Agreement, the Perfarmer hereby gives its consent and permission to City to the
one time broadcast of the Perforn�ance on #he City's online webinar environtnent. Perforiner sha�l
require all o�its subcontractors to agree in their subcontracts to allow City use the Perfaz7mance as
included above.
'VII.
INDEPENDENT CONTRACTOR
The Author shall opexate under this Agreement as an independent contractor and not as an officer,
agent, servant, or emplo�ee o� Cit�. The Author shall have the exelusive right to control the details oE
the work, its subcontractors, and the services perforxnecE I�ereunder. Ciry shall have na �ght to exercise
any cantrol over oY to supervise or �egulate the Author i� any way other than stated herein. The
I'erformance Agreement Page 2 of 9
doctrine of Respondeat Superior shall not apply as between the parties, and nothing herein shall be
construed as creating a partnexship or joint enterprise b�tween the pa�ties.
VIII.
TERMINATION
1. This Agreernent may be terrrut�ated by the City without cause with fourteen {14} days written
notice to the Author. This Agreemen.t map also be te�tninated at any time by the City far cause axid
upon r�otice to the Author. Author may ternvnat� chis Agreement with thirty (30} ciays written notice.
2. If the City temunates this Agreement pursuant to section one af VIII for anyT reason, City sha]J.
not owe any compensation to the Aukhor.
IX.
LIABILITY/ INDEMNIFI CATiON
1. LIABILITY. THE A�]THQR SHAI.L BE LIABLE AND RESPON5IBLE FOR ANY
AND ALL PROPERTY LOSS, PROPERTY D1�MAGE AND/OR PERSONAL IN�URY,
INCLUD�NG DEATH, TO ANY AND ALL PERSONS, OF ANY ffiND OR CHAR.ACTER,
WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE ACT(5),
ERRORS, OR OMISSION(Sj, MALFEASANCE OR INTENTIONAL MISCONDUCT OF
THE AUTHOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES.
2. GENERAL INDEMNIFICATION. AUTHOR COVENANTS AND AGREES T4
AND DOES HEREBY INDEMNIFY, HOLD �IARMLESS, �1Vll DEFEND, AT ITS OWN
EXPENSE, CIT'Y FROM AND AGA�NST ANY AND ALL CLAIMS, LAWSUITS,
JUDGMENTS, ACT�ONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS,
FEES (INCLUDING, BUT NQT LIMITED TO, ATTORIV]�;Y'S FEES AND COSTS OF
DEFENSE), PROCEEDINGS, DEMANDS, DAMAGES, I IABILITIES, AND/OR SUITS
OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE F4R
PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS'
COMPENSAT�4N ACT I�TABILITY, LOST PROFITS, AND PROPER'I`Y D�GE)
AND/OR PERSONAL iNJLTRY (INCLUDING, BUT NOT LIMITED TO, DEATH} TO
ANY AND ALL PERSONS, OR OTHER HARM FOR W�3ICH RECOVERY OF D1�MAGES
IS SOUGHT, 4F WIiATSOEVER KIND OR CHARACTER, WHETHER RE.AL OR
ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERR4RS, OR
OMMISSIONS OF AUTHOR AND/OR AUTHOR'S SUBCONTRACTORS AND
CON'I'RACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES,
DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATTVES TN CONNEC'TION
WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR
NOIVPERFORMANCE OF THIS AGREEMENT. THIS SHALL ALSO INCLUDE ANY
CI.AIMS BY ANY SUBCONTRACTORS BROUGHT AGAINST CITY FOR ANY USE OF
PHOTOGRAPHS, VIDEOS, OR RECORDINGS OF THE PERFORNLEINCE AND S�i�I.L
ALSO INCLUDE ANY CLAIMS AGAINST CITY BY A SUBCONTRACTOR FOR ANY
CLAIM RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, EXCEPT
THAT THIS SII.AI�L NOT INCLUDE ACTIQNS CAUSED BY THE CITY'S OWN
NEGLIGENCE OR WILLFUL CONLIUCT.
Performance Agreement 1'age 3 of 9
3. Intellectual Pro e. The Author agrees to assume full respansibility for complying with aIl
State and �'ederal InteIlectual I'roperty Laws and anp other regulations, incluc�ir�g, but r�ot limited to,
the assiur�ption of an.y and a31 responsibilities for paying royalties that are due far the �se of other
third-patty copyrighted works by Aathor. City expressly assumes na obligations, implied or otherwise,
regarding payment or co�lectian of any such fees or financaaJ obligatians. City specifically does nat
authorize, pern�it, or condone the �ep�oduction or use of copyrighted materials by Authar without
rhe appropriate licenses or pertnission being secured by Author in advance. IT IS FLTRTHER
AGREED THAT AUTHOR S�3ALL REI.F:ASE, DEFEND, INDEMNIFY, AND HOLD
IIARMLESS CITY FROM 11ND AGAINST ANY AND ALL CLAIMS, LOSSES,
DAMAGES, ACTIONS, OR EXPENSES OF EVERY 'TYPE AND DESCRIPTIQN,
II�TCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, TO WHICH THEY MAY
BE SUBJECTED ARISTNG OUT OF AUTHOR'S USE OF ANY COPYRIGHTED
MATERIAL BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION
OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. Ciry expressly
assumes no obligation to revie�v ox obtain appropriate licensing az�d all such Iicensing shall be the
exclusive obligation of the Author.
4. IF ANY ACTION OR PROCEEDiNG SH.ALL BE BROUGHT BY OR. AGAINST
THE CITY IN CONNECTION W�TH ANY SUCH LiABILITY OR CLAIM, THE
AUTHOR, �N N4TICE FR�M CITY, SHALL DEFEND SUCH ACTION �R
PROCEEDING, AT THE AUTHOR'S EXPENSE, BY OR THRQUGH ATTORNEYS
REASONASLY SATISFACT4RY TO CITY.
5. �T IS AGREED WITH RESPECT TO ANY LEGAL LIMITATIONS NOW OR
HEREAFTER IN EFFECT AND AFFECTING THE VALIDTTY OR
ENFORCEABILITY OF THE INDEMNIFICATION OBLIGATION LFNDER THIS
SECTION, SUCH LEGAL LIMITAT�QNS ARE MADE A PART OF THE
INDEMNIFICATIQN OBLIGATION AND SHALL OPERATE TQ AMEND THE
INDEMNIFiCAT14N OBLIGATI�N T4 THE MINIMUM EXTENT NECESSARY TO
BRING THE PROVISI�N INTO CONFORMITY WITH THE REQUIREMENTS QF
SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION
OBLIGATION SHALL CONTINLTE IN FULL FORCE AND EFFECT.
6. Author agrees to and shall release City £ro:txa any and all ]iability foY injuxy, death, damage, or
loss to petsons or properry sustai.�ned ar caused by Author in coz�nection �vith or incidental to
performance un.der this Agreement.
7. Author shall require all oft its su.bcontractors to include in their subcontracts a release and
indernnity in favor of City in substantiallp the same forrn as above.
8. All indemnification provisions of this Agreement shall survive the ter�zii�iation or expira�on
of this Agreement.
X.
CORRESP�NDENCE
All notices rec�usred or pertr,itted under this Agreement shall be conclusively detemvned 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 orher party ar its authorized agent, employee, sexvant, or
Pexformance Agreement Page 4 of 9
representative by reliable overnight courier or United Srates Mail, postage prepaid, return receipt
rec�uested, at rhe addxess stated below or to such other address as one party map from time to time
notify the other in writing.
CITY
City of Fort Worth
Libraxy Director
500 W 3� Street,
Fort Worth, Texas 76102
With copp to:
Assistant C:iry Attorney
2Q0 Texas St�eet
Fort Worrh, Texas 76102
AUTHOR
Marianne Dyson
15443 Runswick Drive
Houston, TX 77062
The Authot and City agree to notify the other party of any changes in addresses.
XL
NON-ASSIGNABILITY
This Agteement is non-assig�able, and any unauthorized purported assigi�n�ent or delegation of any
duties hereunder, without the jarior wbitten consent of the other party, shall be void and shall constitute
a material bxeach of this Agreement. This provision shall not be construed to prohibit the Authox
�xom hi�ing subcontractors.
XI I.
ENTIRETY
T'his Agreement constitutes the enrire agreement between the parties hereto with respect to �ie subject
matter hereof, and no amendment, alteration, or modification of this Agre�ment shall be valid unless
in each instance suc�Z amendxz�Ent, altexation or modificatian is expressed in a writ�ten insr.rurnent, duly
executed and approved by each af the parties. There are no other agreernents and undexstandings,
o�al ar written, with reference to the subj ect matter hereof that are not merged herein and supers�ded
hereby.
XIII.
MODIFICATION
No amendment, rnodification, or alteration of the terms of this Ag�eement shali be bincling unless the
saz�e is in writing, dated subsequent to the c3ate �ereof, and duly executed by the pa�ties hereto.
XIV.
SEVER�3ILITY
Should any portior�, word, clause, phtase, sentence ar paragraph af this Agree�nent be deGlaxed void
or unenforceable, such portion sk�all be znodr�Zed or deleted in such a manner as to make this
Agreement, as modified, legai and enforceable t4 the fullest extent perrnit�ed under appiicable law.
PerFormance Agreement Page 5 of 9
XV.
GOVERNING LAW/VENUE
If any aclion, whether xeal or asserted, at law or in equity, arises on t�e basis of an�J pYovision of this
Agreement, venue for such action shall �ie in state courts located in Tarrant County, Texas a� the
United States District Caurt for the Northem Dis�rict of Texas — Fort Worth Division. 'T%is
Agreement shall be construed in accordance with the laws oF the State of Texas.
XVI.
WANER
No �vaiver of petformance by eithex party shall be construed as or operate as a waiver of any
subsequent default af any terms, covenants, an� conditions of this Agreement. The payment or
acceptance af fees for any period after a deiault shall not be dee�ned a waivet of any right ot acceptance
of defective performance.
XVII.
NO THIRD-PARTY SENEFIC�ARIES
The provisions and canditions of tivs Agreement are solely for the benefit of City and the Author,
and any lawfi�l successor or assign, and are not intended to c�eate any rights, contraetua3. or otherwise,
to any other person or entity. The Parties expressly agree that Author's subcontractors ate not third-
party beneficiaries and that to the extent any claim is made by a subconttactor, Author shall indernnify
and defend City fully in accorc�ance with section LX of this agreement.
X VIII.
CONTRACT CONSTRUCTION
The Parties acknowledge that each party and, if it so chooses, its caunsel l�ave xeviewecl and revised
this Agreemen� and that the nortnal rule of construction to the eff�ct that any arr�biguities are to be
resolved against the dxafring party tnust not be etxxployed in the inte�retation af this llgreement or
any amendments o� exhibits hereto.
�IX.
FISCAL FUNDING OUT
If, for any reason, at any time during any terr� of this Agreement, the Fort Worth City Caunczl fails
to appxopriate fi�nds sufficient for City to fulfill its obligations under this Agreement, City may
terrninate this Agreement to be effective on the later of {i} thirty {30) days £o}_lowuag delivery by City
to the Author of written notice of City's i�tention to texn�inate or (i�� the last date for which funding
has been appropriated by the Fort Worth City Council for the purposes set farth in rhi.s Agteement.
XX.
PROHIBITIQN ON CONTRACTING WITH COMPANIES THAT BOYC�TT ISR.AEL
If Author has fewer than 10 employees ax this Agxeez�aent is �oz less than $100,000, this section does
not a�ply. Author acknowledges that ici accordance wirh Chapte� 2270 of the Te�eas Government
Perforinance Agreement Page 6 of 9
Code, the City is prohibited frflm enteruig into a conttact 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 Isxael" and "cornpany"
shall have the meanings ascribed to those terms in Section 508.001 of tl�e Texas Govert�-ient Code.
By sia ing this contract, Author cextifies that Authox's sign.atuze provides written verificatian to the
City that Author: (1) does not boycott Israel; and {2) wi_ll not baqcott Israel du�ing the term of the
contract.
XXI.
AL3DIT
The Authos agrees rhat City will have the ri.ght to audit the financial and busir�ess records of the
Author that relate to this Agreement (collectiveiy "Records") at any time during the Ter�xz of this
Agreement and for three (3) pears thexeafter in order ta deterini�ie compliance with this Agreement.
Throughout the Term of this Agxeement and for three (3) years theteafter, the Author shall rzake all
Records available to City on 200 Texas Street, Fort Worth, Texas or at another location zr� City
acceptable to both parties fo3lowing reasonable advarxce notice by Czty and shall othenuise cooperate
fully with Ciry duting any audit. Notwi�hstanding an�rdiing to the contrary herein, this section shall
s�uvive ex�iration or earliex terxniz�ation of this Agxeement.
XXII.
COUNTERPARTS .AND ELECTR�NIC SIGNAT'LTRES
'�`his Agreement may be executed in several counteiparts, each of which will be deemed an onginal,
but all of which together will constitute or�e and the same instrutnent. A signature received via
facsimile or electironically sria email shall be as legally binding for all puxposes as an o�ginal signature.
XXI�I.
NON-DISCR�MINAT�ON
In the execution, performance, or attempted performance of this Ag�eement, the Au�-ior will not
discriniinatie agai��st any persan or persons because of disability, age, familial status, sex, race, �eligion,
colo�, naiaiorxal origin, or sexual orienta#�on, nor �vill the Author pemiit its officers, agents, sezvants,
employees, or subcontractors to engage in such diserimiiiation. 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 ("Discritriiriatian in E�playmerit Practices"), ar�d the Auth�r hereby covenants and agrees
that the Author, its officers, agents, employees, and subcontractors l�ave fully cornplied with aIl
pzoviisions of same and that no ernployee or employee-applicaz�t has bee� disc�iz�n:in.ated against by
eirher the Author, its officers, agents, emplayees, ar subconrractors.
XXIV.
GOVERNMENTAL POWERS
Both Pa�i�es agxee and uz�ders�and rhat the City does nat waive or surrender any of its governmental
povvers by execution of this Agreernent.
XXV.
HF.ADINGS NOT CONTR4LLING
Perfarmance Agreement Page 7 of 9
Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a
part of this Agreement.
XXVI.
REVIEW OF COUNSEL
Tl�e Parties acknowledge tl�at each party arid its counsel have reviewed and revised this Agreenneiit
and that the norn:�a1 xules of cons�iction to the efEect that any ambiguities are to be reso�ved agai�st
the drafting party shall not be ernployed in the interpretatian of this Agreement or exhibits her�to.
XXVII.
L�CENSES, PERMrTS AND FEESIC4MPLIANCE V�TH LAWS
1. 'I'i�E Author agxees to obtain and pap #�or all applicable Iicenses, permits, certificates,
inspections, and all orher fees required by law necessary to perform the services preseribed for the
tluthor to perform hereunder.
2. This Agxeement is subject to all applicable federal, state, and local laws, ardinances, ruies,
and regulations, including, without limitation, all provisions of the City's Charter and ord.inances, as
amen.ded.
XXV�I�.
CONDITION OF THE FACILITY/WARRANTIES EXCLUDED
If the Perfoz�xiance occurs on City pxop�xty or is provided bp the Citp, the follavving provision shall
apply. The Author hereby represents that she has inspected �he facilities at the Event Site intended
for the performance, including any improvements thereon, a�d �hat the Author finds saxne suitable
fox all aciivities and operations agreed to hereunder, and that the �uthor c�oes so on an "as is"
condi.tian. The City hereby expressly excludes anp and aIl warranties in regard to the facilities,
includi�ng, without lirnitatiori, fitness for any particular purpose.
XXIX.
SIGNATURE AUTHORITY
The person sia ing this Agreement hereby warrants that she has the legal authoritp to execute this
Agreem.ent on behalf of his or her respectiv-e party, and that such binding authority has been granted
by proper order, resalurion, ordinance or other authorization af the person or entity. T�e other Party
is fully entitled to rely on this waz�anty and representation in entering into this Agreement. Should
that pexson ar entity not 6e authorized, the terms and conditions of this Agreement shall be bin�g
as against the signatore and s�Ze shall be subject to the terms and conditions of this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
[SIGN.ATUR� PAGE FOLLOWS]
Performance Agxeement Page $ of 9
IN WITNESS WHEREOF, the parties hereto have executed this agreement in muldples, this
/' dap of �7 v � '� , 2021.
CITY OF FORT WORTH
,�
by:' ��`�/�-�
Manya Shorr
LibFaxy Director
AUTHOR
r
bY. " �w-�r � �r�
06/02/2021 Maria e Dyson
Auth r
Recomme�ded by:
���a,�-
Marilyn Matvin
Assistant Library Directox
APPROVED AS TO FORM AND LEGALTTY
, �
by:
Jessika J. Will�ams
Assistant City Attomep
Ordinance No. 24161-04-2020
ATTEST: p�'F F�Rr�ad
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p�o� o�'pt
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Mary Kaysex �da ° o � � i`q`
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City Secretary ��� EXA?o-�'�
M&C — No M&C Required
Cant�ract Compliance Manager:
By si�ning I acicnowledge that I am ihe petson tesponsible
fot the monitaring and administratian of this contra.ct, inclnding
ensuting all pet�'ormance and repor�iing requirements.
�5�� �
Timothy Shidal
Adminisuative Services Manager
OFFICIAL RECORD
CITY SECRETARY
FT. W�RTH, TX
I'erEoxrnance Agreement