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HomeMy WebLinkAboutContract 55792CSC No. 55792 PERFORMANCE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND VA��T CLIBURN FOUND TION, INC. d/b/a THE CLIBURN 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 municipal corporation of the State of Texas ("City"), acting by and through its duly authorized Assistant City Manager, and VAN CLIBURN FOUND TION, INC. d/b/a THE CLIBURN ("Performer"). WHEREAS, the City is sponsoring a piano series to promote the arts and culture hosted by the Fort Worth Public Library; and WHEREAS, the City desires to host a series of piano programs to help boost community vitality by spotlighting local performers; 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 provide a series of piano concerts to the Ciry ("Performance"). Additional times and locations may be added by written mutual agreement of the Parties in writing within 30 days 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 occur at the times and dates specified in Attachment A, unless changed in accordance with this Agreement. If a Performance is rescheduled, for any reason, the parties may agree to a rescheduled date in writing. II. TERM This Agreement sha11 begin on June 10, 2021 ("Effective Date") and shall expire on June 9, 2022 ("Expiration Date"), unless terminated earlier in accordance with this Agreement. This Agreement may be renewed under the same terms and conditions annually upon mutual agreement of the parties. III. COMPENSATION 1. Performer shall provide the performance at no charge to City. Ciry 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. The Performer represents that for and in consideration of its obligations under this Perfarmance Agreement OFFICIAL RECORD CITY SECRETARY FT. WORTH, TK Agreement, the City is providing a space for such presentation to occur which will provide exposure for the Performer. Both parties agree as a condition precedent of this Agreement that both parties have exchanged good and valuable consideration. IV. PERFORMER'S OBLIGATIONS 1. Performer agrees to provide a series of piano concerts ("Performance") at the location and times listed in Attachment A. 2. Performer shall supply a11 musical and performance instruments, music, and personnel required for the Performance. 3. Performer sha11 obtained all necessary consents, permissions, licenses, and other documents from any artists, composers, musicians, recording companies, musician unions or other labor unions, copyright owners, or others with any interest in the Performance, at Performer's sole cost and expense and will indemnify and hold City harmless from and against any and all claims, suits, threats, demands, acrions, and causes of action brought directly or indirectly by any such party. 4. Performer shall be solely responsible for the payment of any subcontractors including additional musicians. Performer expressly acknowledges and agrees that City is contracting only with Performer and that Performer is solely responsible for any subcontractors, payment thereof, and for any damages or liability incurred by subcontractors. 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 sound engineering and support services at no cost to the Performer. 3. City will provide space for each of the Performances as listed in Attachment A. VI. DUTY TO PERFORM/FORCE MAJEURE The Ciry 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 Performer sha11 be deemed in breach of this Agreement if it is prevented from performance by Force Majeure. VII. PERMISSION TO USE PHOTOGRAPHS & VIDEOS OR FILMS Performance Agreement Page 2 of 12 By entering into this Agreement, the Performer hereby gives its consent and permission to City to use, display, and publicly play the video provided by the Performer in perpetuiry. 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. VIII. INDEPENDENT CONTRACTOR The Performer shall operate under this Agreement as an independent contractor and not as an officer, agent, servant, or employee of Ciry. 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 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. IX. TERMINATION 1. This Agreement may be terminated by the Ciry 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. 2. If the City terminates this Agreement pursuant to section one of VIII for any reason, City shall not owe any compensation to the Performer. X. LIABILITY/INDEMNIFICATION 1. LIABILITY. 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 ORASSERTED, TO THE EXTENT CAUSED BYTHE ACT(S), ERRORS, OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF THE PERFORMER, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 2. GENERAL INDEMNIFICATION. 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, ATTORNEY'S 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 Performance Agreement Page 3 of 12 ANY AND ALL PERSONS, OR OTHER HARM FOR W CH RECOVERY OF DAMAGES IS SOUGHT, OF W TSOEVER KIND OR CHARACTER, W THER 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 THAT THIS SHALL NOT INCLUDE ACTIONS CAUSED BY THE CITY'S OW NEGLIGENCE OR WILLFUL CONDUCT. 3. Intellectual Pro�ert�. 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 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 W CH THEY MAY BE SUBJECTED ARISING OUT OF PERFORMER'S USE OF ANY HI COPYRIGHTED MATERIAL BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OW RSHIP, 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, THE PERFORMER, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT THE PERFORMER'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. Performance Agreement Page 4 of 12 6. 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. 7. 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. 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 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 City of Fort Worth Library Director 500 W 3`d Street, Fort Worth, Texas 76102 With copy to: Assistant Ciry Attorney 200 Texas Street Fort Worth, Texas 76102 PERFORMER The Cliburn 201 Main Street, Ste. 100 Fort Worth, Texas 76102 The Performer and City agree to notify the other party of any changes in addresses. XII. 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, Performance Agreement Page 5 of 12 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 sha11 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 LAW/VENUE 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 sha11 not be deemed a waiver of any right or acceptance of defective performance. XVIII. 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. XIX. 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. Performance Agreement Page 6 of 12 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 Performer 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 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. XXII. 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 sha11 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 Ciry during any audit. Notwithstanding anything to the contrary herein, this section shall survive expiration or earlier termination of this Agreement. 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 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, Performance Agreement Page 7 of 12 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 Ciry Code of the Ciry 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. 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. XXVIII. LICENSES, PERMITS AND FEES/COMPLIANCE WITH LAWS 1. The Performer agrees to obtain and pay for all applicable licenses, permits, certificates, inspections, and a11 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. XXIX. 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, including, without limitation, fimess for any particular purpose. XXX. INSURANCE Performance Agreement Page 8 of 12 During the term of this Agreement, the Performer shall maintain in full force and effect, at her own cost and expense, Commercial General Liabiliry Insurance in at least the minimum amount of $1,000,000 per occurrence with an annual aggregate limit of not less than �2,000,000, and the City shall be named as an additional insured on the insurance policy. The Performer shall be responsible for any and all wrongful or negligent acts or omissions of its employees and agents and for any causes of action arising under strict liability. Additional Insurance Requirements: 1. Certificates of Insurance evidencing that the Performer has obtained a11 required insurance shall be delivered to the City prior to Performer proceeding with the Agreement. 2. Applicable policies shall be endorsed to name the City an Additional Insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers as respects the Contracted services. 3. Certificate(s) of Insurance sha11 document that insurance coverage specified herein are provided under applicable policies documented thereon. 4. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements. 5. A minimum of thirty (30) days' notice of cancellation or material change in coverage shall be provided to the City. A minimum ten (10) day notice shall be required in the event of non- payment of premium. Such terms shall be endorsed onto the Performer's insurance policies. Notice shall be sent to Department of Risk Management, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, Texas 76102. a. Insurers for all policies must be authorized to do business in the state of Texas or be otherwise approved by the Ciry; and, such insurers sha11 be acceptable to the Ciry in terms of their financial strength and solvency. b. Deductible limits, or self-insured retentions, affecting insurance required herein shall be acceptable to the Ciry in its sole discretion; and, in lieu of traditional insurance, any alternative coverage maintained through insurance pools or risk retention groups must be also approved. Dedicated financial resources or Letters of Credit may also be acceptable to the City. c. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the Ciry as respects the Contract. d. The City shall be entitled, upon its request and without incurring expense, to review the Performer's insurance policies including endorsements thereto and, at the City s discretion; the Performer may be required to provide proof of insurance premium payments. e. The Commercial General Liability insurance policy shall have no exclusions by endorsements unless the City approves such exclusions. £ The Ciry sha11 not be responsible for the direct payment of any insurance premiums required by the Agreement. It is understood that insurance cost is an allowable component of Performer's overhead. Performance Agreement Page 9 of 12 g. All insurance required above shall be written on an occurrence basis in order to be approved by the Ciry. h. Subcontractors to the Performer sha11 be required by the Contractor to maintain the same or reasonably equivalent insurance coverage as required for the Performer. When subcontractors maintain insurance coverage, Contractor shall provide City with documentation thereof on a certificate of insurance. Notwithstanding anything to the contrary contained herein, in the event a subcontractor's insurance coverage is canceled or terminated, such cancellation or termination shall not constitute a breach by the Performer of the Agreement. XXXI. SIGNATURE AUTHORITY The person signing this Agreement hereby warrants that 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 entiry 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 FOLLOW ] Performance Agreement Page 10 of 12 I�! �`G'i'i'Nl:titi \Y'1 �1 :Etl�:( )I�, �h� ��arties l��retc> �ti��tti•�• ex�cutecl this ak;��rcine�i� in enulti��le�s, thi, June ?(�?�. 02 �l:{ti� uf� �_ _� _�, -- CITY OF FORT WORTH � �� ' �VI��,� �,,.: � 1ltart}'.2 �hc�rr Libr.►ry' L7u�ctor Recoxi�m�eiided Uy: �j o�u- l �J I�faxil�'ii �fai-��vi Assistant �.i�iran� Director APPR�VED AS TO FOItM AND LEGALITY �J b�-: �essika j. \l'illiams slssistant Cir�• .lttorae�� C)tci.ii��ance \ o. 2-� 1(� 1-(�-�-3O�'[l ATTEST; �• � � � \Ian� 1�1�-ser Cin- Secretan' \�L�C — No :�S&C Required ,d4'd���� ,o,Q'� FORr ��� � � F000000000�L �� 0 � v��� ���IdO �vo °_� �p.�o o�c� d� �o o � ��� nEXASaQ'p Canuact CompIIa�.cc Manager: By signing I ackno�vledgc that 1 am the person responsiblc for the manitariYig and admia�istration of this contract, including ensuting all perforxnance and reportin� requircments. �5�� � Timothy 5hidal � Admi�xisttative 5etvices Manager PerEormance Agreerncrit OFFICIAL RECORD CITY SECRETARY FT. W�RTH, TX Attachment A Performance Dates Date Location S ace June 10, 2021 Golden Triangle Library Outdoor Pop-Up Concert 4264 Golden Triangle Blvd. Fort Worth, TX 76244 June 24, 2021 East Regional Library Outdoor Pop-Up Concert 6301 Bridge Street Fort Worth, TX 76112 July 8, 2021 Meadowbrook Library Outdoor Pop-Up Concert 2800 Stark Street Fort Worth, TX 76112 TBD TBD TBD Performance Agreement Page 12 of 12