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HomeMy WebLinkAboutContract 58512 CSC No.58512 PERFORMANCE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND HEATH DOLLAR TO PERFORM 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 municipal corporation of the State of Texas ("City' , acting by and through its duly authorized Library Director, and HEATH DOLLAR ("Author' . WHEREAS, among other activities, the City desires to feature performances at The Fort Worth Public Library; and WHEREAS, the City is sponsoring an author visit ("Event' to support the Library's goals of enhancing the community's reading experience;and WHEREAS, the City wishes to contract with the Author to provide for such services. NOW, THEREFORE, the City and the Author 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 Author agrees to discuss his book, "Old Country Fiddle," and participate in a question/answer session ("Performance's to the City at 6:30 p.m. CST on February 16, 2023 ("Performance Date' at the Northwest Branch Library located at 6228 Crystal Lake Drive, Fort Worth,Texas 76179,unless changed in accordance with this Agreement.The Performance Date may be changed by written mutual agreement of the Parties and any such changes shall be subject to the terms and conditions of this Agreement. 2. If the Author cannot support the Performance as scheduled then the City may terminate this Agreement without penalty. II. COMPENSATION 1. As fair compensation for the services provided by the Author to City under this Agreement, City shall pay the Author a total amount of two hundred dollars ($200.00) for the one-time Performance by the Author. 2. The Author shall provide the City with a correct and accurate invoice within 30 days of the completed Performance. Author will be paid within 30 days of the City's receipt of a correct and accurate invoice. In no event shall City pay any amount in excess of two hundred dollars ($200.00) to the Author.Author shall not be compensated for if the Performance is not completed. III. OFFICIAL RECORD AUTHOR'S OBLIGATIONS CITY SECRETARY FT.WORTH,TX Performance Agreement CFW&Heath Dollar Page 1 of 11 1. The Author agrees to discuss his book, "Old Country Fiddle," and then participate in a Question/Answer session and book signing lasting 90 minutes in length. 2. Author agrees to arrive at the Performance site no later than thirty minutes (30) prior to start time on the Performance date. In the event that Author will not be able to arrive by ten minutes (10) prior to start time on the Performance date, the Author agrees to contact Jennifer Demas at 682-287-4306 as soon as the Author is aware of such delay. If the Author arrives after the stated program time on the Performance date and the performance cannot take place,as determined by City in its sole discretion, the Author acknowledges and agrees that Author will not be paid for the Performance. 3. Author shall obtain all necessary consents, permissions, licenses, and other documents from any copyright owners, or others with any interest in the Performance, at Author's sole cost and expense and will indemnify and hold City harmless from and against any and all claims, suits, threats, demands, actions, and causes of action brought directly or indirectly by any such party. 4. Author agrees to collaborate with the City in promotion of the Performance by providing current photographs, biographies and permission to use those items in marketing materials for the term of this agreement. 5. Author agrees that the Performance will be a hybrid event with a live audience and a virtual audience. The City will broadcast the Performance to the virtual audience utilizing the City's online webinar environment. 6. Author shall sign up as an official City vendor via the City of Fort Worth website no later than the start of the Performance. 7. Author shall provide copies of book to sell to anyone interested at the end of the Performance. IV. CITY'S OBLIGATIONS 1. City agrees to designate a representative to coordinate all services to be performed pursuant to this Agreement. 2. City shall provide a clean,climate controlled, and well-lighted venue for the Performance. 3. City will provide the necessary equipment, access and licenses to broadcast the Performance online. V. 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 Performance Agreement CFW&Heath Dollar Page 2 of 11 enemy, acts of superior governmental authority, epidemics, pandemics, riots, rebellion, sabotage, or any similar circumstances not within the reasonable control of either parry. Neither City nor Author shall be deemed in breach of this Agreement if it is prevented from performance by Force Majeure. VI. PERMISSION TO USE PHOTOGRAPHS By entering into this Agreement, the Author hereby gives its consent and permission to City to use, display, and publicly display photographs or video captures of the Performance 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. Author shall require all of its subcontractors to agree in their subcontracts to allow City use the Performance as included above. VII. INDEPENDENT CONTRACTOR The Author shall operate under this Agreement as an independent contractor and not as an officer, agent, servant,or employee of City.The Author 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 Author 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 1. This Agreement may be terminated by the City without cause with fourteen (14) days written notice to the Author. This Agreement may also be terminated at any time by the City for cause and upon notice to the Author.Author 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 Author. IX. LIABILITY/INDEMNIFICATION 1. LIABILITY. THE AUTHOR 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 AUTHOR,ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES. 2. GENERAL INDEMNIFICATION. AUTHOR 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, Performance Agreement CFW&Heath Dollar Page 3 of 11 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 AUTHOR AND/OR AUTHOR'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 Author 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 Author. 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 Author without the appropriate licenses or permission being secured by Author in advance. IT IS FURTHER AGREED THAT AUTHOR 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 AUTHOR'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 Author. 4. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, THE AUTHOR, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT THE AUTHOR'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 Performance Agreement CFW&Heath Dollar Page 4 of 11 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. Author 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 Author in connection with or incidental to performance under this Agreement. 7. Author 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. 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 AUTHOR City of Fort Worth Heath Dollar Library Director 10816 Middleglen Road 500 W 3rd Street Fort Worth,Texas 76052 Fort Worth,Texas 76102 With copy to: Assistant City Attorney 200 Texas Street Fort Worth,Texas 76102 The Author 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 Author from hiring subcontractors. Performance Agreement CFW&Heath Dollar Page 5 of 11 XII. 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 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. 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 Author, 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 Author's subcontractors are not third- party beneficiaries and that to the extent any claim is made by a subcontractor,Author shall indemnify and defend City fully in accordance with section IX of this agreement. Performance Agreement CFW&Heath Dollar Page 6 of 11 XVIII. CONTRACT CONSTRUCTION The Parties acknowledge that each parry 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 Author 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. XX. PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL If Author has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. Author 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, Author certifies that Author's signature provides written verification to the City that Author: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. XXI. AUDIT The Author agrees that City will have the right to audit the financial and business records of the Author 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 Author 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. XXII. COUNTERPARTS AND ELECTRONIC SIGNATURES Performance Agreement CFW&Heath Dollar Page 7 of 11 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. XXIII. NON-DISCRIMINATION In the execution, performance, or attempted performance of this Agreement, the Author 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 Author 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 Author hereby covenants and agrees that the Author, 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 Author,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. 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. XXVII. LICENSES, PERMITS AND FEES/COMPLIANCE WITH LAWS 1. The Author 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 Author 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. Performance Agreement CFW&Heath Dollar Page 8 of 11 CONDITION OF THE FACILITY/WARRANTIES EXCLUDED The Author hereby represents that she has inspected the facilities at the Event Site intended for the performance, including any improvements thereon, and that the Author finds same suitable for all activities and operations agreed to hereunder, and that the Author 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. XXIM PROHIBITION ON BOYCOTTING ENERGY COMPANIES Author acknowledges that,in accordance with Chapter 2274 of the Texas Government Code,as added by Acts 2021, 87th Leg., PLS., S.B. 13, § 2, the City is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not boycott energy companies;and (2) will not boycott energy companies during the term of the contract. The terms"boycott energy company"and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., PLS., S.B. 13, § 2. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Author certifies that Author's signature provides written verification to the City that Author: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. XXX. PROHIBITION ON DISCRIMINATION AGAINST FIREARMS AND AMMUNITION INDUSTRIES Author acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., PLS., S.B. 19, § 1, the City is prohibited from entering into a contract for goods or services that has a value of$100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice,policy,guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. The terms "discriminate," "firearm entity" and "firearm trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code,as added by Acts 2021, 87th Leg.,PLS., S.B. 19,§ 1. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement,Author certifies that Author's signature provides written verification to the City that Author: (1) does not have a practice,policy,guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. XXXI. SIGNATURE AUTHORITY The person signing this Agreement hereby warrants that she has the legal authority to execute this Performance Agreement CFW&Heath Dollar Page 9 of 11 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 CFW&Heath Dollar Page 10 of 11 IN WITNESS WHEREOF,the parties hereto have executed this agreement in multiples, this 29 day of November 5 2022. CITY OF FORT WORTH AUTHOR by.I�I x — by:Heath Dollar ov 23,202211:40 CST) Manya Shorr Heath Dollar Library Director Author Recommended by: Marilyn Marvin Assistant Library Director APPROVED AS TO FORM AND LEGALITY by: Jessika J.Williams Assistant City Attorney ORpTao ° S °,°41 Ordinance No. 24161-04-2020 ' ° da�0 ° 0 Ij� o ATTEST: 0 � °°pQy�d =� 9 °°°°°°°°°° �° 7S��.Goodall(Nov29,202211- CSC X d Jannette Goodall 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. _ ^ p Timothy Shidal OFFICIAL RECORD Administrative Services Manager CITY SECRETARY FT.WORTH,TX Performance Agreement CFW&Heath Dollar Page 11 of 11