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HomeMy WebLinkAboutContract 59393CSC No. 59393 PERFORMANCE AGREEMENT BETWEEN THE CITY OF FORT WO TH AND KATHRYN MCCLATCHY TO PERFORM FOR THE FORT WO TH PUBLIC LIBRARY This PERFORMANCE AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WO TH, a home -rule municipal corporation of the State of Texas ("City"), acting by and through its duly authorized Assistant City Manager, and KATHRYN MCCLATCHY ("Performer"), each individually referred to as a "Party" and collectively referred to as "Parties". WHEREAS, among other activities, City desires to feature performances at The Fort Worth Public Library; WHEREAS, City is continuing to sponsor a series of workshops for writers ("Event") to support the Library's reading goals; and WHEREAS, City wishes to contract with Performer to provide for such services. NOW, THEREFORE, City and 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. Performer agrees to lead a writer's workshop discussion on how an author builds an author platform and brand ("Performance") for City at 6:30 p.m. CDT on June 21, 2023 ("Performance Date") at Northwest Branch Library located at 6228 Crystal Lake Drive, Fort Worth, Texas 76179 unless changed in accordance with this Agreement. 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 at the time of execution. 2. If Performer cannot execute Performance, as scheduled, then City may terminate this Agreement without penalty. II. TERM This Agreement shall begin on June 1, 2023 ("Effective Date") and expire on August 31, 2024 ("Expiration Date"), unless terminated earlier in accordance with this Agreement. III. CO ENSATION 1. As fair compensation for the services provided by Performer to City under this Agreement, City shall pay Performer a total amount of one hundred fifty dollars ($150.00) for the one-time Performance by Performer. Performance Agreement OFFICIAL RECORD CFW & KATHRYN MCCLATCHY Page 1 of 12 CITY SECRETARY g FT. WORTH, TX 2. City shall also reimburse Performer for travel expenses, including applicable taxes, to and from Performance location, in an amount not to exceed seventy-five dollars and no cents ($75.00) for travel to and from Fort Worth for Performance. Requests for reimbursement shall be submitted to City in writing no later than ten (10) days after the completed Performance. 3. Performer shall provide City with a correct and accurate invoice within 30 days of a completed Performance. Performer will be paid within 30 days of City's receipt of a correct and accurate invoice. In no event shall City pay any amount in excess of two hundred twenty-five dollars ($225.00) to Performer. IV. PERFORMER'S OBLIGATIONS 1. Performer agrees to lead a 90-minute writer's workshop discussion on how an author builds an author platform and brand. Performer agrees to participate in a Question/Answer Session with the audience. 2. Performer agrees to arrive at Performance site no later than thirty minutes (30) prior to start time on Performance date. In the event that Performer will not be able to arrive by ten minutes (10) prior to start time on Performance date, Performer agrees to contact Jennifer Demas at 682-287-4306 as soon as Performer is aware of such delay. If Performer arrives after the stated program time on Performance date and Performance cannot take place, as determined by City in its sole discretion, Performer acknowledges and agrees that Performer will not be paid for Performance. 3. Performer shall supply presentation handouts to effectuate Performance and shall remove all such supplies at the conclusion of Performance. 4. Performer shall obtain all necessary consents, permissions, licenses, and other documents from any copyright owners, or others with any interest in 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, actions, and causes of action brought directly or indirectly by any such party. 5. Performer agrees to collaborate with City in promotion of Performance by providing current photographs, biographies and permission to use those items in marketing materials for the term of this Agreement. 6. Performer agrees that Performance will utilize City's licensed webinar solution. 7. 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. Performance Agreement CFW & KATHRYN MCCLATCHY Page 2 of 12 8. Performer shall sign up as an official City vendor via City of Fort Worth website no later than the start of the Performance. V. CITY'S OBLIGATIONS 1. City agrees to designate a representative to coordinate all services to be performed pursuant to this Agreement. 2. City shall supply audio video equipment including a projector, screen, and computer required for Performance. 3. City shall provide a clean, climate -controlled, and well -lighted venue for Performance. 3. City will provide the necessary access and licenses to broadcast Performance online. VI. DUTY TO PERFORM/FORCE MAJEURE City reserves the right to cancel the Performance due to acts of Force Majeure on or near the Performance Date. Acts of Force Majeure shall include, without limitation, severe weather events such as hurricanes, tornadoes, floods, ice storms, or hail, and disasters such as fires, acts of public enemy, acts of superior governmental authority, epidemics, pandemics, riots, rebellion, sabotage, or any similar circumstances not within the reasonable control of either Party. Neither City nor Performer shall be deemed in breach of this Agreement if it is prevented from performance by Force Majeure. VII. PERMISSION TO USE PHOTOGRAPHS & VIDEOS OR FILMS By entering into this Agreement, Performer hereby gives its consent and permission to City to use, display, and publicly display photographs or video captures of 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. Performer shall require all of its subcontractors to agree in their subcontracts to allow City to use the Performance as included above. VIII. INDEPENDENT CONTRACTOR Performer shall operate under this Agreement as an independent contractor and not as an officer, agent, servant, or employee of City. 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 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. Performance Agreement CFW & KATHRYN MCCLATCHY Page 3 of 12 IX. TERMINATION 1. This Agreement may be terminated by City without cause with fourteen (14) days written notice to Performer. This Agreement may also be terminated at any time by City for cause and upon notice to Performer. Performer may terminate this Agreement with thirty (30) days written notice. 2. If City terminates this Agreement pursuant to section one of this clause for any reason, City shall not owe any compensation to Performer. X. LIABILITY/INDEMNIFICATION 1. LIABILITY. 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 HIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE ACT(S), ERRORS, OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF 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 HIND 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 HIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR OMMISSIONS OF PERFORMER AND/OR PERFORMER'S SUBCONTRACTORS AND CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS AGREEMENT. THIS SHALL ALSO INCLUDE ANY CLAIMS BY ANY SUBCONTRACTORS BROUGHT AGAINST CITY FOR ANY USE OF PHOTOGRAPHS, VIDEOS, OR RECORDINGS OF THE PERFORMANCE AND SHALL ALSO INCLUDE ANY CLAIMS AGAINST CITY BY A SUBCONTRACTOR FOR ANY CLAIM RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, EXCEPT THAT THIS SHALL NOT INCLUDE ACTIONS CAUSED BY CITY'S OWN NEGLIGENCE OR WILLFUL CONDUCT. Performance Agreement CFW & KATHRYN MCCLATCHY Page 4 of 12 3. Intellectual Propertv. 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 WHICH THEY MAY BE SUBJECTED ARISING OUT OF PERFORMER'S USE OF ANY COPYRIGHTED MATERIAL BY REASON OF AN ALLEGED OR ACTUAL COPYRIGHT VIOLATION OR OTHER LACK OF OWNERSHIP, AUTHORSHIP, OR ORIGINALITY. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of Performer. 4. IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, PERFORMER, ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT 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. 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. Performance Agreement CFW & KATHRYN MCCLATCHY Page 5 of 12 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 Yd Street, Fort Worth, Texas 76102 With copy to: Assistant City Attorney 200 Texas Street Fort Worth, Texas 76102 PERFORMER Kathryn McClatchy P.O. Box 2442 Granbury, Texas 76048 Performer and City agree to notify the other Party of any change 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 Performer 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 Performance Agreement CFW & KATHRYN MCCLATCHY Page 6 of 12 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 The provisions and conditions of this Agreement are solely for the benefit of City and 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 CFW & KATHRYN MCCLATCHY Page 7 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 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, 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 City that Performer: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. XXII. AUDIT Performer agrees that City will have the right to audit the financial and business records of 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, Performer 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. 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. Performance Agreement CFW & KATHRYN MCCLATCHY Page 8 of 12 XXIV. NON-DISCRIMINATION In the execution, performance, or attempted performance of this Agreement, 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 Performer permit its officers, agents, servants, employees, or subcontractors to engage in such discrimination. This Agreement is made and entered into with reference specifically to Chapter 17, Article III, Division 3, of the City Code of the City of Fort Worth ("Discrimination in Employment Practices"), and Performer hereby covenants and agrees that 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 Performer, its officers, agents, employees, or subcontractors. XXV. GOVERNMENTAL POWERS Both Parties agree and understand that 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. Performer agrees to obtain and pay for all applicable licenses, permits, certificates, inspections, and all other fees required by law necessary to perform the services prescribed for 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 Performer hereby represents that she has inspected the facilities at the Performance Site, including Performance Agreement CFW & KATHRYN MCCLATCHY Page 9 of 12 any improvements thereon, and that Performer finds same suitable for all activities and operations agreed to hereunder, and that Performer does so on an "as is" condition. City hereby expressly excludes any and all warranties in regard to the facilities, including, without limitation, fitness for any particular purpose. XXX. PROHIBITION ON BOYCOTTING ENERGY COMPANIES Performer acknowledges that, in accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2, 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 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., R.S., S.B. 13, § 2. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Performer certifies that Performer's signature provides written verification to City that Performer: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. XXXI. PROHIBITION ON DISCRIMINATION AGAINST FIREARMS AND AMMUNITION INDUSTRIES Performer acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, 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 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., R.S., S.B. 19, § 1. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Performer certifies that Performer's signature provides written verification to City that Performer: (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. XXXII. 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 Performance Agreement CFW & KATHRYN MCCLATCHY Page 10 of 12 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 & KATHRYN MCCLATCHY Page 11 of 12 IN WITNESS WHEREOF, the Parties hereto have executed this agreement in multiples, this 04 day of May , 2023. CITY OF FORT WORTH by: U Marilyn Marvin Interim Library Director Recommended by: Cristi Lemon Interim Assistant Library Director APPROVED AS TO FORM AND LEGALITY Aii#ea ThI i'vs by: Andrea Phillips (May 4,202110:00 CDT) Andrea Phillips Assistant City Attorney Ordinance No. 24161-04-2020 4dppVpn ATTEST: v4 44 0 �'�o�°�' �o d�a=°a CC� aid TEX A5oo oAa lr nbnaavoo Jannette Goodall City Secretary M&C — No M&C Required PERFORMER Kathryn McClatchy Author 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. T!/%�iOf /yimothy Shidal MSk7Oilal23 8CDT) Timothy Shidal Administrative Services Manager Performance Agreement CFW & KATHRYN MCCLATCHY OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 12of12