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HomeMy WebLinkAboutContract 61206CSC No. 61206 ADDENDUM TO MAIN STREET ARTS FESTIVAL AGREEMENT BETWEEN THE CITY OF FORT WORTH AND DOWNTOWN FORT WORTH INITIATIVES, INC. This Addendum to the Main Street Arts Festival Agreement ("Addendum") is entered into by and between Downtown Fort Worth Initiatives, Inc. ("Owner") and the City of Fort Worth ("Services Provider"), collectively the "Parties." The terms and provisions of the Addendum shall control to the extent there is a conflict between the terms and conditions of this Addendum and the terms and conditions of the Main Street Arts Festival Agreement. The Contract documents shall include the following: 1. The Main Street Arts Festival Agreement; and 2. This Addendum. Notwithstanding any language to the contrary in the attached Main Street Arts Festival Agreement (hereinafter the "Agreement"), the Parties hereby stipulate by evidence of execution of this Addendum below by a representative of each party duly authorized to bind the parties hereto, that the parties hereby agree that the provisions in this Addendum below shall be applicable to the Agreement as follows: 1. Law and Venue. The Agreement will be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to the Agreement, venue for such action will lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. To the extent the Agreement is required to be governed by any state law other than Texas or venue in Tarrant County, Services Provider objects to such terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 2. Arbitration. To the extent the Agreement requires arbitration, Services Provider objects to such terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 3. Insurance. Services Provider is a governmental entity under the laws of the state of Texas and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self -Insurance by Governmental Units," is self -insured and therefore is not required to purchase insurance. To the extent the Agreement requires Services Provider to purchase insurance, Services Provider objects to any such provision, the parties agree that any such requirement shall be null and void and is hereby deleted from the Agreement and shall have no force or effect. Services Provider will make available a letter of self -insured status. 4. Sovereign Immunitv. Nothing herein constitutes a waiver of Services Provider's sovereign immunity. To the extent the Agreement requires Services Provider to waive its rights or OFFICIAL RECORD Addendum to Main Street Arts Festival Agreement CITY SECRETARY Page 1 of 3 FT. WORTH, TX immunities as a government entity; such provisions are hereby deleted and shall have no force or effect. 5. Limitation of Liability and Indemnitv. To the extent the Agreement, in any way, limits the liability of Owner or requires Services Provider to indemnify or hold Owner or any third party harmless from damages of any kind or character, Services Provider objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 6. Ri2ht to Audit. If any money is exchanged as part of this Agreement, then the Services Provider shall have the right to audit the financial and business records of the Owner that relate to any monetary exchange under this Agreement (collectively "Records") at any time during the Term of the Agreement and for three (3) years thereafter. It is expressly understood that no money is being exchanged as part of this Agreement. (signature page follows) (remainder of page intentionally left blank) Addendum to Main Street Arts Festival Agreement Page 2 of 3 ACCEPTED AND AGREED: CITY OF FORT WORTH itz, By: Midori Clark (Mar29, 202411:33 CDT) Midori Clark Library Director Date: M a r 29, 2024 APPROVAL RECOMMENDED: By: Vim`" �"� Cristi Lemon Interim Assistant Library Director ATTEST: oQavpp� �aoF FORraa v° 9�oo= *noa�pB 4ddA a�*q � sa*o.*o Jannette Goodall City Secretary DOWNTOWN FORT WORTH INITIATIVES, INC. ,7ati bowilie By: Jay Doviie (Mar28, 202417:19 CDT) Name: John "Jay" Downie, CFEE Title: Director, Festival and Events Date: M a r 28, 2024 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. By: 6� Paul Orr Interim Administrative Services Manager APPROVED AS TO FORM AND LEGALITY: By: Andrea Phillips Assistant City Attorney CONTRACT AUTHORIZATION: M&C: N/A 1295: N/A OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX andle Downtown Fort Worth Initiatives, Inc. 1. NAME OF SERVICES PROVIDER: 2. ADDRESS: 3. CITY, STATE, ZIP: 4. CELL PHONE/EMAIL: 5. NAME OF REPRESENTATIVE: 6. DATE: DOWNTOWN FORT WORTH INITIATIVES, INC. SERVICES PROVIDER AGREEMENT Fort Worth Public Library 500 W. 3rd Street Fort Worth, Texas 76102 682-215-6391/ Tabitha.Guessna.fortworthtexas.eov Tabitha Guess January 29, 2024 7. THIS AGREEMENT (the "Agreement") is made and entered into on the date listed in Paragraph 6, by and between Downtown Fort Worth Initiatives, Inc. ("Owner"), and the organization listed on Paragraph 1 ("Services Provider"). 8. WHEREAS, Owner has the exclusive right to organize an arts festival which is to be held April 18-21, 2024, with set- up to beginning at 6:00 AM on April 17, 2024, and tear -down by 8:00 PM on April 21, 2024, in Fort Worth, Texas, specifically on Main Street and adjacent side streets between Weatherford Street to the north and 9t' Street to the south, an on approved private or public property, including Sundance Square property, in downtown Fort Worth, Texas, collectively known as MAIN ST. Fort Worth Arts Festival (the "Event"); and 9. WHEREAS, Services Provider has been authorized to provide equipment, labor or other services ("Services") for the Event in exchange for financial or other promotional rights to be provided by Owner. 10. NOW, THEREFORE, in consideration of the mutual agreements and promises contained herein, the parties hereto agree as follows: 11. Services to be provided: Activity area in the TCC Makers Zone 12. Schedule of Services delivery and removal: Delivery: Wednesday April 17, 2024 Pick -Up: Sunday, April 21, 2024 On Sundance Square property: Yes No X 13. Fee. There is no charge to the Fort Worth Public Library for their participation in the 2043 MAIN ST. Fort Worth Arts Festival. 14. Delivery and Service. All of Services Provider's personnel shall be subject to Owner's security and personnel policies and practices. Any storage, delivery or placement of Services shall be at Services Provider's expense. 15. Risk of Loss. Owner represents and warrants that to the extent storage of the Products is under the control and/or supervision of Owner, Services Provider will assume all risk of loss and will provide adequate insurance to cover their replacement and will further erect, store or place the Services safely and securely in a location approved by Provider. 16. Responsibilities. Services Provider agrees to conduct its business in a safe, orderly and lawful manner and to abide by all rules and regulations prescribed by the Owner or any applicable governing authority, including, without limitation, those relating to: (a) the approval of products to be presented to the public; (c) wearing of acceptable uniforms or other garb by all personnel employed on the Venue by Services Provider; (d) the names of all persons in charge on the Venue, one of whom shall always be on the Venue when the same are in operation; (e) the hours of operation of the Venue, which shall be the same as the hours of operation of the Event; (f) the maintenance of the Venue. Services Provider shall supervise the Venue using its best skill and attention, and shall be solely responsible for all labor, materials, equipment, tools and other facilities used by it during the Event. 17. Warranties. (a) Owner Warranties. Owner represents and warrants that: (i) it has the full right and legal authority to enter into and fully perform this Agreement in accordance with its terms without violating the rights of any other person; Downtown Fort Worth Initiatives, Inc. • 777 Taylor Street, Suite 100 • Fort Worth, TX 76102 Page 1 Phone: 817-336-2787 • Fax: 817-335-3113 • www.mainstreetartsfest.org • festivalinfo@dfwi.org (ii) it has all government licenses, permits or other authorizations necessary to conduct the Event as contemplated under this Agreement; and (iii) it will comply with all applicable laws, regulations and ordinances pertaining to the promotion and conduct of the Event. (b) Services Provider Warranties. Services Provider represents and warrants that: (i) it has the full right and legal authority to enter into and fully perform this Agreement in accordance with its terms without violating the rights of any other person; (ii) it has all government licenses, permits or other authorizations necessary to conduct its business; and; (iii) all Products furnished by Services Provider shall be of high quality and shall be free from product defects and shall be merchantable and suited for their intended purpose. 18. INDEMNIFICATIONS. (a) EVENT INDEMNITY. TO THE FULLEST EXTENT PERMITTED BY LAW, SERVICE PROVIDER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS OWNER, ITS PARENT, SUBSIDIARY AND AFFILIATED CORPORATIONS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, THE CITY OF FORT WORTH, TEXAS, DOWNIE PRODUCTIONS, INC. AND ASSIGNS, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, LOSSES, GOVERNMENT PROCEEDINGS AND COSTS AND EXPENSES, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS' FEES AND COSTS OF SUIT, ARISING OUT OF OR RESULTING FROM THIS AGREEMENT OR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE CONDUCT OF THE EVENT, PROVIDED THAT SUCH CLAIM, DAMAGE, LOSS OR EXPENSE IS ATTRIBUTABLE TO BODILY INJURY, SICKNESS, DISEASE OR DEATH, OR THE INJURY OR DESTRUCTION OF TANGIBLE PROPERTY REGARDLESSS OF WHETHER OR NOT IT IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL FAULT OF THE INDEMNITEE. IT IS THE EXPRESS INTENT OF THE SERVICES PROVIDER TO INDEMNIFY OWNER FOR OWNER'S OWN, JOINT, AND CONCURRENT NEGLIGENCE. (b) ADDITIONAL SERVICES PROVIDER CONCESSION INDEMNITY. SERVICES PROVIDER WILL INDEMNIFY OWNER AS DESCRIBED IN SUBPARAGRAPH (a) FOR ANY AND ALL PROPERTY DAMAGE OR PERSONAL INJURY OR OTHER CAUSE OF ACTION OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SALE, DISTRIBUTION, USE OR MISUSE OF SERVICES PROVIDER'S PRODUCTS AS CONCESSIONS AT THE EVENT. SERVICES PROVIDER FURTHER REPRESENTS AND WARRANTS THAT ALL VOLUNTEERS AND EMPLOYEES UTILIZED BY IT TO ADMINISTER AND STAFF ITS CONCESSIONS AT THE EVENT SHALL BE, AS BETWEEN OWNER AND SERVICES PROVIDER, SERVICES PROVIDER'S EMPLOYEES, AND SERVICES PROVIDER SHALL BE SOLELY RESPONSIBLE THEREFORE AND WILL DISCHARGE ALL EMPLOYMENT RESPONSIBILITIES TOWARDS THEM REGARDLESSS OF WHETHER OR NOT IT IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL FAULT OF OWNER. (c) NOTICE OF CLAIMS. SERVICES PROVIDER WILL GIVE OWNER PROMPT WRITTEN NOTICE OF ANY CLAIM OR SUIT POSSIBLY COMING WITHIN THE PURVIEW OF ANY INDEMNITY SET FORTH IN THIS AGREEMENT. UPON THE WRITTEN REQUEST BY OWNER, SERVICES PROVIDER WILL ASSUME THE DEFENSE OF ANY SUCH CLAIM, DEMAND, ACTION OR PROCEEDING. OWNER SHALL ALSO HAVE THE RIGHT TO PROVIDE ITS OWN DEFENSE AT ITS OWN EXPENSE, PROVIDED SERVICES PROVIDER SHALL NOT SETTLE ANY CLAIM WITHOUT OWNER'S WRITTEN CONSENT. TERMINATION OF THIS AGREEMENT SHALL NOT AFFECT THE CONTINUING OBLIGATIONS OF EACH OF THE PARTIES UNDER THIS PARAGRAPH 18 AND PARAGRAPH 19. 19. Insurance. Each party hereunder shall obtain and maintain at its own expense, during the Term of this Agreement and for a period of one year following the Event, a standard Comprehensive General Liability Policy written by a United States insurance company in the face amount of $1,000,000, which policy shall (i) specifically cover such party's contractual liabilities, (ii) provide standard product liability protection and (iii) list the necessary parties on the Insurance Addendum as an additional insured. Such insurance shall be in a form reasonably acceptable to counsel for the other and shall require the insurer to give the other at least thirty (30) days' prior written notice of any modification or cancellation. Each party shall provide the other with such evidence of coverage as may be reasonably acceptable to the Downtown Fort Worth Initiatives, Inc. • 777 Taylor Street, Suite 100 • Fort Worth, TX 76102 Page 2 Phone: 817-336-2787 • Fax: 817-335-3113 • www.mainstreetartsfest.org • festivalinfo@dfwi.org other within thirty (30) days following the execution of this Agreement. Additionally, any and all employees of Services Provider must carry appropriate worker's compensation insurance, and any sub contractors of the Services Provider must also carry appropriate worker's compensation insurance. 20. Weapons. Services Provider hereby acknowledges notice of and agrees to the weapons policy established by the Event. Services Provider and their employees and volunteers expressly agree not to carry any guns, firearms, or weapons of any kind while participating in the Event, regardless of whether the Services Provider employees or volunteers is licensed to carry a concealed handgun. Failure to abide by the weapons policy shall constitute a default under this Agreement. 21. Term and Termination. (a) Term. This Agreement shall become effective on the date first above written and shall expire on April 21, 2024 at 11:59pm unless terminated earlier or renewed pursuant to the terms hereof (the "Term"). (b) Termination by Owner. Without prejudice to any other rights or remedies that Owner may have, Owner may terminate this Agreement immediately by delivery of notice to Services Provider at any time if any of the following events shall occur: (i) Services Provider shall fail to comply with Paragraph 15 hereof in any respect and fail to cure the same within five (5) days of receipt of notice of such failure; (ii) Services Provider shall (1) make an assignment for the benefit of creditors, (2) be adjudicated bankrupt, (3) file a voluntary petition in bankruptcy or a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under Title 11 of the United States Code or any successor or other federal or state insolvency law ("Bankruptcy Law"), (4) have filed against it an involuntary petition in bankruptcy or seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law, which petition is not discharged within thirty (30) days or (5) shall apply for or permit the appointment of a receiver or trustee for its assets; (iii) Services Provider shall default under any provision of this Agreement and shall have failed to cure such default within five (5) days after it received written notice of such default from Owner; or (iv) any of the representations or warranties made by Services Provider in this Agreement shall prove to be untrue or inaccurate in any material respect. (c) Termination by Services Provider. Without prejudice to any other rights or remedies that Services Provider may have, Services Provider may terminate this Agreement immediately by delivery of notice to Owner at any time if any of the following events shall occur: (i) Owner shall fail to comply with Paragraph 15 hereof in any respect and fails to cure the same within five (5) days of receipt of notice of such failure; (ii) any of the events described in subparagraph (ii) above shall occur with respect to Owner; (iii) Owner shall default under any provision of this Agreement and shall have failed to cure such default within thirty (30) days after it shall receive written notice of such default from Services Provider; or (iv) any of the representations or warranties made by Owner in this Agreement shall prove to be untrue or inaccurate in any material respect. 22. Effect of Cancellation on Services Provider. In the event that the Event does not take place, in whole or in part, due to any Act of God or force majeure, including, without limitation, weather, fire, flood, strike, labor dispute, civil commotion, riot or threat of violence or similar cause beyond the control of the parties, and the Services have not been delivered or cancelled prior to the start of set up or initial delivery for the Event, Owner shall have no liability whatsoever for Fees described in paragraph 13. 22. Arbitration. The parties agree that any dispute between them arising out of, based upon or relating to this Agreement shall be resolved exclusively by arbitration conducted in accordance with the Commercial Rules of the American Arbitration Association then in effect. Such arbitration shall be held in Fort Worth. Judgment upon the award rendered shall be final and non -appealable and may be entered in any court having jurisdiction. Each party shall bear its own expenses arising out of any such proceeding, except that the fees and costs of any arbitrator(s) shall be borne equally by the parties. Notwithstanding the obligations set forth in this Paragraph, each party shall be permitted to seek equitable relief from a court having jurisdiction to prevent the unauthorized use or misuse of their respective Trademarks. 23. Miscellaneous. Downtown Fort Worth Initiatives, Inc. • 777 Taylor Street, Suite 100 • Fort Worth, TX 76102 Page 3 Phone: 817-336-2787 • Fax: 817-335-3113 • www.mainstreetartsfest.org • festivalinfo@dfwi.org (a) Confidentiality. The parties hereto agree to maintain in confidence the terms and conditions of this Agreement except to the extent that a proposed disclosure of any specific terms or conditions hereof by either party is authorized in advance by the other party. (h) No Joint Venture or Partnership. This Agreement shall not be deemed to create a joint venture, partnership, principal -agent, employer -employee or similar relationship between Owner and Services Provider. (c) Invalidity. The determination that any provision of this Agreement is invalid or unenforceable shall not invalidate this Agreement, all of said provisions being inserted conditionally on their being considered legally valid, and this Agreement shall be construed and performed in all respects as if such invalid or unenforceable provision(s) were omitted. (d) Notices. All notices required or permitted to be made under this Agreement shall be in writing and shall be deemed to have been duly given when delivered or sent by prepaid certified or registered mail or telex: If to Owner, to: Jay Downie, CFEE Downtown Fort Worth Initiatives, Inc. 777 Taylor Street, Suite 100 Fort Worth Texas 76102 If to Services Provider: Name and address in para, 1, 2, 3 and 4 above or such other address as either party may designate in writing to the other party for this purpose. (e) Governing Law. This Agreement is subject to and shall be construed in accordance with the laws of the State of Texas, except for choice of law provisions. Services Provider and Owner both consent to jurisdiction in the state and federal courts located in Texas and hereby waive personal service. (fl Non -Assignment. Neither party shall assign this Agreement without the prior written approval of the other party, except that Services Provider may assign this Agreement to any entity which acquires substantially all of its assets. (g) Complete Agreement. This Agreement represents the entire agreement between the parties and supersedes all other agreements, if any, express or implied, whether written or oral. Owner has made and makes no representations of any kind except those specifically set forth herein. (h) Binding Agreement. This Agreement shall be binding upon the parties, their successors and assigns. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written. Owner: Downtown Fort Worth Initiatives, Inc. 7/\p� pDownie By: a„ w� ;.w.a ­417.lQcnT) John "Jay" Downie, CFEE Title: Director, Festival and Events Date: Mar 28, 2024 Services Provider: By Midtori Tart7Mar29,202411:33 CDn Print Name: Midori Clark Title: Library Director Date: Mar 29, 2024 Downtown Fort Worth Initiatives, Inc. • 777 Taylor Street, Suite 100 • Fort Worth, TX 76102 Page 4 Phone: 817-336-2787 • Fax: 817-335-3113 • www.mainstreetartsfest.org • festivalinfo@dfwi.org Insurance Addendum Requirements for contractors, vendors and participants in events downtown Effective (02.13.14) COMMERCIAL GENERAL LIABILITY, OR $1,000,000 each occurrence SPECIAL EVENT LIABILITY POLICY This policy must contain Additional Insured status (Per endorsement form CG2026 or its equivalent) for the Indemnities and include Contractual Liability in support of the Indemnity provision in the License Agreement. This policy must contain Additional Insured status (Per endorsement form CG2026 or its equivalent) for the Indemnitees and include Contractual Liability in support of the Indemnity provision in the License Agreement. Indemnities to be listed as Additional Insured are: Downtown Fort Worth Initiatives, Inc. & Downtown Fort Worth, Inc. 777 Taylor Street Suite 100, Fort Worth, TX 76102 fax 817-335-3113 Rotary Club of Fort Worth 306 West 7th Street, Suite 305, Fort Worth TX 76102 Downtown Fort Worth Founder Lions Foundation, Inc. P.O. Box 2663, Fort Worth, TX 76113 The City of Fort Worth 1000 Throckmorton St., Fort Worth, TX 76102 fax 817-392-8941 Downie Productions, Inc. 7120 Royalgreen, Cincinnati, OH 45244 phone 513-615-1474 WORKERS COMPENSATION - If contractor, vendor or participant has employees. This policy must include a Waiver of Subrogation in favor of Indemnitees. If Contractor has no employees, all vendors and contractors involved in the event must provide Workers Comp. AUTO LIABILITY - If Contractor is using vehicles on site, Contractor should at least have Non -Owned and Hired Auto Liability, with the Indemnitees as Additional Insured. XD Services Provider Initials: J6 Downtown Fort Worth Initiatives, Inc. • 777 Taylor Street, Suite 100 • Fort Worth, TX 76102 Page 5 Phone: 817-336-2787 • Fax: 817-335-3113 • www.mainstreetartsfest.org • festivalinfo@dfwi.org