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HomeMy WebLinkAboutContract 29755 City Secretary Contract Number �f 5 . State of Texas § Tarrant, Denton, Wise § Counties Muzak Messages/On Hold Agreement This Muzak Messages/On Hold Agreement ("Agreement') is entered into by and between the City of Fort Worth, Texas (the "City"), a home rule municipal corporation organized under the laws of the State of Texas and acting by and through Charles Boswell, its duly authorized Assistant City Manager, and Muzak LLC., 3318 Lakemont Blvd., Fort Mill, SC 29708, acting by and through Paul Zytnik, its Account Executive, SERVICE Muzak's Marketing On Hold service, for City, will include up to 8 audio productions annually. Muzak's service and audio productions include scripting, voice talent, music, and music licensing fees. There will be one customized tape and three duplicates. Each location will have the same messages on the tape. The parties hereto agree that this contract is established for services at four locations within the city. The four locations m u z a k are: 1) the City Hall Complex, 1000 Throclunorton Street, Fort Worth, Texas 76102, (the PBX in the City Hall Complex supports the following additional buildings City Hall, City Hall Annex Building, Public Safety Building, and the Convention Center), 2) Animal Control Facility, 4900 Martin Street, Fort Worth, Texas 76119, 3) Solid Waste Customer Service Center, 4100 Columbus Trail, Fort Worth, Texas 76133, and 4) Water SCADA Building, 1511 11`h Avenue, Fort Worth, Texas 76102. EQUIPMENT Muzak's Marketing on Hold service includes telephone playback equipment and interface cable. Muzak will repair or replace any defective equipment provided by Muzak as necessary for the entire length of this agreement at no additional charge to the City. All services, products, and equipment developed and used by Muzak are exclusive property of Muzak and may be copyrighted. Upon termination of service, City will not use Muzak's messages and will return, in good condition, all equipment or pay $395.00 for the equipment per location. FEES City will pay the amount of$41.25 each month, per location and a one-time start-up fee of$50.00 per location for a total of two-hundred dollars and zero cents ( >; G, payments will be due 30 days from receipt of invoice. TERM The City agrees to pay for the above Marketing On Hold services provided by Muzak, LLC for a 12-month term beginning on the date of execution. Thereafter, the City will have an option to renew this agreement for up to three years by providing adequate notice of its desire to exercise this option within 30 days of the expiration date. Said agreement will continue, upon notice, with like terms unless either party elects to provide written amendments as provided herein. PHONE SYSTEM Muzak's service will be provided for the City's telephone system(s) listed above or on Addendum "A" during the term of this Agreement. City is responsible for all costs associated with providing telephone systems with Music On Hold capability. ENTIRE AGREEMENT This Agreement contains the entire understanding and Agreement of the parties. It shall not be modified in any fashion except in writing and signed by each party. NO THIRD-PARTY BENEFICIARIES. This Agreement shall inure only to the benefit of the parties hereto and third persons not privy hereto shall not, in any form or manner, be considered a third party beneficiary of this Agreement. Each party hereto shall be solely responsible for the fulfillment of its own contracts or commitments. APPLICABLE LAW. This Agreement shall be construed under and in accordance with Texas law. VENUE. Venue for any action arising hereunder shall be exclusively in Tarrant County, Texas. FISCAL FUNDING LIMITATION. In the event no funds or insufficient funds are appropriated and budgeted or are otherwise unavailable by any means whatsoever in any fiscal period for payments due under this contract, then the City will immediately notify Muzak of such occurrence and this contract shall be terminated on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except to the portions of annual payments herein agreed upon for which funds shall have appropriated and budgeted or are otherwise available. Provided, h ,T �l,,. J t: ' Section is not intended to grant to the City an independent ground for termination of this agreement separate and apart from any grounds for termination for non-appropriation or non-availability of funds which would be provided to City by reason of Tex. Const. Ann. Art. 11, Sec. 5 and 7. ASSIGNMENT. Neither party hereto shall assign, sublet or transfer its interest herein without prior written consent of the other party, and any attempted assignment, sublease or transfer of all or any part hereof without such prior written consent shall be void. INDEPENDENT CONTRACTOR. Muzak shall perform all work and services hereunder as an independent contractor, and not as an officer, agent, servant or employee of the City. Muzak shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees and subconsultants (or subcontractors). Nothing herein shall be construed as creating a partnership or joint venture between the City and Muzak, its officers, agents, employees and subconsultants (or subcontractors), and doctrine of respondent superior has no application as between the City and Muzak. COMPLIANCE WITH LAW. Contractor, its officers, agents, employees, contractors and subcontractors, shall abide by and comply with all laws, federal, state and local, including the Charter and all ordinances, rules and regulations of the City. It is agreed and understood that, if City calls the attention of Contractor to any such violations on the part of Contractor, its officers, agents, employees, contractors or subcontractors, then Contractor shall immediately desist from and correct such violation. INTERPRETATION. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of the City and Muzak, and any lawful assign or successor of Muzak, and are not intended to create any rights, contractual or otherwise, to any other person or entity. SEVERABILITY. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. FORCE MAJEURE. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war; civil commotion; acts of God; inclement weather; governmental restrictions, regulations, or interferences; fires; strikes; lockouts, national disasters; riots; material or labor restrictions; transportation problems; or any other circumstances which are reasonably beyond the control of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such design or construction requirement shall be extended for a period of time equal to the period such party was delayed. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers. INDEMNIFICATION. MUZAK AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR VIOLA TIONS OF THE FEDERAL COPYRIGHT ACT, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) MUZAK'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF MUZAK, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THE ON-HOLD MESSAGE E }IPf .. � AND SERVICES PROVIDED HEREIN, OR THE PERFORMANCE_ _ AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH MUZAKAND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARA TI VEL Y IN ACCORDANCE WITH THE LA WS OF THE STA TE OF TEXAS. FEDERAL COPYRIGHT ACT. Licensee agrees to assume full responsibility for complying with the Federal Copyright Law of 1978 (17 U.S.C. 101, et seq.) and any Regulations issued thereunder including, but not limited to, the assumption of any and all responsibilities for paying royalties which are due for the use of copyrighted works in Licensee's performances to the copyright owner, or representative or said copyright owner. 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 performance, reproduction, or other use of copyrighted materials by Licensee or its agents or licensees without the appropriate licenses or permission being secured by Licensee in advance. It is further agreed that Licensee shall, to the extent permitted by the Constitution and laws of the state of Texas, defend, indemnify and hold City harmless for any claims arising from nonpayment to licensing agencies, including, but not limited to, ASCAP, BMI, and SESAC or damages arising out of Licensee's infringement or violation of the Copyright Law and/or Regulations. City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing shall be the exclusive obligation of the Licensee. Licensee understands that they are responsible for securing any and all licenses by artists/performers giving permission for the recordings. Licensee is responsible for both reporting and payment of any music licensing fees that may be required by law. Licensee understands and agrees that without the proper license obtained by Licensee, there is a risk of an injunction or money damages arising from a copyright lawsuit brought by ASCAP, BMI, SESAC or any other licensing agency. COUNTERPARTS. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. BREACH/TERMINATION/OPPORTUNITY TO CURE If either Party commits a material breach of this Agreement, the non-b must give written notice to the breaching Party that describes the br ctrl ` detail. The breaching Party must commence curing such breach wi ii1: gn,—(14) calendar days after the time the breaching Party receives such written notice and complete the cure within fourteen (14) calendar days from the date of commencement of the cure. If the breaching Party does not substantially cure such breach within the stated period of time (except for failure of Customer to make any payment when due as discussed below), the non-breaching Party may, in its sole discretion, and without prejudice to any other right under this Agreement, law, or equity, terminate this Agreement by giving written notice to the breaching Party; provided, however, if the breach is not reasonably susceptible to cure by the breaching Party within such fourteen (14) day period, the non-breaching Party shall not exercise its option to terminate this Agreement so long as the breaching Party has commenced to cure the default within such fourteen (14) day period and diligently completes the work within a reasonable time without unreasonable cessation of the work to complete the cure. NOTICES. The contact person for all locations will be the persons named in this "Notices" section. All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designates in writing, by certified mail, postage prepaid, or by hand delivery; City of Fort Worth Muzak LLC. Public Information Office Paul Zytnik 1000 Throckmorton 3318 Lakemont Blvd., Fort Worth, Texas 76102 Fort Mill, SC 29708 (817) 392-6415 (803) 396-3574 Com, J EXECUTED on this, the day of 2004. By: 2 Charles Boswell Assistant City Manager City of Fort Worth dbu i .Oita Attest: rontract *Authorization ' r Ciel, Cit ecretary Date City of Fort Worth Paul Zytnik Account Executive Muzak LLC. Approved as to form and Legality: I P Cafla S. Cook Assistant City Attorney