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HomeMy WebLinkAboutContract 55434DocuSign Envelope ID: C04FD265-32E1-4239-A9F5-4FEA4551BB35 CSC No. 55434 PERFORMANCE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND UNIVERSITY OF TEXAS AT AUSTIN TO PROVIDE A PERFORMANCE VIDEO 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 municipaliry ("City"), acting by and through its duly authorized Assistant City Manager, and UNIVERSITI' OF TEXAS AT AUSTIN ("Performer"). WHEREAS, the City desires to offer programs at the Fort Worth Public Library ("Library") that promote the strategic goal of "Education & Growth"; and WHEREAS, the City desires to offer a series of short online videos focused on preparation strategies for future college students; and WHEREAS, the City desires to feature an online video that features a discussion on college applications, college essays, networking skills, and financial aid for future and curYent college students; and WHEREAS, the Cit�7 wishes to contract with the Performer to provide for such services. NOW, THEREFORE, the Ciry 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 electronically deliver a pre-recorded video that includes a discussion on college applications, college essays, netwoYking skills, and financial aid for future and current college students ("Performance") to the City prior to March 20, 2021 ("Performance Delivery Date"). 2. The Performer agYees that the City will broadcast the video in three separate webinars on March 20, April 17, and Ma� 15, 2021 ("Performance Dates"). 3. If the Performer cannot electronically deliver the pre-recorded video prior to the Performance Delivery Date, then the City ma� terminate this Agreement without penalty. II. COMPENSATION 1. Performer shall provide the performance at no charge to City. City 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 to learn about the college application process. The Performer represents that for and in consideration of its obligations under this Agreement, the City is providing a platform for such presentation to occur in an effort to provide an opportunity for its citizens to learn about the college Performance Agreement OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX DocuSign Envelope ID: C04FD265-32E1-4239-A9F5-4FEA4551BB35 application process free of charge. Both parties agree as a condition precedent of this Agreement that both parties have exchanged good and valuable consideration. III. PERFORMER'S OBLIGATIONS 1. Performer agYees to electronically deliver a pre-recoYded video that includes a discussion on college applications, college essays, networking skills, and financial aid for future and current college students. 2. Performer agYees that the PeYfoYmance will be bYoadcast at a later date. PeYformeY agrees that the City will have final authority over the production and final broadcasting. 3. Performer shall supply all performance equipment and supplies required for the Performance. 4. Performer will deliver MP4 video files encoded using the H. 264 codec at 15-20Mbps for 1080p HD content. 5. PerfoYmer will deliver a copy of the video performance electronically via email oY to an online file share. IV. CITY'S OBLIGATIONS 1. City agYees to designate a representative to cooYdinate all services to be performed pursuant to this Agreement. 2. City will provide the necessary access and licenses to host the Performance online. V. DUTY TO PERFORM/FORCE MATEURE The City reserves the right to cancel the Event due to acts of Force Majeure on oY 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 shall be deemed in bYeach of this Agreement if it is prevented from performance by Force Majeure. VI. PERMISSION TO USE PHOTOGRAPHS & VIDEOS OR FILMS By entering into this Agreement, the Performer hereby gives its consent and permission to Ciry to use, display, and publicly play the video provided by the Performer 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� use the Performance as included above. Performance Agreement Page 2 of 9 DocuSign Envelope ID: C04FD265-32E1-4239-A9F5-4FEA4551BB35 VII. INDEPENDENT CONTRACTOR The Performer shall opeYate under this AgYeement as an independent contractor and not as an officer, agent, servant, or employee of City. The Performer shall have the exclusive right to control the details of the work, its subcontractors, and the services performed hereunder. Cit�T shall have no right to exercise any control over or to supervise or regulate the Performer in an�T 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 paxtnership oY joint enterprise between the parties. VIII. TERMINATION This Agreement may be terminated by the City without cause with fourteen (14) days written notice to the Performer. This Agreement may also be teYminated at any time by the Ciry for cause and upon notice to the Performer. Performer may terminate this Agreement with thirty (30) days written notice. IX. LIABILITY/INDEMNIFICATION 1. Intellectual Pro�eYtv. The PerfoYmer agrees to assume full Yesponsibility 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. Cit�7 expressly assumes no obligations, implied or otherwise, regarding payment or collection of any such fees or financial obligations. Ciry specifically= does not authorize, permit, or condone the reproduction or use of copyrighted materials by PerfoYmer 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 the Performer. 2. 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. 3. 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 Performance Agreement Page 3 of 9 DocuSign Envelope ID: C04FD265-32E1-4239-A9F5-4FEA4551BB35 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. 4. Performer agxees 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. 5. 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. 6. 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 otheY paYty, or its authorized agent, employee, servant, or representauve, or (ii) received by the other parry 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 3ra Street, Fort Worth, Texas 76102 With copy to: Assistant City Attorney 200 Texas Street Fort Worth, Texas 76102 PERFORMER University of Texas - Austin UT Youth Engagement Center 3102 Oak Lawn Ave. Suite 195 Dallas, Texas 75219 The PerformeY and City agYee to notify the otheY 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 Vendor from hiring subcontractors. Performance Agreement Page 4 of 9 DocuSign Envelope ID: C04FD265-32E1-4239-A9F5-4FEA4551BB35 XII. ENTIRETY This Agreement constitutes the entire agYeement 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 aYe not merged herein and superseded hereby. XIII. MODIFICATION No amendment, modificarion, or alteration of the teYms 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 poYtion shall be modified or deleted in such a manneY as to make this Agreement, as modified, legal and enfoYceable to the fullest extent permitted under applicable law. XV. GOVERNING LAW/VENUE 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 waiveY of any right oY 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 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 Ciry fully in accordance with section IX of this agreement. Performance Agreement Page 5 of 9 DocuSign Envelope ID: C04FD265-32E1-4239-A9F5-4FEA4551BB35 XVIII. 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. XIX. 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 effecuve on the later of (i) thirry (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. XX. PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL If PerformeY 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 contYact contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel duYing the teYm 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. XXI. 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 ordeY to determine compliance with this Agreement. Throughout the TeYm of this Agreement and for three (3) years thereafter, the 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. XXII. 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 Page 6 of 9 DocuSign Envelope ID: C04FD265-32E1-4239-A9F5-4FEA4551BB35 XXIII. 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, sexvants, employees, or subcontractors to engage in such discrimination. This Agreement is made and entered into with reference specifically to Chapter 17, Arricle III, Division 3, of the City Code of the City of Fort Worth ("Discrimination in Employment Practices"), and the Performer hereby covenants and agrees that the Performer, its officexs, 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. 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 aYe foY 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 PerformeY agYees to obtain and pay for all applicable licenses, peYmits, ceYtificates, inspections, and all other fees YequiYed 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. XXVIII. CONDITION OF THE FACILITY/WARRANTIES EXCLUDED The Performer hereby represents that she has inspected the facilities at the Event Site intended for Performance Agreement Page 7 of 9 DocuSign Envelope ID: C04FD265-32E1-4239-A9F5-4FEA4551BB35 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, fitness for any particular purpose. XXIX. INSURANCE Performer is a governmental entity under the laws of the state of Texas and pursuant to Chapter 2259 of the Texas Government Code, entided "Self-Insurance by Governmental Units," is self-insured and therefore is not required to purchase insurance. Performer will provide a letter of self-insured status upon request. XXX. SIGNATURE AUTHORITY The peYson signing this Agreement hereby warrants that he or she has the legal authoYiry 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 peYson or entity not be authorized, the teYms and conditions of this Agreement sha11 be binding as against the signatory and she shall be subject to the terms and conditions of this AgYeement. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGE FOLLOWS] Performance Agreement Page 8 of 9 DocuSign Envelope ID: C04FD265-32E1-4239-A9F5-4FEA4551BB35 IN WITNESS WHEREOF, the parties hereto have executed this agreement in multiples, this 18 day of March , 2021 CITY OF FORT WORTH � i I�� Ib"`-� by. � Manya Shorr Library Director Recommended by: DVI ���-- l� Marilyn Marvin Assistant Library Director UNIVERSITY OF TEXAS YOUTH ENGAGEMENT CENTER DocuSigned by: b�i�,d.u, S�,cu�.,n.e,�.�.`� � �'��4f'�ssy Business Contracts Administrator APPROVED AS TO FORM AND LEGALITY �l by: Jessika J. Williams Assistant CityT Attorney Ordinance No. 24161-04-2020 ATTEST: / /�'�/ � Mary Kayser City Secretary M&C — No M&C Required ,d'D.U'd�� b �� �ao�oF oR T ��'d ��.� °��� 0 v �o �g-��0 V a=A o � � o0 00 � d��� oo���00000°� *A' ���nEX ASa�'p 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. �5�� � � Timothy Shidal Administrative Services Manager OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Performance Agreement Page 9 of 9