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Coppell Arts Council Service Agreement-CN 2020-11-24STATE OF TEXAS § COUNTY OF DALLAS § CONTRACT FOR SERVICES This Contract for Services ("Contract") is made and entered into as of the 1 st day of October, 2020 by and between the City of Coppell, Texas (the "City") and Coppell Arts Council ("Coppell Arts Council'). WITNESSETH: WHEREAS, Coppell Arts Council is a private, non-profit organization established under the laws of the State of Texas for the purpose of providing artistic, educational, and cultural opportunities; and WHEREAS, the Coppell Arts Council's productions and work encourages community involvement and tourism in the City, and the City has an interest in promoting activities to receive the cultural and economic benefits associated therewith; and WHEREAS, it is the City's desire to encourage and promote the arts. NOW, THEREFORE, in consideration of all mutual covenants and agreements hereinafter set forth, the parties do hereby covenant and agree as follows: I. TERM The term of this Contract shall be for a period of one year from the 1 st day of October, 2020 through the 30th day of September, 2021, except as otherwise provided for herein. H. SERVICES Coppell Arts Council covenants and agrees that it shall: (a) Enter leases of a two-year term with artists to display works of art, including outdoor sculptures, within the City limits to be displayed in areas accessible to the public. (b) Provide high quality public art displays to the local community, either at a reasonable cost or free of charge. (c) Install and maintain the necessary infrastructure to display the procured public art, including concrete pads and informational displays. (d) Submit detailed quarterly financial statements and program results to the City within thirty (30) days after the end of the preceding quarter explaining all expenditures. III. COMPENSATION For the specific public art exhibit presented to the governing body, the City shall pay Coppell Arts Council the sum of Twenty -Five Thousand and No/100 Dollars ($25,000.00). Such sum shall be paid upon CONTRACT FOR SERVICES — Page l of 7 receipt of this signed Contract and after October 1, 2020, provided Coppell Arts Council is not then in default of this Contract. IV. INDEMNIFICATION (a) COPPELL ARTS COUNCIL AGREES TO ASSUME AND DOES HEREBY ASSUME ALL RESPONSIBILITY AND LIABILITY FOR DAMAGES OR INJURIES SUSTAINED BY PERSONS OR PROPERTY, WHETHER REAL OR ASSERTED, BY OR FROM THE PERFORMANCE OF SERVICES PERFORMED AND TO BE PERFORMED HEREUNDER BY COPPELL ARTS COUNCIL OR BY ITS OFFICIALS, OFFICERS, EMPLOYEES, OWNERS, MEMBERS, AGENTS, SERVANTS, INVITEES, GUESTS, VOLUNTEERS, CONTRACTORS, SUBCONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM OR ANYONE FOR WHOSE ACTS ANY OF THEM MAY BE LIABLE. (b) INDEMNITY OWED BY COPPELL ARTS COUNCIL. Coppell Arts Council covenants and agrees to FULLY DEFEND, INDEMNIFY AND HOLD HARMLESS the City of Coppell, Texas and the elected officials, the officers, employees, representatives, and volunteers of the City of Coppell, Texas, individually or collectively, in both their official and private capacities (the City of Coppell, Texas and the elected officials, the officers, employees, representatives, and volunteers of the City of Coppell, Texas each being an "Connell Person" and collectively the "Connell Persons"'), from and against any and all costs, claims, liens, harm, damages, losses, expenses, fees, fines, penalties, proceedings, judgments, actions, demands, causes of action, liability, and suits, of any kind and nature whatsoever made upon any Coppell Person, whether directly or indirectly, (the "Claims"), that arise out of, result from, or relate to: (1) the Services as described in Section II of this Contract; (2) representations or warranties by Coppell Arts Council under this Contract; and/or (3) any other act or omission under or in performance of this Contract by Coppell Arts Council, or any owner, officer, director, manager, employee, agent, representative, consultant, contractor, subcontractor, licensee, invitee, patron, guest, customer, or concessionaire of or for Coppell Arts Council, or any other person or entity for whom Coppell Arts Council is legally responsible, and their respective owners, officers, directors, managers, employees, agents, representatives, consultants, contractors, subcontractors, licensees, invitees, patrons, guests, customers, and concessionaires. SUCH DEFENSE, INDEMNITY AND HOLD HARMLESS SHALL AND DOES INCLUDE CLAIMS ALLEGED OR FOUND TO HAVE BEEN CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR GROSS NEGLIGENCE OF ANY COPPELL PERSON, OR CONDUCT BY ANY COPPELL PERSON THAT WOULD GIVE RISE TO STRICT LIABILITY OF ANY KIND. Coppell Arts Council shall promptly advise the City in writing of any claim or demand against any Coppell Person or Coppell Arts Council related to or arising out of Coppell Arts Council' activities under this Contract and shall see to the investigation and defense of such claim or demand at Coppell Arts Council' sole cost and expense. The Coppell Persons shall have the right, at the Coppell Persons' option and at own expense, to participate in such defense without relieving Coppell Arts Council of any of its obligations hereunder. The provisions of this defense, indemnity, and hold harmless obligation, and any other defense, indemnity, and hold harmless obligation set forth in this Contract, shall survive the termination or expiration of this Contract. CONTRACT FOR SERVICES — Page 2 of 7 V. TERMINATION This Contract may be canceled and terminated by either party at any time and for any reason upon giving at least thirty (30) days written notice of such cancellation and termination to the other party hereto. Such notice shall be sent certified mail, return receipt requested, and to the most recent address shown on the records of the party terminating the Contract. The thirty (30) day period shall commence upon deposit of the said notice in the United States mail and shall conclude at midnight of the 30th day thereafter. In the event of such cancellation and termination and if Coppell Arts Council has failed at the time of such cancellation and termination to provide all of the services set forth herein, Coppell Arts Council shall refund to the City that portion of funds paid to Coppell Arts Council under the terms of this Contract in accordance with the following: Promta funding returned to the City by Coppell Arts Council shall be determined by dividing the amount paid by the City under this Contract by 365 (the "daily rate"), and then multiplying the daily rate by the number of days which would have remained in the term hereof but for the cancellation or termination. Upon payment or tender of such amount, all of the obligations of Coppell Arts Council and the City under this Contract shall be discharged and terminated (except as otherwise provided herein) and no action shall lie or accrue for additional benefit, consideration or value for or based upon the services performed under or pursuant to this Contract. VI. CONFLICT OF INTEREST (a) No officer or employee of the City shall have any interest or receive any benefit, direct or indirect, in this Contract or the proceeds thereof. This prohibition is not intended and should not be construed to preclude payment of expenses legitimately incurred by City officials in the conduct of the City's business. No officer or employee of Coppell Arts Council shall have any financial interest, direct or indirect, in this Contract or the proceeds thereof. (b) For purposes of this section, "benefit" means anything reasonably regarded as an economic advantage, including benefit to any other person in whose welfare the beneficiary is interested, but does not include contributions or expenditures made and reported in accordance with any law. X619101WJU-hC!? Prior to adopting its annual budget, Coppell Arts Council shall submit for the City's review a budget showing the use of the City's funds provided pursuant to this Contract, and Coppell Arts Council shall make such periodic reports to the City, as provided for herein, listing the expenditures made by Coppell Arts Council from the funds provided by the City. The approval of Coppell Arts Council' annual budget creates a fiduciary duty in Coppell Arts Council with respect to the funds provided by the City under this Contract. The funds paid to Coppell Arts Council pursuant to this Contract shall be maintained in a separate account established for that purpose and may not be commingled with any other money. Funds received hereunder from the City may be spent for day to day operations, supplies, salaries and other administrative costs provided that such costs are necessary for the promotion and encouragement of the purposes for which the funds may be used as described herein. Coppell Arts Council shall maintain complete and accurate financial records of all of its revenues, including, without limitation, each expenditure of revenue received pursuant to this Contract. By the thirtieth CONTRACT FOR SERVICES —Page 3 of 7 (301') day after the close of each quarter (beginning with the quarter ending December 31, 2020, with the last quarter ending September 30, 2021), Coppell Arts Council shall provide the City the following: (a) a detailed financial report for the previous quarter listing the expenditures made by Coppell Arts Council of the funds paid to Coppell Arts Council under this Contract; and (b) a year-to-date report of the expenditures made by Coppell Arts Council of the funds paid to Coppell Arts Council under this Contract (and if this Contract is terminated prior to its expiration, Coppell Arts Council shall provide such reports as set forth above for the period prior to the expiration for which reports have not been provided, and such obligation shall survive the termination hereof; and the obligation to provide the reports for the last quarter of this Contract shall survive the expiration of this Contract). On request of the City at any time, Coppell Arts Council shall make its records available for inspection and review by the City or its designated representative(s). Within ninety (90) days of the end of Coppell Arts Council' fiscal year, Coppell Arts Council shall provide the City with a financial statement signed by the Chairman of Coppell Arts Council Board of Directors (or other person acceptable to the City) and audited by an independent Certified Public Accountant, setting forth Coppell Arts Council income, expenses, assets and liabilities, and such obligation shall survive the termination or expiration of this Contract. Due to the size of the organization, it may be cost prohibitive to engage a CPA for a full audit. The Coppell Arts Center may instead engage a CPA to perform a review after notifying the City and receiving written confirmation that a review engagement is acceptable. VIII. INDEPENDENT CONTRACTOR In performing services under this Contract, the relationship between the City and Coppell Arts Council is that of independent contractor, and the City and Coppell Arts Council by the execution of this Contract do not change the independent status of Coppell Arts Council. Coppell Arts Council is an independent contractor, and no term or provision of this Contract or action by Coppell Arts Council in the performance of this Contract is intended nor shall be construed as making Coppell Arts Council the agent, servant or employee of the City, or to create an employer-employee relationship, a joint venture relationship, or a joint enterprise relationship, or to allow the City to exercise discretion or control over the manner in which Coppell Arts Council performs the services which are described in this Contract. IX. NON -ASSIGNABILITY; NO THIRD -PARTY BENEFIT Coppell Arts Council may not and shall have no authority to assign, transfer, or otherwise convey by any means whatsoever this Contract or any of the rights, duties or responsibilities hereunder without obtaining the prior written approval of the City, and any attempted assignment, transfer, or other conveyance of this Contract without such approval shall be null and void and be cause for immediate termination of this Contract by the City. This Contract is solely for the benefit of the parties hereto and is not intended to and shall not be deemed to create or grant any rights, contractual or otherwise, to any third person or entity. X. NO PARTNERSHIP, JOINT VENTURE, OR JOINT ENTERPRISE Nothing contained in this Contract shall be deemed to constitute that the City and Coppell Arts Council are partners or joint venturers with each other, or shall be construed or be deemed to establish that their relationship constitutes, or that this Contract creates, a joint enterprise. CONTRACT FOR SERVICES — Page 4 of 7 XI. NON-DISCRIMINATION During the term of this Contract, Coppell Arts Council agrees that it shall not discriminate against any employee or applicant for employment because of race, age, color, sex or religion, ancestry, national origin, place of birth, or handicap. XII. LEGAL COMPLIANCE; CONTRACT SUBJECT TO LAWS; RECITALS Coppell Arts Council shall observe and abide by, and this Contract is subject to, all applicable federal, state, and local (including the City) laws, rules, regulations, and policies (including, without limitation, the Charter and Ordinances of the City), as the same currently exist or as they may be hereafter amended. The above and foregoing recitals to this Contract are true and correct and incorporated herein and made a part hereof. XIII. VENUE; GOVERNING LAW In the event of any action under this Contract, exclusive venue for all causes of action shall be instituted and maintained in Dallas County, Texas. The parties agree that the laws of the State of Texas shall govern and apply to the interpretation, validity and enforcement of this Contract; and, with respect to any conflict of law provisions, the parties agree that such conflict of law provisions shall not affect the application of the law of Texas (without reference to its conflict of law provisions) to the governing, interpretation, validity and enforcement of this Contract. XIV. COUNTERPARTS This Contract may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument. XV. NO WAIVER; RIGHTS CUMULATIVE The failure by either party to exercise any right or power, or option given to it by this Contract, or to insist upon strict compliance with the terms of this Contract, shall not constitute a waiver of the terms and conditions of this Contract with respect to any other or subsequent breach thereof, nor a waiver by such party of its rights at any time thereafter to require exact and strict compliance with all the terms hereof. The rights or remedies under this Contract are cumulative to any other rights or remedies, which may be granted by law. XVI. NOTICES All notices, communications and reports, required or permitted under this Contract shall be personally delivered or mailed to the respective parties using certified mail, return receipt requested, postage prepaid, at the addresses shown below. The City and Coppell Arts Council agree to provide the other with written notification within five (5) days, if the address for notices, provided below, is changed. Notices by personal delivery shall be deemed delivered upon the date delivered; mailed notices shall be deemed communicated on the date shown on the return receipt. If no date is shown, the mailed notice shall be deemed communicated on the third (3rd) day after depositing the same in the United States mail. CONTRACT FOR SERVICES — Page 5 of 7 The City of Coppell's address: Mike Land City Manager City of Coppell 255 Parkway Blvd. Coppell, Texas 75019 Coppell Arts Council' address: President/Chairman of the Board Coppell Arts Council 157 S. Moore Road Coppell, TX 75019 XVII. SEVERABILITY The terms of this Contract are severable, and if any section, paragraph, clause, or other portion of this Contract shall be found to be illegal, unlawful, unconstitutional or void for any reason, the balance of the Contract shall remain in full force and effect and the parties shall be deemed to have contracted as if said section, paragraph, clause or portion had not been in the Contract initially. XVIII. AUTHORITY TO EXECUTE CONTRACT The undersigned officers and/or agents of the parties hereto are the properly authorized officials and have the necessary authority to execute this Contract on behalf of the parties hereto, and each party hereby certifies to the other that any necessary resolutions or other act extending such authority have been duly passed and are now in full force and effect. XIX. ENTIRE AGREEMENT This Contract represents the entire and integrated contract and agreement between the City and Coppell Arts Council and supersedes all prior negotiations, representations and/or agreements, either written or oral. This Contract may be amended only by written instrument signed by both the City and Coppell Arts Council. CONTRACT FOR SERVICES — Page 6 of 7 IN WITNESS THEREOF, the parties hereto have caused this Contract to be signed by their proper corporate officers as first above specified, and have caused their proper corporate seal to be hereto affixed the day and year first above written. CITY OF COP L, S By: City Manager A IC CONTRACT FOR SERVICES — Page 7 of 7 COPPELL ARTS COUNCIL W-V(printed name, title) ATTEST - By: (printed name, title)