HomeMy WebLinkAboutContract 60870CSCO. No:60870
PERFORMANCE AGREEMENT
This Performance Agreement ("Agreement") is made and entered into by and between the
City of Fort Worth, a home -rule municipality existing in the State of Texas ("City"), and DVA
Productions, Inc. ("Performer")
WHEREAS, the City wishes to contract with the Performer to participate in a Juneteenth
program on Thursday, February 15th, from Noon to 1 p.m. ("Performance").
NOW, THEREFORE, the City 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:
1. Performance. Sheran Goodspeed Keyton, DVA Productions Founder and Artistic
Director agrees to provide any and all materials needed to deliver a 15-minute performance
featuring w/ music, entitled Afrofuturism Infused Art, which includes three to four performing
artists to include an artistic interpretation of Afrofuturism from Emancipation to the Present. Music
and monologues will depict enslaved people using science in 1781, black inventors creating
groundbreaking technology in 1881, and hip -hop music rising to fame with electronic sounds in
1981, on Thursday, February 15, 2024 ("Performance Date").
a. Performer agrees that the Performance will be conducted live and in -person
and will be broadcast live on the City's cable, social media, and internet video broadcast
platforms, as well as recorded, for possible future re -broadcast.
b. Performers shall be available for 1.) a technology and Audio/Visual
planning meeting (virtual or in -person, as mutually agreed upon) between one and three
weeks before the performance date, 2.) a sound and video check at the program location,
Fort Worth City Hall, 200 Texas Street, 76102, 2nd Fl. Council Chamber, at least 30
minutes in advance of the beginning of the program (11:30 a.m. CST), and 3.) an informal
Q&A wrap up with audience members/attendees as needed for up to 15 minutes after the
conclusion of the program.
2. Compensation. City shall pay Performer an amount not to exceed ONE
THOUSAND and TWO HUNDRED DOLLARS ($1,200.00) in accordance with the provisions
of this Agreement. Vendor shall not perform any additional services for the City not specified by
this Agreement unless the City requests and approves in writing the additional costs for such
services. City shall not be liable for any additional expenses of Vendor not specified by this
Agreement unless City first approves such expenses in writing. City agrees to pay all invoices of
Vendor within thirty (30) days of receipt of such invoice.
3. Duty to Perform Force Maieure. City reserves the right to cancel the Performance
due to acts of Force Maj eure on or near the Performance Date. Acts of Force Maj eure 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
OFFICIAL RECORD
CITY SECRETARY
Performance Agreement FT. WORTH, Tx Page 1 of 7
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.
4. Permission to Use Photographs & Videos or Films. Performer hereby gives its
consent and permission to City to use and record the Performance provided by the Performer. Use
includes, but is not limited to, publishing, posting on an official website, 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.
5. 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 the Performer in any way other than stated herein. The doctrine of Respondent Superior
shall not apply as between the parties, and nothing herein shall be construed as creating a
partnership or joint enterprise between the parties.
6. Termination.
a. This Agreement may be terminated by the City, without cause, with five (5)
day's written notice to the Performer.
b. This Agreement may also be terminated, with cause, at any time by the City
upon written notice to the Performer.
C. 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 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.
d. Performer may terminate this Agreement with thirty (30) days written
notice to City.
e. If the City terminates this Agreement pursuant to this section, for any
reason, City shall not owe any compensation to the Performer.
7. Liability / Indemnification.
a. 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 THE PERFORMER,
ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES.
b. GENERAL INDEMNIFICATION. PERFORMER COVENANTS
AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND
Performance Agreement Page 2 of 7
DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL
CLAIMS, LAWSUITS, JUDGM NTS, 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 KIND OR NATURE,
INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS
(INCLUDING, BUT NOT LIMITED TO, WORKERS' COM ENSATION 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 KIND 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 THE CITY'S OWN NEGLIGENCE
OR WILLFUL CONDUCT.
C. Intellectual Provertv. 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 the Performer.
d. 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
Performance Agreement Page 3 of 7
ACTION OR PROCEEDING, AT THE PERFORMER'S EXPENSE, BY OR
THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY.
e. 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.
f. 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.
g. 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.
h. All indemnification provisions of this Agreement shall survive the
termination or expiration of this Agreement.
8. Notice. 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
Attn: Veronica Villegas
200 Texas Street,
Fort Worth, Texas 76102
With copy to:
Assistant City Attorney
200 Texas Street
Fort Worth, Texas 76102
PERFORMER
Sheran Goodspeed Keyton
7517 Rock Garden Trail
Fort Worth, TX 76123
817-313-3052
The Performer and City agree to notify the other party of any changes in addresses.
9. Assignment. 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.
Performance Agreement Page 4 of 7
10. Entire Agreement. 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.
11. Modification. No amendment, modification, or alteration of the terms 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.
12. 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.
13. Governing Law / Venue. 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.
14. 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.
15. 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,
the 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 the City that Performer: (1) does not boycott Israel; and (2) will
not boycott Israel during the term of the contract.
16. Right to 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
order to determine compliance with this Agreement. Throughout the Term 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.
Performance Agreement Page 5 of 7
Notwithstanding anything to the contrary herein, this section shall survive expiration or earlier
termination of this Agreement.
17. 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.
18. 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, 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 the Performer hereby covenants and agrees that the 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 the
Performer, its officers, agents, employees, or subcontractors.
19. 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.
20. Licenses, Permits and Fees. The 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 the Performer to perform hereunder.
21. Condition of the Facilitv / Warranties Excluded. The Performer hereby represents
that she has inspected the facilities at the Event Site intended for 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.
22. Signature Authoritv. 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 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 signature and he shall be
subject to the terms and conditions of this Agreement.
Performance Agreement Page 6 of 7
-MORE -
ACCEPTED AND AGREED:
CITY OF FORT W TH:
By:
Name: Fernando Costa
Title: Assistant City Manager
Date: 1 /30/2024
APPROVAL RECOMMENDED:
cb6v ikl
By: Christina Brooks (Jan 30, 202412:26 CST)
Name: Christina Brooks
Title: Director, Diversity & Inclusion
ATTEST: a F FORr°IlIla
d oA N�O9�dc
dig d
�o 0
PVg °=d
�`J � Qa�n nE6o5gq�'
By:
Name: Jannette Goodall
Title: City Secretary
PERFORMER:
Sheran Goodspeed Digitally signed by Sheran
Goodspeed Keyton
By. Keyton Date: 2024.01.23 23:54:23 -06'00'
Name: Sheran Goodspeed Keyton
Title: Performer
Date: January 23 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.
Y&rc'vt� V4��14"g-
By: Veronica Villegas(Jan 26, 202411:00 CS
Name: Veronica Villegas
Title: Manager, Diversity & Inclusion Dept.
APPROVED AS TO FORM AND LEGALITY:
Name: J. B. Strong
Title: Assistant City Attorney
CONTRACT AUTHORIZATION:
M&C: NA
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Performance Agreement Page 7 of 7