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HomeMy WebLinkAboutContract 61553CSCO No. 61553 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 Jaime Esposito ("Performer") WHEREAS, the City wishes to contract with the Performer to participate in a Pride Month employee program on Thursday, June 27, 2024 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. Jaime Esposito, Spectrum Ensemble Co -Founder, agrees to provide any and all materials and equipment needed to deliver a 20 -25 minute instrumental music performance with discussion to be followed by an interactive audience activity, on Thursday, June 27, 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, 2"d Floor Council Chamber, at least 45 minutes in advance of the beginning of the program (11:15 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 SEVEN - HUNDRED DOLLARS ($700.00) 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 Majeure on or near the Performance 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 breach of this Agreement if it is prevented from performance by Force Majeure. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Performance Agreement Page 1 of 7 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 DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO, Performance Agreement Page 2 of 7 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' COMPENSATION 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 AIRY USE OF PHOTOG APHS, 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 Probertv. 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 OREKCTUAL COPYRIG 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 ACTION OR PROCEEDING, AT THE PERFORMER'S EXPENSE, BY OR H THROUG 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 Performance Agreement Page 3 of 7 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 Gary 200 Texas Street, Fort Worth, Texas 76102 With copy to: Assistant City Attorney 200 Texas Street Fort Worth, Texas 76102 PERFORMER Jaime Esposito 6305 Barberry Ave Denton, TX 76208 847-917-2393 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. 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 Performance Agreement Page 4 of 7 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 Bovcott 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. Notwithstanding anything to the contrary herein, this section shall survive expiration or earlier termination of this Agreement. Performance Agreement Page 5 of 7 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 ACCEPTED AND AGREED: CITY OF FORT WORTH: By: Name: Fernando Costa Title: Assistant City Manager Date: June 12, 2024 APPROVAL RECOMMENDED: By: Christina Brooks (Jun 12, 202413:34 CDT) Name: Christina Brooks Title: Director, Diversity & Inclusion ATTEST: By: Name: Jannette Goodall Title: City Secretary PERFORMER: 4.�4UOpQ�� f;'dp� FORl�dO Ovo a=4 aa�n nEaAsa44 LkzfL- By: Jai soo o (Jun 4.202419:07 CDT) Name: Jaime Esposito Title: Performer Date: June 4t it 2024 aUffl9�E 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: Verona O, 20 13:08 CDT) Name: Veronica Gary Title: Manager, Diversity & Inclusion Dept. APPROVED AS TO FORM AND LEGALITY: By: 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