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HomeMy WebLinkAboutContract 63266CSCO:63266 PERFORMANCE AGREEMENT This Performance Agreement ("Agreement") is made and entered into by and between the City of Fort Worth, a Texas home -rule municipality ("City") and Grace Evangelista ("Presenter"). WHEREAS, the City wishes to contract with the Presenter to participate in an Asian American Pacific Islander Month program on Thursday, May 15, 2025, from 12:00 p.m. to 1:00 p.m. ("Presentation"). NOW, THEREFORE, the City and the Presenter, for and in consideration of the covenants and agreements hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows: 1. Presentation. Presenter agrees to participate in the City of Fort Worth Asian American Pacific Islander History Month employee program, Celebrating Hawaiian Legacy, Inspiring Future Generations, on Thursday, May 15, 2025, from 12:00 p.m. to 1:00 p.m. ("Presentation Date"), by delivering a hula and Tahitian show with audience participation, to include 100 silk leis for audience members, three hula dances, followed by a routine that encourages audience participation, and three fast Tahitian dances performed to traditional drumbeats. The dancers will stay for an additional five (5) minutes for picture taking. In addition, a ukelele singer will perform for ten (10) minutes prior to the event as guests arrive, one song with educational/demonstration during the program, and ten (10) minutes after the program as participants leave. a. Presenter agrees that the Presentation will be conducted live and in -person and will be recorded for future viewing on the City's intranet or as part of other video programming. b. The Presenter shall provide all materials needed to participate in the program, including but not limited to digital copies of slide decks, handouts, etc. which should be made available for review and approval at least one week in advance of the program date. C. The Presenter shall arrive at the program location, Fort Worth City Hall, 100 Fort Worth Trail, Fort Worth, Texas 76102, City Council Chamber, at least 30 minutes in advance of the beginning of the program (11:30 a.m. CST) and remain available to answer any audience/participant questions for up to 15 minutes after the conclusion of the program (1: 10 p.m. CST). 2. Compensation. City shall pay Presenter an amount not to exceed NINE HUNDRED & SEVENTY DOLLARS ($970.00) 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 from Vendor within thirty (30) days of receipt of such invoice. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Performance Agreement Page 1 of 9 3. Duty to Perform Force Majeure. 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. 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 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. 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, for any reason, with twenty- four (24) hours written notice to the Performer. b. 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. C. Performer may terminate this Agreement with seven (7) days written notice to City. d. 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 KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE ACT(S), ERRORS, OR OMISSION(S), Performance Agreement Page 2 of 9 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, 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 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 Property. 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. Performance Agreement Page 3 of 9 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 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: Sharon A. Burkley 100 Fort Worth Trail Fort Worth, Texas 76102 With copy to: Assistant City Attorney 100 Fort Worth Trail Fort Worth, Texas 76102 PERFORMER Grace Evangelista 10341 Bear Hollow Dr. Keller, TX 76244 214-738-1809 The Performer and City agree to notify the other party of any changes in addresses. 9. Insurance. During the term of this Agreement, the Performer shall maintain in full force and effect, at her own cost and expense, Commercial General Liability Insurance in at least Performance Agreement Page 4 of 9 the minimum amount of $1,000,000 per occurrence with an annual aggregate limit of not less than $2,000,000, and the City shall be named as an additional insured on the insurance policy. The Performer shall be responsible for any and all wrongful or negligent acts or omissions of its employees and agents and for any causes of action arising under strict liability. Additional Insurance Requirements: 1. Certificates of Insurance evidencing that the Performer has obtained all required insurance shall be delivered to the City prior to Performer proceeding with the Agreement. 2. Applicable policies shall be endorsed to name the City an Additional Insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers as respects the Contracted services. 3. Certificate(s) of Insurance shall document that insurance coverage specified herein are provided under applicable policies documented thereon. 4. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements. 5. A minimum of thirty (30) days' notice of cancellation or material change in coverage shall be provided to the City. A minimum ten (10) day notice shall be required in the event of non-payment of premium. Such terms shall be endorsed onto the Performer's insurance policies. Notice shall be sent to Department of Risk Management, City of Fort Worth, 100 Fort Worth Trail, Fort Worth, Texas 76102. a. Insurers for all policies must be authorized to do business in the state of Texas or be otherwise approved by the City; and, such insurers shall be acceptable to the City in terms of their financial strength and solvency. b. Deductible limits, or self -insured retentions, affecting insurance required herein shall be acceptable to the City in its sole discretion; and, in lieu of traditional insurance, any alternative coverage maintained through insurance pools or risk retention groups must be also approved. Dedicated financial resources or Letters of Credit may also be acceptable to the City. C. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the City as respects the Contract. d. The City shall be entitled, upon its request and without incurring expense, to review the Performer's insurance policies including endorsements thereto and, at the City's discretion; the Performer may be required to provide proof of insurance premium payments. e. The Commercial General Liability insurance policy shall have no exclusions by endorsements unless the City approves such exclusions. f. The City shall not be responsible for the direct payment of any insurance premiums required by the Agreement. It is understood that insurance cost is an allowable component of Performer's overhead. Performance Agreement Page 5 of 9 g. All insurance required above shall be written on an occurrence basis in order to be approved by the City. h. Subcontractors to the Performer shall be required by the Contractor to maintain the same or reasonably equivalent insurance coverage as required for the Performer. When subcontractors maintain insurance coverage, Contractor shall provide City with documentation thereof on a certificate of insurance. Notwithstanding anything to the contrary contained herein, in the event a subcontractor's insurance coverage is canceled or terminated, such cancellation or termination shall not constitute a breach by the Performer of the Agreement. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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; Performance Agreement Page 6 of 9 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. 17. Prohibition on Bovcottina Enerav Companies. Performer acknowledges that in accordance with Chapter 2276 of the Texas Government Code, City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. To the extent that Chapter 2276 of the Government Code is applicable to this Agreement, by signing this Agreement, Performer certifies that their signature provides written verification to City that Performer: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. 18. Prohibition on Discrimination Against Firearm and Ammunition Industries. Performer acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more full-time employees unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract against a firearm entity or firearm trade association. To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Performer certifies that their signature provides written verification to City that Performer: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. 19. Ri2ht 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 100 Fort Worth Trail, 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. 20. 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 7 of 9 21. 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. 22. 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. 23. 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. 24. 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. 25. 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 parry, 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 she shall be subject to the terms and conditions of this Agreement. Performance Agreement Page 8 of 9 ACCEPTED AND AGREED: CITY OF FORT WORTH: CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person Dam Ewahio# responsible for the monitoring and administration By: Dana Burghdoff (May Ili, 2025 06:15 CDT) of this contract, including ensuring all performance and reporting requirements. Name: Dana Burghdoff, Title: Assistant City Manager Date: By: Y APPROVAL RECOMMENDED: Name: Sharon A. Burkley n 11� Title: Assistant Diversity & Inclusion Director, chz&_ lam` Diversity & Inclusion By: Christina Brooks (May 13, 2025 09:25 CDT) APPROVED AS TO FORM AND LEGALITY: Name: Christina Brooks Title: Director, Diversity & Inclusion ^ ATTEST: eF FORr�ad By: -+0 o**�° Name: Jessika Williams U p°ana EZAgaa� Title: Assistant City Attorney Rvoaoa By: CONTRACT AUTHORIZATION: Name: Jannette S. Goodall M&C: NA Title: City Secretary By: Grace Irvaneelista (Mav 8. 202515:11 CDT) Name: Grace Evangelista Title: Presenter Date: 05/08/2025 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Performance Agreement Page 9 of 9