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HomeMy WebLinkAbout24-0130 Fun Funky Fab - Angelica HolguinPERFORMANCE AGREEMENT THIS SERVICE AGREEMENT ("Agreement") is hereby made and entered into this 301h day of January, 2024, by and between the City of Elgin, an Illinois home rule municipal (hereinafter "City") and Angelica Holguin d/b/a FUN FUNKY FAB ARTS & ENTERTAINMENT (hereinafter "ARTIST"). NOW, 'THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. SERVICES. The City shall purchase, and ARTIST shall perform, the agreed upon performance services as set forth herein, in accordance with the price, terms, and conditions contained herein (hereinafter the "Services"). a)Date of Services. February 2, 2024 and February 3, 2024 ("Performance Dates"). b)Cost of Services. The City shall pay ARTIST a total amount of Three Thousand One Hundred Fifty Dollars ($3,150.00) for the performance of the Services (hereinafter "Cost of Services"). The City will pay One Thousand Five Hundred and Seventy -Five Dollars ($1,575.00) to ARTIST upon execution of this Agreement by both parties. If ARTIST satisfactorily completes the Services in accordance with the Scope of Services, the City shall pay the remaining One Thousand Five Hundred and Seventy -Five Dollars ($1,575.00) to ARTIST within thirty (30) days of the Performance Dates. c)Location of Services. ARTIST will perform the Services at the below -described events taking place at The Heritage Ballroom at the Centre of Elgin, 100 Symphony Way, Elgin, Illinois (collectively the "Event"). d)Time of Services. February 2, 2024 from 6:30pm to 9:30pm; February 3, 2024 from 11:00am to 1:00pm and 6:30pm to 9:30pm e)Description of Services. For the Cost of Services set forth in subparagraph l.b, ARTIST will perform the Services as follows: • Three (3) Character visits and performances on both evenings on February 2 and February 3, 2024, 6:30pm-9:30pm. • One (1) Character visit and performance during teatime event on Saturday, February 3, 2024 from 11:00am-1:OOpm • Two (2) Face Painting artists during teatime on Saturday, February 3, 2024 from 11:OOam-1:OOpm 2. LAWNENUE. This agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be the Circuit Court of Kane County, Illinois. ARTIST hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter hereof; and ARTIST agrees that service by first class U.S. mail to 51 South Spring Street, Suite #119, Elgin, Illinois, 60I20, shall constitute effective service. Both parties hereto waive any rights to a jury. 3. NO MODIFICATION. There shall be no modification of this Agreement, except in writing and executed by both parties hereto with the same formalities as the original agreement. 4. MERGER. This Agreement embodies the whole agreement of the parties. There are no promises, terms, conditions, or obligations other than those contained herein, and this agreement shall supersede all previous communications, representations, or agreements, either verbal, written or implied between the parties hereto. 5. INTEREST. ARTIST hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this Agreement, and waives any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act (50 ILCS 505/1, et$eq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq. ), as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 6. SEVERABILITY. The terms of this Agreement shall be severable. In the event any of the terms or the provisions of this Agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect. 7. COMPLIANCE WITH LAW. Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement, ARTIST shall comply with all applicable federal, state, city, and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, ARTIST hereby certifies, represents, and warrants to the City that all of ARTIST's employees and/or agents who will be providing Services with respect to this Agreement shall be legally authorized to work in the United States. ARTIST shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the Services to be provided for in this Agreement. The City shall have the right to audit any records in the possession or control of ARTIST to determine ARTIST's compliance with the provisions of this section. In the event the City proceeds with such an audit, ARTIST shall make available to the City ARTIST's relevant records at no cost to the City. ARTIST shall pay any and all costs associated with any such audit. 8. COUNTERPARTS AND EXECUTION. This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. This Agreement may be executed electronically, and any signed copy of this Agreement transmitted by facsimile machine or email shall be treated in all manners and respects as an original document. The signature of any parry on a copy of this Agreement transmitted by facsimile machine or email shall be considered for these purposes an original signature and shall have the same legal effect as an original signature. 9. LIMITATION OF DAMAGES. In no event shall City be liable for any monetary damages in excess of the Cost of Services contemplated by this Agreement. In no event shall City be liable for any consequential, special, or punitive damages, or any damages resulting from loss of profit. 10. INDEMNIFICATION. To the fullest extent permitted by law: ARTIST agrees to and shall indemnify, defend, and hold harmless the City, its officers, employees, boards and commissions from and against any and all claims, suits, judgments, costs, attorney's fees, damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any acts or negligent acts or omissions of ARTIST or ARTIST's officers, employees, agents or subcontractors in the performance of this Agreement, including but not limited to, all services or work performed hereunder. In the event of any action against the City, its officers, employees, agents, boards, or commissions covered by the foregoing duty to indemnify, defend, and hold harmless, such action shall be defended by legal counsel of the City's choosing. 11. INSURANCE. ARTIST will provide, pay for, and maintain in effect, during the term of this Agreement, comprehensive automobile liability insurance covering all owned, non -owned and hired motor vehicles used in connection with the Services with limits of not less than $500,000 per occurrence for damages to persons or property. ARTIST will also provide, pay for, and maintain in effect, during the term of this Agreement, worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City, ARTIST will provide to the City certificates of insurance regarding the insurance required in this paragraph. 12. TERMINATION. Notwithstanding any other provision hereof, the City may terminate this Agreement in the event of inclement weather, sickness, injury, accidents, fire, earthquake,. flood, explosion, strike, riot, war, terrorism, or similar legitimate event beyond the City's reasonable control, in the City's sole discretion. In the event this Agreement is so terminated, ARTIST shall be paid for expenses actually incurred by ARTIST prior to termination, except that such reimbursement shall not in any event exceed the total amount of the Cost of Services set forth in subparagraph Lb herein. Additionally, in the event the Agreement is so terminated, ARTIST shall immediately cease the expenditure of any funds previously paid to ARTIST by the City or incurring any additional expenses under this Agreement, and shall refund to the City any unearned or unexpended funds. 13. RELATIONSHIP BETWEEN THE PARTIES. This Agreement shall not be construed so as to create a joint venture, partnership, employment, or other agency relationship between the parties hereto. 14. WAIVER. Unless otherwise provided herein neither party hereto shall be responsible for any consequential, indirect, punitive, or incidental damages for any reason whatsoever. Any delay or failure to enforce any rights by either party arising out of or pursuant to this Agreement shall not constitute, and shall not be construed as, a waiver of any such rights. 15. LIMITATION OF ACTIONS. ARTIST shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City of Elgin and/or its affiliates, oicers, employees, agents, attorneys, boards, and commissions of any nature whatsoever and in whatsoever forum after two (2) years from the date of this Agreement. 16. NO OTHER AGREEMENTS. This Agreement is the only agreement between the parties hereto regarding the subject matter hereof. There are no other agreements, either oral, written, or implied, between the parties hereto regarding the subject matter hereof This Agreement may only be altered or modified by written instrument signed by both parties. 17. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement. 18. CHARACTER PERFORMERS: If any attendee present at the Event is in any way vulgar, inappropriate, or aggressive in their behavior or language, the character performer is in no way obligated to perform their duties within which they were hired. If said situation were to arise the character performer will remove themselves from the situation or culprit and will advised an authorized representative of the City of the situation. Unacceptable behavior includes but is not limited to; any language or behavior reflecting racial, homophobic, or sexual dialogue, including sexual gestures, comments, or touching in any inappropriate way. 19. LIABILITY STATEMENT. ARTIST represents that it utilizes FDA -approved cosmetic -grade make-up, and that it is not liable for allergic reactions. Children with skin allergies for sensitive skin should either not participate, or have the ARTIST perform a patch test on the hand prior to creating a face design. For safety reasons, ARTIST will require children under 2 years old to be held by parent or guardian. For sanitary reasons, ARTIST will not paint anyone who is or appears to be sick or suffering from: cold sores; conjunctivitis; any infectious skin condition, eczema or open wounds. ARTIST will use reasonable care, and is not responsible for damage to clothing or property. ARTIST will not supervise children waiting in line. Their behavior and safety are the Parents' responsibility. ARTIST cannot see other children and what they are doing while ARTIST is painting. The foregoing notwithstanding, nothing contained in this paragraph shall be construed to supersede, modify, or otherwise limit the indemnification provisions set forth in paragraph 10 of this Agreement. 20. AUTHORIZATION. The person signing this Agreement certifies that s/he has been authorized by ARTIST to commit the ARTIST contractually and has been authorized to execute this Agreement on its behalf. IN WITNESS WHEREOF, the parties have hereto set their hands the day and year first above written. FUNKY FAB ARTS & ENTERTAINMENT 11�e�� ICa t10L.�i tinge ica Holguin ignatiure O l .c►r- Title CWVFF ELGIN 1kichard G. Kozal, City Manager Attest: f City Clerk