HomeMy WebLinkAboutRes 2009-05-04 Agreement with GACC For Fourth of July Fireworks Display.pdfCITY OF ANNA, TEXAS
RESOLUTION NO. 4POf-{).l-c>'i..
A RESOLUTION OF THE CITY OF ANNA. TEXAS APPROVING AN AGREEMENT
WITH THE GREATER ANNA CHAMBER OF COMMERCE, INCORPORATED, FOR
THE PRODUCTION OF A FOURTH-QF-JUL Y FIREWORKS DISPLAY
WHEREAS, the City Council ("Council") of the City of Anna, Texas ("City") wishes to
expend funds in support of a Fourth-of-July fireworks display to be provided by the
Greater Anna Chamber of Commerce, Incorporated (the "GACC") on or about July 4,
2009; and
WHEREAS, the Council intends that said funds be used by the GACC solely for the
purchase of fireworks to be used for a fireworks display to be held inside the City's
corporate limits and that the fireworks display be open to the public without any charge;
and
WHEREAS, the Council finds that the Agreement attached hereto as Exhibit A
("Agreement") provides sufficient safeguards to assure that all funds paid under the
Agreement will be used solely for a public purpose;
WHEREAS, the Council finds that in the absence of the GACC's production of said
fireworks display, the City would not otherwise have within its corporate limits a legally
permitted fireworks display supervised and conducted by persons certified and licensed
to do so; and
WHEREAS, the Council finds that a supervised and legally permitted Fourth-of-July
fireworks display within the City's corporate limits is likely to result in a reduction of the
use of fireworks by children and amateurs within and near the City's corporate limits and
that such reduction promotes public health, safety, and welfare; and
WHEREAS, the Council finds that a venue for a fireworks display within its corporate
limits that is open to its citizens and others free of charge will advance aspects of the
City's stated Strategic Vision, including but not limited to developing a full service
community, fostering an environment that encourages multi-generational living,
promoting a strong sense of community pride, and enhancing the safety and security of
our citizens;
NOW THEREFORE, BE IT RESOL YED BY THE CITY COUNCIL OF THE CITY OF
ANNA, TEXAS THAT:
Section 1. Recitals Incorporated
The recitals set forth above are incorporated herein for all purposes as if set forth in full.
CITY OF ANNA, TEXAS RESOLUTION No":;001-OS'... "'I _ PAGE 1 OF2
Section 2. Approval of Agreement
The Council hereby approves the Agreement, attached hereto as EXHIBIT A,
incorporated herein for all purposes, and authorizes the City Manager to execute same
on its behalf.
Section 3. Effect of Approval of Agreement
This resolution and the Council's approval of the Agreement is not a permit or approval
of any type that GACC may be required to obtain in order to conduct the fireworks
display or any associated event in compliance with applicable law, including without
limitation City of Anna ordinances or regulations requiring a permit to be issued by the
Fire Marshal. This resolution does not authorize any City official or employee to
participate in presenting or conducting the Fireworks Display, and to the extent any
such person participates in the presentation of or conducting of the Fireworks Display,
same is without the City's authorization unless other arrangements are duly agreed to
and adopted by the City in writing.
PASSED AND APPROVED by the City Council of the City of Anna, Texas on this a.J.!'!.1
day of 'fV\o...y ,2009.
APPROVED: ATIEST:
CITY OF ANNA, TEXAS RESOLUTION No.:laI9-()S..O'f_ PAGE20F2
AGREEMENT
This Agreement (this "Agreemenf) is made by and between the City of Anna, Texas
("City"), and the Greater Anna Chamber of Commerce ("GACC") and is entered into on
this ,2,9 ~ day of M.fJ..t ,20.!9-.
Section 1. Summary
For and in consideration of the mutual promises and obligations set forth herein, this
Agreement governs the payment by the City to the GACC in the amount of $2,000 (the
"Paymenf) in exchange for the GACC's promise to use the full amount of the Payment to
purchase fireworks to be used solely for a Fireworks Display to be held inside the City's
corporate limits on or about July 4, 2009, in accordance with the provisions of this
Agreement.
Section 2. Definitions
Meanings. For purposes of this Agreement, the following meanings shall apply:
(1) City shall mean the City of Anna, Texas.
(2) GACC shall mean the Greater Anna Chamber of Commerce, Incorporated.
(3) Fireworks Display shall mean a pyrotechnics display-properly and timely
permitted by the Fire Marshal under The Anna City Code of Ordinances Part II,
Article 21, Section 4.04 (or other applicable provisions)-to be held inside the
City's corporate limits on or about July 4, 2009 for the purpose of public
entertainment and for the purposes stated in the resolution adopted by the City
approving of this Agreement.
Section 3. General Requirements
(1) The~will make the Payment to the GACC on or before the 31!!l. day of
lY../..6.f ,2009.
(2) The GACC shall timely submit an application and receive a permit 'from the Fire
Marshall to conduct the Fireworks Display on July 4, 2009. If weather or other
unforeseen conditions prevent the Fireworks Display from taking place on July 4,
2009, the Fireworks Display may take place on an altemate date if specifically
permitted in writing by the City Manager and Fire Marshal.
(3) The Fireworks Display must be held within the City's corporate limits at a location
approved by the Fire Marshal.
(4) The Fireworks Display must be open to the public without any charge.
AGREEMENT PAGE 1 OF5
(5) In written advertisements publicizing the Fireworks Display, the GACC will include
the following language: "This Fireworks Display is specially permitted under the
Anna City Code of Ordinances Part II, Article 21, Section 4.04. Possession of or
use of fireworks within City limits and within 5,000 feet of City limits without a
written permit granted by the Fire Marshal is a violation of law carrying fines for
violations of up to $2,000."
(6) In addition to any other remedies allowed by law, which shall be cumulative, the
breach of the GACC of any of its obligations under this Agreement shall require the
GACC to refund the amount of the Payment to the City upon demand.
Section 4. Licenses and Pennits
The GACC shall obtain and pay for any and all permits, licenses, disposal fees, or any
other costs required for the Fireworks Display and to fulfill this Agreement.
The GACC must comply with all federal and state laws, and local ordinances while
organizing and participating in the Fireworks Display.
Section 5. Independent Contractor Status! Liability/Indemnity
It is expressly understood and agreed that the City has no right of control, supervision,
or direction over any work performed by the GACC relating in any way to the GACC's
undertaking, promoting, operating, and performance of any other activity related to the
Fireworks Display including but not limited to its employees or its subcontractors, nor
does the City have any control, supervision or direction of the means, methods,
sequences, procedures, and techniques utilized to conduct the Fireworks Display.
There shall be no joint control over the Fireworks Display. The GACC agrees to fully
defend, indemnify and hold harmless the City from any claim, proceeding, cause of
action, judgment, penalty, or any other cost or expense arising or growing out of,
associated or in connection with the Fireworks Display. The indemnification includes,
but is not limited to, attorney fees incurred by the City in defending itself or in enforcing
this Agreement. By entering into this Agreement, GACC waives all rights and remedies
in law or in equity except to seek enforcement of specific performance of the obligations
under this Agreement. This provision is not intended to and does not waive any of the
City's govemmental immunities, including immunity from suit and liability. It is expressly
understood and agreed that any participation in the presentation of or conducting of the
Fireworks Display by any City Official or City employee is not authorized by the City and
shall not be authorized by the City, unless such authorization is by written agreement,
duly adopted by the City. THE GACC's DUTIES TO DEFEND, INDEMNIFY, AND
HOLD HARMLESS THE CITY EXPRESSLY APPLY EVEN IF A CLAIM,
PROCEEDING, CAUSE OF ACTION, JUDGMENT, PENALTY, OR ANY OTHER
COST OR EXPENSE ARISING OR GROWING OUT OF, OR ASSOCIATED IN ANY
WAY WITH THE FIREWORKS DISPLAY IS CAUSED OR ALLEGED TO BE CAUSED
IN WHOLE OR IN PART BY THE NEGLIGENCE OF ANY CITY OFFICIAL OR
AGREEMENT PAGE20F5
EMPLOYEE. THE OBLIGATIONS UNDER THIS SECTION 5 OF THIS AGREEMENT
SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
Section 6. Insurance
GACC shall procure and maintain for the duration of this Agreement insurance to cover
claims for injuries to persons or damages to property, which may arise from or in
conjunction with the presentation of or conducting of the Fireworks Display or in any
way related to the GACC's undertakings performed in connection with the Fireworks
Display, including but not limited to coverage for GACC, its agents, representatives,
employees, subcontractors, volunteers, and other participants. The form, coverage and
limits of such insurance, together with the underwriter thereof in each case, must be
acceptable to the City and the Fire Marshal but regardless of such acceptance it shall
be the responsibility of the GACC to maintain adequate insurance coverage at aU times,
and to require that each contractor, vendor, or other participant in the Fireworks Display
does likewise. Failure of the GACC to maintain adequate coverage shall not relieve the
GACC of any contractual responsibility or obligation. Each policy shall name the City as
an additional insured and provide that there will be no alteration or modification which
reduces coverage in any way prior to 30 days written notice being given to the City. A
copy of each policy, or at the City's discretion, a certificate of insurance, shall be filed by
GACC with the City Secretary. Proof of adequate coverage must be provided to the City
as soon as practicable after this Agreement becomes effective, and GACC is
encouraged to discuss the limits and types of coverage that will be acceptable to the
City and Fire Marshal before submitting such proof to the City to reduce the potential
that the City or Fire Marshal rejects same as insufficient.
Section 7. Amendment
This Agreement may not be amended except pursuant to a written instrument signed by
both parties.
Section 8. Notice
Notice as required by this Agreement shall be in writing delivered to the parties via U.S.
certified mail, retum receipt requested, at the addresses listed below:
City of Anna GACC
Philip Sanders, City Manager Stacy Driskell, GACC President
City of Anna 104 South Powell, Suite B
111 N. Powell Parkway Anna, Texas 75409
Anna, Texas 75409
Each party shall notify the other in writing within 10 days of any change in the
information listed in this section.
AGREEMENT PAGE30F5
Section 9. No Waiver of Immunity; No Third-Party Beneficiaries
Nothing in this Agreement waives any governmental immunity available to the City
under Texas law. The provisions of this Agreement are solely for the benefit of the
parties hereto and are not intended to create or grant any rights, contractual or
otherwise, to any other person or entity.
Section 10. Entire Agreement
This Agreement represents the entire and integrated Agreement between the City and
GACC and supersedes all prior negotiations, representations and/or agreements, either
written or oral with respect to the Fireworks Display.
Section 11. Governing Law and Venue
This Agreement shall be governed by the laws of the State of Texas as to interpretation
and performance. Any and all legal action necessary to enforce this Agreement shall be
brought in a court of competent jurisdiction in Collin County, Texas.
Section 12. Severability
The provisions of this Agreement are severable. In the event that any paragraph,
section, subdivision, sentence, clause, or phrase of this Agreement shall be found to be
contrary to the law, or contrary to any rule or regulation having the force and effect of
the law, such decisions shall not affect the remaining portions of this Agreement.
Section 13. Contract Interpretation
This Agreement is the resuH of negotiation between the parties, and shall, in the event
of any dispute over the meaning or application of any portion thereof, be interpreted
fairly and reasonably, and not to be more strictly construed against one party than
another, regardless of which party originally drafted the section in dispute.
Section 14. Force Majeure
If a party is prevented or delayed from performing any of its obligation hereunder due to
a natural or manmade event or condition not caused by such party and beyond such
party's reasonable control, then such party's performance of those obligations shall be
suspended until such time as the event or condition no longer prevents or delays
performance. If any event or condition results in the creation of amounts of refuse in
excess of ordinary amounts, then the parties shall discuss, but shall not be bound to
conclude, terms and conditions for collection of those excess amounts.
AGREEMENT PAGE 4 OF 5
Section 15. Assignment
It is understood and agreed that GACC shall not assign, sublet, or transfer any of the
rights and duties under the terms of this Agreement without the prior written approval of
the City.
Section 16. Effective Date
This Agreement shall be effedive upon the date first stated herein, and performance of
such Agreement shall begin as soon thereafter as pradicable, or as specified herein.
SIGNATURES:
Greater Anna Chamber of Commerce, __---.:C::::..:i:.::..ltY'--.:o:::..:,f..!,.A.:..:..n:.:..:n,:=.a'-,T.:...::e:::..:.x~a.:::.s
Incorpor ed
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AGREEMENT PAGE50F5