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HomeMy WebLinkAboutRes 2010-04-07 Agreement with GACC- Fourth of July Fireworks.pdfCITY OF ANNA, TEXAS RESOLUTION NO. 2010"'()4"'()7 A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AN AGREEMENT WITH THE GREATER ANNA CHAMBER OF COMMERCE, INCORPORATED, FOR THE PRODUC'nON OF A FOURTH-OF-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, 2010; 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; and 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 and 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 the developing a full service community, fostering an environment that encourages multi-generationalliving, promoting a strong sense of community pride, and enhancing the safety and security of our citizens; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS "rHAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Res. 2010-04-07 Agreement GACC-FirewolXs Display.doc PAGE 1 OF2 04-27-10 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 ._1 _.£ .&.L..-. A ________.&. : ___.&. ____:.a. _____.._ ... _1_!It_ PASSED AND APPROVED by the City Council of the City of Anna, Texas on this 27th day of April, 2010. ATTEST: Res. 2010-04-07 Agreement GACC-Firewor1a:\ Display.doc PAGE20F2 04-27-10 AGREEMENT This Agreement (this "Agreement") 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 day of , 20_, 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 "Payment") 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, 2010, 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 Part II, Article 21, Section 4.04 (or other applicable provisions)-to be held inside the City's corporate limits on or about July 4,2010 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 City will make the Payment to the GACC on or before the ___ day of _______, 2010. (2) The GACC shall timely submit an application and receive a permit from the Fire Marshall to conduct the Fireworks Display on July 4,2010. If weather or other unforeseen conditions prevent the Fireworks Display from taking place on July 4, 2010, the Fireworks Display may take place on an alternate 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. (5) In written advertisements publicizing the Fireworks Display, the GACC will include the following language: "This Fireworks Display is specially permitted under the AGREEMENT PAGE 1 OF 5 Anna City Code 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 Permits 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 governmental 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 EMPLOYEE. THE OBLIGATIONS UNDER THIS SECTION 5 OF THIS AGREEMENT SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. AGREEMENT PAGE20F5 Section 6. Insurance GACC shall procure and maintain for the duration of the contract 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 all 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, return receipt requested, at the addresses listed below: City of Anna GACC Philip Sanders, City Manager Deana Mink, GACC President City of Anna P.O. Box 1256 111 N. Powell Parkway 807 South Interurban Street 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 result 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 PAGE40F5 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 effective upon the date first stated herein, and performance of such Agreement shall begin as soon thereafter as practicable, or as specified herein. SIGNATURES: Greater Anna Chamber of Commerce, City of Anna, Texas Incorporated By: _____________________ Deana Mink, its President Philip Sanders, City Manager AGREEMENT PAGE50F5