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HomeMy WebLinkAboutOrdinance No. 99-1094ORIGINAL CITY OF THE COLONY, TEXAS ORDINANCE NO. 99-1094 AN ORDINANCE OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH PEPPERHEAD PYROTECHNICS FOR THE 1999 FIREWORKS DISPLAY; ATTACHING THE APPROVED FORM OF CONTRACT AS EXHIBIT "A"; AND PROVIDING AN EFFECTIVE DATE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: SECTION 1. That the City Manager of the City of The Colony, Texas is hereby authorized to execute on behalf of the City a contract with PQ12erHead Pyrotechnics for the 1999 Fireworks Display. The approved form of contract is attached hereto as Exhibit "A", and made a part hereof for such purposes. SECTION 2. This Ordinance shall take effect immediately from and after its passage by the City Council of the City of The Colony, Texas. DULY PASSED AND APPROVED by the City Council of the City of The Colony, Texas this 8' day of _February 19 99 . APPROVED: Ma B14 Watts, Mayor ATTEST: Patti A. Hicks, TRMC, City Secretary APPROVED AS TO FORM: City Atto y PepperHead Pyrotechnics Fireworks Display Contract This agreement is entered by and between the City of the Colony (Hereinafter "The Colony") and PepperHead Pyrotechnics (Hereinafter "PepperHead"). I. General Terms PepperHead shall provide for all fireworks necessary to perform the show contracted for herein. PepperHead will provide all materials, equipment, and labor for the successful completion of the fireworks show. PepperHead shall provide a fireworks display meeting or exceeding the content of firework shells as set forth herein and below. Each shell, candle, rocket, mine or any other firework device shall be of merchantable quality and perform for the purpose intended. The Colony understands that not all fireworks or equipment can perform without failure 100% every time. For this reason, a minimal percentage of said fireworks might fail to perform as expected (otherwise known as a "dud") and this is seen as acceptable and normal. PepperHead shall coordinate and provide for all permits, stages, and other instruments necessary for it to perform a complete fireworks presentation for The Colony. In the event the fire department, the fire marshall's office or any other authority having jurisdiction over the display of fireworks, denies or fails to issue a permit to allow this fireworks display, The Colony shall be entitled to a full refund of any monies paid to PepperHead. PepperHead shall provide all technicians and materials necessary for it to complete all obligations under this contract. In the performance of its duties hereunder, PepperHead shall provide a minimum of one technician who is professional, who has received training on the proper display of fireworks, and who has been and is licensed or certified under any applicable law or regulation to conduct and operate a fireworks display. At the City's request, PepperHead shall promptly provide to The Colony a list of the person(s) who will be involved with and/or conduct and operate the fireworks display and a true and correct copy of any such license or certification for such person(s). PepperHead shall abide by the guidelines for safety that either meet or exceeds the minimum required standards of the National Fire Protection Assoc., (NFPA), and shall comply with all federal, state and local laws governing fireworks and their displays. It is customary to have the FIRE DEPARTMENT (fire engine) on stand-by at the event during a fireworks display. In some communities, this may be required by law or at the determination of the fire marshall's office. The law enforcement agencies having jurisdiction may also require that they be present in some capacity. PepperHead will pay for all state and local permits and licenses. The Colony will provide all required security as deemed necessary by PepperHead to keep firing area secure and free from any intruder not authorized to be within said restricted area. Pepperhead shall be responsible for removal of any debris created by the display following the show. II. Location and Date of Show The parties agree that the location for the fireworks display or show shall be located in the City of the Colony and/or such other places as agreed upon between PepperHead and The Colony. The Colony shall provide a designated area for firing which separates all spectators from the firing zone by the required distances set out in the attached map. It shall be PepperHead's sole determination as to whether those distances have been met. PepperHead certifies that it is familiar with The Colony and that the areas set out in the attached map are safe distance for spectator viewing. The parties agree that the date of the fireworks display or show shall be July 3`d 1999 at approximately 9:15 p.m. The display shall be no less than 20 min. in continual duration. $1,000 per minute will be deducted from final payment if the show lasts less than the required time. If due to inclement weather as determined by PepperHead or for such other reason making it dangerous for PepperHead to perform the fireworks display or show, PepperHead shall perform said fireworks display or show on such other date as agreed upon between PepperHead and The Colony. I11. Display Content PepperHead shall provide the following fireworks for display at The Colony July 3`d 1999 fireworks show; (see attached Exhibit "A".) PepperHead shall choreograph the show to music that has been reviewed and approved by the Special Events Board. IV. Payment Terms The Colony agrees to pay to PepperHead the amount of $19,000.00 for the fireworks display and show called for herein. 25% of the contract price is due with the signing of this contract and 25% shall be paid on or before April 1", 1999. The balance shall be paid within 10 days following the completion of the show. Cancellation of the show by The Colony, except for breach of this Agreement by PepperHead, will result in forfeiture of all deposit monies. Except for breach of this Agreement by PepperHead, cancellation of the show by The Colony within two (2) weeks of the show date will result in entire contract price being due. Notwithstanding any other provision of this Agreement, if the fireworks display is canceled as a result of inclement weather on both the display date or the rain date, and a new alternate date is not acceptable to both parties, The Colony shall pay PepperHead a total of twenty five percent (25%) of the contract price, plus any additional expenses incurred by PepperHead on The Colony's behalf. V. Other Terms "PepperHead shall provide and maintain the following insurance: (1) Commercial general liability insurance issued by a company duly authorized to do business in the State of Texas (and acceptable to The Colony) insuring PepperHead and The Colony with respect to the matters described herein, with a limit of not less than $1,000,000 each occurrence and $2,000,000 Aggregate. If such commercial general liability insurance contains a general aggregate limit, it shall apply separately to the location at which the display of the fireworks will occur. (2) Automobile liability and, if necessary, commercial umbrella liability insurance with a limit of not less than $1,000,000 each accident. Such insurance shall cover liability arising out of any motor vehicle (including owned, hired, and non -owned motor vehicles). (3) Workers' compensation and employers liability insurance in the amount required by all applicable federal and state laws." With respect to the insurance requirements contained herein, all insurance shall: (a) name The City of The Colony and the property owner as additional insured as to all applicable coverage (except workers compensation), (b) provide for at least thirty (30) days notice to The Colony for cancellation, non -renewal or material change, (c) be on an occurrence basis and shall be primary coverage for all losses covered by the policies, and (d) contain a waiver of subrogation endorsement in favor of The Colony. On or before June 1, 1999 PepperHead shall deliver to The Colony certificates of insurance evidencing such insurance, together with the declaration page of such policies, along with the endorsement naming the Owner as an addition insured. PepperHead and Steve Chapman shall defend and indemnify The Colony, its officials, officers, employees and agents against, and hold The Colony, its officials, officers, employees and agents harmless from, and any and all actions, causes of action, lawsuits, judgements, claims, liability, damages, costs or fees, including attorney's fees and costs of defense, for any injury to or the death of any person or damage to or destruction of any property resulting from, based upon, or arising out of, in whole or in part, any act or omission of PepperHead, Steve Chapman, or PepperHead's (or Steve Chapman's) employees, agents, representatives, contractors, subcontractors, or volunteers, under this Agreement or in connection with the fireworks display described herein. The provisions of this paragraph shall survive the termination of this Agreement." The Parties herein agree and represent that they have the legal capacity to bind the parties for which the individual is signing on behalf. Steve Chapman represents that the business PepperHead is a sole proprietorship that has not been incorporated under the laws of the State of Texas. Venue under this Agreement lies in Denton Co., TX. Executed this the day of- iZ 1999 by Steve Chapman, individually and d/b/a PepperHead Pyrotechnics, and The City of The Colon , . t e Chapman d/b/a epperH ad Pyrotechnics By: Steve Chapman W02 .M W. A MW