AGREEMENT - City of Irondale



AGREEMENT

THIS AGREEMENT, made this ___ day of _____, 2014, by and between:

CITY OF IRONDALE, ALABAMA, a municipal corporation of the State of Alabama (hereinafter sometimes referred to as the "City"), herein represented by TOMMY JOE ALEXANDER, its Mayor, duly authorized;

AND

IRONDALE WHISTLE STOP FOUNDATION, INC., an Alabama not for profit corporation herein represented by _____________, its ___________, duly authorized, (hereinafter called "Contractor".)

W I T N E S S E T H:

WHEREAS, the City desires to contract with Contractor for services including, but not limited to, those stated below in Article I related to the Whistle Stop Festival to be held on September 27, 2014, from 7:00 a.m. to 6:00 p.m. CST (“Services”); and,

WHEREAS, the Contractor has the skill, knowledge and expertise necessary to provide said Services.

NOW, THEREFORE, for and in consideration of the foregoing recitals which form an integral part of the Agreement and which are incorporated herein by reference and the mutual promises and obligations herein contained, the parties hereto agree as follows:

I. The Contractor agrees to:

A. Provide all the licenses, labor, performers, vendors, materials, equipment and insurance required to provide the Services for the Whistle Stop Festival to be held September 27, 2014, from 7:00 a.m. to 6:00 p.m. CST in and around the streets adjacent to City Hall in Irondale, Alabama (“Festival”) which shall include but not limited to the following:

B. Use the City owned train during the Festival and return it to the City at the end of the Festival. Contractor specifically acknowledges that the train is the property of the City.

C. Make available to the public only those financial records pertaining to the Festival that are public records as defined by Alabama law.

D. Provide a list of all vendors scheduled to participate at the Festival to the City within 5 days of the execution of this Agreement.

E. List the fees charged to vendors scheduled to participate at the Festival on Contractor’s website no later than the date of execution of this Agreement.

F. Allow the City to use its exclusive service mark “Whistle Stop Festival” to promote the City and the Festival from the date of this Agreement through September 27, 2014.

II. The City agrees to:

A. Cooperate with Contractor to assist in the provision of the

Services.

B. Provide electrical service for the Festival;

C. Provide parking spaces for vehicles in a location of close proximity to and with direct access to the Festival area on September 27, 2014, for four (4) hours prior to and three (3) hours following the Festival.

D. Provide __ Irondale Police Officers for security and ___ Irondale Public Works employees for clean up at the Festival.

E. Provide the train owned by the City during the Festival. The City agrees that it will house, maintain and insure the train following the Festival.

F. Provide other mutually agreed upon in-kind services customarily provided for the Festival.

G. Take appropriate action to legally allow the Mayor in his sole discretion to waive the license fee for the Contractor and Festival vendors for one day only.

III. Compensation and Schedule of Payment:

A. For an in consideration of the Services to be rendered by the

Contractor, the City agrees to and the Contractor accepts a flat fee of N/A.

IV. DURATION AND TERM OF THE AGREEMENT:

This Agreement is for a period from the date of this Agreement through September 27, 2014. The City may terminate this Agreement with or without cause upon ten (10) days written notice to Contractor.

V. Confidentiality:

With respect to any information or materials furnished by the City, its agents or employees to the Contractor in order for the Contractor to carry out its work under this Agreement, the Contractor shall keep any and all such information confidential and shall not make available to anyone else any such information without prior written approval of the City. All rights of copyright remain within the City. The Contractor may not reproduce or disseminate in any manner any information learned or obtained as a result of the Services provided under this Agreement.

VI. Insurance Coverage.

A. Contractor shall provide and maintain such insurance as will protect Contractor from claims under Worker's Compensation Acts, including but not limited to the Alabama Worker's Compensation Act, and any other claims for damages or personal injuries including death which may arise from operations under this Agreement, whether such operation be by Contractor directly or by any SubContractor, or by anyone directly or indirectly employed by either of them.

Without limiting any obligations or liabilities of Contractor

under this Agreement, Contractor shall provide and maintain during

the course of this Agreement, at its sole cost and own expense,

without reimbursement, minimum insurance coverage as follows:

1. Worker's Compensation Insurance issued by a program or carrier approved by the Office of Worker's Compensation for the State of Alabama, and in accordance with all applicable state, and federal laws, including employer's liability insurance in the minimum statutory amount. The policy shall be endorsed to include a waiver of subrogation in favor of the City.

2. Comprehensive general liability insurance, including bodily injury, property damage, personal injury, premises operations, products and completed operations, and hazard coverage.

3. Commercial automobile liability insurance on all owned, hired or leased vehicles providing bodily injury and property damage coverage.

B. Comprehensive general liability and comprehensive automobile liability insurance policies shall provide a minimum of $1,000,000.00, public liability coverage, per occurrence and a minimum of $500,000.00 coverage for property damage; or combined single limits of $1,500,000.00 per occurrence.

C. All of Contractor's policies of insurance, as required in the preceding items above, shall name the City as an additional insured with respect to the sole or joint negligence of Contractor.

D. All deductibles under said policies shall be the sole responsibility of Contractor.

E. Contractor hereby waives all rights of recourse against the City, including any rights to which another may be subrogated, with respect to any claim of personal injury (including death), or any property damage, to the extent covered by any of Contractor's insurance policies with respect to the sole or joint negligence of Contractor. All of Contractor's policies of insurance are to provide the City with thirty (30) days prior written notice of cancellation or any material adverse change.

F. Proof of Insurance. Contractor shall place all insurance except Worker's Compensation in companies authorized to do business in the State of Alabama with a current A.M. Best Rating of "A-", Class VI or better or be written by Lloyds of London and shall comply with the following:

1. Simultaneously with the execution of this Agreement by both parties, Contractor shall furnish or have his/her/its insurer furnish to the Mayor, or his designee, Certificates of Insurance under all policies. Such certificates are to be properly executed by an authorized representative of the insurer(s).

2. Each Certificate of Insurance shall provide that prior written notice of cancellation of not less than thirty (30) days shall be addressed to the Mayor, or his designee.

3. Contractor or his/her/its insurer shall use the certificate form approved by the City.

4. Upon request, Contractor or his/her/its insurer shall immediately furnish copies of the required insurance policies to the Mayor, or his designee.

5. Contractor will not be permitted to commence work until the Certificates of Insurance or insurance policies have been approved by the City. The City will require five (5) working days to review said insurance policies.

VII. GENERAL TERMS AND CONDITIONS:

A. The obligations herein assumed by Contractor and the City shall be governed by the laws of the State of Alabama and the parties hereto agree to submit to the jurisdiction of the Circuit Court for the County of Jefferson, State of Alabama which shall be the exclusive venue.

B. Contractor shall send all reports and invoices to the City through Mr. James Stewart, City Clerk, its designee, at 101 20th St. South, Irondale, Alabama 35210, or at such other address as may be designated in writing to Contractor.

C. The City shall submit all requests, notices and payments to Contractor through ____________, at ___________________ or at such other address as Contractor may designate in writing to the City.

D. Neither this Agreement, nor any interest herein, nor any claim arising hereunder may be transferred or assigned by Contractor to any other party or parties, without the written approval of the City.

E. To the fullest extent permitted by the law, the Contractor shall indemnify, hold harmless and defend the City, its employees and agents from and against all claims, demands, suits, damages, judgments of sums of money, losses and expenses, including but not limited to attorney's fees and costs ("Claims"), arising out of the performance of any of the Services to be performed pursuant to the terms of this Agreement, provided that any such Claims (i) are attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property including the loss of use resulting therefrom; and, (ii) is caused in whole or in part by any act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in whole or in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this subparagraph. Contractor shall also indemnify the City against all liability and loss in connection with and shall assume full responsibility for the payment of all Federal, State and local taxes or contributions imposed or required thereunder, including, but not limited to, unemployment insurance, social security and income tax laws, with respect to Contractor employees engaged in the performance of this Agreement.

F. Contractor hereby expressly agrees and acknowledges that it is an Independent contractor as defined by the laws of the State of Alabama. As such, it is specifically agreed and understood that the City shall not be liable to Contractor, its agents, employees, subcontractors, servants and/or any other person performing Services under this Agreement for any benefits, contributions or coverages under the Worker's Compensation Laws of the State of Alabama. It is further expressly agreed and understood that the City shall not be liable to Contractor, its agents, employees, vendors, subcontractors, servants or any other person performing Services under this Agreement for damages of any nature or kind, including attorney's fees and costs, any or all of them may sustain as a result of performing the Services specified herein or otherwise. Neither the Contractor, nor its agents or employees shall be considered employees of the City for the purpose of unemployment compensation coverage, the same being hereby expressly waived and excluded by the parties hereto. The City is interested only in the result obtained under this Agreement and the manner and means of conducting the work are under the sole control of Contractor in accordance with the terms hereof. None of the benefits provided by the City to its employees are available from the City to the employees, agents or servants of Contractor. Contractor will be solely and entirely responsible for its acts and for the acts of its agents, employees, servants and subcontractors during the performance of this Agreement.

G. In all hiring or employment made possible by or resulting from this Agreement Contractor agrees that there: (1) will not be any discrimination against any employee, or applicant for employment because of race, color, religion, sex, handicap or national origin; and, (2) where applicable, affirmative action will be taken to ensure that Contractor employees are treated during employment without regard to their race, color, religion, sex, handicap or national origin. This requirement shall apply to but not be limited to the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates or pay or other forms of compensation; and selection for training, including apprenticeship. All solicitations for advertisements for employees shall state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, handicap, or national origin.

H. This Agreement may be amended or modified upon mutual written consent of both parties.

I. In no event will the City’s liability to Contractor or Contractor’s affiliates for any damages in any action based or arising out of or in connection with this Agreement, or Contractor’s providing the Services, exceed the amount paid to Contractor or the value of the in-kind services provided by the City for the Services. Notwithstanding any provision hereof to the contrary, in no event will City be liable to Contractor for (i) indirect, incidental, exemplary or consequential damages, or (ii) any damages resulting from loss of use, data, profits, goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses arising out of or in connection with this Agreement.

IN WITNESS WHEREOF, the parties hereto on the day and year first above written have executed this Agreement in four counterparts, each of which shall, without proof or accountancy for the other counterparts, be deemed an original thereof.

WITNESSES: CITY OF IRONDALE, ALABAMA

_____________________________ BY: ___________________________

Tommy Joe Alexander, Mayor

IRONDALE WHISTLE STOP

FOUNDATION, INC.

_____________________________ BY: __________________________

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