No preview available
HomeMy WebLinkAboutC12-165 Brown's Amusements, Inc.AGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND BROWN'S AMUSEMENTS, INC. FOR A CARNIVAL PRODUCTION AT THE 2012 EAGLE COUNTY FAIR & RODEO THIS "AGREEMENT" is made this ay of 2012, by and between Eagle County, Colorado ("County'), by and through its Bod of County Commissioners, and Brown's Amusements Inc., an Arizona corporation with its principal place of business at 550 Baseline Road, #102-353, Mesa, AZ 85210 ("Contractor'). RECITALS WHEREAS, the County is the owner of certain real property located in Eagle County, Colorado, which is used and commonly referred to as the "Eagle County Fairgrounds;" and WHEREAS, the 2012 Eagle County Fair & Rodeo is scheduled to be held at the Eagle County Fairgrounds July 25th through July 28, 2012; and WHEREAS, Contractor is a fair and carnival producer who wishes to contract with County to provide such fair and carnival production services for the 2012 Eagle County Fair & Rodeo on the terms and conditions contained herein. AGREEMENT NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows: A. AUTHORITY TO CONTRACT 1. The County represents it is duly authorized to enter into this agreement pursuant to Sections 30-11-101, 30-11-103 and 30-11-107, as amended. 2. The Contractor represents it is duly authorized to enter into this agreement for its intended purposes. B. SERVICES 1. The Contractor agrees to produce a fair and carnival by furnishing a minimum of 8 rides, as well as a of combination shows, food, and game concessions, and is to exhibit the same at the midway area, depicted in the attached Exhibit A and incorporated herein by this reference, at the Eagle County Fairgrounds (the "Services'). The parries agree the midway area as depicted on Exhibit A (the "Midway") is suitable for Contractor's Services to be performed under this Agreement. Contractors will be allowed to occupy N* this location no earlier than July 24, 2012 and will vacate this location no later than July 30, 2012. 2. This Agreement is intended to cover the Services to be performed in connection with the 2012 Eagle County Fair & Rodeo. 3. Said event is to be advertised as the Eagle County Fair & Rodeo. County will be responsible for all promotion and advertising associated with the same. County agrees to distribute reasonable advertising materials as supplied by the Contractor and will use best efforts to get press releases into the local newspaper and/or on the radio prior to Contractors opening. The wording on the 50 posters the County will receive will be: Eagle County Fair & Rodeo July 25 — July 28, 2012. 4. Unless otherwise agreed to in writing, the Contractor is hereby granted the exclusive right to provide all rides, shows and concessions in the Midway in connection with the 2012 Eagle County Fair & Rodeo. 5. County agrees that there shall be no other rides, shows, concessions carnivals and/or circuses in the Midway for a period of at least 30 days prior to said event. 6. Contractor reserves the right to locate all rides, shows and concessions under its management within the Midway 7. Contractor agrees to keep the Midway and surrounding area reasonably clear of trash, debris and garbage during the term of this Agreement. At the conclusion of the Eagle County Fair & Rodeo, the Midway will be left in a clean manner consistent with the condition that existed prior to entry and use by the contractor. 8. Trash and recycling containers will be supplied by the County. 9. Portable toilets will be supplied by the County and available for the carnival set up starting on July 24, 2012. 10. The County will have security patrol on the event site the entire length of the Eagle County Fair & Rodeo. 11. Subject to the terms and conditions of this Agreement, Contractor reserves the right to subcontract rides, shows and/or concessions in the Midway area as needed subject to the terms and conditions of this Agreement. 12. County shall have all right, at its discretion, to allow or provide concessions beyond the Midway. 14. County will pre -sell wristband vouchers in advance of the show dates for jointly determined promotions, agreed upon by both parties and will report the revenues from these sales on Contractors arrival day. 15. Contractor will supply power for all of its rides, shows and concessions. If local concessions need power it can be supplied by the Contractor for a fee. 16. County will provide reasonable access to drinking water. 17. County agrees to furnish any license or permits that may be required. C. COMPENSATION 1. The adjusted gross revenues are the gross revenues minus necessary taxes and insurance, hereinafter known as adjusted gross revenues. 2. The Contractor shall supply the County with a detailed daily accounting of the gross and adjusted gross revenues associated with Contractor's Services at the 2012 Eagle County Fair & Rodeo no later than July 30, 2012. 3. Contractor shall pay County 20% of the adjusted gross revenues arising from Services, including but not limited to adjusted gross revenues from all onsite sales of admission tickets to the various rides and shows as well as 20% of the pre -sale wristband adjusted gross revenues. 4. Payment by Contractor to County shall be made no later than September 1, 2012. If payment is not timely made then County shall be entitled to collect interest on all past due amounts at 1.5% per month until paid. D. INSURANCE 1. Contractor's Insurance: Contractor and any subcontractors shall procure and maintain until all of their obligations have been discharged, insurance against claims for injury to persons or damage to property which may arise from or in connection with the performance of the work hereunder by Contractor, its agents, representatives, employees, volunteers, or subcontractors. The insurance requirements herein are minimum requirements for this Agreement and no way limit the indemnity covenants contained in this Agreement. Contractor shall provide coverage with limits of not less than those stated below. An excess liability policy or umbrella policy may be used to meet the minimum liability requirements provided that the coverage is written on a `following form" basis. A. Commercial General Liability — Occurrence Form The policy shall be endorsed to include the following additional insured language: "Eagle County, its subsidiary, parent, associated and/or affiliated entities, successors, or assigns, its elected officials, trustees, employees, agents, and volunteers shall be named as an additional insured with respect to liability arising out of the activities performed by, or on behalf of Brown's Amusement, Inc." Minimum Limits: General Aggregate: $2,000,000 Each Occurrence Limit: $2,000,000 B. Automobile Liability The policy shall include protection for bodily injury and property damage for any owned, hired and non -owned vehicles used in the performance of this Agreement. Minimum Limits: Bodily Injury/Property Damage (each accident) $1,000,000 C. Workman's Compensation As required by law. 2. Additional Insurance Requirements: The insurance policies required herein shall include, or be endorsed to include, the following provisions: A. On insurance policies where Eagle County is named as an additional insured, Eagle County shall be an additional insured to the full limits of liability purchased by Contractor even if those limits of liability are in excess of those required by this Agreement. B. The Contractor's insurance coverage shall be primary insurance and non-contributory with respect to all other available sources. 3. Notice of Cancellation: Each insurance policy required by the insurance provisions of this Agreement shall provide the required coverage and shall not be suspended, voided or cancelled except after thirty (30) days prior written notice has been given to the County, except when cancellation is for non-payment of premium, then ten (10) days prior written notice may be given. Such notice shall be sent directly to: Eagle County Board of Commissioners, 500 Broadway, P.O. Box 850, Eagle, Colorado, 81631. E. INDEPENDENT CONTRACTOR 1. This Agreement does not create an employee/employer relationship between the parties. It is the parties' intention that the Contractor will be an independent contractor and not an employee of Eagle County for all purposes, including, but limited to, the application of the Fair Labor Standards Act, minimum wage and overtime payment, Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, Colorado Revenue and Tax laws, Colorado Worker's Compensation law and the Colorado Unemployment Insurance laws. 2. Contractor agrees that it is a separate and independent enterprise from Eagle County, that it has full opportunity to find other business, that it has made its own investment in its business, and that it will utilize a high level of skill necessary to perform the Services. 3. This Agreement shall not be construed as creating any joint employment relationship between Contractor and Eagle County, and Eagle County shall not be liable for any obligation incurred by Contractor, including, but not limited to unpaid minimum wages and/or overtime premiums. 4. Contractor shall not be bound hereunder for failure to perform this Agreement due to fire, floods, strikes, wrecks tornadoes, failure of transportation, actions of any governmental agency, acts of god or other causes beyond its control, which at the option of Contractor may deem this Agreement null and void. NOTICE All notice shall be given in writing, by telefax and/or by certified mail, to the respective party as follows: County: Board of County Commissioners, Eagle County, Colorado P.O. Box 850 Eagle, CO 81631 Telephone: (970) 328-8605 Fax: (970) 328-7207 Contractor: Brown's Amusements, Inc. Dan and Sherry Brown 550 W. Baseline Rd., Ste 102-353 Mesa, Arizona 85210 Telephone: (480) 792-6328 MISCELLANEOUS Eagle County Fair & Rodeo Tom Johnson, Public Works Director P.O. Box 850 Eagle, CO 81631 Telephone: (970) 328-3646 Fax: (970) 328-8899 1. All the clauses of this Agreement are distinct and severable, and if any clause shall be deemed illegal, void or enforceable, it shall not affect the validity, legality, or enforce ability of any other clause or portion of the contract. 2. Contractor shall indemnify, hold harmless and save Eagle County, their employees, officers and directors from and against any and all liabilities, obligations, damages, fines, penalties, claims, demands, costs, charges, judgments and expenses, including, but not limited to, attorney's fees, which maybe imposed upon or incurred or paid by or asserted against Eagle County, their employees, officers and directors, the buildings or any interest therein by reason of or in connection with, directly or indirectly, the performance of the Services and/or any act or omission of Contractor, including employees, subcontractors and agents, whether or not acting within the scope of their employment or agency. 3. Neither the Agreement, nor any interest nor claim may be assigned by the Contractor without prior written approval of the County. 4. Any amendments to this Agreement must be in writing and signed by both parties. 5. This Agreement shall be binding on, and inure to the benefit of the Contractor and the County and their respective heirs, legal representatives, executors, administrators, successors and assigns. This Agreement may not be relied upon by any third party as the basis for a claim. 6. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement, nor shall any payment be made to Contractor in respect of any period after December 31 of each calendar year during the tenn of this Agreement, without an appropriation therefore by the County in accordance with a budget adopted by the Board of County Commissioners in compliance with the provisions of Article 25 of the Title 30 of the Colorado Revised Statues, the local Government Budget law (C.R.S. 29-1-101 et seq.), and the TABOR Amendment (Constitution, Article X, Sec. 20). 7. Prohibitions on Public Contract for Services. 7.1 The Contractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services; or enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. 7.2 The Contractor shall confirm or attempt to confirm through participation in the Basic Pilot Verification program, as administered by the United States Department of Homeland Security, that the Contractor does not employ any illegal aliens. If the Contractor is not accepted into the Basic Pilot Verification Program prior to entering into a public contract for services, the Contractor shall apply to participate in the Program every three months until the Contractor is accepted or the public contract for services has been completed, whichever is earlier. Information on applying for the Basic Pilot Verification Program can be found at: littys://www.vis-diis.com\employeffegistration 7.3 The Contractor shall not use the Basic Pilot Verification Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. 7.4 If the Contractor obtains actual knowledge that a Subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, the Contractor shall be required to: a. Notify the Subcontractor and the County within three days that the Contractor has actual knowledge that the Subcontractor is employing or contracting with an illegal alien; and b. Terminate the Subcontract with the Subcontractor if within three days of receiving the notice required the Subcontractor does not stop employing or contracting with the illegal alien; except that the Contractor shall not terminate the contract with the Subcontractor if during such three days the Subcontractor provides information to establish that the Subcontractor has not knowingly employed or contracted with an illegal alien. 7.5. The Contractor shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority. 7.6 If a Contractor violates these prohibitions, the County may terminate the contract for a breach of the contract. If the contract is so terminated, the Contractor shall be liable for actual and consequential damages to the County. 8. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Colorado. The Parties agree that venue in any action to enforce or interpret this agreement shall be in the District Court in the 5`h District for the State of Colorado. 9. Contractor shall maintain, for a minimum of 3 years, adequate financial records for reporting to County on performance of its responsibilities hereunder. Contractor shall be subject to financial audit by federal, state or county auditors or their designees. Contractor authorizes County or its agents to perform audits during normal business hours, upon 48 hours' notice to Contractor. Contractor shall cooperate fully with authorized County representatives. Contractor shall have the right to dispute any claims of misuse of funds and seek an amicable resolution with County. H REMAINDER OF PAGE INTENTIONALLY LEFT BLANK H IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the date first above written. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its ATTEST: Teak Si onton Clerkthe Board BROWN'S AMUSEMENTS, INC. n B_ Y _ � Title: V l?, STATE OF ) SS. COUNTY OF } was acknowledged before me by SWj ry F)rd w h, this 04 day ofMft __, 201Y The foregoing instrument Brown's Amusements, Inc. *MY LINDSEY CABRERA Notary Public - Arizona Yavapai County Comm. Expires Oct 31, 2014 of