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RESOLUTION NO. 5571
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHANDLER,
ARIZONA AUTHORIZING A LICENSE AND SERVICES AGREEMENT
BETWEEN
POWERHOUSE
INNOVATIVE
STRATEGIES
CORP.
(“CONTRACTOR”) AND THE CITY OF CHANDLER FOR THE PURPOSE OF
HOLDING THE 2023 END ZONE EXPERIENCE.
WHEREAS, the National Football League will hold its annual championship game on February
12, 2023, in Glendale, Arizona, bringing extensive international media attention and tourism to
the State of Arizona and the Phoenix metropolitan area; and
WHEREAS, the City desires to have a public event held in Chandler, the 2023 End Zone
Experience, to coincide with the championship game festivities to promote the City of Chandler
and to capitalize on increased tourism in the State; and
WHEREAS, Contractor is an experienced event coordinator with the expertise to organize and
promote large public festivals; and
WHEREAS, the City and Contractor wish to enter into an agreement for City to pay Contractor
for services through money and in-kind services and for the City to provide Contractor with a
license to operate in City facilities.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chandler, Arizona,
as follows:
Section 1.
Approves the City of Chandler to enter into the License and Services Agreement
in substantially the form attached hereto as Exhibit “A” and incorporated herein by
reference.
Section 2.
Authorizes the Mayor of the City of Chandler to execute the License and Services
Agreement for and on behalf of the City of Chandler.
PASSED AND ADOPTED by the City Council of the City of Chandler, Arizona, this ___ day of
__________, 2022.
ATTEST:
______________________________
_______________________________
CITY CLERK
MAYOR
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CERTIFICATION
I HEREBY CERTIFY that the above and foregoing Resolution No. 5571 was duly passed and
adopted by the City Council of the City of Chandler, Arizona, at a regular meeting held on the ___
day of ___________, 2022, and that a quorum was present thereat.
___________________________________
CITY CLERK
APPROVED AS TO FORM:
_______________________________
CITY ATTORNEY
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EXHIBIT “A”
LICENSE AND SERVICES AGREEMENT FOR 2023 END ZONE
EXPERIENCE
This License and Services Agreement (the “Agreement”) is entered into on
_____________, 2022, between and among the City of Chandler, an Arizona municipal
corporation (“City”), and Powerhouse Innovative Strategies Corp., a New York
corporation (“Contractor”). City and Contractor may be referred to individually as a
“Party” or collectively as the “Parties.”
SECTION 1: RECITALS
1.1
The National Football League will hold its annual championship game on February
12, 2023, in Glendale, Arizona, bringing extensive international media attention and
tourism to the State of Arizona and the Phoenix metropolitan area.
1.2
City desires to hold a public event (the “Festival”) to coincide with the championship
game festivities to promote the City of Chandler and to capitalize on increased
tourism in the State.
1.3
Contractor is an experienced event coordinator with the expertise to organize and
promote large public festivals. In exchange for the event promotion services
provided by Contractor, City will pay Contractor and provide in-kind services as
outlined in this Agreement. City will also provide Contractor a license to operate in
City facilities as described in this Agreement.
SECTION 2: GRANT OF LICENSE; FEES
2.1
Grant of License; License Time Period. City grants Contractor a license to use
certain City facilities to operate the Festival on the dates and times described in the
attached Exhibit A, which is incorporated into this Agreement. Those facilities
described in Exhibit A will be referred to as the “City Facilities.” Access to the City
Facilities for set-up, operation, and take-down shall be granted during those dates
and times specified in Exhibit B (the “License Time Period”). Contractor must
conclude all post-Festival activities and remove all booths, vehicles, and materials
from City Facilities no later than the takedown times specified in Exhibit B.
2.2
Additional Fees. There is no license fee for Contractor’s use of the City Facilities
during the dates and times described in Exhibit A. However, City reserves the right
to require payment of additional fees associated with the use of the City Facilities.
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Such additional fees or charges shall be paid on or before the earlier of (i) twenty-
one (21) days prior to the first date of Contractor’s use of the City Facilities for the
Festival or (ii) no later than thirty (30) calendar days after Contractor’s receipt of an
invoice requesting such fees or charges.
Additional fees for equipment rentals, services, permits, and licenses may include,
but are not limited to:
a.
Services – Utilities
b.
City staff time not included as part of Exhibit B
c.
License - Non-Profit Solicitor’s License, plus any other regulatory license or
permit required
d.
Clean up fees if Contractor does not clean City Facilities adequately at the
conclusion of the Festival.
e.
Repair costs if damage occurs during Festival
2.3
Clean up and Repairs. If Contractor fails to clean up the City Facilities to City's
satisfaction at the conclusion of the Festival, City will perform any remaining clean-
up and invoice Contractor for the cost of the clean-up. Contractor will also be
responsible for the cost of repairs for any damage to the City Facilities that occurs
during the Festival, including Contractor’s set-up and take down before and after
the Festival.
2.4
City Facility Use. During the License Time Periods specified in this Agreement,
Contractor may use the City Facilities for the Festival activities specified herein and
for uses normally incident to such use but for no other purpose unless previously
authorized by the City in writing. Contractor agrees to take the City Facilities in “as
is” condition and Contractor agrees to return the City Facilities in the same condition
upon conclusion of the Festival.
2.5
Nature of License. Contractor acknowledges and agrees that the right granted by
this Agreement to enter upon and use the City Facilities is nothing more than a
license granted solely for the purpose of exercising its rights and performing its
duties under this Agreement. The execution of this Agreement by Contractor is for
the sole purpose of creating an independent-contractor relationship for the purposes
described herein and nothing contained herein shall create or be deemed to create a
partnership, joint venture, or any other co-ownership relationship between
Contractor and City. Nothing set forth in this Agreement creates a tenancy between
City and Contractor or grants Contractor possession of any City property. Upon
termination of this Agreement or conclusion of the Festival, whichever occurs
sooner, City shall have the right to remove and exclude from the City Facilities, or
any other City property, Contractor and any of the Contractor’s employees,
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subcontractors, or invitees, without being deemed to have committed any unlawful
entry, trespass, or injury of any sort whatsoever.
2.6
City Staff/In-Kind Services. City will provide Contractor with reasonable access to
a venue liaison during the License Time Periods to coordinate Festival set-up,
operation, and take-down activities. City will also provide additional in-kind
services and staffing during the Festival as specified in Exhibit B. In-kind services
may be increased, up to but not more than, 20% based on the events in Exhibit A.
Any additional staff or equipment requested or required by Contractor other than
what is described in Exhibit B will be paid for by Contractor.
2.7
City Payment. In addition to the in-kind services provided, City will pay Contractor
twenty-five thousand dollars ($25,000.00) for the event coordination services
provided by Contractor. Contractor will be paid as follows: $10,000 upon the
effective date of this Agreement, $5,000 on August 15, 2022, $5,000 on October 15,
2022, and $5,000 on December 15, 2022. Contractor must provide documentation
that the event is progressing such as invoices, marketing materials, itineraries, etc.
along with an invoice for each payment. An additional appropriation may be offered
if approved by City Council in its next fiscal year budget effective July 1, 2022.
Contractor acknowledges that this additional payment is contingent on approval in
the council budget, and is at the City Council’s discretion, and will not constitute a
breach or default of this Agreement if not approved by the City Council. If approved,
the final appropriation will be paid upon completion of the Festival. Contractor will
invoice City for each payment when requested. If appropriation is not approved, the
final payment of $5,000 will be paid upon completion of the event.
2.8
City's Policies and Procedures. Contractor agrees to observe and abide by the terms
and conditions of (i) this Agreement and each exhibit hereto and (ii) all City laws
and regulations, policies, and procedures, including without limitation those
approved by the City Council, City Management, and City Fire, City Police, and all
provisions of the City Charter and City Code.
SECTION 3: INSURANCE
3.1
Insurance.
a.
No later than sixty (60) days before the first day of Festival set-up, Contractor
shall furnish City a certificate of insurance on a standard insurance industry
ACORD form. The ACORD form must be issued by an insurance company
authorized to transact business in the State of Arizona possessing a current
A.M. Best, Inc. rating of A-7 or better and legally authorized to do business
in the State of Arizona, with policies and forms satisfactory to the City.
Provided, however, the A.M. Best rating requirement shall not apply to
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required workers' compensation coverage.
b.
Contractor shall procure and maintain, until all its obligations have been
discharged, including any warranty periods under this Agreement, the
insurance set forth below.
c.
The insurance requirements set forth below are minimum requirements for
this Agreement and in no way limit the indemnity covenants contained in this
Agreement.
d.
The City in no way warrants that the minimum insurance limits contained in
this Agreement are sufficient to protect Contractor from liabilities that might
arise out of the performance of activities under this Agreement by
Contractor, its agents, representatives, employees, or subcontractors, and
Contractor is free to purchase any additional insurance as it may determine
necessary.
e.
Failure to demand evidence of full compliance with the insurance
requirements in this Agreement or failure to identify any insurance
deficiency will not relieve Contractor from, nor will it be considered a
waiver of their obligation to maintain the required insurance at all times
during the performance of this Agreement.
f.
Use of Subcontractors: If any work is subcontracted in any way, Contractor
shall execute a written agreement with subcontractor containing the same
indemnification clause and insurance requirements as the City requires of
the Contractor in this Agreement, except subcontractors' requirements for
commercial liability insurance shall be a limit of not less than One Million
Dollars ($1,000,000) for each occurrence, Two Million Dollars
($2,000,000) aggregate, with coverage for death, personal injury, property
damage, operations, independent contractors, products, completed
operations, and advertising injury. Unless a subcontractor is providing
alcoholic beverages during the Festival, such subcontractor shall not have
to provide liquor liability coverage. Contractor is responsible for executing
the written agreement with the subcontractor, obtaining certificates of
insurance, and verifying that the subcontractor meets the insurance
requirements.
3.2
Minimum Scope and Limits of Insurance. Contractor shall provide coverage with
limits of liability not less than those stated below.
a.
Commercial General Liability-Occurrence Form. Contractor must maintain
"occurrence" form commercial general liability insurance with a limit of not
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less than Two Million Dollars ($2,000,000) for each occurrence, Four
Million Dollars ($4,000,000) aggregate, with coverage for death, personal
injury, property damage, operations, independent contractors, products,
completed operations, and advertising injury. If any excess insurance is
utilized to fulfill the requirements of this paragraph, the excess insurance
must be "follow form" equal or broader in coverage scope than underlying
insurance.
b.
Automobile Liability-Any Auto or Owned, Hired and Non-Owned Vehicles
Vehicle
Liability:
If
applicable,
Contractor
must
maintain
business/automobile liability insurance with a limit of One Million Dollars
($1,000,000) each accident on Contractor-owned, hired, and non-owned
vehicles assigned to or used in the performance of Contractor’s work or
services under this Agreement. If any excess or umbrella insurance is
utilized to fulfill the requirements of this paragraph, the excess or umbrella
insurance must be "follow form" equal or broader in coverage scope than
underlying insurance.
c.
Workers Compensation and Employers Liability Insurance: If applicable,
Contractor must maintain Workers Compensation insurance to cover
obligations imposed by federal and state statutes having jurisdiction of
Contractor employees engaged in the performance of work or services
under this Agreement and must also maintain employers' liability insurance
of not less than one hundred thousand dollars ($100,000) for each accident,
one hundred thousand ($100,000) disease for each employee and five
hundred thousand ($500,000) disease policy limit.
3.3
Additional Policy Provisions Required.
a.
Self-Insured Retentions and Deductibles. Any self-insured retentions and
deductibles must be declared and approved by City. If not approved, the City
may require that the insurer reduce or eliminate any deductible or self-
insured retentions with respect to the City, its officers, officials, agents,
employees, and volunteers.
b.
City as Additional Insured. The policies described above are to contain, or
be endorsed to contain, the following provisions:
1.
The commercial general liability and automobile liability policies are
to contain, or be endorsed to contain, the following provisions: the
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City, its officers, officials, agents, volunteers, and employees are
additional insureds with respect to liability arising out of activities
performed by, or on behalf of, Contractor, including the City's
general supervision of, products and completed operations of, and
automobiles owned, leased, hired, or borrowed by Contractor.
2.
Insurance must contain broad form contractual liability coverage and
must not exclude liability arising out of explosion, collapse, or
underground property damage hazards ("XCU") coverage.
3.
The City, its officers, officials, agents, volunteers, and employees
must be additional insureds to the full limits of liability purchased by
Contractor even if those limits of liability exceed those required by
this Agreement.
4.
Contractor's insurance coverage must be primary insurance with
respect to the City, its officers, officials, agents, volunteers, and
employees. Any insurance or self-insurance maintained by the City,
its officers, officials, agents, volunteers, and employees shall be in
excess of the coverage provided by Contractor and must not contribute
to it.
5.
Contractor's insurance must apply separately to each insured against
whom claim is made or suit is brought, except with respect to the
limits of the insurer's liability.
6.
Coverage provided by Contractor must not be limited to the liability
assumed under the indemnification provisions of this Agreement.
7.
The policies must contain a waiver of subrogation against City, its
officers, officials, agents, volunteers, and employees, for losses
arising from work performed by Contractor for the City.
8.
If a certificate of insurance is submitted as verification of coverage,
City will reasonably rely upon the certificate of insurance as evidence
of coverage, but this acceptance and reliance will not waive or alter
in any way the insurance requirements or obligations of this
Agreement. If any of the required policies expire during the life of
this Agreement, Contractor must forward renewal or replacement
certificates to the City within ten (10) days after the renewal date
containing all the necessary insurance provisions.
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9.
All certificates must include a thirty (30)-day advance notice of
cancellation provision. If the ACORD Certificate of Insurance form
is used, the phrases in the cancellation provision "endeavor to" and
"but failure to mail such notice shall impose no obligation or liability
of any kind upon the company, its agents or representatives" must be
deleted. Certificate forms other than the ACORD form must have
similar restrictive language deleted.
3.4
The City reserves the right at its sole discretion to change any of the insurance
provisions of this Agreement as set forth in this Section 3 if the scope of the events
outlined in Exhibit A changes.
SECTION 4: INDEMNIFICATION
4.1
Indemnification. To the fullest extent permitted by law, Contractor, and its
respective successors, assigns, and guarantors, shall defend, indemnify, and hold
harmless City and any of its elected or appointed officials, officers, directors,
commissioners, board members, agents, volunteers, or employees from and against
any and all allegations, demands, claims, proceedings, suits, actions, and
damages, including, without limitation, property damage, environmental damages,
personal injury and wrongful death claims, losses, expenses (including
claim
adjusting and handling expenses), penalties and fines (including, but not limited to,
reasonable attorney’s fees, court costs, and the cost of appellate proceedings),
judgments or obligations, which may be imposed upon or incurred by or asserted
against the City by reason of this Contract or the services performed or permissions
granted under it, or related to, arising from or out of, or resulting from any
negligent or intentional actions, acts, errors, mistakes or omissions caused in whole
or part by Contractor, or any of their respective subcontractors, or anyone directly
or indirectly employed by any of them or anyone for whose acts any of them may
be liable, relating to the discharge of any duties or the exercise of any rights or
privileges arising from or incidental to this Contract, including but not
limited to, any injury or damages claimed by any of Contractor’s or subcontractors’
employees. In no event shall the City be liable for any indirect, consequential, or
incidental damages or lost profits arising out of this Agreement.
SECTION 5: COMPLIANCE WITH LAWS, POLICIES AND PROCEDURES
5.1
Compliance with Laws. Contractor shall comply with all laws, policies and
procedures, regulations, safety and fiscal procedures, laws, ordinances, and statutes
applicable to the use of the City Facilities. These shall include, without
limitation: (a) obtaining all applicable permits and licenses, (b) paying all applicable
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taxes, (c) complying with all the terms set forth in this Agreement, and (d) all
other reasonable requirements of the City.
5.2
Dangerous Use. If City reasonably determines, in its sole discretion, that the use to
which the City Facilities shall be put by Contractor will or is likely to create a
dangerous or unsafe condition, or will or is likely to create a condition improper,
incendiary, or dangerous to the public health, safety or morals, or will or is likely to
endanger or deteriorate the City Facilities or any part thereof by fire, water or other
means of any nature, or if the Contractor violates any of the provisions hereof, then
and in that event Contractor agrees that this Agreement may be summarily cancelled
by the City without any advance notice whatsoever to the Contractor. In the event
of such cancellation of this Agreement, Contractor understands and agrees that no
liability whatsoever shall attach to City by reason of such cancellation.
5.3
Non-Permitted Activities and Vendors. Absolutely no motorized sports events shall
be allowed at the Festival unless agreed to in writing by the Parties and
incorporated herein. Any effort to provide such entertainment shall not be allowed
and City will invoke its authority to shut down the entertainment or activity.
5.4
Non-Discrimination.Contractor, in its use of the City Facilities, shall not
discriminate against any person, entity, or group because of age, race, sex, creed,
color, religion, or national origin, nor otherwise commit an unfair employment
practice. Contractor shall comply with the Americans with Disabilities Act.
5.5
Drug-Free Work Program. Contractor is hereby advised that City has adopted a
policy establishing a drug-free workplace for itself and as a requirement for sellers-
contractors doing business with the City to ensure the safety and health of
employees working on City contracts and/or projects. Failure of Contractor to
require a drug-free workplace in accordance with the City's policy may result in
termination of this Agreement.
SECTION 6: GENERAL CONDITIONS
6.1
Force Majeure. Failure to perform by the City due to a force majeure event shall
not be deemed a violation or breach of this Agreement. A force majeure event may
include, without limitation: fire, flood, earthquake, strikes or work stoppages,
contractor’s failure to perform, any interruption of utility services, suspension or
interference with performances caused by acts of God or acts of public enemy, riots
or similar occurrences, and order of court or administrative agencies, including
orders of the City Police Department or the City Fire Department. In the event of a
force majeure event as described herein, this Agreement shall terminate, and
Contractor shall only be required to pay any and all fees charged for the use
of the City Facilities up to the time of such termination. The City shall have no
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liability for any costs, expenses, or other liability incurred by the Contractor as
a result of such force majeure event.
6.2
Entire Agreement: Amendments. This Agreement, any exhibits to this Agreement,
and the City's charter, code, policies, procedures, and regulations constitute the
entire agreement of the Parties with respect to the subject matter hereof and except
as otherwise specified in this Agreement, all prior and contemporaneous
agreements, representations, negotiations and understandings of the Parties are
superseded by and merged into this Agreement. Any modifications, additions, or
other amendments to this Agreement must be in writing and signed by the Parties.
6.3
Assignment. Contractor shall not assign or otherwise transfer this Agreement or
any of its rights or duties under this Agreement without first obtaining the
written consent of the City, which may be granted or denied in the City's sole
discretion. Any assignment, transfer, pledge, or mortgage of this Agreement by the
Contractor, or by operation of law in violation of this Section 6.3 shall be void.
6.4
Attorney’s Fees. In the event any court action is instituted between the Parties
in connection with this Agreement, the Party prevailing in such action shall
be paid from the other Party all of its costs including reasonable attorney’s
fees and court costs.
6.5
Authorization. The Parties represent and warrant that the persons executing this
Agreement on their behalf have full authority to bind the respective Parties.
6.6
Captions. The captions used in this Agreement are for convenience only and are
not a part of this Agreement and do not limit or amplify the terms and provisions
hereof.
6.7
Construction of License. This Agreement has been arrived at by negotiation
between the City and Contractor. As such, any rule of construction to the effect
that ambiguities are to be resolved against the drafting Party shall not be
employed in the interpretation of this Agreement. Further, the language in all
parts of this Agreement shall in all cases be construed as a whole and in
accordance with its fair meaning.
6.8
Governing Law. This Agreement shall be governed by and construed under the laws
of the State of Arizona, including the applicability of A.R.S. § 38-511. If any action
is brought to construe, interpret, or enforce any provision of this Agreement, the
Parties irrevocably consent to exclusive jurisdiction and venue in Maricopa
County, Arizona.
6.9
No Third-Party Beneficiaries. The Parties acknowledge and agree that the terms,
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provisions, and conditions hereof are for the sole benefit of, and may be enforceable
solely by, the Parties. No third-party beneficiaries are intended to be created under
this Agreement.
6.10 Severability. If any provision of this Agreement is declared invalid, illegal or
unenforceable, that provision shall be severed from the License, and the remaining
provisions shall otherwise remain in full force and effect to the fullest extent
permissible by law, except if the remaining portions of the License do not provide
one or both of the Parties with the essential consideration for entering into this
Agreement.
6.11 Surviving Provisions. The provisions of this Agreement wherein a Party has
explicitly indemnified, made warranty, or made representations to the other Party
shall survive the expiration or earlier termination of this Agreement.
6.12 Notices. All notices and other communications shall be in writing and shall be
delivered personally, or by regular mail to the following Party at the following
address:
Powerhouse Innovative Strategies Corp.
Contact Person: Kimberley A. Hayes,
Address:
1216 Broadway
New York, NY 10001
Office Phone:
1 (917) 225-9130
Email Address:
Kimberley.hayes@powerhouseis.com
CITY OF CHANDLER – CULTURAL DEVELOPMENT
Contact Person:
Kim Moyers
Address:
P.O. Box 4008, MS 498
Chandler, AZ 85244
Office Phone:
(480) 782-3045
Email Address:
kim.moyers@chandleraz.gov
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Email communications shall not constitute sufficient legal notice under this
Agreement.
6.13 Waiver Not Implied. No waiver may be used for the sake of convenience only but
by a Party of a breach of any of the terms, covenants, or conditions of this
Agreement shall be construed or held to be a waiver of any succeeding or preceding
breach of the same or any other term, covenant, or condition herein contained.
6.14 Time of Essence. Time is of the essence in this Agreement and each provision
hereof.
6.15 Termination for Convenience. This Agreement is for the convenience of City and
may be immediately terminated without cause after receipt by Contractor of
written notice by City. Upon termination for convenience, Contractor will be
paid for all undisputed services performed up to the termination date.
6.16 Remedies. In addition to any other rights or remedies, any of the Parties may
institute legal action to cure, correct, or remedy any default, to enforce any
covenant or agreement herein, or to enjoin any threatened or attempted
violation, including suits for declaratory relief, injunctive
relief,
specific
performance, relief in the nature of mandamus, and actions for damages. All
remedies described above shall be cumulative and not exclusive of one
another, and the exercise of any one or more of the remedies shall not constitute a
waiver or election with respect to any other available remedy. The provisions
of this section are not intended to modify any other provisions of this Agreement
and are not intended to provide additional remedies not otherwise permitted by
law.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on this _____ day of
_____________, 2022.
CITY OF CHANDLER
CONTRACTOR
By:
_________________________________
By:
______________________________
City Manager Date:
Print Name: Kimberley A. Hayes
Title: ____________________________
APPROVED AS TO FORM:
By:
__________________________________
City Attorney
ATTEST:
By:
__________________________________
City Clerk
SEAL
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Exhibit A
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Exhibit B – 1
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Exhibit B - 2
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