HomeMy WebLinkAboutC2021-044 - Bone Haus BreweryContract No. 2021-044
AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
BONE HAUS BREWING LLC
THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is entered into as
of March 3, 2021, between the Town of Fountain Hills, an Arizona municipal corporation (the
“Town”) and Bone Haus Brewing LLC, an Arizona limited liability company (“Bone Haus”),
collectively referred to as the “Parties.”
RECITALS
A. WHEREAS, Bone Haus operates a brewery and tap room and has the ability to
facilitate off-site beer service;
B. WHEREAS, the Town will hold a permit for the sale of alcoholic beverages,
namely beer, at the 2021 Fountain Hills Music Fest; and
C. WHEREAS, the Parties desire to enter into this Agreement for the purposes of
obtaining remuneration from the provision of services as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing introduction and recitals, which
are incorporated herein by reference, the following mutual covenants and conditions, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Town and Bone Haus hereby agree as follows:
1. Purpose. The purpose of this Agreement is to articulate the rights and
responsibilities of the Parties with respect to the sale and service of alcoholic beverages, namely
beer, at the 2021 Fountain Hills Music Fest to be held on April 10, 2021 (the “Music Fest”) and to
establish compensation for Bone Haus’s services.
2. Scope of Work. Bone Haus shall perform the following (the “Services”):
2.1 Provide staffing to facilitate the service of alcoholic beverages for the
duration of the Music Fest or as otherwise agreed by the Parties;
2.2 Serve all alcoholic beverages for the duration of the Music Fest or as
otherwise agreed by the Parties;
2.3 Implement and follow reasonable procedures to manage the service of
alcoholic beverages consistent with all applicable laws and regulations;
2
2.4 Implement and follow reasonable procedures to accept and account for
revenue obtained from alcohol sales;
2.5 Add the Town as an additional insured on an acceptable general liability
insurance policy, in accordance with Section 7 below; and
2.6 Provide the Town with its portion of the revenue from alcohol sales in
connection with the Music Fest, as set forth in Section 4 below.
3. Town Responsibilities. The Town shall be responsible to perform only the
following:
3.1 Obtain and hold a County-issued alcohol permit for the sale of alcoholic
beverages at the Music Fest;
3.2 Hire officers and event staff for age identification checks and monitoring of
alcohol consumption; and
3.3 Provide fencing for or otherwise securing the alcohol sales and service area.
4. Compensation. All revenues from the sale of alcohol, exclusive of merchandise
sales, shall be divided between the parties as follows: 30% of revenues to the Town; 70% of
revenues to Bone Haus.
5. Payments. Payment shall be made in a single installment by check, made out to the
Town of Fountain Hills, within 30 calendar days after the conclusion of the Music Fest. Payment
will be accompanied by an accounting of the proceeds.
6. Indemnification. To the fullest extent permitted by law, Bone Haus shall
indemnify, defend and hold harmless the Town and each council member, officer, employee or
agent thereof (the Town and any such person being herein called an “Indemnified Party”), for,
from and against any and all losses, claims, damages, liabilities, costs and expenses (including, but
not limited to, reasonable attorneys’ fees, court costs and the costs of appellate proceedings) to
which any such Indemnified Party may become subject, under any theory of liability whatsoever
(“Claims”), insofar as such Claims (or actions in respect thereof) relate to, arise out of, or are
caused by or based upon the negligent acts, intentional misconduct, errors, mistakes or omissions,
breach of contract, in connection with the work or services of Bone Haus, its officers, employees,
agents, or any tier of subcontractor in the performance of this Agreement.
7. Insurance.
7.1 General.
3
A. Insurer Qualifications. Without limiting any obligations or
liabilities of Bone Haus, Bone Haus shall purchase and maintain, at its own expense,
hereinafter stipulated minimum insurance with insurance companies authorized to do
business in the State of Arizona pursuant to ARIZ. REV. STAT. § 20-206, as amended, with
an AM Best, Inc. rating of A- or above with policies and forms satisfactory to the Town.
Failure to maintain insurance as specified herein may result in termination of this
Agreement at the Town’s option.
B. No Representation of Coverage Adequacy. By requiring insurance
herein, the Town does not represent that coverage and limits will be adequate to protect
Bone Haus. The Town reserves the right to review any and all of the insurance policies
and/or endorsements cited in this Agreement but has no obligation to do so. Failure to
demand such evidence of full compliance with the insurance requirements set forth in this
Agreement or failure to identify any insurance deficiency shall not relieve Bone Haus from,
nor be construed or deemed a waiver of, its obligation to maintain the required insurance
at all times during the performance of this Agreement.
C. Additional Insured. All insurance coverage, except Workers’
Compensation insurance and Professional Liability insurance, if applicable, shall name, to
the fullest extent permitted by law for claims arising out of the performance of this
Agreement, the Town, its agents, representatives, officers, directors, officials and
employees as Additional Insured as specified under the respective coverage sections of this
Agreement.
D. Coverage Term. All insurance required herein shall be maintained
in full force and effect until all work or services required to be performed under the terms
of this Agreement are satisfactorily performed, completed and formally accepted by the
Town, unless specified otherwise in this Agreement.
E. Primary Insurance. Bone Haus’s insurance shall be primary
insurance with respect to performance of this Agreement and in the protection of the Town
as an Additional Insured.
F. Claims Made. In the event any insurance policies required by this
Agreement are written on a “claims made” basis, coverage shall extend, either by keeping
coverage in force or purchasing an extended reporting option, for three years past
completion and acceptance of the services. Such continuing coverage shall be evidenced
by submission of annual Certificates of Insurance citing applicable coverage is in force and
contains the provisions as required herein for the three-year period.
G. Waiver. All policies, except for Professional Liability, including
Workers’ Compensation insurance, shall contain a waiver of rights of recovery
(subrogation) against the Town, its agents, representatives, officials, officers and
employees for any claims arising out of the work or services of Bone Haus. Bone Haus
shall arrange to have such subrogation waivers incorporated into each policy via formal
written endorsement thereto.
4
H. Policy Deductibles and/or Self-Insured Retentions. The policies set
forth in these requirements may provide coverage that contains deductibles or self-insured
retention amounts. Such deductibles or self-insured retention shall not be applicable with
respect to the policy limits provided to the Town. Bone Haus shall be solely responsible
for any such deductible or self-insured retention amount.
I. Use of Subcontractors. If any work under this Agreement is
subcontracted in any way, Bone Haus shall execute written agreements with its
subcontractors containing the indemnification provisions set forth in this Agreement and
insurance requirements set forth herein protecting the Town and Bone Haus. Bone Haus
shall be responsible for executing any agreements with its subcontractors and obtaining
certificates of insurance verifying the insurance requirements.
J. Evidence of Insurance. Prior to commencing any work or services
under this Agreement, Bone Haus will provide the Town with suitable evidence of
insurance in the form of certificates of insurance and a copy of the declaration page(s) of
the insurance policies as required by this Agreement, issued by Bone Haus’s insurance
insurer(s) as evidence that policies are placed with acceptable insurers as specified herein
and provide the required coverages, conditions and limits of coverage specified in this
Agreement and that such coverage and provisions are in full force and effect. Confidential
information such as the policy premium may be redacted from the declaration page(s) of
each insurance policy, provided that such redactions do not alter any of the information
required by this Agreement. The Town shall reasonably rely upon the certificates of
insurance and declaration page(s) of the insurance policies as evidence of coverage but
such acceptance and reliance shall not waive or alter in any way the insurance requirements
or obligations of this Agreement. If any of the policies required by this Agreement expire
during the life of this Agreement, it shall be Bone Haus’s responsibility to forward renewal
certificates and declaration page(s) to the Town 30 days prior to the expiration date. All
certificates of insurance and declarations required by this Agreement shall be identified by
referencing the RFP number and title or this Agreement. A $25.00 administrative fee shall
be assessed for all certificates or declarations received without the appropriate RFP number
and title or a reference to this Agreement, as applicable. Additionally, certificates of
insurance and declaration page(s) of the insurance policies submitted without referencing
the appropriate RFP number and title or a reference to this Agreement, as applicable, will
be subject to rejection and may be returned or discarded. Certificates of insurance and
declaration page(s) shall specifically include the following provisions:
(1) The Town, its agents, representatives, officers, directors,
officials and employees are Additional Insureds as follows:
(a) Commercial General Liability – Under Insurance
Services Office, Inc., (“ISO”) Form CG 20 10 03 97 or equivalent.
(b) Auto Liability – Under ISO Form CA 20 48 or
equivalent.
5
(c) Excess Liability – Follow Form to underlying
insurance.
(2) Bone Haus’s insurance shall be primary insurance with
respect to performance of this Agreement.
(3) All policies, except for Professional Liability, including
Workers’ Compensation, waive rights of recovery (subrogation) against Town, its
agents, representatives, officers, officials and employees for any claims arising out
of work or services performed by Bone Haus under this Agreement.
(4) ACORD certificate of insurance form 25 (2014/01) is
preferred. If ACORD certificate of insurance form 25 (2001/08) 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” shall be deleted. Certificate forms other than ACORD
form shall have similar restrictive language deleted.
7.2 Required Insurance Coverage.
A. Commercial General Liability. Bone Haus shall maintain
“occurrence” form Commercial General Liability insurance with an unimpaired limit of
not less than $1,000,000 for each occurrence, $2,000,000 Products and Completed
Operations Annual Aggregate and a $2,000,000 General Aggregate Limit. The policy shall
cover liability arising from premises, operations, independent contractors, products-
completed operations, personal injury and advertising injury. Coverage under the policy
will be at least as broad as ISO policy form CG 00 010 93 or equivalent thereof, including
but not limited to, separation of insured’s clause. To the fullest extent allowed by law, for
claims arising out of the performance of this Agreement, the Town, its agents,
representatives, officers, officials and employees shall be cited as an Additional Insured
under ISO, Commercial General Liability Additional Insured Endorsement form CG 20 10
03 97, or equivalent, which shall read “Who is an Insured (Section II) is amended to include
as an insured the person or organization shown in the Schedule, but only with respect to
liability arising out of “your work” for that insured by or for you.” If any Excess insurance
is utilized to fulfill the requirements of this subsection, such Excess insurance shall be
“follow form” equal or broader in coverage scope than underlying insurance.
B. Vehicle Liability. Bone Haus shall maintain Business Automobile
Liability insurance with a limit of $1,000,000 each occurrence on Bone Haus’s owned,
hired and non-owned vehicles assigned to or used in the performance of Bone Haus’s work
or services under this Agreement. Coverage will be at least as broad as ISO coverage code
“1” “any auto” policy form CA 00 01 12 93 or equivalent thereof. To the fullest extent
allowed by law, for claims arising out of the performance of this Agreement, the Town, its
agents, representatives, officers, directors, officials and employees shall be cited as an
Additional Insured under ISO Business Auto policy Designated Insured Endorsement form
6
CA 20 48 or equivalent. If any Excess insurance is utilized to fulfill the requirements of
this subsection, such Excess insurance shall be “follow form” equal or broader in coverage
scope than underlying insurance.
C. Professional Liability. If this Agreement is the subject of any
professional services or work, or if Bone Haus engages in any professional services or work
in any way related to performing the work under this Agreement, Bone Haus shall maintain
Professional Liability insurance covering negligent errors and omissions arising out of the
Services performed by Bone Haus, or anyone employed by Bone Haus, or anyone for
whose negligent acts, mistakes, errors and omissions Bone Haus is legally liable, with an
unimpaired liability insurance limit of $2,000,000 each claim and $2,000,000 annual
aggregate.
D. Workers’ Compensation Insurance. Bone Haus shall maintain
Workers’ Compensation insurance to cover obligations imposed by federal and state
statutes having jurisdiction over Bone Haus’s employees engaged in the performance of
work or services under this Agreement and shall also maintain Employers Liability
Insurance of not less than $500,000 for each accident, $500,000 disease for each employee
and $1,000,000 disease policy limit.
7.3 Cancellation and Expiration Notice. Insurance required herein shall not
expire, be canceled, or be materially changed without 30 days’ prior written notice to the Town.
8. Miscellaneous.
8.1 Independent Contractor. It is clearly understood that each party will act in
its individual capacity and not as an agent, employee, partner, joint venturer, or associate of the
other. An employee or agent of one party shall not be deemed or construed to be the employee or
agent of the other for any purpose whatsoever. Bone Haus acknowledges and agrees that the
Services provided under this Agreement are being provided as an independent contractor, not as
an employee or agent of the Town. Bone Haus, its employees and subcontractors are not entitled
to workers’ compensation benefits from the Town. Bone Haus is neither prohibited from entering
into other contracts nor prohibited from practicing its profession elsewhere. Town and Bone Haus
do not intend to nor will they combine business operations under this Agreement.
8.2 Applicable Law; Venue. This Agreement shall be governed by the laws of
the State of Arizona and suit pertaining to this Agreement may be brought only in courts in
Maricopa County, Arizona.
8.3 Laws and Regulations. Bone Haus shall keep fully informed and shall at all
times during the performance of its duties under this Agreement ensure that it and any person for
whom Bone Haus is responsible abides by, and remains in compliance with, all rules, regulations,
ordinances, statutes or laws affecting the Services, including, but not limited to, the following: (A)
existing and future Town and County ordinances and regulations; (B) existing and future State and
Federal laws; and (C) existing and future Occupational Safety and Health Administration
standards.
7
8.4 Amendments. This Agreement may be modified only by a written
amendment signed by persons duly authorized to enter into contracts on behalf of the Town and
Bone Haus.
8.5 Provisions Required by Law. Each and every provision of law and any
clause required by law to be in this Agreement will be read and enforced as though it were included
herein and, if through mistake or otherwise any such provision is not inserted, or is not correctly
inserted, then upon the application of either party, this Agreement will promptly be physically
amended to make such insertion or correction.
8.6 Severability. The provisions of this Agreement are severable to the extent
that any provision or application held to be invalid by a Court of competent jurisdiction shall not
affect any other provision or application of this Agreement which may remain in effect without
the invalid provision or application.
8.7 Entire Agreement; Interpretation; Parol Evidence. This Agreement
represents the entire agreement of the parties with respect to its subject matter, and all previous
agreements, whether oral or written, entered into prior to this Agreement are hereby revoked and
superseded by this Agreement. No representations, warranties, inducements or oral agreements
have been made by any of the parties except as expressly set forth herein, or in any other
contemporaneous written agreement executed for the purposes of carrying out the provisions of
this Agreement. This Agreement shall be construed and interpreted according to its plain meaning,
and no presumption shall be deemed to apply in favor of, or against the party drafting this
Agreement. The parties acknowledge and agree that each has had the opportunity to seek and
utilize legal counsel in the drafting of, review of, and entry into this Agreement.
8.8 Assignment; Delegation. No right or interest in this Agreement shall be
assigned or delegated by Bone Haus without prior, written permission of the Town, signed by the
Town Manager. Any attempted assignment or delegation by Bone Haus in violation of this
provision shall be a breach of this Agreement by Bone Haus.
8.9 Rights and Remedies. No provision in this Agreement shall be construed,
expressly or by implication, as waiver by the Town of any existing or future right and/or remedy
available by law in the event of any claim of default or breach of this Agreement. The failure of
the Town to insist upon the strict performance of any term or condition of this Agreement or to
exercise or delay the exercise of any right or remedy provided in this Agreement, or by law, or the
Town’s acceptance of and payment for services, shall not release Bone Haus from any
responsibilities or obligations imposed by this Agreement or by law, and shall not be deemed a
waiver of any right of the Town to insist upon the strict performance of this Agreement.
8.10 Attorneys’ Fees. In the event either party brings any action for any relief,
declaratory or otherwise, arising out of this Agreement or on account of any breach or default
hereof, the prevailing party shall be entitled to receive from the other party reasonable attorneys’
fees and reasonable costs and expenses, determined by the court sitting without a jury, which shall
be deemed to have accrued on the commencement of such action and shall be enforced whether or
not such action is prosecuted through judgment.
8
8.11 Notices and Requests. Any notice or other communication required or
permitted to be given under this Agreement shall be in writing and shall be deemed to have been
duly given if (A) delivered to the party at the address set forth below, (B) deposited in the U.S.
Mail, registered or certified, return receipt requested, to the address set forth below or (C) given to
a recognized and reputable overnight delivery service, to the address set forth below:
If to the Town: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Grady E. Miller, Town Manager
With copy to: Pierce Coleman PLLC
4711 East Falcon Drive, Suite 111
Mesa, Arizona 85215
Attn: Aaron D. Arnson, Town Attorney
If to Bone Haus: Bone Haus Brewing LLC
14825 East Shea Boulevard #101
Fountain Hills, Arizona 85268
Attn: Andy Weiner
or at such other address, and to the attention of such other person or officer, as any party may
designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed
received (A) when delivered to the party, (B) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage or (C) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
required charges and instructing the delivery service to deliver on the following business day. If
a copy of a notice is also given to a party’s counsel or other recipient, the provisions above
governing the date on which a notice is deemed to have been received by a party shall mean and
refer to the date on which the party, and not its counsel or other recipient to which a copy of the
notice may be sent, is deemed to have received the notice.
8.12 E-verify Requirements. To the extent applicable under ARIZ. REV. STAT. §
41-4401, Bone Haus and its subcontractors warrant compliance with all federal immigration laws
and regulations that relate to their employees and their compliance with the E-verify requirements
under ARIZ. REV. STAT. § 23-214(A). Bone Haus’s or its subcontractors’ failure to comply with
such warranty shall be deemed a material breach of this Agreement and may result in the
termination of this Agreement by the Town.
8.13 Israel. Bone Haus certifies that it is not currently engaged in, and agrees for
the duration of this Agreement that it will not engage in a “boycott,” as that term is defined in
ARIZ. REV. STAT. § 35-393, of Israel.
8.14 Conflict of Interest. This Agreement is subject to the provisions of ARIZ.
REV. STAT. § 38-511. The Town may cancel this Agreement without penalty or further obligations
9
by the Town or any of its departments or agencies if any person significantly involved in initiating,
negotiating, securing, drafting or creating this Agreement on behalf of the Town or any of its
departments or agencies is, at any time while this Agreement or any extension of this Agreement
is in effect, an employee of any other party to this Agreement in any capacity or Bone Haus to any
other party of this Agreement with respect to the subject matter of this Agreement.
[SIGNATURES ON FOLLOWING PAGES]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first set forth above.
“Town”
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
Grady E. Miller, Town Manager
ATTEST:
Elizabeth A. Burke, Town Clerk
APPROVED AS TO FORM:
Aaron D. Arnson, Town Attorney
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
Grady E. Miller (Mar 29, 2021 16:38 PDT)
Grady E. Miller
Elizabeth A. Burke (Apr 1, 2021 15:32 PDT)
Elizabeth A. Burke
“Contractor”
____________________________________,
By:
Name:
Title:
Bone Haus Brewing
CMO / Co-Founder
Keith Chapman