HomeMy WebLinkAboutWestern Display Fireworks - 2023 - Purchase Order - AgreementQ PYROTECHNIC EXCELLENCE • SINCE 1948 • P.O. Box 932 • Canby Oregon 97013.503.656.1999 westerndisplaycorri
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�✓ DISPLAY AGREEMENT AND PURCHASE ORDER
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THIS AGREEMENT ("Agreement") is entered into on ZG 2.-.3 by and between
LJJ Western Display Fireworks, Ltd., an Oregon corporation, whose/addr ss is set forth above, ("Western") and
L7 City of Pasco, whose address is PO Box 293, 525 North 31d, Pasco, WA 99301 ("Sponsor"). Western and
} Sponsor are sometimes individually referred to as a "Party" and collectively as the "Parties."
In consideration of the mutual terms and conditions set forth herein and other good and valuable
n consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Proposal. Western agrees to supply, and Sponsor agrees to pay for, a fireworks display on the following
designated date(s) and location: July 4, 2023 at 6200 Burden Blvd, Pasco, WA 99301, as detailed in
Ly Proposal #23-7222, which is attached hereto and incorporated herein by this reference, (the "Display")
LU in accordance with the program approved by both Parties.
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2. Price and Payment Terms. Total price of THIRTY THOUSAND DOLLARS AND NO/100 ($30,000.00) is to be
paid as follows: 25% of the total price, $7,500.00 is due by JANUARY 13, 2023; 25% of the total price,
$7,500.00 is due by JUNE 4, 2023; the remaining balance of the price, $15,000.00, is due in full on or
before July 14, 2023. Interest will accrue at 1%% per month (an annual percentage rate of 18% per
annum) on all unpaid amounts from the date on which the payment was due.
3. Western Duties. As part of the total price Western agrees to the following:
a. To supply all shells and other pyrotechnics listed on the Proposal;
b. Mortars, firing equipment and all other required materials necessary to perform its services
hereunder;
c. Proper delivery, set-up, firing and presentation by pyrotechnic operator and crew covered under
workers compensation insurance;
d. To remove all equipment and spent pyrotechnic devices and clean up debris from the immediate
Display site. Sponsor acknowledges that additional debris may remain in the fallout zone after
Western's responsibilities of Display site cleanup have been completed; and
e. To comply with all local and federal guidelines and obtain any necessary permits to perform the
Display, unless otherwise notes in Sponsor duties.
4. Sponsor Duties.
a. Sponsor shall comply with all duties as detailed under the Compliance with Laws/Sponsor
Responsibilities portion of this Agreement; and
b. Sponsor agrees to remove debris from fallout zone by mowing the morning following the display.
5. Insurance. Western agrees to provide, at its expense, commercial general liability insurance coverage in
an amount not less than $5,000,000. Western shall provide Sponsor with a certificate of insurance
identifying the City of Pasco as additional insured, specifically identifying all activities provided for within
this Agreement, within two weeks of the Display. All entities/individuals listed on the certificate of
insurance will be deemed as additional insured pursuant to this Agreement.
6. Indemnification. Western agrees to indemnify, defend, and hold harmless the Sponsor, its agents and
employees, and those entities/individuals listed on the certificate of insurance, from and against all
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D PYROTECHNIC EXCELLENCE • SINCE 1948 PO. Box 932 • Canby Oregon 97013. 503.656.1999 • westerndisplay.con"}
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claims, costs, judgments, damages and expenses, including reasonable attorney fees that directly arise
from the performance of the fireworks to the extent that such are occasioned by an act or omission of
Western, its agents and employees. Sponsor agrees to indemnify, defend, and hold harmless Western,
rV its agents and employees from and against all claims, costs, judgments, damages and expenses, including
L.J_ reasonable attorney fees that arise from the performance of the fireworks to the extent that such are
occasioned by any act or omission of Sponsor, its agents and employees. Each Party agrees to give the
7Sother Party prompt notice of any claims. Neither Party shall be responsible for consequential damages.
r) 7. Compliance with taws.
a a. Sponsor Responsibilities: SPONSOR agrees to perform their requirements in accordance with NFPA
1123 OUTDOOR DISPLAY OF FIREWORKS 2022 Edition (National Fire Protection Association) 8.1
Z General Requirements. The sponsor of the display shall make provisions for fire protection for the
display. 8.1.1 The sponsor shall consult with the AHJ, the local responding fire department (if
LJJ different from the AHJ) and the operator (the licensed pyrotechnic operator employed by
~ Western) to determine the level of fire protection required. 8.1.2 The following shall apply to
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crowd control: (1) Monitors whose sole duty is the enforcement of crowd control shall be located
around the display site and at other locations as determined by the sponsor. (2) The AHJ and the
operator shall approve the provisions for crowd control. 8.1.2.1 Monitors shall be positioned
around the display site to prevent spectators or any other unauthorized persons from entering
the discharge site. 8.1.2.2 Where required by the AHJ, approved delineators or barriers shall be
used to aid in crowd control. 8.1.2.3 Portions of the display site, other than the discharge site(s),
shall be permitted to be open to the public prior to the display as long as the provisions of 4.2.2.2
are maintained. 8.1.2.4 Unescorted public access to the discharge site shall not be permitted
where pyrotechnic materials are present during the period before the display. 8.1.2.5 The
discharge site shall be restricted throughout the display and until the discharge site has been
inspected after the display (see Exhibit A — Display Site Map).
b. Western's Responsibilities: Western shall secure and maintain any and all licenses, permits or
certificates that may be required by any regulatory body having jurisdiction over the materials or
performance of the services herein contemplated unless otherwise noted above in Sponsor duties.
Western shall exercise full and complete authority over its personnel, shall comply with all workmen's
compensation, employer's liability and other federal, state, county and municipal laws, ordinances,
rules and regulations required of an employer performing such services, and shall make all reports
and remit all withholdings or other deductions from the compensation paid its personnel as may be
required by an federal, state, county or municipal law, ordinance, rule or regulation. Western is
responsible to Cure that all materials and services supplied under this Agreement comply with all
laws, rules and regulations of the State and the federal government relating thereto.
Cancellation/Rescheduling by Sponsor. If the Display is cancelled by the Sponsor after receipt of this
signed Agreement, Sponsor agrees to pay 25% of the total price ($7,500.00) for restocking and costs
incurred. If the Display is cancelled by the Sponsor within 30 days of the scheduled Display date, Sponsor
agrees to pay 50% of the total price ($15,000.00). If the Display is cancelled by the Sponsor on the date
of the Display, Sponsor agrees to pay 100•1A of the total price ($30,000.00). By providing notice of not
lessthan 30 days from the original Display date, Sponsor may elect to reschedule the Displayto a mutually
agreeable date. This date must be within 90 days of the original display date. Western agrees to facilitate
this rescheduling and Sponsor agrees to reimburse Western for new permits and other additional costs
PYROTECHNIC EXCEL LENCEw • SINCE 1948 P.O. Box 932 Canby Oregon 97013 • 503.656.1999 • westerndisplay.corn
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associated with this change. Sponsor understands that permitting requirements, burn bans and other
factors beyond Western's control may prohibit rescheduling of a display. If these factors prohibit the
W rescheduled Display from taking place then the standard cancellation schedule applies.
L.J.- 9. Safety / Weather Forced Cancellation. Western agrees that it shall be the responsibility of the
>- pyrotechnic operator in charge, acting on Western's behalf orthe Authority Having Jurisdiction, to cancel
7 or delay the Display if in the operator's judgment circumstances beyond the control of either Party pose
r an extraordinary risk to the health and safety of any persons or property within the vicinity of the Display.
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0 If the product has been damaged as an attempt to execute the Display and cannot be safely reused,100%
of the price is due and Western has no further obligation under this Agreement. If the product is intact
Z and reusable, Western agrees to store the product and execute the Display on a mutually agreeable
future date. Sponsor agrees to reimburse Western for reasonable costs associated with the rescheduling
L_U of the event.
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10. Force Majeure. Sponsor assumes the risks of weather, strike, civil unrest, terrorism, military action,
governmental action, and any other causes beyond the control of Western which may prevent the Display
from being safely performed on the scheduled date, which may cause the cancellation of the event for
which Sponsor has purchased the Display, or which may affect or damage such portion of the Display as
must be replaced and exposed a necessary time before the Display.
11, Product Performance. Sponsor recognizes and acknowledges that due to the nature of fireworks, an
industry accepted level of 3% of the product used in any display may not function as designed and this
level of nonperformance is acceptable as full performance.
12. Limitation on Damages. In the event that Sponsor claims that Western has breached this Agreement or
was negligent in performing its duties hereunder, Sponsor shall not be entitled to claim or recover
monetary damages from Western beyond the amount that Sponsor has paid Western under this
Agreement and shall not be entitled to a claim for or recover of consequential damages from Western,
including, but not limited to, damages for lost income, business, or profits. Additionally, Western's liability
for matters covered by the insurance set forth herein shall be limited to the limits of said insurance.
13. Time. Time is of the essence in this agreement. The Parties expressly recognize that in the performance
of their respective obligations, each Party is relying on timely performance by the other Party and will
schedule operations and incur obligations to third parties in reliance upon timely performances by the
other Party and may sustain substantial losses by reason of any failure of timely performance.
14. Independent Contractor/No Joint Venture. The Parties agree that Western is an independent
contractor, and is not an agent or employee of Sponsor for any purpose. It is further agreed that
Western's employees shall be, and remain, the employees of Western and not of Sponsor. Nothing in this
Agreement or the actions of Western or Sponsor shall be construed as forming a partnership or joint
venture between Sponsor and Western.
15. Notice. All notices required to be given under this Agreement shall be in writing and shall be deemed
served when mailed via certified mail, return receipt requested, to the attention of the individual or
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PYROTECHNIC EXCELLENCE • SINCE 1948 P.C. Box 932 Canby (--)regon 97013 503.656.1999 westerndisplay.com
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position identified below. The Parties may, upon mutual agreement, determine to accept notice via e-
mail.
City of Pasco:
Mr. Zach Ratkai, ACS Director
City of Pasco
525 North 3ro
Pasco WA 99301
E-mail: ratkaiz@pasco-wa.kov
Western Display Fireworks, Ltd.
Ms. Heather Gobet, President
Western Display Fireworks, Ltd.
PO Box 932
Canby OR 97013
E-mail: heathen5 westerr�lk.com
16. Attorney Fees. In the event that either Party to this Agreement shall enforce any of the provisions hereof
by any action at law or in equity, the unsuccessful Party to such litigation agrees to pay to the prevailing
Party all costs and expenses, including reasonable attorney fees, incurred therein bythe prevailing Party.
17. Jurisdiction. This Agreement shall be governed in all respects, whether as to validity, construction,
capacity, performance or otherwise, by the laws of the State of Washington applicable to contracts.
18. Severability. In the event a court of competent Jurisdiction determines that any provision of this
Agreement is in violation of any statute, law, rule, regulation, ordinance or public policy, then the
provisions of this Agreement that violate such statue, law, rule, regulation, ordinance or public policy shall
be stricken or modified to the extent that such provision no longer violates such statute, law, rule,
regulation, ordinance or public policy. All provisions of this Agreement that do not violate any statute,
law, rule, regulation, ordinance or public policy shall continue in full force and effect for all purposes.
Furthermore, any court order striking or modifying any provision of this Agreement shall modify or strike
the provision in as limited a manner as possible to give as much effect as possible to the intentions of the
Parties to this Agreement.
19. Survival. The terms of paragraphs 5, 6, 12,15, and 16 shall survive the cancellation or termination of this
Agreement.
20. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the
Parties hereto respecting the matters within its scope and may be modified only in writing signed by both
of the Parties hereto.
The pricing and product offered in the Proposal shall remain firm if this Agreement is mutually executed by
both Parties on or before January 13, 2023.
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PYROTECHNIC EXCELLENCE • SINCE 1949 • P.O. Box 932 • Cariby• Oregon 97013 ,503,656.1999 westernd+spiay.com
Sponsor
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By:.4 '��"Its: S
Date: I I -? I g=�D",�
Western Display Fireworks, Ltd.
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By: HeatherJ. et
Its: President
Date: 2.,3i
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