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HomeMy WebLinkAboutWestern Display Fireworks 07.04.2021L.J m 1=& DISPLAY AGREEMENT AND PURCHASE ORDER U] THIS AGREEMENT ("Agreement") is entered into on this day of C i c 20 2D by and between Western Display Fireworks, Ltd., an Oregon corporation, whose address is set forth above, ("Western") and City of Pasco, whose address is PO Box 293, 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 C 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, 2021, as detailed in Proposal #21-6719, which is attached hereto Uj and incorporated herein by this reference, (the "Display") in accordance with the program approved by both Parties. 2. Price and Payment Terms. Total price of TWENTY EIGHT THOUSAND DOLLARS AND NO/100 280000.00) is to be paid as follows: 25% of the total price, $7,000.00 is due by JANUARY 1, 2021; 25% of the total price, $7,000.00 is due by JUNE 4, 2021; the remaining balance of the price, $14,000.00, is due in full on or before July 14, 2021. Interest will accrue at IY2% 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 2 'n>,r t,t -JCa `)It71. :. IT) i ,, >(? . G, i , t> >i.:, vyt J PAGE 2 p 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, its agents and employees from and against all claims, costs, judgments, damages and expenses, including 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 other Party prompt notice of any claims. Neither Party shall be responsible for consequential damages. 7. Compliance with Laws. a. Sponsor Responsibilities: SPONSOR agrees to perform their requirements in accordance with NFPA 1123 OUTDOOR DISPLAY OF FIREWORKS 2014 Edition (National Fire Protection Association) 8.1 General Requirements. The sponsor of the display shall make provisions for fireLIJ Fj protection for the display. 8.1.1 The sponsor shall consult with the AM and the operator to determine the level of fire protection required. 8.1.2 The following shall apply to 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 any federal, state, county or municipal law, ordinance, rule or regulation. Western is responsible to insure 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. 8. 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 ($7,000.00) 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 ($14,000.00). If the Display is cancelled by the Sponsor on the date of the Display, Sponsor agrees to pay 100% of the total price ($28,000.00). By providing notice of not less than 30 days from the original Display date, Sponsor may elect to reschedule the Display to a mutually agreeable date. This date must be within 90 days of the original display date. r; .. `) ice! ,"'i)t ,iCI 1011 i o -1C `,C, i i , ;)') it t_. 1, - 1 st' a;. a ,n T iPdl,E I j_,iwI If 4 PAGE 3 l Western agrees to facilitate this rescheduling and Sponsor agrees to reimburse Western for new o permits and other additional costs associated with this change. Sponsor understands that permitting J requiIsJrements, burn bans and other factors beyond Western's control may prohibit rescheduling of a display. If these factors prohibit the rescheduled Display from taking place then the standard I cancellation schedule applies. 9. Safety / Weather Forced Cancellation. Western agrees that it shall be the responsibility of the CL pyrotechnic operator in charge, acting on Western's behalf or the Authority Having Jurisdiction, to U) cancel or delay the Display if in the operator's judgment circumstances beyond the control of either Party pose an extraordinary risk to the health and safety of any persons or property within the vicinity of the Display. Csv 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 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 of the event. 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 Parry 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 L.Jj `. C),I')- C( (% 51 ,:: ,., `r()I._ ° {,iIC) 1 _ t!.. I J PAGE 4 this Agreement or the actions of Western or Sponsor shall be construed as forming a partnership or joint venture between Sponsor and Western. L .1_.i 15. Notice. All notices required to be given under this Agreement shall be in writing and shall be deemed LE served when mailed via certified mail, return receipt requested, to the attention of the individual or position identified below. The Parties may, upon mutual agreement, determine to accept notice via e- mail. C/) City of Pasco: Ui Mr. Zach Ratkai, ACS Director City of Pasco 525 North 3`d Pasco WA 99301 E-mail: ratkaiz@pasco-wa.gov Western Display Fireworks, Ltd. Ms. Heather Gobet, President Western Display Fireworks, Ltd. PO Box 932 Canby OR 97013 E-mail: heather@westerndisplay.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 gation agrees to pay to the prevailing Party all costs and expenses, including reasonable attorney fees, incurred therein by the 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. LJ J PACE 5 0 20. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the J Parties hereto respecting the matters within its scope and may be modified only in writing signed by both of the Parties hereto. U The pricing and product offered in the Proposal shall remain firm if this Agreement is mutually executed by both Parties on or before January 1, 2021. CO Sponsor Western Display Fireworks, Ltd. Date: 7 a CERTIFICATE HOLDER © 1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) AUTHORIZED REPRESENTATIVE CANCELLATION DATE (MM/DD/YYYY)CERTIFICATE OF LIABILITY INSURANCE LOCJECTPRO-POLICY GEN'L AGGREGATE LIMIT APPLIES PER: OCCURCLAIMS-MADE COMMERCIAL GENERAL LIABILITY GENERAL LIABILITY PREMISES (Ea occurrence)$DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $RETENTIONDED CLAIMS-MADE OCCUR $ AGGREGATE $ EACH OCCURRENCE $ UMBRELLA LIAB EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) INSRLTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)LIMITS WC STATU-TORY LIMITS OTH-ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE If yes, describe under DESCRIPTION OF OPERATIONS below (Mandatory in NH) OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED HIRED AUTOS NON-OWNEDAUTOSAUTOS AUTOS COMBINED SINGLE LIMIT BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE $ $ $ $ THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL WVD SUBR N / A $ $ (Ea accident) (Per accident) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). The ACORD name and logo are registered marks of ACORD COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: INSURED PHONE(A/C, No, Ext): PRODUCER ADDRESS:E-MAIL FAX(A/C, No): CONTACTNAME: NAIC # INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : INSURER(S) AFFORDING COVERAGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Britton-Gallagher and Associates,Inc. One Cleveland Center,Floor 30 1375 East 9th Street Cleveland OH 44114 216-658-7100 216-658-7101 Everest Indemnity Insurance Co.10851 18234 Axis Surplus Ins Company 26620WesternDisplayFireworksLtd. P.O.Box 932 Canby OR 97013 Alaska National Insurance Company Everest Denali Insurance Company 16044 1153196043 A X 1,000,000 500,000 X 1,000,000 2,000,000 2,000,000 SI8ML00215-211 1/15/2021 1/15/2022 X D 1,000,000 X X X SI8CA00098-211 1/15/2021 1/15/2022 B X 4,000,000 4,000,000 P-001-000069176-03 1/15/2021 1/15/2022 X A SI8ML00215-211 1/15/2021 1/15/2022 Stop Gap 1,000,000 1,000,000 1,000,000 C Washington USLH 1/22/2021 X 20D WU08933 (WA)4/16/2020 4/16/2021 BI by Accident BI by disease policy BI by disease Each $1,000,000 limit $1,000,000 Employee$1,000,000 Additional Insured extension of coverage is provided by above referenced General Liability policy where required by written agreement. Display Date:7/4/21 Display Site:Pasco Sporting Complex,6200 Burden Blvd.,Pasco,WA 99301 Additional Insured: City of Pasco Pasco Sporting Complex Pasco Fire Dept. City of Pasco PO Box 293 Pasco WA 99301