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HomeMy WebLinkAboutContract 41646 (2)0111 SECRETARY CC)N'FRACT L . GREENBRIAR COMMUNITY CENTER FIREWORKS DISPLAY CONTRACT This contract entered into this 1st day of April 2011, by and between The City of Fort Worth, a home rule municipal corporation of the State of Texas (herein, referred to as the Client/Sponsor), acting by and through its duly authorized Assistant City Manager, and Pyrotex Inc., (herein, Pyrotex), engages the services of Pyrotex to produce and perform a pyrotechnic display (herein the display) under the following terms: 1. Pyrotex shall produce the Display for $1,600.00. It is agreed that the Client shall pay Pyrotex the amount of $1,600.00, plus any additional expenses incurred at the Client's request, on April 8, 2011. Any dishonored payment shall constitute breach of this Agreement. 2. The date of the display shall be April 8, 2011. If the Client cancels the display four (4) or more days prior to the date listed in this section, the Client will automatically forfeit fifty (50%) of the payment listed in section one (1). If the Client cancels the display three (3) or less days prior to the date listed in this section, the Client will automatically forfeit the entire cost of the display listed in section one (1). 3. The decision as to whether to proceed with the display based upon inclement weather, or the imminent threat of inclement weather, shall be made by a representative of Pyrotex. By law, Pyrotex shall have complete authority to cancel the display if, in the reasonable opinion of Pyrotex, the health, safety, or well being of the Pyrotechnicians and/or spectators would be jeopardized by proceeding with the display. In the event the display is cancelled by the terms of this section, the Client will forfeit fifty percent (50%) of the total cost of the display, as listed in section one (1). However, the display may be rescheduled and performed on another date within two (2) months, at the availability of Pyrotex. 4. Pursuant to the terms of our insurance policy, you are notified "that the Sponsor of any covered Display shall agree to procure and furnish a suitable place to display the said fireworks, and to secure all police, fire, local and permits, and to arrange for any bonds as required by law in the Sponsor's community when necessary, and agree to furnish necessary police, fire and sponsors protection, for proper crowd control, auto parking, and proper supervision in clearing of debris or any pyrotechnic material which remains at the site of the Display after a Display has taken place." The Client is responsible for all fees and costs associated with obtaining all police, fire, and local permits. The Client is responsible for all fees and costs associated with obtaining all necessary police, fire and other appropriate protection necessary for proper crowd control, fire safety, security, and automobile parking. The Client shall allow sufficient time for Pyrotex to access and safely set up the display on site, while preventing access to persons not specifically approved by Pyrotex. 5. Pyrotex will conduct a pyrotechnic display in accordance with NFPA 1123 and NFPA 1126, as adopted by the State of Texas. Pyrotex shall provide qualified Pyrotechnicians who will deliver, set- up, execute, and take down the pyrotechnic display. The Pyrotechnicians shall immediately conduct an after -display search of the grounds to locate and dispose of any unexploded fireworks. If any unexploded or defective fireworks are found, which were missed during the inspection of the preceding evening or twenty-four (24) hours thereafter, the Client shall immediately call Pyrotex nd Pyrotex shall send Pyrotechnicians to the location to dispose of said materials. Client Fire _o,. ks.Display. CQ tract Page 1 of 7 WQRTt L understands that fireworks may produce a reasonable amount of debris during normal use. Pyrotex shall clear and dispose of all debris over three inches (3") in size. The clearing of all other debris is the responsibility of the Client. 6. The Client explicitly acknowledges that safety of all persons and property in attendance is of utmost importance. The Client agrees to cooperate with all requests of Pyrotex in regards to safety and security for the duration of the date of the display, as described in section two (2) of this contract. The Client understands that any pyrotechnics or fireworks not supplied by Pyrotex, including sparklers, may not be distributed, ignited, or possessed at the location of the display, in the spectator area, or any other area at the event. In the event any provisions of this contract are violated, Pyrotex reserves the right to withdraw all equipment, fireworks, employees, personnel, and other property belonging to Pyrotex, and no refund will be given. 7. Pyrotex shall perform all services required hereunder, except when prevented by strike, lockout, act of God, accident, or other circumstances beyond Pyrotex's control. 8. This Contract shall be governed by laws of the State of Texas. A court of competent jurisdiction within Denton County, Texas shall be the proper venue for any action. In the event that any provision of this agreement is deemed unenforceable, the remaining provisions hereof shall remain in full force and effect. 9. Pyrotex shall provide general liability insurance as described in Addendum B of the contract. 10. Pyrotex will produce a pyrotechnic display as called for in this contract, being more specifically described in "Addendum A." This Contract constitutes the entire agreement between the parties hereto and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, either oral or executed in writing by the parties to be bound thereby. The waiver of any provisions of this Contract shall not constitute a waiver of any other provision of this contract; any and all modifications to these terms shall be made in writing and become part of the agreement in its entirety. 11. The Client understands that fireworks and pyrotechnics are explosives, inherently dangerous, and all associated risks of property and personal injury. The Pyrotechmcians of Pyrotex are licensed professionals, and the display conducted by these professionals should never be attempted or duplicated by any non -licensed professional, anywhere, at anytime. 12. In the event music is played during the display, the Client, pursuant to ASCAP, BMI, and SESAC policy, is responsible for obtaining all music performance licenses, and all fees and costs associated with music performance licenses. 13. Client understands that Pyrotex reserves the right to capture and record digital video or still photographs of their services at any time and place. 14. The party signing this document as the Client warrants and represents that he or she is authorized to enter into this agreement on behalf of the Client. I have read and understand the above terms and conditions of this contract. Fireworks Display Contract Page 2 of 7 PYROTEX Randy Beckham President Phone: 903-587-8000 Fax: 903-587-8001 4368 FM 1553 Leonard, TX 75452 CITY OF FORT WORTH k AJL4 '; �usan Alanis Assistant City Manager ATTEST: City Secretary 1»‘ilk ���n�L'©pOQQ� �� ®©i 0 4� o - � Fist-0 rillgo?1 0 q) % 0 APPROVED AS TO FORM AND LEGALITY ki AssiMnt City Atto'ne T No M&C Required • OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX ar-wcrwaringetssatier---__ Fireworks Display Contract Page 3 of 7 Addendum A SPECIFICATIONS OF SI RVIC KS: Estimated Length of Show: 4 minutes Date of Event: April 8, 2010 Approximate Time of Display: c10:00 p.m. Type of Display: Medium Level (1.4G) Display Location: Greenbriar Community Center, Fort Worth, '1'X Display Description: 4 minute medium level fireworks show with a variety of colors and effects with a finale. Customer OnnSite Contact Information: Ronnie Bierman Cell Phone: 817.965.6863 Ronnie. Bierman@, fortworthgov. org Sheri Kndsley Cell Phone: 817.992 0155 Sher. Endsleyc2i fortwortheov. org • Who Cues Start of Show? Ronnie Bierman Fireworks Display Contract Page 4 of 7 Addendum B INDEPENDENT CONTRACTOR Pyrotex shall perform all work and services under the Contract as an independent contractor, and not as an officer, agent, servant or employee of the City of Fort Worth (herein, referred to as "Client"). Pj rotex shall have exclusive control of, and the exclusive right to control, the details of the work performed hereunder, and all persons performing same. Pyrotex shall be solely responsible for the acts and omissions of its officers agents, employees and sub -consultants (or subcontractors). Nothing in this Contract shall be construed as creating a partnership or joint venture between the Client and Pyrotex, its officers, agents, employees and sub -consultants (or sub -contractors), and the doctrine of respondent superior has no application as between the Client and Pyrotex INDEMNIFICATION AND RELEASE • Pyrotex covenants and agrees to and does hereby indemnify, hold harmless, and defend, at its own expense, the City of Fort Worth, its officers, agents, servants, and employees from and against any and all claims or suits of whatsoever kmd or character, whether real or asserted, arising out of or in connection with this Contract of any and all persons (including but not limited to, the City of Fort Worth) for: (i) property loss or damage (including, but not limited to lost profits); and (ii) and/or personal injury (including, but not limited to, death and Workers' Compensation Act liability) THIS INDEMNITY PROVISION (INCLUDING WITHOUT LIMITATION, INDEMNITY FOR COSTS, EXPENSES. AND LEGAL FEES) IS SPECIFICALLY INTENDED TO OPERATE AND BE APPLICABLE EVEN IF IT IS ALLEGED OR PROVED THAT ALL OR SOME OF THE DAMAGES BEING SOUGHT WERE CAUSED AS A WHOLE OR IN PART BY ANY ACT. OMISSION. NEGLIGENCE GROSS NEGLIGENCE, BREACH OF CONTRACT. INTENTIONAL CONDUCT, VIOLATION OF STATUTE OR COMMON LAW. BREACH OF WARRANTY. PRODUCT DEFECT. STRICT PRODUCT LIABILITY. OR ANY OTHER CONDUCT WHATSOEVER OF THE CITY OF FORT WORTH OR ITS AGENTS. Pyrotex agrees to and shall release Client, its agents, officers, employees, and legal representatives from any and all liability for injury, death, damage, or loss to persons or property sustained by Pyrotex, its agents, servants employees, subcontractors, and subconsultants in connection with or incidental to performance under this Contract, EVEN IF THE INJURY. DEATH. DAMAGE OR LOSS IS CAUSED BY THE SOLE OR CONCURRENT NEGLIGENCE OF THE CITY OF FORT WORTH OR ITS AGENTS. Pyrotex shall require all or its subcontractors and subconsultants to include in their subcontracts an indemnification and release in favor of the Client in substantially the same form as above. INSURANCE Pyrotex shall not commence any work under this Contract until Pyrotex has provided insurance required herein, and the City has approved such insurance. Nor shall Pyrotex allow any subcontractor or subconsultant to commence work on its subcontract until all similar insurance of the subcontractor or subconsultant has been so obtained and approved by the City, provided, however, that Pyrotex may elect to add any subcontractor or subconsultant as an additional insured under its liability policies Commercial General Liability Insurance Pyrotex shall procure and maintain a commercial general liability insurance policy in an amount not less than $1 000,000.00 per occurrence. Fireworks Display Contract Page 5 of 7 Workers' Compensation Insurance Pyrotex must provide Workers' Compensation/Employer's Liability insurance for all of its employees and, in the event any work is subcontracted, Pyrotex will require each subcontractor to provide Workers' Compensation insurance in accordance with the requirements of the City, including Coverage B. Minimum coverage amounts for Workers' Compensation/Employer's Liability insurance are as follows: $100,000.00 — Bodily Injury by Disease per employee $500,000.00 — Bodily Injury by Disease aggregate $100,000.00 — Bodily Injury by Accident General Recmirements Applicable to All Insurance: • • • • Certificates of insurance shall be delivered to the City of Fort Worth prior to commencement of work, addressed to the attention of Nancy McKenzie, Risk Management, 1000 fhrockmorton Street, Fort Worth, Texas 76102 The Client's Risk Manager shall have the right to review and evaluate Pyrotex's insurance coverage and to make reasonable requests for deletion, revision, or modifications of particular policy terms, conditions limitations, or exclusions when deemed necessary and prudent by the Client based upon changes in statutory law, court decision, or the claims history of the industry and/or of Pyrotex. Pyrotex shall comply with such requests as a condition precedent to the effectiveness of this Contract Pyrotex shall be afforded ninety (90) days to implement such changes, provided, however, that no change shall be required where policy provisions are established by law or regulations binding upon (i) Pyrotex (ii) its insurer, or (iii) the policy underwriter. The City of Fort Worth, its officers, employees, and servants shall be endorsed as an additional insured on each insurance policy required under this Contract with the exception of Pyrotex's workers' compensation insurance policy. • Each insurance policy shall be endorsed to provide the City a minimum thirty (30) days' notice of cancellation, non -renewal, and/or material change in policy terms or coverage. • Each certificate shall be signed by an agent authorized to bond coverage on behalf of the insured, be complete in its entirety, and show complete insurance carrier names as listed in the most -recent A.M. Best Property & Casualty Guide. • All policies shall include a Waiver of Subrogation (Rights of Recovery) in favor of the City of Fort Worth • Any deductible in excess of $5,000.00, for any policy that does not provide coverage on a first -dollar basis, must be acceptable to and approved in writing by the Client's Risk Management Division Pyrotex's insurance policies shall each be endorsed to provide that such insurance is primary protection and that any self -funded or commercial coverage maintained by the City of Fort Worth shall not be called upon to contribute to loss recovery. I! !ill I I III I !HMI Ili!! I'll III II I !ill!! I II ill! I I II II Fireworks Display Contract Page 6 of 7 • The insurers for all policies must be licensed and/or approved to do business in the State of Texas. Fxcept for workers' compensation, all insurers must have a minimum rating of A VII in the current A M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Client's Risk Management Division. If an insurer's rating does not meet the minimum requirement, written approval of Client's Risk Management Division is required. • If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required Excess Liability shall follow form of the primary coverage. • • Unless otherwise stated, all required insurance shall be written on an "occurrence basis." If coverage is underwritten on a "claims made" basis, the retroactive date shall be coincident with or prior to the date of this Contract, and the certificate of insurance shall state that the coverage is "claims made" and indicate the retroactive date • All insurance coverage shall be maintained for the duration of this Contract and for three (3) years following completion of the services or for the warranty period whichever is longer. • • Policies shall contain no exclusions by endorsements that nullify the required lines of coverage or that decrease the limits of coverage unless such endorsements have been approved in advance, in writing by the Client's Risk Manager. With the exception of worker s compensation insurance, the Client may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups in lieu of traditional insurance. Prior to employing such alternative coverage, Pyrotex must obtain Client's written approval. • Client shall not be responsible for the direct payment of insurance premium costs for Pyrotex's insurance. • During any term of this Contract, Pyrotex shall report to the Client's Risk Management Division in a timely manner any loss occurrence that could give rise to a liability claim or lawsuit or that could result in a property loss. • Pyrotex's liability shall not be limited to the specified amounts of insurance required herein • Any failure on part of the Client to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. • Fireworks Display Contract Page 7 of 7