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HomeMy WebLinkAboutContract 61419CSC No. 61419 Contract Agreement This Agreement is between "PYRO SHOWS" and Fort Worth, City of, with its principal place of business located at City Hall, 100 Fort Worth Trail (formerly Energy Way), Fort Worth Texas, 76102, hereinafter referred to as "Customer". In consideration of the mutual promises and undertakings set forth herein, receipt of said consideration being acknowledged, the parties hereby agree as follows: FIREWORKS DISPLAY: PYRO SHOWS agrees to furnish to Customer a fireworks display, hereinafter referred to as "Show", pursuant to the project/sales order # #24-TX-0524-P-3000-000149 dated Apr 11, 2024. The Show will be given on May 24, 2024. Rain date/postponement date: No Rain Date Selected 0, 0 TARIFF PROVISION: Because our pyrotechnics are products which are primarily imported into the U.S., PYRO SHOWS is legally responsible for payment of any applicable tariffs (a border tax imposed on the buyer) for pyrotechnics. From the date of execution of the contract herein, in the event of additional cost due to increased price of product as imposed by manufacturer and/or tariffs levied for imported products. Available options are as follows: Customer may opt to increase their budget to absorb tariff - OR - Customer may maintain the current budget of their show with a corresponding reduction in the amount of product included in their show. Should Customer elect to defer, modify, or cancel Show, Customer shall notify PYRO SHOWS no less than ninety (90) days prior to Show date to cancel or reduce the size of show. III. CANCELLATION: PYRO SHOWS shall determine what weather conditions prohibit PYRO SHOWS from proceeding with the Show; in which case, PYRO SHOWS agrees to present the Show on the following day or previously agreed upon postponement date. In addition to contracted Show cost, Customer shall remit the actual additional expenses PYRO SHOWS shall incur in presenting the show on subsequent occasion to include labor, lodging, per diem, etc.; in no event shall these additional expenses be less than ten percent (10%) of the contracted price of the Show. In the event the Show must be RESCHEDULED to a mutually agreed upon date other that the previously agreed upon rain date, in addition to contracted Show cost, Customer shall remit the actual additional expenses PYRO SHOWS shall incur in presenting the Show on subsequent occasion to include labor, lodging, per diem etc.; in no event shall these expenses be less than thirty percent (30%) of the contracted price of the Show. Should Customer elect to CANCEL the Show for any reason, Customer must provide PYRO SHOWS with a thirty (30) days' written notice by certified mail, return receipt, to PYRO SHOWS' address as set forth above. Customer agrees that PYRO SHOWS shall incur substantial expense in preparation for the Show and, accordingly, agrees to pay PYRO SHOWS fifty (50%) of the total contract price for the show as liquidated damages for cancellation due to the fault of the Customer. IV. SECURITY AREA: Customer agrees to furnish sufficient space for PYRO SHOWS to properly conduct the Show as determined by NFPA 1123-2014 (hereinafter "Security Area"). Customer agrees to provide adequate security protection to preclude persons unauthorized by PYRO SHOWS from entering the Security Area. For the purposes of the Agreement, "Unauthorized Persons" shall mean anyone other than the employees of PYRO SHOWS or persons specifically designated in writing by the sponsor or the Authority Having Jurisdiction (AHJ), and submitted and approved, to PYRO SHOWS prior to the event. Any expenses for security or stand-by fire protection shall be the responsibility of the Customer. V. SITE CLEANUP: PYRO SHOWS shall be responsible for basic cleanup of the launch area to include policing of the fallout zone for any unexploded ordnance and removal of all large paper debris, wood, wire, foil, racks, mortars and firing equipment used in the setup for the show. Customer shall be responsible for cleanup of debris located in and around fallout zone. VI. INDEMNIFICATION AND HOLD HARMLESS: Customer agrees to hold PYRO SHOWS harmless from any damages caused to Customer which result as a consequence of unauthorized persons entering the Security Area. Furthermore, to the extent allowed by Texas law, Customer agrees to defend and indemnify PYRO SHOWS from any and all claims brought against PYRO SHOWS for damages caused wholly or in part by Unauthorized Person who have entered the Security Area. VII. AMENDMENT & ASSIGNMENT: This agreement is deemed personal and confidential to Customer, his heirs, executors and administrators only, and may not be sold, assigned, amended, or transferred without the prior written consent of PYRO SHOWS. Vill. COMPLIANCE WITH THE LAWS AND REGULATIONS: Promptly upon the execution of this Agreement, Customer shall apply for the approval hereof to any agency, officer or authority of any government if such approval is required by any applicable OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Contract Agreement law, ordinance, code or regulation. Customer agrees to indemnify and hold harmless PYRO SHOWS from against all claims, suits, and causes of action, demands, penalties, losses or damages which may arise or accrue because of the failure or neglect of customer to obtain such approval. This Agreement is made expressly subject to and Customer expressly agrees to comply with and abide by all applicable laws, ordinances, codes and regulations insofar as the same may be applicable to the terms and conditions of this Agreement, including all rules and regulations now existing or that may be promulgated under and in accordance with any such law or laws. IX. PERMITS AND LICENSES: PYRO SHOWS shall process the necessary permits and licenses to enable PYRO SHOWS to perform fully hereunder unless otherwise forbidden by any other applicable statute, rule or otherwise. It is hereby stipulated that this Agreement is to be construed and governed by the laws of the State of Texas, and any suit involving this contract shall be brought in the Courts of Texas, and the Customer hereby submits itself to the jurisdiction of said Courts and waives its rights to proceed against PYRO SHOWS in and other actions, in any other jurisdiction. For Shows that include licensed music accompaniment, Customer agrees to verify with their organization, venue, sponsor, and/or municipality, the permission to simulcast music and agrees to pay any and all fees associated with the broadcast of said music in the public environment of the Show. X. LATE PAYMENT: PYRO SHOWS shall charge, and Customer agrees to pay, one and one half percent (1 1/2%) per month late payment fee for each month until PYRO SHOWS is paid the amount set forth in Paragraph XIV herein. The stated late payment fee shall begin to run from the applicable date(s) established in Section XIV, unless this provision is prohibited by law. XI. ADVERTISEMENT AND PROMOTIONS: Customer agrees that when promoting fireworks performed by PYRO SHOWS, Customer will name PYRO SHOWS as the fireworks provider in promotional advertising media. Customer agrees to allow PYRO SHOWS to use Customer's name as Customer. XII. COMPLAINTS: In the event that Customer has a complaint concerning the Show, or any material or product used in or pursuant to the Show, or of the conduct of the Show by PYRO SHOWS, or any act or omission of PYRO SHOWS or its agents, either directly or indirectly, without limitation, Customer shall make complaint known to PYRO SHOWS in writing by certified mail to PYRO SHOWS' address as set forth above, within ten (10) days after the date of the Show. In the event that Customer fails to register any complaint in the time and in the manner specified, Customer agrees that it shall not claim such complaint as cause for an offset or withhold any payment due to PYRO SHOWS hereunder on account of or because of such complaint or any matter arising from, relating to or a consequence of the complaint. Furthermore, Customer agrees that should PYRO SHOWS have to collect any amount due PYRO SHOWS hereunder which Customer claims as an offset or which is withheld by Customer on account of, or because of, a complaint not registered with PYRO SHOWS in the time and in the manner specified herein, by law or through an Attorney -at -Law, PYRO SHOWS shall be entitled to collect attorneys' fees in the amount of 15% of the amount owing PYRO SHOWS or the maximum amount allowed by law, whichever is greater, along with all cost of collection. XIII. INSURANCE: PYRO SHOWS will provide, on a primary non-contributory basis, General Liability Insurance and Automobile Liability in the amount of $10,000,000.00, combined single limit, covering its activities and services in connection with the show described in this contract. PYRO SHOWS also agrees to include Customer as additional Insured under the terms of this coverage. PYRO SHOWS, INC. will provide a Certificate of Insurance. All entities listed on the certificate will be deemed an additional Insured per this contract. XIV. PAYMENT TERMS: Fort Worth, City of shall pay PYRO SHOWS $ 3,000.00 plus applicable taxes in the amount of $ 0.00 for a grand total of $ 3,000.00 according to the terms and conditions set forth for presenting the Show. Customer shall submit a 50% deposit ($1,500.00) upon return of signed contract by May 1, 2024. Balance will be due in the PYRO SHOWS office upon Customer's receipt of invoice. XV. TAXES: Customer shall be responsible for all applicable sales taxes. IMPORTANT: Checks must be made payable to and mailed to P.O. Box 1776, LaFollette, TN 37766. Contract Agreement All the terms and conditions set forth in any addendum attached to this Agreement are made part of this Agreement and incorporated by reference herein. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and year first above written. shad sunLey IMAy &, 242415:35 CEFO BY CUSTOMER Jesica McEachern Assistant City Manager BY: Signature Printed Name Title WARRANTY EXCLUSIONS DATE: May 6, 2024 DATE: May 15, 2024 EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No representation of affirmation of fact including but not limited to statement regarding capacity, suitability for use, or performance of equipment or products shall be, or be deemed to be, a warranty by PYRO SHOWS for any purpose, nor give rise to any liability or obligation of PYRO SHOWS whatsoever. IN NO EVENT SHALL PYRO SHOWS BE LIABLE FOR ANY LOSS OF PROFITS OR OTHER ECONOMIC LOSS, INDIRECT, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES ARISING OUT OF ANY CLAIMED BREACH OF OBLIGATIONS HEREUNDER. ADDENDUM TO CONTRACT AGREEMENT BETWEEN THE CITY OF FORT WORTH AND PYRE This Addendum to Contract Agreement ("Addendum") is entered into by and between the CITY OF FORT WORTH, a home -rule municipal corporation of the State of Texas, acting by and through its duly authorized representative ("Customer") and PYR( , Inc., a for -profit corporation. ("PYRO SHOWS"). The City and PYRO SHOWS are herein referred to individually as a ("Party") and collectively as the ("Parties"). The agreement documents (the "Agreement") shall include the following: 1. The Contract Agreement; and 2. This Addendum. Notwithstanding any language to the contrary in the attached Contract Agreement, the Parties hereby stipulate by evidence of execution of this Addendum below by a representative of each party duly authorized to bind the Parties hereto, that the Parties hereby agree that the provisions in this Addendum below shall be applicable to the Agreement as follows: 1. Term. The Agreement shall become effective upon the execution of the Agreement by the City (the "Effective Date"), and shall expire one year from Effective Date with no renewals, unless terminated earlier in accordance with the provisions of the Agreement or otherwise extended by the Parties. 2. Termination. a. Convenience. Either the City or PYRO SHOWS may terminate the Agreement at any time and for any reason by providing the other parry with at least 30 days written notice of termination. b. Breach. If either party commits a material breach of the Agreement, the non - breaching Party must give written notice to the breaching party that describes the breach in reasonable detail. The breaching party must cure the breach within ten (10) calendar days after receipt of notice from the non -breaching party, or other time frame as agreed to by the Parties. If the breaching party fails to cure the breach within the stated period of time, the non -breaching party may, in its sole discretion, and without prejudice to any other right under the Agreement, at law, or in equity, immediately terminate this Agreement by giving written notice to the breaching party. C. Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, the City will notify PYRO SHOWS of such occurrence and the Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense Addendum to Contract Agreement Page I of 5 to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. d. Duties and Obligations of the Parties. In the event that the Agreement is terminated prior to the expiration date, the City shall pay PYRO SHOWS for services actually rendered up to the effective date of termination, and PYRO SHOWS shall continue to provide the City with services requested by the City and in accordance with the Agreement up to the effective date of termination. Upon termination of the Agreement for any reason, PYRO SHOWS shall provide the City with copies of all completed or partially completed documents prepared under the Agreement. In the event PYRO SHOWS has received access to the City information or data as a requirement to perform services hereunder, PYRO SHOWS shall return all of the City provided data to the City in a machine-readable format or other format deemed acceptable to the City. 3. Attornevs' Fees, Penalties, and Liquidated Damages. To the extent the attached Contract Agreement requires the City to pay attorneys' fees for any action contemplated or taken, or penalties or liquidated damages in any amount, the City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 4. Law and Venue. The Agreement and the rights and obligations of the Parties hereto shall be governed by, and construed in accordance with, the laws of the United States and the State of Texas. Venue for any suit brought under the Agreement shall be in a court of competent jurisdiction in Tarrant County, Texas. To the extent the Agreement is required to be governed by any state law other than Texas or venue to lie in any place other than Tarrant County, the City objects to such terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 5. Sovereign Immunitv. Nothing herein constitutes a waiver of the City's sovereign immunity. To the extent the Agreement requires the City to waive its rights or immunities as a government entity, such provisions are hereby deleted and shall have no force or effect. 6. Indemnity. To the extent the Agreement requires the City to indemnify or hold PYRO SHOWS or any third party harmless from damages of any kind or character, the City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 7. No Debt. In compliance with Article II § 5 of the Texas Constitution, it is understood and agreed that all obligations of the City hereunder are subject to the availability of funds. If such funds are not appropriated or become unavailable, the City shall have the right to terminate the Agreement except for those portions of funds which have been appropriated prior to termination. 8. Confidential Information. The City is a government entity under the laws of the State of Texas, and all documents held or maintained by the City may be subject to disclosure under the Texas Public Information Act. To the extent the Agreement requires that the City maintain records in violation of the Act, the City hereby objects to such provisions and such Addendum to Contract Agreement Page 2 of 5 provisions are hereby deleted from the Agreement and shall have no force or effect. In the event there is a request for information marked Confidential or Proprietary, the City shall promptly notify PYRO SHOWS. It will be the responsibility of PYRO SHOWS to submit reasons objecting to disclosure to the Office of the Attorney General of the State of Texas. A determination on whether such reasons are sufficient will not be decided by the City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 9. Addendum Controlling. If any provisions of the attached Contract Agreement conflict with the terms herein, are prohibited by applicable law, or conflict with any applicable rule, regulation, or ordinance of the City, the terms in this Addendum shall control. 10. Immigration and Nationalitv Act. PYRO SHOWS shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by the City, PYRO SHOWS shall provide the City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. PYRO SHOWS shall adhere to all Federal and State laws and shall establish appropriate procedures and controls so that no services will be performed by any PYRO SHOWS employee who is not legally eligible to perform such services. PYRO SHOWS SHALL INDEMNIFY THE CITY AND HOLD THE CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY PYRO SHOWS, PYRO SHOWS EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. The City, upon written notice to PYRO SHOWS, shall have the right to immediately terminate this Agreement for violations of this provision by PYRO SHOWS. 11. No Bovcott of Israel. If PYRO SHOWS has fewer than 10 employees or this Agreement is for less than $100,000, this section does not apply. PYRO SHOWS acknowledges that in accordance with Chapter 2271 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" has the meanings ascribed to those terms in Section 2271 of the Texas Government Code. If applicable, by signing this Agreement, PYRO SHOWS certifies that PYRO SHOWS's signature provides written verification to the City that PYRO SHOWS: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. 12. Right to Audit. PYRO SHOWS agrees that the City shall, until the expiration of three (3) years after final payment under the Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of PYRO SHOWS involving transactions relating to the Agreement. PYRO SHOWS agrees that the City shall have access during normal working hours to all necessary PYRO SHOWS facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give PYRO SHOWS reasonable advance notice of intended audits. 13. Electronic Signatures. This Agreement may be executed by electronic signature, which will be considered as an original signature for all purposes and have the same force and Addendum to Contract Agreement Page 3 of 5 effect as an original signature. For these purposes, "electronic signature" means electronically scanned and transmitted versions (e.g. via pdf file, email, or facsimile transmission) of an original signature, or signatures electronically inserted via software such as Adobe Sign. 14. The City is a governmental entity under the laws of the state of Texas and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self -Insurance by Governmental Units," is self -insured and therefore is not required to purchase insurance. To the extent the Agreement requires the City to purchase insurance, the City objects to any such provision, and the Parties agree that any such requirement shall be null and void and is hereby deleted from the Agreement and shall have no force or effect. The City will provide a letter of self -insured status if requested by PYRO SHOWS. (signature page follows) Addendum to Contract Agreement Page 4 of 5 IN WITNESS WHEREOF, the Parties have executed this Addendum to [Agreement ype received] in multiples. CITY: n By: cp �J Name: Jesica McEachern Title: Assistant City Manager Date: May 15, 2024 PYRO SHOWS: &rad.5rImayr,zmwme-UU i By: - - Name: Chad Stanley Title: Vice President Email: cstanley@pyroshows.com Telephone: 800-48 8-7976 FOR CITY OF FORT WORTH INTERNAL PROCESSES: Approval Recommended: By: Name: Richard Zavala Title: Director Park & Recreation Department Approved as to Form and Legality: MW rWU& By: 1 E4 b]24 125E MT, Name: Trey Qualls Title: Assistant City Attorney Contract Authorization: M&C: N/A Form 1295: N/A Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. r a.-" �� By: Name: Karen Stuhmer Title: Communications Coordinator Park & Recreation Department City Secretary: By: Name: Jannette S. Goodall Title: City Secretary OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Addendum to Contract Agreement Page 5 of 5