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HomeMy WebLinkAbout2021-03-01-J01E 4th of July Fireworks ContractAGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: March 1, 2021 AGENDA ITEM:Consideration of approval of a motion approving an Agreement between J & M Displays and the City of Waukee for July 4, 2021, Fireworks Display FORMAT:Consent Agenda SYNOPSIS INCLUDING PRO & CON: The fireworks agreement is for the furnishing of all fireworks display material and personnel for the Waukee 4th of July Celebration. The cost of this year’s display is $15,000.00 and is within budget. The fireworks will be shot off at approximately 9:30 -10:00 on Sunday July 4th. The City Attorney has reviewed the agreement. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:$15,000.00. COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: RECOMMENDATION: Approve the fireworks agreement with J &M Displays for $15,000.00. ATTACHMENTS: I. Fireworks Display Agreement PREPARED BY:Matt Jermier REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: J1E FIREWORKS DISPLAY AGREEMENT ______THIS AGREEMENT is made and entered into this __ day of ____________, 2021, by and between J & M Displays, Inc., an Iowa corporation, having its principal place of business at Yarmouth, Iowa, including its employees, owners, and agents, hereinafter referred to as “Seller” and City of Waukee, Iowa, hereinafter referred to as “Buyer”. Seller shall furnish to Buyer one (1) fireworks display, as per the $15,000.00 program submitted and accepted by the Buyer, and which by reference is made a part hereof as Exhibit “A”. The display is to take place on the evening of Sunday, July 4, 2021, at approximately _____:_____ pm weather permitting. IT IS FURTHER UNDERSTOOD AND AGREED BETWEEN THE PARTIES AS FOLLOWS: 1.Firing of Display. Seller agrees to furnish all necessary fireworks display material and personnel for a fireworks display in accordance with the program approved by the parties in Waukee, Iowa. Seller agrees to comply with all local, state, and federal guidelines pertaining to the storing and displaying of fireworks. 2.Payment. The Buyer shall pay to the Seller $15,000.00 in full by April 25, 2021, (70 days prior to event date). The Buyer will receive the 8% prepayment bonus product in this fireworks display. 3.Postponement/Cancellation. Displays postponed to an alternate date will be charged an additional 15% of the total contract price for additional expenses incurred in presenting the display on an alternate date. In the event the display is cancelled and not re-scheduled, the Seller shall be entitled to 20% of the contract price for out-of-pocket expenses incurred in preparation for the show. 4.Rain Date. Should inclement weather prevent the firing of the display on the date mentioned herein, the parties agree to a mutually convenient rain date of Monday, July 5, 2021, or another date as agreed to by both parties. Once display setup has begun, the determination to cancel the fireworks display because of inclement weather or unsafe weather conditional shall rest within the sole discretion of the AHJ, Seller, and the lead pyro-technician. 5.Insurance. If Seller is firing the show, Seller agrees to provide, at its expense, general liability insurance coverage, in an amount not less than $10,000,000, and within two (2) weeks prior to the date of the fireworks display, shall submit to the Buyer, if requested in writing, a certificate 1 st February 10 00 of insurance. All entities listed on the certificate of insurance will be deemed an additional insured. In the event of a claim by Buyer, the applicable deductible shall be paid by the Seller. The Seller agrees to defend, indemnify and hold harmless the Buyer and its agents and employees from and against all claims, costs, judgment, damages and expenses, including reasonable attorney fees that may or shall arise out of any negligent or wrongful act or omission by the Seller related to the performance or the fireworks by the Buyer. The Buyer agrees to give the Seller prompt notice of any claims or demands and to cooperate with the Seller and its successors in interest or assigns, if any, in the defense of any such claims and/or demands. 6.Buyer agrees to provide: (a)Sufficient area for the display, including a minimum spectator set back as determined by Seller. (b)Protection of the display area by roping off or similar facility. (c)Adequate police protection to prevent spectators from entering display area. (d)Dry, clean sand, if needed, for firing. (e)Persons to assist in the inspection and cleanup of fireworks debris in the fallout zone of the shoot site at first light in the morning following the display for anything that may have been missed at the night search. (f)Necessary local permits. 7.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 deemed to be a warranty by the Seller for any purpose, nor give rise to any liability or obligation of the Seller whatsoever, expect for acts of Seller’s negligence as above stated. 8.It is further understood and agreed that nothing in this Agreement shall be construed or interpreted to mean a partnership. Both parties hereto being responsible for their separate and individual debts and obligations, and neither party shall be responsible for any agreement not stipulated in the Agreement. 9.The parties hereto do mutually and severally guarantee terms, conditions, and payments of the Agreement. This document shall be binding upon the parties, themselves, their heirs, executors, administrators, successors and assigns. 10.Choice of Law, Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa without regard to conflict-of-law principles, except as otherwise specifically required for the storing and display of fireworks as provide in paragraph one above. Notwithstanding, the Parties must bring any legal or equitable action or proceeding arising under or related to this Agreement exclusively in the Iowa District Court in and for Dallas County, Iowa. The Iowa District Court in and Dallas County, Iowa, shall have exclusive jurisdiction to decide any disputes arising out of or related to this Agreement. Each Party knowingly and voluntarily consents to and expressly waives any objection or defense to personal jurisdiction, improper or inconvenient venue, or inconvenient forum in the Iowa District Court in and for Dallas County, Iowa. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. BY:__________________________________ BY:___________________________________ J & M Displays, Inc. City of Waukee SELLER BUYER Please include the DISPLAY INFORMATION FORM with this Agreement so your order is processed accurately. J&M Displays Covid Addendum Page 1 of 2 Fireworks Display Agreement Addendum This Addendum to the Fireworks Display Agreement (“Addendum”) is hereby incorporated by reference into and made a part of the attached Fireworks Display Agreement (“Agreement”). Each reference in the Agreement to any term of this Addendum shall have the meaning as set forth in this Addendum for such term. Any initially capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Agreement. To the extent of any conflict between the terms and conditions of the Agreement and this Addendum, the terms and conditions of this Addendum shall control. WHEREAS the ongoing Covid-19 pandemic has impacted and hindered the ability of many industries, with an especially detrimental impact on live events, including the pyrotechnic and special effects industry; WHEREAS J&M Displays utilizes a “Shoot Team” to conduct each individual display and each Shoot Team consists of persons who are not full-time employees of J&M Displays and over whom J&M Displays has minimal control outside the Display environment; and WHEREAS the impact of the Covid-19 pandemic has directly impacted J&M Displays’ ability to perform fireworks displays in 2020 and is anticipated to possibly present additional difficulties in performing displays in 2021, THEREFORE, Each party’s obligations to perform hereunder will be excused in the case of a Force Majeure Event. Specific to this Addendum, a “Force Majeure Event” is defined to include medical conditions, which result in quarantine or similar limitations or restrictions on travel or congregation in the metropolitan area where the Display is scheduled to be held. In the case of Seller, a Force Majeure Event includes, without limitation, death, serious illness or incapacity one or more of the display Shoot Team member(s) which renders it impossible, unsafe, or not reasonably practical for the Shoot Team to perform the display. Seller’s Rescheduling. J&M Displays will work with all customers to ensure a timely and safe fireworks display, but as noted above, due to circumstances beyond J&M Displays’ control, certain fireworks displays in 2021 may have to be rescheduled with limited notice to Buyer. J&M Displays will immediately inform Buyer of any unanticipated Covid-19 related interruption in services and will endeavor to reschedule the display as soon as practical or on a mutually agreeable date in calendar year 2021. Buyer’s Rescheduling. Buyers who believe their display may be cancelled or postponed for Covid-19 related reasons should contact J&M Displays as soon as practical. Buyers who must postpone displays due to circumstances beyond their control who reschedule within calendar year 2021 will not be charged any additional fee. Cancellation. In the event it becomes necessary for Seller to cancel the fireworks display and not reschedule, Buyer shall be entitled to a full refund of any payment made. In the event Buyer choses to cancel the display rather than reschedule, Seller shall be entitled to 20% of the contract price for out-of-pocket expenses incurred in preparation for the display. J&M Displays Covid Addendum Page 2 of 2 All remaining terms of the Fireworks Display Agreement remain unchanged, and are ratified. The parties have caused this Addendum to be duly executed as of the _____ day of __________, 2021. SELLER: J&M Displays BUYER: By: By: Print: Print: Title: Title: 1st Kelm Brueschke Sales Rep & Pyrotechnician February City of Waukee