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HomeMy WebLinkAboutC2023-071- FPA - Fireworks DisplayPage 1 of 3 Fireworks Productions of Arizona 17034 S. 54th St. Chandler, AZ 85226 Office 480-948-0090 ~ Fax 480-423-5430 FIREWORKS DISPLAY CONTRACT This fireworks display contract is between FPA, Ltd., an Arizona Corporation DBA Fireworks Productions of Arizona (FPA) and Town of Fountain Hills. FPA is in the business of selling and displaying fireworks, and Town of Fountain Hills wants FPA to provide a fireworks display for Town of Fountain Hills’s benefit. The parties therefore agree as follows: 1. The Display. FPA will provide and exhibit fireworks for a display on Tuesday, July 4, 2023. The display will begin at approximately 9:00 pm, last approximately 20 minutes and will substantially comply with the program set forth in Exhibit A. 2. Contract Price. Town of Fountain Hills will pay FPA the sum of $24,000.00 (the 'Contract Price') as consideration for the fireworks display. Payment will be made as follows: a. The signed Contract by no later than Monday, May 15, 2023; b. 50% of the Contract Price ($12,000.00) by no later than Monday, May 15, 2023; c. The balance of the Contract Price ($12,000.00) due within thirty days after the completion of the Fireworks Display. Town of Fountain Hills agrees to pay interest at the rate of 2% per month on any delinquent balance until the debt is paid in full. In the event that Town of Fountain Hills fails to perform its obligations and responsibilities pursuant to this contract and it becomes necessary for FPA to enforce its rights by hiring an attorney, Town of Fountain Hills will be responsible for, in addition to any other sums for which it is found responsible, all attorney fees and costs incurred by FPA in collecting said sums. 3. Permits. FPA will advise Town of Fountain Hills of the applicable state and federal permits that must be secured in connection specifically to the fireworks display. FPA will apply for and secure, at Town of Fountain Hills’s cost (included in contract price as stated in paragraph two), the permits, licenses, and approvals required by local, state, or federal laws and regulations as well as those possibly imposed or required by local police or fire departments specific to the fireworks display. If the jurisdiction requires an additional Special Events permit, the securing of and payment for, will be the responsibility of Town of Fountain Hills. If a jurisdiction changes the cost of the permit fee or requires additional fees after the signing of the Display Contract, Town of Fountain Hills will bear the responsibility of the additional costs. If a jurisdiction denies a permit, for any reason, FPA will be released from the terms of this contract and the deposit, minus “Actual Expenses” incurred, will be refunded or credited to Town of Fountain Hills. 4. Insurance. FPA shall secure and maintain, at all times during the term of this contract a policy or policies of insurance known as: (1) Commercial General Liability in the amount of $10,000,000. (2) Business Automobile Liability in the amount of $5,000,000. (3) Worker's Compensation (Industrial Insurance) in the amount of $1,000,000. Those entities/individuals Page 2 of 3 listed on the certificate of insurance shall be deemed an additional insured per this contract. 5. Display Site. Town of Fountain Hills will procure and furnish a place suitable to FPA for the fireworks display. The site will be sufficient to accommodate spectator viewing areas, vehicle parking areas, and the Display Site. 'Display Site' means the discharge site, the fallout site, and the required separation distance from mortars to the spectator viewing areas in compliance with the most recent edition of the National Fire Protection Association 1123 Code for Fireworks Display. Town of Fountain Hills will ensure that the ground of the Display Site is dry prior to set-up of the fireworks and that there will be no sprinklers or irrigation prior to or during the Display and not until after tear-down is complete of the Display Site. 6. Security. Town of Fountain Hills will furnish all necessary materials for and will set up restraining lines pursuant to instructions supplied by FPA and in compliance with most recent edition of the National Fire Protection Association 1123 Code for Fireworks Display. Town of Fountain Hills will hire and provide, at its own cost and expense, adequate private or public security personnel to ensure that no vehicles are parked within the Display Site and that no individuals, other than those specifically authorized by FPA, enter the Display Site. The security personnel will remain on the perimeter of the Display Site and will not enter the Display Site before, during, or immediately following the fireworks display. 7. Cleanup of Display Area. FPA will remove all boxes, used basins, racks, equipment, frames and lumber, as well as all cylindrical inserts released from the multi-shot basins and safety fuse caps. FPA will police the display area and remove any unexploded fireworks. The Town of Fountain Hills will be responsible for clean-up of the paper and cardboard shell debris associated with a basins and aerial fireworks display. 8. Weather or Safety Cancellation. FPA or the Authority Having Jurisdiction (AHJ) may determine that the time or length of the display of fireworks may need adjustment based on wind/weather/safety conditions. If FPA or the Authority Having Jurisdiction (AHJ) determines that display of fireworks on the date and at the time set forth in paragraph one (the 'Original Date') would be impossible or impractical because of inclement weather or safety concerns, the display will be canceled. Town of Fountain Hills will pay FPA, its 'Actual Expenses' related to preparation for the unsuccessful displays on the Original Date. 'Actual Expenses' shall include expenses for travel, lodging, labor, meals, rentals, permits, setup and dismantling of the display, and any other expenses related to the unsuccessful attempts to present the display on the Original Date. 9. Interruption and Continuation of the Fireworks Display. There are instances or situations where a fireworks display may require to be interrupted due to safety, weather or equipment damage due to debris or fire. If repairs can be effected or the situation passes, Town of Fountain Hills has the option to continue or cancel the remainder of the display. Regardless of continuation or cancellation, Town of Fountain Hills will not be refunded any portion of the Contract Price if the display can safely continue. In the event the display begins but is halted due to wind, weather or safety conditions, FPA will refund or credit Town of Fountain Hills the applicable deposit minus “Actual Expenses” incurred. Actual Expenses includes the cost and taxes on the fireworks provided prior to the stopping of the display. In the event a product fails to function (here to be classified as a Dud), Town of Fountain Hills will be entitled to a refund or credit of that individual product’s purchase price, plus tax, only. 10. Cancellation. The parties acknowledge that, if Town of Fountain Hills cancels this contract, FPA will suffer damages. They further acknowledge that those damages will be uncertain as to amount and difficult to prove. In the event that Town of Fountain Hills does cancel this Page 3 of 3 contract, therefore, FPA will be entitled to recover, not as a penalty, but as liquidated damages, an amount set forth below: a. If cancellation occurs between the payment of deposit, May 15, 2023 and June 4, 2023 $1,000 will be retained with $11,000 returned to the Town. b. If cancellation occurs between June 5, 2023 and July 3, 2023, $8,000 will be retained with $4,000 returned to the Town. c. On July 4, 2023, $10,000 will be retained with $2,000 returned to the Town. 11. Not a Partnership. This agreement shall not be construed so as to create a partnership, joint venture, employment, or agency relationship between the parties. 12. Force Majeure. In the event of natural disasters or “acts of God;” manmade disasters; war and civil issues; labor disputes or strikes; government embargoes or other government actions affecting the supply chain; and/or transportation issues such as overseas shipping, domestic shipping (trucking, rail) and/or port delays, or other causes beyond the reasonable control of either party that prevent performance of either or both parties' obligations under this contract (other than inclement weather or safety concerns as described in paragraph eight) each party hereby releases the other from any and all obligations hereunder, except for liabilities, recognized as “Actual Expenses” (including but not limited to permit fees, credit card fees, vehicle rental and/or loading and packing labor) that may have already accrued to such time. FPA submits this contract based on planned costs and display size. The size and/or the cost of the display may be re-proposed based on product availability or cost adjustments. FPA submits this contract in good faith, planning to provide communication on any changes in a timely manner. 13. Indemnifications and Liability. Each party will hold harmless and indemnify the other from any demands, claims, causes of action or liability arising from damage to or destruction of real or personal property or bodily or personal injuries, whether arising from tort, contract, or otherwise, that occur directly from the failure of the indemnifying party to comply with its obligations and responsibilities as set forth in this contract, including attorney fees and costs. Neither party shall, under any circumstances, be entitled to recover any consequential, incidental, exemplary, special or punitive damages from the other party, including, without limitation, loss of income or profits 14. Whole Agreement. This written contract, including Exhibit A, is the entire agreement between the parties. No statement, promise, or inducement made by either party or agent of either party that is not contained in this written contract will be valid or binding. This contract may not be enlarged, modified, or altered, except in writing signed by both parties. FPA, Ltd. Town of Fountain Hills ___________________________ ___________________________ (Authorized Signature) (Authorized Signature) Title: Pyro Planning Specialist Title:___________________________ Date: March 16, 2023 Date:___________________________ Aaron Arnson (Mar 23, 2023 10:33 PDT) Aaron Arnson Town Attorney Town Manager 03/23/2023 Town Clerk EXHIBIT A TO AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND FPA, LTD., D/B/A FIREWORKS PRODUCTIONS OF ARIZONA, LTD. [Scope of Work] See following pages. EXHIBIT A Designed for the Town of Fountain Hills by: Fireworks Productions of Arizona TOWN OF FOUNTAIN HILLS Tuesday, July 4, 2023 20 Minute Display Total Aerial Effects 3,251 Total Shells 751 Total Basins Effects 2,500 Opening: Your show begins with an impressive series of powerful booms and flashing white light to excite and thrill the audience. 21 - 3” Titanium Salutes Aerial Display: A large assortment of brilliantly-colored shells, including Chrysanthemums, Waves, Crowns, Peonies, Strobes, Brocade Crowns, Diadems, and Crossettes in gorgeous Reds, Yellows, Blues, Greens, Silvers, and Golds. Your Aerial Display will contain a total of 576 aerial shells and 2,500 basin effects. 1.5” - 25 FPA Premier Specialty Basins (100 – 300 effects per Basin) 3” - 324 Chinese Fancy’s & Specials 4” - 252 Chinese Fancy’s & Designer Specials GRANDE FINALE: Your celebration will close in spectacular excitement as multiple styles of brilliantly- colored shells, rocket skyward growing and glowing in breath-taking Blues, Golds, Greens, Silvers, Yellows, Purples and Red. Your Grande Finale consists of 154 aerial shells: Your Grande Finale: 72 – 2.5” color shells, 50 - 3” color shells and 32 - 4” color shells: Total Budget for: Fireworks, Tax, $10 Million Insurance, FAA Notification, Permit Submission, Licensed Head Pyro and crew, Delivery and Set-up: $24,000.00