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HomeMy WebLinkAboutC2021-024 - Firefly Drone Show Agreement FirellyDRONE SHOWS FIREFLY DRONE SHOWS SERVICES AGREEMENT This Firefly Drone Shows Services Agreement(together with all Exhibits and documents subsequently incorporated, this "Agreement") is made and entered into effective as of October 27, 2020 (the "Effective Date"), by and between The Town of Fountain Hills ("Client") and Firefly Drone Shows, LLC, a Michigan limited liability company with offices located at 5105 Williams Lake Road, Waterford, MI 48329 ("Firefly"). Firefly and Client may, without distinction, be individually referred to as a"Party"and collectively as the"Parties". J. Drone Show Display and Services. A. Firefly agrees to perform a single, fifteen minute, 100-drone show consisting of a stock display designed by Firefly and a custom ending that includes 2-3 custom formations designed by Firefly with input from Client("Drone Show Display"). B. The performance of the Drone Show Display shall take place at Fountain Park 12925 N Saguaro Blvd, Fountain Hills, AZ 85268 on January 30, 2021 and shall commence at the agreed upon time(s) if the launch site is secure, and the conditions are safe to proceed, as such security of the launch site and safe conditions are determined by Firefly, in its sole discretion. C. The Parties agree that, should unsafe conditions arise during the performance of the Drone Show Display, as determined by Firefly, in its sole discretion, the Pilot in Command ("PIC") may halt the display. The PIC may resume the Drone Show Display if/when the PIC determines safe conditions are restored. D. If Client wishes to change the scope or performance of the Drone Show Display, it shall submit details of the requested change to Firefly in writing. Firefly shall,within a reasonable time after such request, provide Client a written estimate of the likely time required to implement the change and any necessary variations to the fees and expenses arising from the change. E. In full and final consideration for the services outlined above,Client agrees to pay Firefly the total amount of fees and expenses stated in the attached Invoice #1063 (the "Invoice"). F. Payment of the Invoice shall be due in the form of a wire transfer or check made payable to Firefly Drone Shows, LLC. 50%of the total amount of the Invoice is due upon the signing of this Agreement. The remaining 50°0 of the total amount of the Invoice is due upon completion of the Drone Show Display. Firefly DRONE SNOWS/TM G. Upon completion of the Drone Show Display or if the Client cancels the Drone Show Display, Firefly shall have 60 days to invoice ("Additional Expense Invoice") Client for any additional fees,costs, or expenses that the Client previously approved due to changes in scope or performance, per Section I.E. of this Agreement ("Additional Expenses"). The Client agrees to pay the Additional Expenses within 30 days of receiving any Additional Expense Invoice. Client will pay the full amount of the Additional Expense Invoice to Firefly in the form of a wire transfer or check made payable to Firefly Drone Shows, LLC to be delivered to: Firefly Drone Shows,LLC 5105 Williams Lake Road Waterford,MI 48329 II. Client's Obligations. A. Client shall be solely and entirely responsible for completing the following: 1. Obtaining all necessary permissions from property owners/controllers or authorized representatives prior to the date(s) of the Drone Show Display under this Agreement. 2. Obtaining all necessary permits required by local governmental agencies. 3. Maintaining a safe operating area from which the Firefly crevt will work, uninterrupted. 4. Securing the area of operation to ensure only individuals necessary to the operation("Participating Persons")are allowed in the area of flight operations. 5. Ensuring that only Participating Persons will be permitted within the perimeter of 500 feet from the area of primary flying. 6. Providing one 20 amp circuit for battery charging (alternatively, Firefly can provide this equipment upon Client's request). B. Client must respond promptly to any Firefly request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Firefly to perform the Drone Display Show in accordance with the requirements of this Agreement. C. If Firefly's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client, Firefly shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case,to the extent arising directly or indirectly from such prevention or delay. Ill. Cancellation. FkeFly DRONE SHOWS A. Firefly shall have the right to cancel this Agreement at any time by giving written notice to Client. Upon cancellation, Firefly shall return to Client all monies paid that have not been earned or incurred by Firefly's partial performance, if any. B. If Client cancels this agreement at any point in time before December 30, 2020, there will be no cancellation fee and Firefly shall return to Client all monies paid. C. If Client cancels this agreement at any point in time less than 30 days, but more than 72 hours before the scheduled date of the Drone Show Display,the cancellation fee will be 50% of the full Invoice price regardless of whether such fees and expenses are actually incurred and regardless of whether other external conditions would have prevented the operations from moving forward as scheduled. D. If Client cancels this agreement at any point in time less than 72 hours before the scheduled date of the Drone Show Display, the Client shall pay Firefly the total amount of the Invoice, regardless of whether such fees and expenses are actually incurred and regardless of whether other external conditions would have prevented the operations from moving forward as scheduled. IV. Statement of Compliance. Firefly is responsible for complying with federal aviation law. In connection therewith, Firefly hereby expressly represents and warrants to Client that Firefly is obligated by federal aviation law to conduct all aerial operations within the limitations stated in Federal Aviation Administration Waiver No: 107W-2020-0031 I ("Waiver"). Client represents that nothing in this Agreement shall obligate Firefly to exceed or violate the terms of the Waiver. V. Insurance. Firefly will provide to Client a certificate of liability insurance for UAS flight-related aerial operations, naming Client as an additional named insured. If the property at which the Drone Show Display is to be performed is not owned by Client,the Client shall notify Firefly of such,and the owner of such property shall be listed as an additional named insured. VI. Indemnification Each Party shall defend indemnify and hold harmless the other Party, including affiliates and each of their respective officers, directors, shareholders, employees, representatives,agents, successors and assigns from and against all claims of third parties, and all associated losses, to the extent arising out of(a)a Party's gross negligence or willful misconduct in performing any of its obligations under this Agreement, or (b) a material breach by a Party of any of its representations,warranties,covenants or agreements under this Agreement. VII. Intellectual Property. Nothing in this Agreement will function or serve to transfer any of either Party's Intellectual Property rights to the other party and each Party will retain exclusive interest in and ownership of its Intellectual Property. VIII. Confidential Information. 3 Firefly DRONE SHOWS/,.. A. Confidential Information disclosed by either Party shall be used by the receiving Party solely for the purposes authorized by this Agreement,unless otherwise approved in advance and in writing by the disclosing Party. B. If the receiving Party is legally obliged to disclose any of the Confidential Information, the receiving Party shall promptly notify the disclosing Party so that the disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the terms of this Agreement,at the disclosing Party's sole discretion. C. For the purposes of this Agreement, "Confidential Information" includes,but is not limited to, Firefly's operating procedures, operations manuals, and any documents marked"Confidential." D. Firefly shall be entitled to injunctive relief for any violation of this Section. PC. Representation and Warranty. A. Firefly represents and warrants to Client that it shall perform the Drone Display Show using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. B. In the event of a materially defective Drone Display Show, Firefly shall, in its sole discretion,either: l. Reperform the Drone Display Show;or 2. Credit or refund the price of the Drone Display Show at the pro rata contract rate. C. The remedies set forth in this section shall be Client's sole and exclusive remedy and Firefly's entire liability for any breach of the limited warranty set forth in this section. D. Except for the warranty set forth above, Firefly makes no warranty whatsoever with respect to its services, including any (a)warranty of fitness for a particular purpose; or(b)warranty of title;or(c)warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade,or otherwise. X. Limitation of Liability. 4 FireFly roNF SHOWS A. IN NO EVENT SHALL FIREFLY BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT FIREFLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. B. IN NO EVENT SHALL FIREFLY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT(INCLUDING NEGLIGENCE)OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO FIREFLY. )(I. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. XII, Publicity. All news releases, publicity or advertising by a Party through any media intended to reach the general public which refers to the Drone Show Display for Client shall be subject to the prior approval of the other Party,which consent shall not be unreasonably withheld,conditioned, or delayed), and the parties shall cooperate as to the timing and contents of any such news releases,publicity or advertising. XIII. Force Majeure. Firefly shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Firefly including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes(whether or not relating to either party's workforce),or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. S FiieFly DRONE SHOWS XIV. Severability. If any provision or portion thereof,of this Agreement is found to be invalid,unlawful or unenforceable to any extent, such provision of this Agreement will be enforced to the maximum extent permissible by applicable law so as to affect the intent of the Parties,and the remainder of this Agreement will continue in full force and effect. Upon such determination that any term or other provision of this Agreement is invalid, unlawful, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. XV. Form of Written Notice. Each Party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, by facsimile or email(with confirmation of transmission), or by recognized overnight courier service, and addressed to the other Party at the addresses that the receiving Party may designate from time to time in accordance with this Section. XVI. Choice of Law. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with the laws of the State of Michigan, without giving effect to any conflict of laws provisions thereof. XVII. Cumulative Remedies. The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise. XVIII. Assignment. Neither Party may directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement,voluntarily or involuntarily, including by change of control, merger (whether or not such Party is the surviving entity), operation of law, or any other manner, without the prior written consent of the other Party. Any purported assignment or delegation in violation of this Section shall be null and void. XIX. Successors and Assigns, This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. Except for the Parties, their successors and permitted assigns,there are no third party beneficiaries under this Agreement. XX. No Third-Party Beneficiaries. Firefly DRONE SHOWS This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein,express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. XXI, Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile.email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. XXII. Waiver. No waiver of any right,remedy, power,or privilege under this Agreement("Right(s)") is effective unless contained in a writing signed by the Party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof.No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right. XXII). Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party. XXIV. Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The Parties may not amend this Agreement except by written instrument signed by the Parties. [Remainder of page left intentionally blank] [Signatures on following page] FuellyDRONE SHOWS IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date. TOWN OF FOUNTAIN HILLS I FIREFLY DRONE SHOWS,LLC OD*" By: - By: Printed Name: 6Y'a � ���,er Printed Name: Kyle orosz Title: Title: President fO Date: y t el, el/3qn Date: 11/12/2020 8 4��T A�N y` �� TOWN OF FOUNTAIN HILLS r o ., 16705 E.Avenue of the Fountains, Fountain Hills,AZ 85268 480.816.5100 I Fax:480.837.3145 1'''aelFsA�1 Isi Aaron D. Arnson 11/06/2020 Approved as to form Date www.fh.az.gov 4 .. s .