HomeMy WebLinkAboutMelrose Pyrotechnics/Comm Rel/25,000/Fireworks Melrose Pyrotechnics, Inc.
Community Relations Department
Appropriation #43- 59003; P.O. #26406
Contract Not To Exceed 525,000.00
AGREEMENT FOR PURCHASE OF GOODS AND SERVICES 4ao1
THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES "Agreement is hereby entered into by
and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety "City"), and
Melrose Pyrotechnics, Inc., an entity duly authorized to do business in the State of Indiana "Vendor").
TERMS AND CONDITIONS
1. ACKNOWLEDGMENT, ACCEPTANCE:
Vendor acknowledges that it has read and understands this Agreement, and agrees that its execution of
same constitutes its acceptance of all of the Agreement's terms and conditions.
2. PERFORMANCE:
City agrees to purchase the goods and /or services (the "Goods and Services from Vendor using City
budget appropriation number 1203: 43 -59003 funds. Vendor agrees to provide the Goods and Services and
to otherwise perform the requirements of this Agreement by applying at all times the highest technical and
industry standards.
3. PRICE AND PAYMENT TERMS:
3.1 Vendor estimates that the total price for the Goods and Services to be provided to City hereunder
shall be no more than Twenty -Five Thousand Dollars ($25,000.00) (the "Estimate Vendor shall
submit an invoice to City no more than once every thirty (30) days detailing the Goods and Services
provided to City within such time period. City shall pay Vendor for such Goods and Services within
sixty (60) days after the date of City's receipt of Vendor's invoice detailing same, so long as and to
the extent such Goods and Services are not disputed, are in conformance with the specifications set
forth in Exhibit A, are submitted on an invoice that contains the information contained on attached
Exhibit B, and Vendor has otherwise performed and satisfied all the terms and conditions of this
Agreement.
3.2 Vendor agrees not to provide any Goods and Services to City that would cause the total cost of the
Goods and Services provided by Vendor to City hereunder to exceed the Estimate, unless City has
previously agreed, in writing, to pay an amount in excess thereof.
4. WARRANTY:
Vendor expressly warrants that the Goods and Services covered by this Agreement will conform to
those certain specifications, descriptions and /or quotations regarding same as were provided to
Vendor by City and/or by Vendor to and accepted by City, all of which documents are incorporated
herein by reference, and that the Goods and Services will be delivered in a timely, good and
workmanlike manner and free from defect. Vendor acknowledges that it knows of City's intended use
and expressly warrants that the Goods and Services provided to City pursuant to this Agreement
have been selected by Vendor based upon City's stated use and are fit and sufficient for their
particular purpose.
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Melrose Pyrotechnics, Inc.
Community Relations Department
Appropriation #43- 59003; P.O. #26406
Contract Not To Exceed $25,000.00
5. TIME AND PERFORMANCE:
This Agreement shall become effective as of the last date on which a party hereto executes same "Effective
Date and both parties shall thereafter perform their obligations hereunder in a timely manner. Time is of the
essence of this Agreement.
6. DISCLOSURE AND WARNINGS:
If requested by City, Vendor shall promptly furnish to City, in such form and detail as City may direct, a list of
all chemicals, materials, substances and items used in or during the provision of the Goods and Services
provided hereunder, including the quantity, quality and concentration thereof and any other information
relating thereto. At the time of the delivery of the Goods and Services provided hereunder, Vendor agrees to
furnish to City sufficient written warning and notice (including appropriate labels on containers and packing)
of any hazardous material utilized in or that is a part of the Goods and Services.
7. LIENS:
Vendor shall not cause or permit the filing of any lien on any of City's property. In the event any such lien is
filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding,
City shall have the right to pay such lien or obtain such bond, all at Vendor's sole cost and expense.
8. DEFAULT:
In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this
Agreement, including Vendor's warranties; (b) fails to provide the Goods and Services as specified herein;
(c) fails to make progress so as to endanger timely and proper provision of the Goods and Services and does
not correct such failure or breach within five (5) business days (or such shorter period of time as is
commercially reasonable under the circumstances) after receipt of notice from City specifying such failure or
breach; or (d) becomes insolvent, is placed into receivership, makes a general assignment for the benefit of
creditors or dissolves, each such event constituting an event of default hereunder, City shall have the right to
(1) terminate all or any parts of this Agreement, without liability to Vendor; and (2) exercise all other rights
and remedies available to City at law and/or in equity.
9. INSURANCE AND INDEMNIFICATION:
Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer
licensed to do business in the State of Indiana, such insurance as is necessary for the protection of City and
Vendor from all claims for damages under any workers' compensation, occupational disease and /or
unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness,
disease or death of or to any of Vendor's agents, officers, employees, contractors and subcontractors; and,
for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom.
The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall
cause its insurers to name City as an additional insured on all such insurance policies, shall promptly provide
City, upon request, with copies of all such policies, and shall provide that such insurance policies shall not be
canceled without thirty (30) days prior notice to City. Vendor shall indemnify and hold harmless City from and
against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney
fees) for injury, death and /or damages to any person or property arising from or in connection with Vendor's
provision of Goods and Services pursuant to or under this Agreement or Vendor's use of City property.
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Melrose Pyrotechnics, Inc.
Community Relations Department
Appropriation #43- 59003; P.O. #26406
Contract Not To Exceed $25,000.00
Vendor further agrees to indemnify, defend and hold harmless City and its officers, officials, agents and
employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney
fees, and other expenses, caused by any act or omission of Vendor and /or of any of Vendor's agents,
officers, employees, contractors or subcontractors in the performance of this Agreement. These
indemnification obligations shall survive the termination of this Agreement.
10. GOVERNMENT COMPLIANCE:
Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes
which may be applicable to Vendor's performance of its obligations under this Agreement, and all relevant
provisions thereof are incorporated herein by this reference. Vendor agrees to indemnify and hold harmless
City from any loss, damage and /or liability resulting from any such violation of such laws, orders, rules,
regulations and codes. This indemnification obligation shall survive the termination of this Agreement.
11. NONDISCRIMINATION:
Vendor represents and warrants that it and all of its officers, employees, agents, contractors and
subcontractors shall comply with all laws of the United States, the State of Indiana and City prohibiting
discrimination against any employee, applicant for employment or other person in the provision of any Goods
and Services provided by this Agreement with respect to their hire, tenure, terms, conditions and privileges of
employment and any other matter related to their employment or subcontracting, because of race, religion,
color, sex, handicap, national origin, ancestry, age, disabled veteran status and /or Vietnam era veteran
status.
12. E- VERIFY
Pursuant to I.C. 22 -5 -1.7 et seq., Company shall enroll in and verify the work eligibility status of all of its
newly -hired employees using the E- Verify program, if it has not already done so as of the date of this
Agreement. Company is further required to execute the attached Affidavit, herein referred to as Exhibit D,
which is an Affidavit affirming that: (i) Company is enrolled and is participating in the E- verify program, and
(ii) Company does not knowingly employ any unauthorized aliens. This Addendum incorporates by reference,
and in its entirety, attached Exhibit D. In support of the Affidavit, Company shall provide the City with
documentation that it has enrolled and is participating in the E- Verify program. This Agreement shall not take
effect until said Affidavit is signed by Company and delivered to the City's authorized representative.
Should Company subcontract for the performance of any work under this Addendum, the Company shall
require any subcontractor(s) to certify by affidavit that: (i) the subcontractor does not knowingly employ or
contract with any unauthorized aliens, and (ii) the subcontractor has enrolled and is participating in the E-
verify program. Company shall maintain a copy of such certification for the duration of the term of any
subcontract. Company shall also deliver a copy of the certification to the City within seven (7) days of the
effective date of the subcontract.
If Company, or any subcontractor of Company, knowingly employs or contracts with any
unauthorized aliens, or retains an employee or contract with a person that the Company or subcontractor
subsequently learns is an unauthorized alien, Company shall terminate the employment of or contract with
the unauthorized alien within thirty (30) days "Cure Period Should the Company or any subcontractor of
Company fail to cure within the Cure Period, the City has the right to terminate this Agreement without
consequence.
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Melrose Pyrotechnics, Inc.
Community Relations Department
Appropriation #43- 59003; P.O. #26406
Contract Not To Exceed 525,000.00
The E- Verify requirements of this Agreement will not apply, should the E- Verify program cease to exist.
13. NO IMPLIED WAIVER:
The failure of either party to require performance by the other of any provision of this Agreement shall not
affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any
party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the
same or any other provision hereof.
14. NON- ASSIGNMENT:
Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not
delegate its obligations under this Agreement without City's prior written consent.
15. RELATIONSHIP OF PARTIES:
The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any
of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price
set forth herein shall be the full and maximum compensation and monies required of City to be paid to
Vendor under or pursuant to this Agreement.
16. GOVERNING LAW; LAWSUITS:
This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana,
except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they
waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County,
Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same.
17. SEVERABILITY:
If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive
order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to
comply with same, and the remaining provisions of this Agreement shall remain in full force and effect.
18. NOTICE:
Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage
prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified
herein:
If to City: City of Carmel AND Douglas C. Haney
One Civic Square City Attorney
Carmel, Indiana 46032 Department of Law
ATTENTION: Nancy Heck, One Civic Square
Director of Community Relations Carmel, Indiana 46032
If to Vendor: Melrose Pyrotechnics, Inc.
Address: P.O. Box 302, Kingsbury, TN 46345
Telephone: 219- 393 -5522
E Mail: Barry @melrosepyro.com
ATTENTION: Garry Poe
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Melrose Pyrotechnics, Inc.
Community Relations Department
Appropriation #43- 59003; P.O. #26406
Contract Not To Exceed $25,000.00
Notwithstanding the above, notice of termination under paragraph 19 hereinbelow shall be effective if given
orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from
the date of such oral notice.
19. TERMINATION:
19.1 Notwithstanding anything to the contrary contained in this Agreement, City may, upon notice to
Vendor, immediately terminate this Agreement for cause, in the event of a default hereunder by
Vendor and /or if sufficient funds are not appropriated or encumbered to pay for the Goods and
Services to be provided hereunder. In the event of such termination, Vendor shall be entitled to
receive only payment for the undisputed invoice amount representing conforming Goods and
Services delivered as of the date of termination, except that such payment amount shall not exceed
the Estimate amount in effect at the time of termination, unless the parties have previously agreed in
writing to a greater amount.
19.2 City may terminate this Agreement at any time upon thirty (30) days prior notice to Vendor. In the
event of such termination, Vendor shall be entitled to receive only payment for the undisputed
invoice amount of conforming Goods and Services delivered as of the date of termination, except
that such payment amount shall not exceed the Estimate amount in effect at the time of termination,
unless the parties have previously agreed in writing to a greater amount.
20. REPRESENTATIONS AND WARRANTIES
The parties represent and warrant that they are authorized to enter into this Agreement and that the persons
executing this Agreement have the authority to bind the party which they represent.
21. ADDITIONAL GOODS AND SERVICES
Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods
and services to City. When City desires additional goods and services from Vendor, the City shall notify
Vendor of such additional goods and services desired, as well as the time frame in which same are to be
provided. Only after City has approved Vendor's time and cost estimate for the provision of such additional
goods and services, has encumbered sufficient monies to pay for same, and has authorized Vendor, in
writing, to provide such additional goods and services, shall such goods and services be provided by Vendor
to City. A copy of the City's authorization documents for the purchase of additional goods and services shall
be numbered and attached hereto in the order in which they are approved by City.
22. TERM
Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 19
hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 2012 and shall,
on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless
otherwise agreed by the parties hereto.
23. HEADINGS
All heading and sections of this Agreement are inserted for convenience only and do not form a part of this
Agreement nor limit, expand or otherwise alter the meaning of any provision hereof.
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Melrose Pyrotechnics, Inc.
Community Relations Department
Appropriation #43- 59003; P.O. #26406
Contract Not To Exceed $25,000.00
24. BINDING EFFECT
The parties, and their respective officers, officials, agents, partners, successors, assigns and legal
representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations
set forth in Agreement.
25. NO THIRD PARTY BENEFICIARIES
This Agreement gives no rights or benefits to anyone other than City and Vendor.
26. ADVICE OF COUNSEL:
The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain
legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same
freely, voluntarily, and without any duress, undue influence or coercion.
27. ENTIRE AGREEMENT:
This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire
agreement between Vendor and City with respect to the subject matter hereof, and supersedes all prior oral
or written representations and agreements regarding same. Notwithstanding any other term or condition set
forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit
attached to this Agreement or in any document referenced herein conflicts with any term or condition
contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail.
This Agreement may only be modified by written amendment executed by both parties hereto, or their
successors in interest.
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Melrose Pyrotechnics, Inc.
Community Relations Department
Appropriation #43- 59003; P.O. #26406
Contract Not To Exceed $25,000.00
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL, INDIANA MELROSE PYROTECHNICS, INC.
by and through its Board of Public
Works and Safety
By: By:
/4111= tit IG14_
am-s Brainard, Presiding Officer Authoriz dature
Date:
Date: -6 i f �'c�t22 1?-. �0E
Printed Name
'ary n Burke, emr
Date: CVEprr PVph1h c.
Title
Lori S. Wat mb r FID/TIN: 35 1819463
Date: 6
Last Four of SSN if Sole Proprietor:
ATTEST:
Date: s
l iana Cordray, IA C er 'Treasurer
Date:
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MELROSE PYROTECHNICS, INC.
AGREEM ENT
This contract entered into this 17 Day of May AD 2012 by and between MELROSE PYROTECHNICS,
INC. of Kingsbury, Indiana and City of Carmel (Customer) of City Carmel State Indiana.
WITNESSETH: MELROSE PYROTECHNICS, INC. for and in consideration of the terms hereinafter
mentioned, agrees to furnish to the CUSTOMER one (1) Fireworks Display(s) as per agreement made and accepted
and made a part hereof, including the services of our Operator to take charge of and fire display under the
supervision and direction of the Customer, said display to be given on the evening of July 4, 2012 Customer
Initial weather permitting, it being understood that should inclement weather prevent the giving of this
display on the date mentioned herein the parties shall agree to a mutually convenient alternate date, within six (6)
months of the original display date. Customer shall remit to the first party an additional 15% of the total contract
price for additional expenses in presenting the display on an altemate date. The determination to cancel the show
because of inclement or unsafe weather conditions shall rest within the sole discretion of MELROSE
PYROTECHNICS, INC. In the event the customer does not choose to reschedule another date or cannot agree to a
mutually convenient date, MELROSE PYROTECHNICS, INC. shall be entitled to 40% of the contract price for
costs, damages and expenses. If the fireworks exhibition is canceled by CUSTOMER prior to the display,
CUSTOMER shall be responsible for and shall pay to MELROSE PYROTECHNICS, INC. on demand, all
MELROSE PYROTECHNICS, INC.'s out of pocket expenses incurred in preparation for the show including but not
limited to, material purchases, preparation and design costs, deposits, licenses and employee charges.
MELROSE PYROTECHNICS, INC. agrees to furnish all necessary fireworks display materials and
personnel for a fireworks display in accordance with the program approved by the parties. Quantities and varieties of
products in the program are approximate. After final design, exact specifications will be supplied upon request.
Should this display require any Union related costs; their fees are not included in this agreement.
It is further agreed and understood that the CUSTOMER is to pay MELROSE PYROTECHNICS, INC. the
sum of Twenty -Five Thousand Dollars 00 /100 ($25,000.00). A service fee of 1 '/Z per month shall be added, if
account is not paid within 30 days of the show date.
MELROSE PYROTECHNICS, INC. will obtain Public Liability and Property Damage and Workers
Compensation Insurance.
Customer will provide the following items:
(a) Sufficient area for the display, including a minimum spectator set back of 350 feet at
all points from the discharge area.
(b) Protection of the display area by roping -off or similar facility.
(c) Adequate police protection to prevent spectators from entering display area.
(d) Search of the fallout area at first light following a nighttime display.
It is further agreed and mutually understood that nothing in this contract shall be construed or interpreted to
mean a partnership, both parties being hereto responsible for their separate and individual debts and obligations and
neither party shall be responsible for any agreements not stipulated in this contract. Customer agrees to pay any and
all collection costs, including reasonable attorney's fees and court costs incurred by MELROSE PYROTECHNICS,
INC. in the collection or attempted collections of any amount due under this agreement and invoice.
The parties hereto do mutually and severally guarantee terms, conditions, and payments of this contract,
these articles to be binding upon the parties, themselves, their heirs, executors, administrators, successors and
assigns.
MELROSE PYROTECHNICS, INC. CUSTOMER
By:
By. y m duly ta-7,rd sgvat. ISto repnrsems I.thh has fu authority on bind the a..u,..e..
Date Signed: May 17, 2012 Date Signed:
(PLEASE TYPE OR PRINT)
Garry R. Poe, Event Producer Name:
1 Kingsbury Industrial Park, P.O. Box 302 Address:
Kingsbury, Indiana 46345
(800) 771 -7976 Phone:
Email: garry@melrosepyro.com Email: