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HomeMy WebLinkAbout24-0318 LFDE - Mad BomberPURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this Ld y of U, V'( ", 2024, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and MIAND, Inc. an Indiana corporation d/b/a Mad Bomber Fireworks Productions, (hereinafter referred to as "MIAND" or "Seller"). NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of'which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. PL,CHASF.. City shall purchase, and MIAND shall sell the goods and/or services described by Attachment A, attached hereto and made a part hereof 2. TERMS. This Agreement shall be subject to the terms and conditions contained herein and as provided by Attachment A, attached hereto and made a part hereof. 3. CO FN LICT. In the event of any conflict, between any of the terms and provisions of this Agreement and Attachment A hereto, the terms and provisions of this Agreement shall control; provided however that any additional insurance requirements provided for in Attachment A which exceed these provided for in the body of this Agreement shall apply. 4. LAW/VENUE. This Agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this Agreement shall be the Circuit Court of Kane County, Illinois. MIAND hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this Agreement or the subject matter hereof; and MIAND agrees that service by first class U.S. mail to Andrew James, 3999 E. Hupp Road, Bldg. R-3-1, La Porte, IN, 46350 shall constitute effective service. Both parties hereto waive any rights to a jury. 5. NO MODIFICATION. There shall be no modification of this Agreement, except in writing and executed with the same formalities as the original. 6. MFHJIEER. This Agreement embodies the whole agreement of the parties. There are no promises, terms, conditions or obligations other than those contained herein, and this Agreement shall supersede all previous communications, representations or agreements, either verbal, written or implied between the parties hereto. 7. INTEREST. MIAND hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this Agreement, and waives any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act (50 ILCS 50511, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, etseq.), as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 8. SEVERABILITY. The terms of this Agreement shall be severable. In the event any of the terms or the provisions of this Agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect. 9. COMPLIANCE WITH LAW. Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement, MIAND shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, MIAND hereby certifies, represents and warrants to the City that all of MIAND's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legally authorized to work in the United States. MIAND shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The City shall have the right to audit any records in the possession or control of MIAND to determine MIAND's compliance with the provisions of this section. In the event the City proceeds with such an audit, MIAND shall make available to the City MIAND's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 10. PAYMENT. City shall pay the total sum of Twenty Two Thousand Dollars ($22,000) within thirty (30) days of delivery or City's receipt of invoice, whichever is later. The aforementioned total sum is inclusive of all freight, shipping and applicable taxes. 11. DELIVERY. MIAND shall complete delivery of all goods and shall provide all services on or before September 14, 2024, as set forth in Attachment A. 12. LIMITATION OF DAMAGES. In no event shall City be liable for any monetary damages in excess of the purchase price contemplated by this Agreement. In no event shall City be liable for any consequential, special or punitive damages, or any damages resulting from loss of profit. 13. TRANSFER OF TITLEIRISK. All transportation and delivery of fireworks shall be at MIAND's sole expense. 14. INDEMNIFICATION. To the fullest extent permitted by law, MIAND agrees to and shall indemnify, defend and hold harmless the City, its officers, employees, boards and commissions from and against any and all claims, suits, judgments, costs, attorney's fees, damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any acts or negligent acts or omissions of MIAND or MIAND's officers, employees, agents or subcontractors in the performance of this Agreement, including but not limited to, all goods delivered or services or work performed hereunder. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. 2 15. 1ZJ51LRA:JCE. MIAND agrees to obtain, furnish, and maintain in full force and effect during the entire term of this Agreement, at its sole cost, the insurance coverages outlined herein. All of said insurance shall be written by, and secured from, companies approved to do business and issue insurance in the State of Illinois and shall be rated "A-" or better, in accordance with the latest edition of Best's Insurance Guide, published by A.M. Best Company, Inc. or its equivalent. The comprehensive general liability insurance shall be endorsed to include independent contractors, contractual liability, personal injury, products/completed operations liability, broad form property damage, and cross liability and severability of interest provisions. Policies provided hereunder shall not contain XCU exclusions relating to explosion, collapse and underground property damage. All liability insurance shall be written on an occurrence basis. Automobile liability insurance should include coverage for all owned, non -owned, hired and leased vehicles. All insurance policies shall be written in the name of the MIAND and such insurance shall be primary and noncontributory with any insurance or self-insurance program afforded to the City of Elgin: Comprehensive Liability General Aggregate $10 Million Products Completed Operations Aggregate $ 5 Million Personal Injury and Advertising Limit $ 5 Million Each Occurrence $ 5 Million Automobile Liability Combined Single Limit $5 Million Worker's Compensation Statutory As required by state law Employer's Liability $1,000,000 Each Accident $1,000,000 Each Emp for Disease $1,000,000 Policy Limit for Disease MIAND may purchase and maintain excess liability insurance in the umbrella form in order to satisfy the limits of liability required in accordance with the requirements set forth above. The comprehensive liability and umbrella policies shall name the City of Elgin as additional insured. The workers' compensation policy shall include a waiver of subrogation in favor of the City. MIAND shall be responsible for and shall bear the risk of loss and damage to any property of MIAND and any property for which it is responsible or in its care, custody, or control, wherever located. Any insurance provided for such property shall be solely at MIAND's expense. Prior to the commencement of any work under this Agreement, MIAND shall furnish Certificates of Insurance acceptable to the City and conforming to the insurance coverage required herein. The policy cancellation notification provision will provide the City with at least thirty (30) days written notice in the event of cancellation or material change. The City reserves the right, at its sole discretion, to amend the insurance requirements contained herein. a. Seller will present said Fireworks Display on the evening of the 14th Day of September, 2024, it being understood that should there be inclement weather the day of the display the Seller has sole discretion to cancel display on said date. An alternate display date will be given within six months of the original display date agreeable to both the Seller and Buyer. b. The Fee for cancellation for any reason of the Fireworks Display is Forty Percent (40%) of the agreement price if Buyer chooses to not select another display date within six months of the original display date. C. Buyer will provide a sufficient area for the Display, including a minimum spectator set back of 350 feet at all points from the discharge area. Buyer will provide protection of the display by roping -off or other suitable means. Buyer will provide adequate police protection to prevent spectators from entering display area. Buyer agrees to search the fallout area at first light following a night display. d. Seller reserves the right to terminate the Display in the event that persons enter the secured Danger Zone and Security is unable to secure the Danger Zone. Seller agrees to provide Qualified Technicians to take charge of and present said Display. f. Seller shall provide Liability Insurance in the amount of $10,000,000.00 for the benefit of both the Buyer and Seller. All individual entities listed on the Certificate of Insurance will be deemed additional insured per this Agreement. All individual entities listed on the Certificate of Insurance will be deemed an additional insured per this contract, This insurance will be primary to any insurance carried by the City of Elgin. g. MIAND retains the right to substitute product of equal or greater value in the event of shortages and unavailability of any particular item on the proposal. h. The City shall have the option to renew this Agreement for a 4th of July fireworks display for years 2023 and 2024 upon the same terms and conditions of this Agreement, in the City's sole discretion. 17. EXECUTION, This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this Agreement, any signed copy of this Agreement transmitted by fax machine or e- mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this Agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this Agreement shall be considered to have the same binding 4 legal effect as an original document. At the request of either party any fax or e-mail copy of this Agreement shall be re -executed by the parties in an original form. No party to this Agreement shall raise the use of fax machine or e-mail as a defense to this Agreement and shall forever waive such defense. NONDISCRIMINATION. The Seller will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, ancestry, order of protection status, familial status, marital status, physical or mental disability, military status, sexual orientation, or unfavorable discharge from military service which would not interfere with the efficient performance of the job in question. The Seller will take affirmative action to comply with the provisions of Elgin Municipal Code Section 5.02.040 and will require any subcontractor to submit to the City a written commitment to comply with those provisions. The Seller will distribute copies of this commitment to all persons who participate in recruitment, screening, referral and selection of job applicants, prospective job applicants, and subcontractors. The person signing this Agreement certifies that s/he has been authorized by the Seller to commit the Seller contractual and has been authorized to execute this Agreement on its behalf. IN WITNESS WHEREOF the parties have hereto set their hands the day and year first above written. MIAND, INC. d/b/a MAD BOMBER FIREWORKS PRODUCTIONS i —- 1 / P fit Name gignaude CITY OF ELGIN ` f Emmonx-m-.t. ATTEST f), fl-C-4111— 01f ti s , Ttt Fc Tiiyy Cldrk