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AG 17-09311 RETURN TO: EXT: CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM . ORIGINATING DEPT. /DIV: F W C G . ORIGINATING STAFF PERSON: bC.,v i d Clew► a to 5 TYPE OF DOCUMENT (CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT (E.G., ❑ PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT GOODS AND SERVICE AGREEMENT ❑ REAL ESTATE DOCUMENT ❑ ORDINANCE ❑ CONTRACT AMENDMENT (AG #): ❑ OTHER EXT: 479 tiq 3. DATE REQ. BY: RFB, RFP, RFQ) ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ MAINTENANCE AGREEMENT ❑ HUMAN SERVICES / CDBG ❑ SECURITY DOCUMENT (E.G. BOND RELATED DOCUMENTS) ❑ RESOLUTION ❑ INTERLOCAL . PROJECT NAME: ('_oviAlywv, y F;re Work ta j NAME OF CONTRACTOR: j=riA C v k vi %wine %tit ire ui a r k s I ADDRESS: Po t3 tot ZiL� Ol�pia 9 She'7 E -MAIL: SIGNATURE NAME: Ken Cv\ i ab TELEPHONE FAX: TITLE Pre 6j ac nv EXHIBITS AND ATTACHMENTS: ❑ SCOPE, WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS /CERTIFICATE FALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT /AMENDMENTS . TERM: COMMENCEMENT DATE: v>p or &xtc,u i 6 n COMPLETION DATE: TOTAL COMPENSATION $ S WO. 00 C � }Arlo C Ahnv�lt� L O� 1 000 . D D ( CLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: ❑ YES ❑ NO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED ❑ YES ❑ NO IF YES, $ PAID BY: ❑ CONTRACTOR ❑ CITY RETAINAGE: RETAINAGE AMOUNT: ❑ RETAINAGE BY (SEE CONTRACT) OR ❑ RETAINAGE BOND PROVIDED h' PURCHASING: PLEASE CHARGE TO: 001- l w o - 352 -S73- 2 - 111O 0. DO MENT /CONTRACT REVIEW ROJECT MANAGER ❑ DIRECTOR ❑ RISK MANAGEMENT (IF APPLICABLE) ❑ LAW 1. COUNCIL APPROVAL (IF APPLICABLE) 2. CONTRACT SIGNATURE ROUTING ❑ SENT TO VENDOR/CONTRACTOR INITIAL / D TE REVIEWED COMMITTEE APPROVAL DATE: INITIAL / DATE APPROVED COUNCIL APPROVAL DATE: DATE SENT: DATE REC'D: ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS ❑ CREATE ELECTRONIC REMINDER/NOTIFICATION FOR 1 MONTH PRIOR TO EXPIRATION DATE (Include dept. support staff if necessary and feel free to set notification more than a month in advance if council approval is needed.) INITIAL / D5A"�'E SIGNED ❑ LAW DEPARTMENT ❑ SIGNATORY (MAYOR OR DIRECTOR) ❑ CITY CLERK ❑ ASSIGNED AG# ❑ SIGNED COPY RETURNED C, ?tt11. 57214t // 1 24 r1 AG# -t)�3 DATE SENT: ,5-•25 ' fl- ;OMMENTS: -KA+-I -� 0141 Cowl" i bi,i ;itmnlorJ 'l'!4� �lll� —Otrr t ►nc vt rice. I�'vltc-✓ v " r otJL�riw. C9 �.r ►n d5�• Yq ✓ C.t vt need 3 r \V.wv\ 1.. 1. 1 av■ e c Vecleral Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www.cityoffederalway.com GOODS AND SERVICES AGREEMENT FOR COMMUNITY FIREWORKS DISPLAY FOR RED, WHITE, & BLUES FESTIVAL This Goods and Services Agreement ( "Agreement ") is made between the City of Federal Way, a Washington municipal corporation ( "City "), and Entertainment Fireworks, Inc., a Washington corporation ( "Contractor "). The City and Contractor (together "Parties ") are located and do business at the below addresses which shall be valid for any notice required under this Agreement: ENTERTAINMENT FIREWORKS, INC: Ken Julian PO Box 7160 Olympia, WA 98507 -7160 360 - 352 -8911 kjulian@pyrotech.com The Parties agree as follows: CITY OF FEDERAL WAY: Doug Nelson 876 South 333rd Street Federal Way, WA 98003 -6325 253- 835 -6930 doug .nelson @cityoffederalway.com 1. TERM. The term of this Agreement shall commence upon the effective date of this Agreement, which shall be the date of mutual execution, and shall continue until the completion of the Work, but in any event no later than July 5, 2022 ( "Term "). This Agreement may be extended for additional periods of time upon the mutual written agreement of the City and the Contractor. 2. WORK. 2.1 Work. The Contractor shall provide goods, materials or services and otherwise perform the work more specifically described in Exhibit "A," attached hereto and incorporated by this reference ( "Work "), performed to the City's satisfaction, within the time period prescribed by the City and pursuant to the direction of the Mayor or his or her designee. 2.2 Warranties. The Contractor warrants that it has the requisite training, skill, and experience necessary to provide the Work and is appropriately accredited and licensed by all applicable agencies and governmental entities, including but not limited to obtaining a City of Federal Way business registration. The Contractor warrants it will provide services in a manner consistent with the accepted practices for other similar services within the Puget Sound region in effect at the time those services are performed. The Contractor warrants goods are merchantable, are fit for the particular purpose for which they were obtained, and will perform in accordance with their specifications and Contractor's representations to City. The Contractor shall, at its sole cost and expense, correct all Work performed which the City deems to have defects in workmanship and material discovered within one (1) year after the City's final acceptance of the Work. This Agreement is subject to all warranty provisions established under the Uniform Commercial Code, Title 62A RCW. In the event any part of the goods are repaired, only original replacement parts shall be used; rebuilt or used parts are not acceptable. When defects are corrected, the warranty for that portion of the work shall extend for one (1) year from the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Contractor does not accomplish the corrections within a reasonable time as determined by GOODS AND SERVICES AGREEMENT - 1 - 3/2017 4•.., Preiieral Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835-7000 www crryofderalway. com the City, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. 2.3 Time, Documentation, and Inspection. Work shall begin immediately upon the effective date of this Agreement. Work shall be subject, at all times, to observation and inspection by and with approval of the City, but the making (or failure or delay in making) such inspection or approval shall not relieve Contractor of responsibility for performance of the Work in accordance with this Agreement, notwithstanding the City's knowledge of defective or non - complying performance, its substantiality or the ease of its discovery. 2.4 Clean Up. At any time ordered by the City and immediately after completion of the Work, the Contractor shall, at its own expense, clean up and remove all refuse and unused materials of any kind resulting from the Work. In the event the Contractor fails to perform the necessary clean up, the City may, but in no event is it obligated to, perform the necessary clean up and the costs thereof shall be immediately paid by the Contractor to the City and /or the City may deduct its costs from any remaining payments due to the Contractor. 3. TERMINATION. Either party may terminate this Agreement, with or without cause, upon providing the other party thirty (30) days written notice at its address set forth on the signature block of this Agreement. The City may terminate this Agreement immediately if the Contractor fails to maintain required insurance policies, breaches confidentiality, or materially violates Section 12 and such may result in ineligibility for further City agreements. 4. COMPENSATION. 4.1 Amount. In return for the Work, the City shall pay the Contractor an amount not to exceed a maximum amount and according to a rate or method as delineated in Exhibit "B," attached hereto and incorporated by this reference. The Contractor agrees that any hourly or flat rate charged by it for its services contracted for herein shall remain locked at the negotiated rate(s) for the Term. Except as otherwise provided in Exhibit "B," the Contractor shall be solely responsible for the payment of any taxes imposed by any lawful jurisdiction as a result of the performance and payment of this Agreement. 4.2 Method of Payment. On a monthly basis, the Contractor shall submit a voucher or invoice in the form specified by the City, including a description of what Work have been performed, the name of the personnel performing such Work, and any hourly labor charge rate for such personnel. The Contractor shall also submit a final bill upon completion of all Work. Payment shall be made on a monthly basis by the City only after the Work has been performed and within thirty (30) days after receipt and approval by the appropriate City representative of the voucher or invoice. If the Work does not meet the requirements of this Agreement, the Contractor will correct or modify the work to comply with the Agreement. The City may withhold payment for such work until the work meets the requirements of the Agreement. 4.3 Defective or Unauthorized Work. If any goods, materials, or services provided under this Agreement are either defective, unauthorized, or otherwise do not meet the requirements of this Agreement, the Contractor will correct or modify the work to comply with the Agreement and the City reserves the right to withhold payment from the Contractor until the goods, materials, or services are acceptable to the City. If Contractor is unable, for any reason, to complete any part of this Agreement, the City may obtain the goods, materials or services from other sources, and Contractor shall be liable to the City for any additional costs incurred by the City. "Additional costs" shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Agreement price specified above. The City further reserves its right to deduct these additional costs incurred to complete this Agreement with other sources, from any and all amounts due or to become due the Contractor. GOODS AND SERVICES AGREEMENT - 2 - 3/2017 At.&_CITY OF Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 wvw cityoffederalway com 4.4 Non - Appropriation of Funds. If sufficient funds are not appropriated or allocated for payment under this Agreement for any future fiscal period, the City will not be obligated to make payments for Work or amounts incurred after the end of the current fiscal period, and this Agreement will terminate upon the completion of all remaining Work for which funds are allocated. No penalty or expense shall accrue to the City in the event this provision applies. 4.5 Final Payment: Waiver of Claims. Contractor's acceptance of final payment shall constitute a waiver of any and all claims, except those previously and properly made and identified by Contractor as unsettled at the time request for final payment is made. 5. INDEMNIFICATION. 5.1 Contractor Indemnification. The Contractor agrees to release indemnify, defend, and hold the City, its elected officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers harmless from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees, penalties expenses, attorney's fees, costs, and /or litigation expenses to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or in connection with this Agreement or the performance of this Agreement, except for that portion of the claims caused by the City's sole negligence. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Contractor and the City, the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence. Contractor shall ensure that each sub - contractor shall agree to defend and indemnify the City, its elected officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers to the extent and on the same terms and conditions as the Contractor pursuant to this paragraph. The City's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of these covenants of indemnification. 5.2 Industrial Insurance Act Waiver. It is specifically and expressly understood that the Contractor waives any immunity that may be granted to it under the Washington State industrial insurance act, Title 51 RCW, solely for the purposes of this indemnification. Contractor's indemnification shall not be limited in any way by any limitation on the amount of damages, compensation or benefits payable to or by any third party under workers' compensation acts, disability benefit acts or any other benefits acts or programs. The Parties further acknowledge that they have mutually negotiated this waiver. 5.3 City Indemnification. The City agrees to release, indemnify, defend and hold the Contractor, its officers, directors, shareholders, partners, employees, agents, representatives, and sub- contractors harmless from any and all claims, demands, actions, suits, causes of action, arbitrations, mediations, proceedings, judgments, awards, injuries, damages, liabilities, losses, fines, fees, penalties expenses, attorney's fees, costs, and /or litigation expenses to or by any and all persons or entities, including without limitation, their respective agents, licensees, or representatives, arising from, resulting from or connected with this Agreement to the extent solely caused by the negligent acts, errors, or omissions of the City. 5.4 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 6. INSURANCE. The Contractor agrees to carry insurance for liability which may arise from or in connection with the performance of the services or work by the Contractor, their agents, representatives, employees or GOODS AND SERVICES AGREEMENT - 3 - 3/2017 Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www cityoffedera!way com subcontractors for the duration of the Agreement and thereafter with respect to any event occurring prior to such expiration or termination as follows: 6.1. Minimum Limits. The Contractor agrees to carry as a minimum, the following insurance, in such forms and with such carriers who have a rating that is satisfactory to the City: a. Commercial general liability insurance covering liability arising from premises, operations, independent contractors, products - completed operations, stop gap liability, personal injury, bodily injury, death, property damage, products liability, advertising injury, and liability assumed under an insured contract with limits no less than $5,000,000 for each occurrence and $5,000,000 general aggregate. b. Workers' compensation and employer's liability insurance in amounts sufficient pursuant to the laws of the State of Washington; c. Automobile liability insurance covering all owned, non - owned, hired and leased vehicles with a minimum combined single limits in the minimum amounts required to drive under Washington State law per accident for bodily injury, including personal injury or death, and property damage. 6.2. No Limit of Liability. Contractor's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. The Contractor's insurance coverage shall be primary insurance as respect the City. Any insurance, self - insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. 6.3. Additional Insured, Verification. The City shall be named as additional insured on all commercial general liability insurance policies. Concurrent with the execution of this Agreement, Contractor shall provide certificates of insurance for all commercial general liability policies attached hereto as Exhibit "C" and incorporated by this reference. At City's request, Contractor shall furnish the City with copies of all insurance policies and with evidence of payment of premiums or fees of such policies. If Contractor's insurance policies are "claims made," Contractor shall be required to maintain tail coverage for a minimum period of three (3) years from the date this Agreement is actually terminated or upon project completion and acceptance by the City. 6.4 Survival. The provisions of this Section shall survive the expiration or termination of this Agreement. 7. CONFIDENTIALITY. All information regarding the City obtained by Contractor in performance of this Agreement shall be considered confidential subject to applicable laws. Breach of confidentiality by the Contractor may be grounds for immediate termination. All records submitted by the City to the Contractor will be safeguarded by the Contractor. The Contractor will fully cooperate with the City in identifying, assembling, and providing records in case of any public records disclosure request. 8. WORK PRODUCT. All originals and copies of work product, including plans, sketches, layouts, designs, design specifications, records, files, computer disks, magnetic media or material which may be produced or modified by Contractor while performing the Work shall belong to the City upon delivery. The Contractor shall make such data, documents, and files available to the City and shall deliver all needed or contracted for work product upon the City's request. At the expiration or termination of this Agreement, all originals and copies of any such work product remaining in the possession of Contractor shall be delivered to the City. 9. BOOKS AND RECORDS. The Contractor agrees to maintain books, records, and documents which sufficiently and properly reflect all direct and indirect costs related to the performance of the Work and maintain such accounting procedures and practices as may be deemed necessary by the City to assure proper accounting of all funds paid pursuant to this Agreement. These records shall be subject, at all reasonable times, to inspection, review or audit by the City, its authorized representative, the State Auditor, or other governmental officials authorized by GOODS AND SERVICES AGREEMENT - 4 - 3/2017 Vecleral Way law to monitor this Agreement. CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www cityoffederalway. com 10. INDEPENDENT CONTRACTOR / EMPLOYEE CONDITIONS. 10.1 Independence. The Parties intend that the Contractor shall be an independent contractor and that the Contractor has the ability to control and direct the performance and details of its work, the City being interested only in the results obtained under this Agreement. The City shall be neither liable nor obligated to pay Contractor sick leave, vacation pay or any other benefit of employment, nor to pay any social security, income, or other tax which may arise as an incident of employment, except as specifically provided in Section 4. Industrial or any other insurance that is purchased for the benefit of the City, regardless of whether such may provide a secondary or incidental benefit to the Contractor, shall not be deemed to convert this Agreement to an employment contract. If the Contractor is a sole proprietorship or if this Agreement is with an individual, the Contractor agrees to notify the City and complete any required form if the Contractor retired under a State of Washington retirement system and agrees to indemnify any losses the City may sustain through the Contractor's failure to do so. 10.2 Safety. Contractor shall take all necessary precautions and shall be responsible for the safety of its employees, agents, and subcontractors at the work site and in the performance of the contract work and shall utilize all protection necessary for that purpose. Contractor shall comply with all applicable provisions of federal, state and municipal safety and health laws and codes, including without limitation, all OSHA /WISHA requirements, Safety and Health Standards for Construction Work (Chapter 296 -155 WAC), General Safety and Health Standards (Chapter 296 -24 WAC), and General Occupational Health Standards (Chapter 296 -62 WAC). Contractor shall erect and properly maintain, at all times, all necessary guards, barricades, signals and other safeguards at all unsafe places at or near the site for the protection of its employees and the public, safe passageways at all road crossings, crosswalks, street intersections, post danger signs warning against known or unusual hazards and do all other things necessary to prevent accident or loss of any kind. Contractor shall protect from damage all water, sewer, gas, steam or other pipes or conduits, and all hydrants and all other property that is likely to become displaced or damaged by the performance of the Work. The Contractor shall, at its own expense, secure and maintain a safe storage place for its materials and equipment and is solely responsible for the same 10.3 Risk of Work. All work shall be done at Contractor's own risk, and Contractor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. Industrial or any other insurance that is purchased for the benefit of the City, regardless of whether such may provide a secondary or incidental benefit to the Contractor, shall not be deemed to convert this Agreement to an employment contract. Even though Contractor is an independent contractor, the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure satisfactory completion 11. CONFLICT OF INTEREST. It is recognized that Contractor may or will be performing professional services during the Term for other parties; however, such performance of other services shall not conflict with or interfere with Contractor' s ability to perform the Services. Contractor agrees to resolve any such conflicts of interest in favor of the City. Contractor confirms that Contractor does not have a business interest or a close family relationship with any City officer or employee who was, is, or will be involved in the Contractor's selection, negotiation, drafting, signing, administration, or evaluating the Contractor's performance. 12. EQUAL OPPORTUNITY EMPLOYER. In all services, programs, activities, hiring, and employment made possible by or resulting from this Agreement or any subcontract, there shall be no discrimination by Contractor or its subcontractors of any level, or any of those entities' employees, agents, subcontractors, or representatives against any person because of sex, age (except minimum age and retirement provisions), race, color, religion, creed, GOODS AND SERVICES AGREEMENT - 5 - 3/2017 .4%.,., Vecleral Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www.cilyoffederalway.com national origin, marital status, or the presence of any disability, including sensory, mental or physical handicaps, unless based upon a bona fide occupational qualification in relationship to hiring and employment. This requirement shall apply to, but not be limited to, the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Contractor shall comply with and shall not violate any of the terms of Chapter 49.60 RCW, Title VI of the Civil Rights Act of 1964, the Americans With Disabilities Act, Section 504 of the Rehabilitation Act of 1973, 49 CFR Part 21, 21.5 and 26, or any other applicable federal, state, or local law or regulation regarding non - discrimination. 13. GENERAL PROVISIONS. 13.1 Interpretation and Modification. This Agreement, together with any attached Exhibits, contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement and no prior statements or agreements, whether oral or written, shall be effective for any purpose. Should any language in any Exhibits to this Agreement conflict with any language in this Agreement, the terms of this Agreement shall prevail. The respective captions of the Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect any of the provisions of this Agreement. Any provision of this Agreement that is declared invalid, inoperative, null and void, or illegal shall in no way affect or invalidate any other provision hereof and such other provisions shall remain in full force and effect. Any act done by either Party prior to the effective date of the Agreement that is consistent with the authority of the Agreement and compliant with the terms of the Agreement, is hereby ratified as having been performed under the Agreement. No provision of this Agreement, including this provision, may be amended, waived, or modified except by written agreement signed by duly authorized representatives of the Parties. 13.2 Assignment and Beneficiaries. Neither the Contractor nor the City shall have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent of the other Party. If the non - assigning party gives its consent to any assignment, the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. Subject to the foregoing, the rights and obligations of the Parties shall inure to the benefit of and be binding upon their respective successors in interest, heirs and assigns. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto. No other person or entity shall have any right of action or interest in this Agreement based on any provision set forth herein. 13.3 Compliance with Laws. The Contractor shall comply with and perform the Services in accordance with all applicable federal, state, local, and city laws including, without limitation, all City codes, ordinances, resolutions, regulations, rules, standards and policies, as now existing or hereafter amended, adopted, or made effective. If a violation of the City's Ethics Resolution No. 91 -54, as amended, occurs as a result of the formation or performance of this Agreement, this Agreement may be rendered null and void, at the City's option. 13.4 Enforcement. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in the description of the Services is essential to the Contractor's performance of this Agreement. Any notices required to be given by the Parties shall be delivered at the addresses set forth at the beginning of this Agreement. Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth above. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. Any remedies provided for under the terms of this Agreement are not intended to be exclusive, but shall be cumulative with all other remedies available to the City at law, in equity or by statute. The failure of the City to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option GOODS AND SERVICES AGREEMENT - 6 - 3/2017 CIiY OF Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www.cityoffederalway.com conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. Failure or delay of the City to declare any breach or default immediately upon occurrence shall not waive such breach or default. Failure of the City to declare one breach or default does not act as a waiver of the City's right to declare another breach or default. This Agreement shall be made in, governed by, and interpreted in accordance with the laws of the State of Washington. If the Parties are unable to settle any dispute, difference or claim arising from this Agreement, the exclusive means of resolving that dispute, difference, or claim, shall be by filing suit under the venue, rules and jurisdiction of the King County Superior Court, King County, Washington, unless the parties agree in writing to an alternative process. If the King County Superior Court does not have jurisdiction over such a suit, then suit may be filed in any other appropriate court in King County, Washington. Each party consents to the personal jurisdiction of the state and federal courts in King County, Washington and waives any objection that such courts are an inconvenient forum. If either Party brings any claim or lawsuit arising from this Agreement, each Party shall pay all its legal costs and attorney's fees and expenses incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, however nothing in this paragraph shall be construed to limit the Parties' rights to indemnification under Section 5 of this Agreement. 13.5 Execution. Each individual executing this Agreement on behalf of the City and Contractor represents and warrants that such individual is duly authorized to execute and deliver this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and with the same effect as if all Parties hereto had signed the same document. All such counterparts shall be construed together and shall constitute one instrument, but in making proof hereof it shall only be necessary to produce one such counterpart. The signature and acknowledgment pages from such counterparts may be assembled together to form a single instrument comprised of all pages of this Agreement and a complete set of all signature and acknowledgment pages. The date upon which the last of all of the Parties have executed a counterpart of this Agreement shall be the "date of mutual execution" hereof. [Signature page follows] GOODS AND SERVICES AGREEMENT 7 3/2017 CITY OF CITY HALL Federal Way 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www cityoiledera/way. com IN WITNESS, the Parties execute this Agreement below, effective the last date written below. CITY OF FEDERAL WAY: John H n, Parks Dire DATE: Y(2-y4 -? ENTERTA ENT FIREW y RKS, INC: By: pr..: u ler t ` 1/ Ken Julian, � DATE: ^ /7 - /7 STATE OF WASHINGTON ) ) ss. COUNTY OF,,v, -,v ) ATTEST: S h ie Courtney, CM ity Clerk APPROVED AS TO FORM: J. Ryan Call, City Attorney On this day personally appeared before me Ken Julian, to me known to be the urzsiffent of Entertainment Fireworks, Inc., that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he /she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN my hand and official seal this )y9 day of l'- a , 201]. ,‘%1 1,, ANN�aol#0i Q` ,9SIOlyet lo Tt .- NOTARY cn► : PUBLIC .m WAS\V1 N`. Notary's signature Notary's printed name Notary Public in and for the State of Washington. My commission expires 6,- -13 - -1 S GOODS AND SERVICES AGREEMENT - 8 3/2017 4■ t1iY OF Federal Way EXHIBIT "A" SERVICES 1. The Contractor shall do or provide the following: CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www cityoffederaiway. com Contractor shall provide fireworks display services at Celebration Park, as more specifically described in Exhibit "A -1," for the annual Red, White & Blues Festival held each year on July 4th, and perform such services in compliance with all provisions of Chapter 70.77 RCW, including, without limitation, using one licensed pyrotechnic operator in connection with the handling or display of the fireworks, performing a test fire, combing the grounds for any live materials around the site, providing sufficient personnel at the fireworks display site in order to insure a safe public display, and obtaining all necessary licenses and permits. The services shall be performed in a manner consistent with the accepted practices for other similar services, performed to the City's satisfaction, within the time period prescribed by the City and pursuant to the direction of the Parks Director or his designee. Prior to the expiration of the Term, the performance date for the Services may be extended or amended to a later date, at no additional charge, by either the City or the Contractor in the event weather or other conditions constitute a hazard to the public health, safety or welfare of the citizens of Federal Way; provided, however, that Contractor agrees to reschedule the event at a later time, location, and date acceptable to the City within one hundred twenty (120) days from the originally scheduled date. Contractor agrees to pay a penalty of One Thousand Dollars and NO /100 ($1,000.00) if not prepared to fire the complete fireworks display and soundtrack as mutually agreed at 10:15pm. Contractor agrees to pay an additional Five Hundred Dollars and NO /100 ($500.00) penalty for each additional fifteen minutes after 10:15pm that Contractor is not prepared to fire the complete fireworks display and soundtrack as mutually agreed. The payment of penalties shall not in any way release the Contractor from further obligations and liabilities to complete this entire Agreement. The fireworks display will include choreography to music with a welcoming address to the citizens of Federal Way and a grand finale display. The City's designated representative and the Contractor will mutually determine general themes and soundtrack. The show will take place at 10:15pm and will be 20 -22 minutes in length in Celebration Park, located at 1095 S. 324th Street in Federal Way, WA. The City agrees to provide adequate policing, fencing, and crowd control measures to prevent access to the public in the fireworks zone. The Federal Way Fire Department will be on site to insure compliance with Washington State fire regulations and event safety. The City will supply the sand for packing the mortars and will have it on site by 10:OOam one day prior to the event. The Contractor is responsible for raking out the sand used and cleaning up all materials associated with the fireworks. Contractor shall be prepared to fire the complete fireworks display and soundtrack by 10:15pm. Failure to be timely and completely prepared will result in financial penalties as outlined above. A test fire with the local Fire Marshall is scheduled for 9:OOpm to check wind conditions. The City's designated representative and /or local Fire Services personnel have the authority to cancel the show GOODS AND SERVICES AGREEMENT 9 3/2017 CITY OF Federal Way CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www cityoffederalway. com due to unsafe weather conditions or unsafe practices by the Contractor's technicians or to further delay or cancel the show for any unsafe condition that presents an unreasonable risk to the public. In addition, the Contractor's display operator also has the authority to stop, interrupt, delay or cancel the show due to unsafe weather conditions or any other unsafe circumstances that may arise. The Contractor is responsible for removing any live materials immediately following the fireworks display, and another walk through for any live material during daylight hours on the next day following the event, to be completed by 11:OOam. In the event the display is cancelled due to unsafe conditions, the City has the option to reschedule the fireworks show at no additional charge as outlined above. GOODS AND SERVICES AGREEMENT - 10 - 3/2017 •E x.14. - 1 " City of Federal Way - Program A July 4, 2017 -2022 Fireworks Display Proposal Display Shell Recap Total 3" Shells 252 Total 4" Shells 235 Total 5" Shells 99 Total Comets 12 Total Specialty Display Products 65 TOTAL FINALE SHELLS 124 GRAND TOTAL 663 + Grand Finale Finale Shells: A magnificent display of fantasy in the sky. Sounds of bursting barrages and a star break of spectacular colors. Shells simultaneously bursting in the sky, spreading a glorious rainbow of colors and lighting up the heavens with breathtaking beauty. A very special ending to your evening of a grand display of fireworks. Quantity 21/2" Finale Shells 60 3" Finale Shells 45 4" Finale Shells 10 5" Finale Shells 9 TOTAL FINALE SHELLS 124 Page 4 44•.- Vecleral Way EXHIBIT "B" COMPENSATION CITY HALL 33325 8th Avenue South Federal Way, WA 98003 -6325 (253) 835 -7000 www. ciryoffederalway. com 1. Total Compensation: In return for the Services, the City shall pay the Contractor an amount not to exceed Eighteen Thousand and NO /100 Dollars ($18,000.00) on an annual basis for a total amount not to exceed One Hundred Eight Thousand and NO /100 Dollars ($108,000.00) over the term of this agreement. 2. Method of Compensation: A total of one (1) payment of Eighteen Thousand and NO /100 Dollars ($18,000.00) will be made by the City on an annual basis for a total of six (6) years from 2017 -22. Payment will be made only after the conclusion of the Red, White, & Blues Festival and the Services described in Exhibit "A" and Exhibit "A -1" have been performed at each event. The Contractor shall provide a statement or itemized bill describing the services provided. Payment shall be made within thirty (30) days of receipt of such statement or invoice. GOODS AND SERVICES AGREEMENT - 11 - 3/2017 A� O® CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DDIYYYY) 5/18/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Arthur J. Gallagher Risk Management Services, Inc. 777 108th Ave NE, #200 Bellevue WA 98004 CONTACT Kristen Look NAME: PHONE 425 - 586 -1016 FAX No): 425 -451 -3716 Frt)' (A/C,No. AD E-MAIL FSS,' INSURER(S) AFFORDING COVERAGE NAIC # INSURERA:T.H.E. Insurance Company 12866 INSURED ENTEFIR-01 Entertainment Fireworks, Inc. 13313 Reeder Rd. SW ENTEFIR -01 Tenino WA 98589 INSURER B: CPP0103972 -03 INSURER C : 2/15/2018 INSURER D : $1,000,000 INSURER E : $100,000 INSURER F : 1 CLAIMS -MADE • NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE A. INSD SUER WVD POLICY NUMBER POLICY EFF (MMIDD/YYYY) POLICY EXPO (MM/DDIYYYY) A X COMMERCIAL GENERAL UABIUTY Y CPP0103972 -03 2/15 /2017 2/15/2018 EACH OCCURRENCE $1,000,000 DAMAGE TO RENTED PREMISES (Ea occurrence) $100,000 1 CLAIMS -MADE X OCCUR MED EXP (Any one person) $ PERSONAL & ADV INJURY $1,000,000 GENERAL AGGREGATE $ GE X 'L AGGREGATE POLICY OTHER: LIMIT APPLIES PRO- JECT PER: LOC PRODUCTS - COMP/OP AGG $2,000,000 $ A AUTOMOBILE — _ X _ LIABILITY ANY AUTO ALL OS�ED HIRED AUTOS X — X SCHEDULED NON -OWNED AUTOS CPP0103972 -03 2/15/2017 2/15 /2018 (Ee aocil EDrtSINGLE LIMIT $1,000,000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ $ A X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE Y EPL0012101 -01 2/15/2017 2/15/2018 EACH OCCURRENCE $4,000,000 AGGREGATE $4,000,000 $ DED X RETENT ON $ 0 WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below Y 1N N / A PER OTH- STATUTE ER El. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ EL DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Certificate holder is included as an additional insured on the General Liability policy per form number CG133F (07/95). Date of Display: July 4, 2017. Location: Celebration Park 1095 S 324th Federal Way WA. Addl. Insured: City of Federal Way; Federal Way Parks Dept.; South King County Fire Dist.; South King County Fire & Rescue; their officers, agents, and employees when acting In their official capacity as such. Federal Way, City of PO Box 9718 Federal Way WA 98063 USA SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2014/01) © 1988-2014 ACORD CORPORATION. All nghts reserved. The ACORD name and logo are registered marks of ACORD ADDITIONAL INSURED — FIREWORKS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART The policy is amended to include as an additional insured: 1. The fair or exhibition association, sponsoring organization or committee for the fireworks event covered under the policy; 2. The owner or lessee of any premises used by the Named Insured for the covered fireworks events; 3. The public authority municipality granting a permit to the Named Insured to operate the covered fireworks event; and 4. Any independent contractor who operates the fireworks display on behalf of the Named Insured; but only as respects accidents arising out of the negligence of you or your employees while acting in the course and scope of their employment. All other terms and conditions of the policy remain unchanged. CG133F(07/95)