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HomeMy WebLinkAbout2007 04 09 Consent 202 Premier Pyrotechnics for Fireworks Display COMMISSION AGENDA ITEM 202 Consent Informational Pu blic Hearing Regular April 9, 2007 Regular Meeting Mgr. / Dept. Authorization REQUEST: The Parks and Recreation Department is requesting the City Commission to authorize the City Manager to execute a contract with Premier Pyrotechnics for a good Fireworks Display on July 4,2007. PURPOSE: The purpose of this agenda Item is to obtain Commission approval to accept and execute a contract for a good Fireworks Display on July 4, 2007 for $ 14,500. CONSIDERA TIONS: . Last year Premier Pyrotechnics came to Winter Springs and had several problems with the fireworks display which was embarrassing for both Premier and the City of Winter Springs. . The City and Premier Pyrotechnics at the July 24, 2006 City Commission Special meeting agreed that the City owed them nothing for the July 4,2006 Fireworks Display. . Premier would also provide a good fireworks display with a value at $6,000 at one of the city's Special Event at no cost. They prepared and setup for a fireworks display (all at their cost) at the Hometown Harvest Fest but the event was rained out. They did however provide a very good Fireworks Display at the Holiday Concert at a value of $ 9,174 at no cost to the city. . Premier also provided an apology letter that was sent to all city residents in the city's newsletter. . Premier agreed and provided their Regional Representative to coordinate and fire the Holiday Firework Display. He will also provide the coordination and firing of the July 4, 2007 Firework Display. . The city will receive a $ 29,000 Fireworks Display at half the cost $ 14,500 after the completion of a successful and good July 4,2007 Fireworks Display. FUNDING: $ 14,500, Community Events 7260-54800-90100, Promotional - July 4th. RECOMMENDA TIONS: Authorization of the City Manager to enter into a contract with Premier Pyrotechnics to provide Fireworks for July 4,2007 at a cost of $ 14,500. IMPLEMENTATION SCHEDULE: April, 2007 May, 2007 July 2, & 3, 2007 July 4, 2007 Execute Contract. Premier Pyrotechnics checks and marks site and obtain and review sound track. Initial Setup. Final Setup, Coordination, Display of a Good Show and Removal. ATTACHMENTS: 1. 4th of July Fireworks Display Contract. 2. July 24, 2006 City Commission Special Meeting Minutes. COMMISSION ACTION: ATTACHMENT #1 CITY OF WINTER SPRINGS 2007 4th of JULY FIREWORKS DISPLAY CONTRACT THIS AGREEMENT is made this, _ day of , 2007 by and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation, whose address is 1126 East State Road 434, Winter Springs, Florida ("City") and Premier Pyrotechnics, Inc., a Missouri Corporation authorized to transact business in the State of Florida; 25255 HWY. K, Richland, Missouri 65556 ("Contractor"). RECITALS: WHEREAS, the Contractor desires to provide to the City certain services under the terms and conditions set forth in this Agreement. IN CONSIDERATION of the mutual covenants and provisions hereof, and other good, and valuable considerations, the receipt and sufficiency all or which is hereby acknowledged, the parties desiring to be legally bound do hereby agree as follows: ARTICLE I GENERAL PROVISIONS 1.1 Definitions. For purposes of this Agreement, the following tem1S and words shall have the meaning ascribed to them, unless the context clearly indicates otherwise. (a) "Agreement" or "Contract" shall be used interchangeably and shall refer to this Agreement, as amended from time to time, which shall constitute authorization for the Contractor to provide the services stated herein to the City. (b) "City" is the City of Winter Springs, Florida, a Florida Municipal Corporation. (c) "Contractor" shall mean Premier Pyrotechnics, Inc., a Missouri Corporation authorized to transact business in the State of Florida, its agents, employees and contractors thereof. (d) "Effective Date" shall be the date on which the last signatory hereto shall execute this Agreement, and it shall be the date on which this Agreement shall to into effect. The Agreement shall not be effective against any party until said date. (e) "Public Record" is as described in Section 119.011(1), Florida Statutes. 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page I of 10 (f) "Services" shall include the performance of the Services outlined m Article 2 of this Agreement. 1.2 E02a2emeot. The City hereby engages the Contractor and the Contractor agrees to perform the Services outlined in this Agreement for the stated fee arrangement. No prior or present agreements or representations shall be binding upon any of the parties hereto unless incorporated in this Agreement. 1.3 Due Dilieeoce. The Contractor acknowledges that it has investigated prior to execution of the Agreement and satisfied itself, as to the conditions affecting the Services, the availability of materials and labor, the cost thereof, the requirements to obtain necessary to complete the Services within the time set forth herein. The Contractor warrants unto the City that it has the competence and abilities to carefully and faithfully complete the Services within the time set forth. The Contractor will perform it Services with due and reasonable diligence consistent with sound professional practices. ARTICLE 2 DESCRIPTION OF SERVICES TO BE PERFORMED 2.1 Scope of Services. The Services to be performed under this Agreement are as follows: (a) Contractor agrees to furnish the City an outdoor public exhibition of pyrotechnics (aIkIa fireworks display) in a manner which is traditionally seen throughout the United States of America on the 4th of July. The exhibition shall be at Central Winds Park on the lakefront on the evening of July 4, 2007 at 9:00 P.M. The specific areas for staging shall be at locations designated by the City and reasonably approved by Contractor. (b) Contractor agrees to furnish a duly qualified and experienced pyrotechnist, (Shane Smith) and all labor necessary for exhibition of pyrotechnics. The exhibition shall last approximately thirty (30) minutes and shall contain a minimum of 1,939 fireworks shells and effects, the size and type of which shall be as specifically described in Exhibit "A", attached hereto and incorporated herein. The exhibition shall be coordinated with a musical score, which shall be played simultaneously with the exhibition of pyrotechnics. The score will be suitable for a traditional 4th of July fireworks event. (c) Contractor agrees to pay all freight, expenses and cartage charges. (d) Contractor agrees to pay all traveling and other expenses of pyrotechnist and assistants, which may be necessary for exhibition of pyrotechnics. (e) Contractor agrees to provide and operate a computer firing system and 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 2 of 10 musical score produced by Shane Smith no longer than June 10, 2007. Contractor will review and coordinate musical score with City Equipment Contractor. (0 Contractor agrees that, in the event of rain or inclement weather, a postponement may be made by the City, at its discretion, the rain date will take place on July 5, 2007. Any additional reasonable and actual out-of- pocket expenses that are incurred by the Contractor due to the postponement may be added to the original contract price upon advance approval of the City provided, however, the total of such additional expenses shall not exceed ten (10%) percent of contract price. (g) Contractor may, after prior consultation with the City, cancel or delay the start or completion of the fireworks display ifin its professional opinion to continue the display would violate any laws of any governing bodies or pose any threat to human life, limb, or property, such as high winds, hazards in the firing area, and unauthorized persons entering the firing area. If Contractor cancels the display, in its professional judgment, the display shall be shown at a later date in accordance with the terms of this Agreement. (h) Contractor agrees to check the display area after the fireworks display for any "duds" or other material that might not have ignited. Any such material found shall be disposed of as per Federal, State, or local governmental commission, department, corporation, subdivision, or agency. (i) Contractor agrees, at its expense, to procure any and all permits or licenses that may be required by governmental authorities. 2.2 Professionalism. The Contractor shall do, perform and carry out III a professional manner all Services required to be performed by this Agreement. 2.3 Submittal of Pro2ress Reports. Upon request by the City, Contractor shall submit a written progress report as to the status of all Services set forth in the Agreement. The report shall in a sufficient manner demonstrate what services were performed under this Agreement. If the detail is not sufficient in the City Manager's reasonable discretion to permit the City to determine the Services performed or the manner in which it is being performed, the City may seek more detail from the Contractor. 2.4 Warranty of Professional Services. The Contractor hereby warrants unto the City that it has sufficient experience to properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit of any Services, the Contractor shall supervise and direct the Services, using its best skill and attention and shall enforce strict discipline and good order among its employees and agents. The Contractor shall comply with all laws, ordinances, rules, regulations, and lawful orders of 2007 4lh of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 3 of 10 any public authority bearing on performance of the Services. The Contractor shall pay all taxes, fees, license fees required by law, including but not limited to occupational fees and withholding taxes and assume all costs incident to the Services, except as provided herein. ARTICLE 3 COMPENSATION PAYMENT TERMS 3.1 Compensation. For the performance and full completion of the Services specified herein, City agrees to pay Contractor a total amount of $14,500.00. Full payment shall be made by the City to the Contractor after the display upon receipt of a proper written invoice. There shall be no other compensation due Contractor for the Services provided under this Agreement, unless specifically agreed to by the City in writing. 3.2 Invoices and Payment Terms. Contractor shall submit to the City detailed invoices for all Services performed and reimbursable expenses incurred under this Agreement. ARTICLE 4 GENERAL CONDITIONS OF SERVICES 4.1 City Inspection. Subject to a right of appeal to the City Commission of the City Winter Springs, the City Manager shall have authority to reject Services as not conforming to this Agreement. Prior to the commencement of the exhibition of the pyrotechnics, the City shall have the right, but not obligation, to inspect the fireworks to determine that the display is ready for public exhibition as required hereunder. 4.2 Services is a Private Undertaking. With regard to any and all Services performed hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the City and Contractor is such that the Contractor is an independent contractor and is neither an agent nor employee of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor, between the City, on one hand, and the Contractor, on the other hand, during or after the performance of the Services under this Agreement. 4.3 City's Responsibilities. The City shall cooperate with the Contractor by: (a) Designating a person with authority to act on the City's behalf on all matters concerning the Services being provided hereunder; (b) Arranging for access to public and private property by the Contractor as necessitated by the Services; 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyroteclmics, Inc. Page 4 of 10 (c) Providing, with the assistance of Conttactor, the location of an area at Central Winds Park which can be considered a "Safe Firing Site;" (d) Agreeing to furnish and set up rope lines and other reasonable crowd control safeguards for the protection of the public and Contractor; and (e) Agreeing to furnish ample police presence to provide crowd control for the protection of the public and Contractor. ARTICLE 5 SUBCONTRACTS; ASSIGNMENT 5.1 Assi2nment and Subcontractin2. Unless otherwise specifically required by this Agreement, the Contractor shall not assign, sublet, or transfer any rights of Services under or interest in (including, but without limitations, moneys that may become due) this Agreement without the written consent of the City, except to the extent that any assignments, sublet, or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to any assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Further, the Contractor shall not subcontract any portion or all of the Services without the written consent of the City. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the City and the Contractor, and all duties and responsibilities undertaken pursuant to this Agreement will be the sole and exclusive benefit of the City and the Contractor and not for the benefit of any other party. 5.2 Any costs caused by defective or ill-timed Services shall be borne by the party responsible therefore. ARTICLE 6 MISCELLANEOUS PROVISIONS 6.1 Governin2 Law: Venue. The Contract shall be governed by the law of the State of Florida. Venue of all disputes shall be properly placed in Seminole County, Florida. The parties agree that the Agreement was consummated in Seminole County, and the site of the Services is Seminole County. If any dispute concerning this Contract arises under Federal law, the venue will be Orlando, Florida. 6.2 Contractor's Representative. The Contractor shall designate an individual to act as a representative for the Contractor under this Agreement with the authority to transmit instructions, receive information, and make or interpret the Contractor's decisions. This person shall be the Contractor's contract administrator. The Contractor may from time to time designate other individuals or delete individuals with the authority to act for the Contractor under this Agreement with the authority to transmit instructions, receive information, and make or interpret the Contractor's decisions. All deletions or designation of individuals to serve as a representative shall be given by written notice. 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 5 of 10 6.3 Notices. All projects hereunder, all notices, demands, requests, instructions, approvals, and claims shall be in writing. All notices of any type hereunder shall be given by U.S. mail or by hand delivery to an individual authorized to receive mail for the below listed individuals, all to the following individuals at the following locations: TO THE CITY: Mr. Ronald W. McLemore City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708-2799 (407) 327-5957 (phone) (407) 327-6686 (Fax) w/copy to: Anthony A. Garganese City Attorney Brown, Garganese & Weiss, & D' Agresta, P.A. 225 E. Robinson St., Ste. 660 P.O. Box 2873 Orlando, FL 32802-2873 (407) 425-9566 (Phone) (407) 425-9596 (Fax) TO THE CONTRACTOR: Kathy Gillette Premier Pyrotechnics, Inc. P.O. Box 487 Richmond, MO 65556 (888) 647-6863 (Phone) (417) 453-6339 (Fax) Notice shall be deemed to have been given and received on the date the notice is physically received if given by hand delivery, or if notice is given by first class U.S. mail, postage prepaid, then notice shall be deemed to have been given upon the date said notice was deposited in the U.S. Mail addressed in the manner set forth above. Any party hereto by giving notice in the manner set forth herein may unilaterally change the name of the person to whom notice is to be given or the address at which notice is to be received. 6.4 Public Record. It is hereby specifically agreed that any record, document, computerized, information and program, audio or video tape, photograph, or other writing of the Contractor related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or the Contractor. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Contractor is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 6 of 10 approval of the City. Upon request by the City, the Contractor shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours of the Contractor be open and freely exhibited to the City for the purpose of examination and/or audit. 6.5 Interpretation. Both the City and the Contractor have participated in the drafting of all parts of this Agreement. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 6.6 Amendment of Ae:reemen1. Modifications or changes in this Agreement must be in writing and executed by the parties bound to this Agreement. 6.7 Severabilitv. If a word, sentence, or paragraph herein shall be declared illegal, unenforceable, or unconstitutional, the said word, sentence, or paragraph shall be severed from this Contract, and this Contract shall be read as if said illegal, unenforceable, or unconstitutional word, sentence, or paragraph did not exist. 6.8 Additional Assurances. The Contractor certifies that: (a) No principal (which includes officers, directors, or executive) or individual holding a professional license and performing Services under this Agreement is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any Services required by this Agreement by any Federal, State, or local governmental commission, department, corporation, subdivision, or agency; (b) No principal (which includes officers, directors, or executive), individual holding a professional license and performing Services under this Agreement, employee, or agent has employed or otherwise provided compensation to, any employee or officer of the City; and (c) No principal (which includes officers, directors, or executive), individual holding a professional license and performing Services under this Agreement, employee or agent has willfully offered an employee or officer of the City any pecuniary or other benefit with the intent to influence the employee or officer's official action or judgment. 6.9 Attornev's Fees. Should any litigation arise concerning this Agreement between the parties hereto, the parties agree to bear their own costs and attorney's fees. 6.1 0 En tire Ae:reemen 1. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, or 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 7 of 10 Agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. 6.11 Soverei2n Immunitv. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed regarding the City's potentia11iabi1ity under state or federal law. The provisions of g768.28, Florida Statutes are hereby deemed fully incorporated herein by this reference as if expressly set forth herein. ARTICLE 7 TIME 7.1 Time is the Essence. The Contractor acknowledges and agrees that time is of the essence for the completion of the Services to be perfonned under this Agreement. ARTICLE 8 PROTECTION OF PERSONS AND PROPERTY: INSURANCE 8.1 Worker's Compensation. Upon the effective date of this Agreement, Contractor shall provide proof of worker's compensation insurance in the minimum amount required by law (if required). 8.2 Professional Liabilitv/Malpractice General Liabilitv. Upon the effective date of this Agreement, Contractor shall submit proof of general liability insurance to cover claims for general liability because of bodily injury or death of any person or property damage arising out of this Agreement or any Services provided hereunder. The insurance shall have minimum amount of coverage of $ 1,000,000.00 per occurrence. 8.3 Insurance ReQuirements. This paragraph shall be applicable to Sections 8.1 and 8.2. The insurance required by this Article shall include the liability and coverage provided herein, or as required by law, whatever requirements afford greater coverage. All of the policies of insurance so required to be purchased and maintained for the certificates (or other evidence thereof) shall contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or renewal refused until at least thirty (30) days' prior written notice has been given to the City and the Contractor by certified mail, return receipt requested. All such insurance shall remain in effect until final payment. Unless agreed to by the City to the contrary, the City shall be named on the foregoing insurance policies as "additional insured." The Contractor shall cause its insurance carriers to furnish insurance certificates specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days' prior written notice to the City in compliance with other provisions of this Agreement. For all claims that arise in connection with this contract, Premier Pyrotechnics, Inc., will pay any insurance deductible for such claim. For all Services perfonned pursuant to this Agreement, the Contractor shall continuously maintain such insurance in the amounts, type, and quality as required by Sections 8.1 and 8.2. In the event Contractor fails to 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 8 of 10 maintain said insurance, City, at its option, may elect to terminate this Agreement without penalty by written notice to Contractor. 8.4 Indemnification and Hold Harmless. For all Services performed pursuant to this Agreement, the Contractor agrees to the fullest extent permitted by law, to indemnify and hold harmless the City and its employees, officers, and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable attorney's fees), directly or indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from Contractor's performance of any Services provided pursuant to this Agreement. The indemnification provided above shall obligate the Contractor to defend at its own expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of or its employees, officers, and attorneys which may result from the Services under this Agreement whether the Services be performed by the Contractor or anyone directly or indirectly employed by Contractor. In all events the City shall be permitted to choose legal counsel of it sole choice, the fees for which shall be reasonable and subject to and included with this indemnification provided herein. This paragraph 8.4 shall survive termination of this Agreement. 8.5 Standard of Care. In performing its Services hereunder, the Contractor will use that degree of care and skill ordinarily exercised, under similar circumstances by reputable members of its profession practicing in the same or similar locality. ARTICLE 9 TERMINATION OF THE CONTRACT 9.1 Termination By City. The City may terminate this Agreement for convenience, at any time, without penalty, by providing written notice of termination to Contractor. However, to the extent Services have been performed by Contractor, the City shall pay the Contractor, as full payment for all Services performed and all expenses incurred, the sums that are actually due and owing to the Contractor for payment of all Services completed to the City's satisfaction through the termination date, along with reimbursable expenses (if any) as provided in this Agreement, provided the amount will not exceed the contract price as provided in paragraph 3.1 above. Any payment due shall be subject to the Contractor supplying the City with detailed invoices as described in this Agreement. Upon notice of termination, the Contractor shall cease all Services being provided hereunder unless otherwise directed by City in writing. 9.2 Termination by Contractor. With at least five (5) days written notice to the City, Contractor may terminate this Agreement if the City Fails to make any payment of compensation due Contractor under this Agreement. 9.3 Waiver. Failure of the City to insist upon performance within any time period or upon a proper level or quality of performance shall not act as a waiver of the City's right to later claim a failure to perform on the part of the Contractor. 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 9 of 10 ARTICLE 10 TERM OF AGREEMENT 10.1 Term. The term of this Agreement shall commence upon full execution of this Agreement by the parties and end at such time Contractor has fully performed all the Services required by this Agreement to the complete satisfaction of the City. IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their duly authorized representatives as of the date first written above. CITY: CITY OF WINTER SPRINGS, FLORIDA WITNESSES By: Ronald W. McLemore Title: City Manager Print Name: Dated: Print Name: CONTRACTOR: WITNESSES Premier Pyrotechnics, Inc., a Missouri Corporation, authorized to transact business. in the State of Florida. Print Name: By: Title: Print Name: Dated: 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 10 of 10 ATTACHMENT #2 CITY OF WINTER SPRINGS. FLORIDA MINUTES CITY COMMISSION SPECIAL MEETING - JULY 24. 2006 PAGE 2 0F 6 REGULAR AGENDA REGULAR 300. Office Of The City Manager Requesting The City Commission To Receive A Report From Matt Sutcliffe, President And Chief Operating Officer Of Premier Pyrotechnics, Regarding The July 4, 2006 Celebration Of Freedom Event. City Manager Ronald W. McLemore introduced this Agenda Item for discussion. Mr. Mati Sutcliffe, President, Premier Pyrotechnics, 25255 Highway K, Richland, Missouri: addressed the City Commission. With discussion, Manager McLemore remarked, "He is willing to go forward and do the July the 41\ [2006] show at no cost; to do another small level show of about five to six thousand dollars ($5,000.00 - $6,000.00) in value, between now and then, if we desired at no cost; and, we don't pay the company anything unless we're - totally satisfied after next year's event." Regarding a possible partial payment for the shells expended on July 4th, 2006, Mr. Sutcliffe said, "We're' not requesting partial payment at this time. We're not requesting any payment at this time." Manager McLemore said, "Well, originally what I wrote to you did include that because I thought that was what you were requesting." Mr. Sutcliffe said, "Next year. At the end of next year's event, successful event. We don't want a check from you people. No matter what, we don't want a check from you." Further discussion. Mr. Sutcliffe said, "We have a plan in place that functions. I don't have a percentage of the time because I have one (1) time this year out of twenty-eight hundred (2,800) shows so far that it didn't work as intended. But, we have a plan in place where you call when at the arrival of the site. There's just a tremendous amount of regulatory catches along the way. The product arrives on the site, you put the check in for the security plan with the DOT (Department of Transportation). All of the issues that happened on this site, from our perspective as well as from the City's management folks, the day before and the day of, it was on track. I can't, I don't know how you deal with something like that any differently. CITY OF WINTER SPRINGS, FLORIDA MINUTES CITY COMMISSION SPECIAL MEETING - JUL Y 24,2006 PAGE 3 0F 6 Where the City employees came into play was about six o'clock the night of the show, at three (3) hours beforehand, the Supervisor decides that he's in trouble, Which, what we have pretty much determined on that, was - there's one hundred and one cases of shells and product to be dealt with on this show. At six o'clock, there was forty-one (41) still on the truck. I just don't know what to say about that. The bottom line is that forty percent (40%) of the show at three (3) hours beforehand hadn't been dealt with. Sixty percent (60%) had been in, the three (3) days prior," Deputy Mayor Michael S, Blake asked, "And I understand the difficulty of, and the difficult position you're in, having to stand before us because you were not on site, is that correct?" Mr. Sutcliffe said, "No, I wasn't. If I was on site, things would not have functioned the way they did." Deputy Mayor Blake then said, "One of the difficulties that I would have, as an Elected Official up here for the City of Winter Springs, and all the citizens that live here would be to give you another chance, just to have that fail. How can you give us some comfort there?" Mr, Sutcliffe said, "Well for one thing, we've already got a crew established that is not going to be this crew. In fact, most of the people involved in this probably won't ever come within fifty (50) miles of here again. Not on our company's part anyway. There is a senior crew staff that will be here. The same staff that's going to do - I didn't even have a chance to talk with Chuck (Pula, Director, Parks and Recreation Department), but the October ih event that's been tossed around, for a smaller event. It's just going to be a crew of folks that have done these on a regular basis." Discussion. Commissioner Robert S. Miller said to Mr. Sutcliffe, "And you're the man who's in charge of the corporation so all of these shows are done under your jurisdiction.,." Mr. Sutcliffe said, "... Correct..." Commissioner Miller continued, "... Under your watch." Commissioner Miller noted, "The shows that you do then are subcontracted out to qualified people or teams, however you..." Mr. Sutcliffe said, "...No, that's actually one of the biggest issues." Continuing, Mr. Sutcliffe remarked, "One of the things that I had told Ron (McLemore) when it came to light, that there'd been a number of people on the site handling product that were not employee possessors, that's an A TF (Bureau of Alcohol, Tobacco, Firearms and Explosives) classification. We had to report that. We had to report that there was product left on the site unattended. The A TF (Bureau of Alcohol, Tobacco, Firearms and Explosives) actually came and looked at your site. They did their own investigation. CITY OF WINTER SPRINGS, FLORIDA MINUTES CITY COMMISSION SPECIAL MEETING - JULY 24, 2006 PAGE 4 0F 6 We had several internal components that had to kick in, but no actually, during the 4th of July week, our employee rolls, if you will, swell to a little over three thousand (3,000) people, Most of these folks are school teachers, doctors, attorneys, folks who have regular, you know, forty (40) hour week type jobs, and they take a week off in the summer to shoot fireworks," Commissioner Miller said to Mr. Sutcliffe, "If you were to be here next year, I think I would be really comfortable with that." Mr. Sutcliffe responded, "Me, personally? There will be a senior staff member, I cannot guarantee that I personally would be here, I'm sorry, I can't." Then, Commissioner Miller asked, "How many senior staff people do you have?" Mr. Sutcliffe said, "To meet that point, you have to have been with the company a minimum of three (3) years, You have to have produced at least twenty-two (22) productions," Manager McLemore said. "One of the things that we had talked about was your Regional guy was going to be here directing the show," With further discussion, Mr. Sutcliffe said, "While the weather may have had a slight impact throughout the two (2) days prior to this, that was not ultimately the failure, Ultimately the failure was the human element." Commissioner McGinnis said, "I personally would be comfortable going with your company again because I am sure you will do everything in your power to see that you are not embarrassed again," Commissioner McGinnis said, "I do like the idea that you would send a letter of apology to every resident in Winter Springs, That's important to me," Furthermore, Commissioner McGinnis said, "I am willing to give you another opportunity, It was a terrible thing, We were all embarrassed, but I am sure you will do everything in your power to see that next year, that we are more than happy," Mr. Sutcliffe said, "Yes, Ma'am. Thank you," Discussion, Manager McLemore said, "As I understand, after the July 4th show of this next year we owe you nothing, that's what you're saying?" Manager McLemore continued, "You're doing the next July 4th show free of charge for the City?" Mr. Sutcliffe said, "We're willing to obviously completely write off this year's event. We are willing to do the October, I think that date was 6th or 7th? I don't remember when it was, and we would ask the City to take into consideration compensation for a successful show next year. However - if you all feel like the way to approach that is, 'You owe us a show next year too', then we're willing to do that. The bottom line is that there were hard expenses here, not just the product. The insurance for this event is in, the staff got paid, all of the transportation issues are here, CITY OF WINTER SPRINGS, FLORIDA MINUTES CITY COMMISSION SPECIAL MEETING - JULY 24, 2006 PAGES OF 6 Right now if we walked away from this, it's about a loss of around nineteen thousand dollars ($19,000.00). Send out a mailing, which I think you'd indicated would cost about four thousand dollars ($4,000.00). So right now, we're at twenty-three thousand dollars ($23,000.00) loss. Do a show on the ih, another four thousand ($4,000.00) to five thousand dollars ($5,000.00). Do a free show next year. So, this is looking at somewhere between fifty-five [thousand dollars] ($55,000.00) and sixty thousand dollars ($60,000.00) of a loss to our company if we don't charge you anything for next year's show. And with that, you all seem to be pretty reasonable people, so I'll leave the decision to you. But, we certainly do not expect compensation for tHis year." Mr. Sutcliffe then said, "I guess what I would propose is somewhat of a hybrid of number 2. That we'd charge nothing for this year; provide a show in the six thousand dollar ($6,000.00) range for an October date that has yet to be determined exactly; and then enter into a Contract for next year's show based on performance. And if you don't get _ the show that blows your socks off, you don't pay anything." Commissioner McGinnis said, "And what about a letter?" Mr. Sutcliffe said, "I don't have any problems sending out the letter. The other option would be to put something - put a comparable event, pay for the printing for a comparable event in this mailer that you all do." Mr. Sutcliffe said, "I think we need to communicate that this was no fault of the City of Winter Springs; that it was an event that occurred and we need to communicate what the resolution is. That is what I would like to see happen and I think that is what you all want. " "I WOULD LIKE TO MAKE A MOTION THAT WE DIRECT THE CITY MANAGER TO NEGOTIATE A CONTRACT FOR AN OCTOBER EVENT WITH A RETAIL VALUE OF SIX THOUSAND DOLLARS ($6,000.00). THAT THE AGREEMENT WOULD RELEASE THE CITY FROM ALL OBLIGATIONS OF COVERING ANY COSTS FROM THE JULY 4TH, 2006 PERFORMANCE; AND THAT THE CITY WOULD AGREE TO A - 2007 JULY 4TH EVENT THAT WOULD PROVIDE FOR A TEN PERCENT (10%) INCREASE IN SHOW QUALITY, SHELLS - PRODUCT - AND THAT THE CITY WOULD AGREE TO PAY UP TO FIFTY PERCENT (50%) OF THE RETAIL VALUE OF THAT SHOW UPON COMPLETION." DEPUTY MAYOR BLAKE CONTINUED, "AND THAT THE LETTER WOULD BE PART OF OUR QUARTERL Y NEWSLETTER MAILING, THAT THE CONTRACTOR WOULD PICK UP." MOTION BY DEPUTY MAYOR BLAKE. MAYOR BUSH STATED, "SECONDED BY COMMISSIONER MILLER." DISCUSSION. CITY OF WfNTER SPRINGS, FLORIDA MfNUTES CITY COMMISSION SPECIAL MEETfNG - JULY 24, 2006 PAGE 6 0F 6 DEPUTY MAYOR BLAKE SAID, "I WOULD LIKE TO ASK IF THE CONTRACTOR FEELS THAT ALL THOSE TERMS ARE ACCEPTABLE." MR. SUTCLIFFE SAID, "WE WILL." VOTE: DEPUTY MAYOR BLAKE: AYE COMMISSIONER McGINNIS: AYE COMMISSIONER GILMORE: AYE COMMISSIONER KREBS: AYE COMMISSIONER MILLER: AYE MOTION CARRIED. ADJOURNMENT Mayor Bush adjourned the Special Meeting at 6:31 p.m. RESPECTFULLY SUBMITTED: D{,lNIELLE HARKER, ASSISTANT TO THE CITY CLERK , APPROVED: !;~ NOTE These Minutes were approved at the August 14,2006 Regular City CommIssion Meeting CITY OF WINTER SPRINGS 2007 4th of JULY FIREWORKS DISPLAY CONTRACT THIS AGREEMENT is made this, ~ day of ~ ,-/ I ' 2007 by and between the CITY OF WINTER SPRINGS, FLORI A, a Florida Municipal Corporation, whose address is 1126 East State Road 434, Winter Springs, Florida ("City") and Premier Pyrotechnics, Inc., a Missouri Corporation authorized to transact business in the State of Florida; 25255 HWY. K, Richland, Missouri 65556 ("Contractor") . RECIT ALS: WHEREAS, the Contractor desires to provide to the City certain services under the terms and conditions set forth in this Agreement. IN CONSIDERATION of the mutual covenants and provisions hereof, and other good, and valuable considerations, the receipt and sufficiency all or which is hereby acknowledged, the parties desiring to be legally bound do hereby agree as follows: ARTICLE I GENERAL PROVISIONS 1.1 Definitions. For purposes of this Agreement, the following terms and words shall have the meaning ascribed to them, unless the context clearly indicates otherwise. (a) "Agreement" or "Contract" shall be used interchangeably and shall refer to this Agreement, as amended from time to time, which shall constitute authorization for the Contractor to provide the services stated herein to the City. (b) "City" is the City of Winter Springs, Florida, a Florida Municipal Corporation. (c) "Contractor" shall mean Premier Pyrotechnics, Inc., a Missouri Corporation authorized to transact business in the State of Florida, its agents, employees and contractors thereof. (d) "Effective Date" shall be the date on which the last signatory hereto shall execute this Agreement, and it shall be the date on which this Agreement shall to into effect. The Agreement shall not be effective against any party until said date. (e) "Public Record" is as described in Section 119.011(1), Florida Statutes. 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 1 of 10 ,!ill (f) "Services" shall include the performance of the Services outlined In Article 2 of this Agreement. 1.2 En2a2ement. The City hereby engages the Contractor and the Contractor agrees to perform the Services outlined in this Agreement for the stated fee arrangement. No prior or present agreements or representations shall be binding upon any of the parties hereto unless incorporated in this Agreement. 1.3 Due Dili2ence. The Contractor acknowledges that it has investigated prior to execution of the Agreement and satisfied itself, as to the conditions affecting the Services, the availability of materials and labor, the cost thereof, the requirements to obtain necessary to complete the Services within the time set forth herein. The Contractor warrants unto the City that it has the competence and abilities to carefully and faithfully complete the Services within the time set forth. The Contractor will perform it Services with due and reasonable diligence consistent with sound professional practices. ARTICLE 2 DESCRIPTION OF SERVICES TO BE PERFORMED 2.1 Scope of Services. The Services to be performed under this Agreement are as follows: (a) Contractor agrees to furnish the City an outdoor public exhibition of pyrotechnics (alk/a fireworks display) in a manner which is traditionally seen throughout the United States of America on the 4th of July. The exhibition shall be at Central Winds Park on the lakefront on the evening of July 4, 2007 at 9:00 P.M. The specific areas for staging shall be at locations designated by the City and reasonably approved by Contractor. (b) Contractor agrees to furnish a duly qualified and experienced pyrotechnist, (Shane Smith) and all labor necessary for exhibition of pyrotechnics. The exhibition shall last approximately thirty (30) minutes and shall contain a minimum of 1,939 fireworks shells and effects, the size and type of which shall be as specifically described in Exhibit "A", attached hereto and incorporated herein. The exhibition shall be coordinated with a musical score, which shall be played simultaneously with the exhibition of pyrotechnics. The score will be suitable for a traditional 4th of July fireworks event. (c) Contractor agrees to pay all freight, expenses and cartage charges. (d) Contractor agrees to pay all traveling and other expenses of pyrotechnist and assistants, which may be necessary for exhibition of pyrotechnics. (e) Contractor agrees to provide and operate a computer firing system and 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 2 of 10 musical score produced by Shane Smith no longer than June 10, 2007. Contractor will review and coordinate musical score with City Equipment Contractor. (f) Contractor agrees that, in the event of rain or inclement weather, a postponement may be made by the City, at its discretion, the rain date will take place on July 5, 2007. Any additional reasonable and actual out-of- pocket expenses that are incurred by the Contractor due to the postponement may be added to the original contract price upon advance approval of the City provided, however, the total of such additional expenses shall not exceed ten (10%) percent of contract price. (g) Contractor may, after prior consultation with the City, cancel or delay the start or completion of the fireworks display if in its professional opinion to continue the display would violate any laws of any governing bodies or pose any threat to human life, limb, or property, such as high winds, hazards in the firing area, and unauthorized persons entering the firing area. If Contractor cancels the display, in its professional judgment, the display shall be shown at a later date in accordance with the terms of this Agreement. (h) Contractor agrees to check the display area after the fireworks display for any "duds" or other material that might not have ignited. Any such material found shall be disposed of as per Federal, State, or local governmental commission, department, corporation, subdivision, or agency. (i) Contractor agrees, at its expense, to procure any and all permits or licenses that may be required by governmental authorities. 2.2 Professionalism. The Contractor shall do, perform and carry out III a professional manner all Services required to be performed by this Agreement. 2.3 Submittal of Proeress Reports. Upon request by the City, Contractor shall submit a written progress report as to the status of all Services set forth in the Agreement. The report shall in a sufficient manner demonstrate what services were performed under this Agreement. If the detail is not sufficient in the City Manager's reasonable discretion to permit the City to determine the Services performed or the manner in which it is being performed, the City may seek more detail from the Contractor. 2.4 Warranty of Professional Services. The Contractor hereby warrants unto the City that it has sufficient experience to properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit of any Services, the Contractor shall supervise and direct the Services, using its best skill and attention and shall enforce strict discipline and good order among its employees and agents. The Contractor shall comply with all laws, ordinances, rules, regulations, and lawful orders of 2007411I of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 3 of 10 any public authority bearing on perfonnance of the Services. The Contractor shall pay all taxes, fees, license fees required by law, including but not limited to occupational fees and withholding taxes and assume all costs incident to the Services, except as provided herein. ARTICLE 3 COMPENSATION PAYMENT TERMS 3.1 Compensation. For the perfonnance and full completion of the Services specified herein, City agrees to pay Contractor a total amount of $14,500.00. Full payment shall be made by the City to the Contractor after the display upon receipt of a proper written invoice. There shall be no other compensation due Contractor for the Services provided under this Agreement, unless specifically agreed to by the City in writing. 3.2 Invoices and Payment Terms. Contractor shall submit to the City detailed invoices for all Services perfonned and reimbursable expenses incurred under this Agreement. ARTICLE 4 GENERAL CONDITIONS OF SERVICES 4.1 City Inspection. Subject to a right of appeal to the City Commission of the City Winter Springs, the City Manager shall have authority to reject Services as not confonning to this Agreement. Prior to the commencement of the exhibition of the pyrotechnics, the City shall have the right, but not obligation, to inspect the fireworks to detennine that the display is ready for public exhibition as required hereunder. 4.2 Services is a Private Undertaking. With regard to any and all Services perfonned hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the City and Contractor is such that the Contractor is an independent contractor and is neither an agent nor employee of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor, between the City, on one hand, and the Contractor, on the other hand, during or after the perfonnance of the Services under this Agreement. 4.3 City's Responsibilities. The City shall cooperate with the Contractor by: (a) Designating a person with authority to act on the City's behalf on all matters concerning the Services being provided hereunder; (b) Arranging for access to public and private property by the Contractor as necessitated by the Services; 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyroteclmics, Inc. Page 4 of 10 (c) Providing, with the assistance of Contractor, the location of an area at Central Winds Park which can be considered a "Safe Firing Site;" (d) Agreeing to furnish and set up rope lines and other reasonable crowd control safeguards for the protection of the public and Contractor; and (e) Agreeing to furnish ample police presence to provide crowd control for the protection of the public and Contractor. ARTICLE 5 SUBCONTRACTS~ ASSIGNMENT 5.1 Assienment and Subcontractine. Unless otherwise specifically required by this Agreement, the Contractor shall not assign, sublet, or transfer any rights of Services under or interest in (including, but without limitations, moneys that may become due) this Agreement without the written consent of the City, except to the extent that any assignments, sublet, or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to any assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Further, the Contractor shall not subcontract any portion or all of the Services without the written consent of the City. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the City and the Contractor, and all duties and responsibilities undertaken pursuant to this Agreement will be the sole and exclusive benefit of the City and the Contractor and not for the benefit of any other party. 5.2 Any costs caused by defective or ill-timed Services shall be borne by the party responsible therefore. ARTICLE 6 MISCELLANEOUS PROVISIONS 6.1 Governine Law: Venue. The Contract shall be governed by the law of the State of Florida. Venue of all disputes shall be properly placed in Seminole County, Florida. The parties agree that the Agreement was consummated in Seminole County, and the site of the Services is Seminole County, If any dispute concerning this Contract arises under Federal law, the venue will be Orlando, Florida. 6.2 Contractor's Representative. The Contractor shall designate an individual to act as a representative for the Contractor under this Agreement with the authority to transmit instructions, receive information, and make or interpret the Contractor's decisions. This person shall be the Contractor's contract administrator. The Contractor may from time to time designate other individuals or delete individuals with the authority to act for the Contractor under this Agreement with the authority to transmit instructions, receive information, and make or interpret the Contractor's decisions. All deletions or designation of individuals to serve as a representative shall be given by written notice. 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 5 of 10 6.3 Notices. All projects hereunder, all notices, demands, requests, instructions, approvals, and claims shall be in writing. All notices of any type hereunder shall be given by U.S. mail or by hand delivery to an individual authorized to receive mail for the below listed individuals, all to the following individuals at the following locations: TO THE CITY: Mr. Ronald W. McLemore City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708-2799 (407) 327-5957 (phone) (407) 327 -6686 (Fax) w/copy to: Anthony A. Garganese City Attorney Brown, Garganese & Weiss, & D' Agresta, P.A. 225 E. Robinson St., Ste. 660 P.O. Box 2873 Orlando, FL 32802-2873 (407) 425-9566 (Phone) (407) 425-9596 (Fax) TO THE CONTRACTOR: Kathy Gillette Premier Pyrotechnics, Inc. P.O. Box 487 Richmond, MO 65556 (888) 647-6863 (Phone) (417) 453-6339 (Fax) Notice shall be deemed to have been given and received on the date the notice is physically received if given by hand delivery, or if notice is given by first class U.S. mail, postage prepaid, then notice shall be deemed to have been given upon the date said notice was deposited in the U.S. Mail addressed in the manner set forth above. Any party hereto by giving notice in the manner set forth herein may unilaterally change the name of the person to whom notice is to be given or the address at which notice is to be received. 6.4 Public Record. It is hereby specifically agreed that any record, document, computerized, information and program, audio or video tape, photograph, or other writing of the Contractor related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or the Contractor. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Contractor is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written 2007 4'h of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 6 of 10 approval of the City. Upon request by the City, the Contractor shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours of the Contractor be open and freely exhibited to the City for the purpose of examination and/or audit. 6.5 Interpretation. Both the City and the Contractor have participated in the drafting of all parts of this Agreement. As a. result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 6.6 Amendment of Aereement. Modifications or changes in this Agreement must be in writing and executed by the parties bound to this Agreement. 6.7 Severability. If a word, sentence, or paragraph herein shall be declared illegal, unenforceable, or unconstitutional, the said word, sentence, or paragraph shall be severed from this Contract, and this Contract shall be read as if said illegal, unenforceable, or unconstitutional word, sentence, or paragraph did not exist. 6.8 Additional Assurances. The Contractor certifies that: (a) No principal (which includes officers, directors, or executive) or individual holding a professional license and performing Services under this Agreement is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any Services required by this Agreement by any Federal, State, or local governmental commission, department, corporation, subdivision, or agency; (b) No principal (which includes officers, directors, or executive), individual holding a professional license and performing Services under this Agreement, employee, or agent has employed or otherwise provided compensation to, any employee or officer of the City; and (c) No principal (which includes officers, directors, or executive), individual holding a professional license and performing Services under this Agreement, employee or agent has willfully offered an employee or officer of the City any pecuniary or other benefit with the intent to influence the employee or officer's official action or judgment. 6.9 Attorney's Fees. Should any litigation arise concerning this Agreement between the parties hereto, the parties agree to bear their own costs and attorney's fees. 6.10 Entire Aereement. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, or 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 7 ofl 0 Agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. 6.11 Sovereh?:n Immunitv. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed regarding the City's potential liability under state or federal law. The provisions of 9768.28, Florida Statutes are hereby deemed fully incorporated herein by this reference as if expressly set forth herein. ARTICLE 7 TIME 7.1 Time is the Essence. The Contractor acknowledges and agrees that time is of the essence for the completion of the Services to be performed under this Agreement. ARTICLE 8 PROTECTION OF PERSONS AND PROPERTY: INSURANCE 8.1 Worker's Compensation. Upon the effective date of this Agreement, Contractor shall provide proof of worker's compensation insurance in the minimum amount required by law (if required). 8.2 Professional LiabilitvlMalpractice General Liabilitv. Upon the effective date of this Agreement, Contractor shall submit proof of general liability insurance to cover claims for general liability because of bodily injury or death of any person or property damage arising out of this Agreement or any Services provided hereunder. The insurance shall have minimum amount of coverage of$ 1,000,000.00 per occurrence. 8.3 Insurance ReQuirements. This paragraph shall be applicable to Sections 8.1 and 8.2. The insurance required by this Article shall include the liability and coverage provided herein, or as required by law, whatever requirements afford greater coverage. All of the policies of insurance so required to be purchased and maintained for the certificates (or other evidence thereof) shall contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or renewal refused until at least thirty (30) days' prior written notice has been given to the City and the Contractor by certified mail, return receipt requested. All such insurance shall remain in effect until final payment. Unless agreed to by the City to the contrary, the City shall be named on the foregoing insurance policies as "additional insured." The Contractor shall cause its insurance carriers to furnish insurance certificates specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days' prior written notice to the City in compliance with other provisions of this Agreement. For all claims that arise in connection with this contract, Premier Pyrotechnics, Inc., will pay any insurance deductible for such claim. For all Services performed pursuant to this Agreement, the Contractor shall continuously maintain such insurance in the amounts, type, and quality as required by Sections 8.1 and 8.2. In the event Contractor fails to 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyroteclmics, Inc. Page 8 of 10 maintain said insurance, City, at its option, may elect to terminate this Agreement without penalty by written notice to Contractor. 8.4 Indemnification and Hold Harmless. For all Services performed pursuant to this Agreement, the Contractor agrees to the fullest extent permitted by law, to indemnify and hold harmless the City and its employees, officers, and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable attorney's fees), directly or indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from Contractor's performance of any Services provided pursuant to this Agreement. The indemnification provided above shall obligate the Contractor to defend at its own expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of or its employees, officers, and attorneys which may result from the Services under this Agreement whether the Services be performed by the Contractor or anyone directly or indirectly employed by Contractor. In all events the City shall be permitted to choose legal counsel of it sole choice, the fees for which shall be reasonable and subject to and included with this indemnification provided herein. This paragraph 8.4 shall survive termination of this Agreement. 8.5 Standard of Care. In performing its Services hereunder, the Contractor will use that degree of care and skill ordinarily exercised, under similar circumstances by reputable members of its profession practicing in the same or similar locality. ARTICLE 9 TERMINATION OF THE CONTRACT 9.1 Termination Bv City. The City may terminate this Agreement for convenience, at any time, without penalty, by providing written notice of termination to Contractor. However, to the extent Services have been performed by Contractor, the City shall pay the Contractor, as full payment for all Services performed and all expenses incurred, the sums that are actually due and owing to the Contractor for payment of all Services completed to the City's satisfaction through the termination date, along with reimbursable expenses (if any) as provided in this Agreement, provided the amount will not exceed the contract price as provided in paragraph 3.1 above. Any payment due shall be subject to the Contractor supplying the City with detailed invoices as described in this Agreement. Upon notice of termination, the Contractor shall cease all Services being provided hereunder unless otherwise directed by City in writing. 9.2 Termination bv Contractor. With at least five (5) days written notice to the City, Contractor may terminate this Agreement if the City Fails to make any payment of compensation due Contractor under this Agreement. 9.3 Waiver. Failure of the City to insist upon performance within any time period or upon a proper level or quality of performance shall not act as a waiver of the City's right to later claim a failure to perform on the part of the Contractor. 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 9 ofl 0 ARTICLE 10 TERM OF AGREEMENT 10.1 Term. The term of this Agreement shall commence upon full execution of this Agreement by the parties and end at such time Contractor has fully performed all the Services required by this Agreement to the complete satisfaction of the City. IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their duly authorized representatives as of the date first written above. Lf-II-01 CONTRACTOR: WITNESSES Premier Pyrotechnics, Inc., a Missouri Corporation, authorized to transact business. in the State of Florida. By: 1aJ1zt~ Title: &>; ;yJm IIlIJJ-rvt{O'-' Dated: '-1- 3-07 2007 4th of July Fireworks Display Contract City of Winter Springs - Premier Pyrotechnics, Inc. Page 10 of 10