HomeMy WebLinkAbout2013 04 22 Consent 202 July 4th Fireworks Agreement
COMMISSION AGENDA
Informational
Consent
X
ITEM202
Public Hearings
Regular
April 22, 2013KSCC
Regular MeetingCity ManagerDepartment
REQUEST:
The Parks and Recreation Department is requesting the City Commission to approve the
award of bid for Celebration of Freedom Fireworks Display to Creative Pyrotechnics and
authorize the City Manager and City Attorney to prepare and execute a 3 year agreement for
the period July 4, 2013 - July 4, 2015 with Creative Pyrotechnics.
SYNOPSIS:
Our Celebration of Freedom Event attracts many guests due to the fireworks. We
are structuring the show to be a continuous flow of fireworks for the full 18
minutes. Creative Pyrotechnics is recommended to be awarded the contract from their bid
for a 18 minute show. The fireworks budget is $10,000.
CONSIDERATIONS:
Staff issued a bid for a 15-20 minute fireworks show for the $10K budgeted amount.
Three (3) Firework Display Companies submitted proposals. These companies were
Creative Pyrotechnics, Zambelli, and Four Seasons.
After reviewing each of the bids, Creative Pyrotechnics is recommended for our
selection.
Creative Pyrotechnics provided the firework displays at last year’s (2012) July 4
Celebration of Freedom event.
Creative Pyrotechnics' bid includes $2,500 of donated shell product to enhance the
Consent 202 PAGE 1 OF 2 - April 22, 2013
show.
Creative Pyrotechnics is a Central Florida based business and is the only company
that offers a 100% electronically fired show.
Staff has received very good customer service from Creative Pyrotechnics and
verified their references & professional experience.
FISCAL IMPACT:
The cost of the Fireworks show for FY 2013 is $10,000, which will be covered in full by a
sponsorship from Meritage Homes.
COMMUNICATION EFFORTS:
This Agenda Item has been electronically forwarded to the Mayor and City Commission,
City Manager, City Attorney/Staff, and is available on the City’s Website, LaserFiche, and
the City’s Server. Additionally, portions of this Agenda Item are typed verbatim on the
respective Meeting Agenda which has also been electronically forwarded to the individuals
noted above, and which is also available on the City’s Website, LaserFiche, and the City’s
Server; has been sent to applicable City Staff, Media/Press Representatives who have
requested Agendas/Agenda Item information, Homeowner’s Associations/Representatives
on file with the City, and all individuals who have requested such information. This
information has also been posted outside City Hall, posted inside City Hall with additional
copies available for the General Public, and posted at five (5) different locations around the
City. Furthermore, this information is also available to any individual requestors. City Staff
is always willing to discuss this Agenda Item or any Agenda Item with any interested
individuals.
RECOMMENDATION:
The Parks and Recreation Department recommends the City Commission to approve the
award of bid for Celebration of Freedom Fireworks Display to Creative Pyrotechnics and
authorize the City Manager and City Attorney to prepare and execute a 3 year agreement for
the period July 4, 2013 - July 4, 2015 with Creative Pyrotechnics.
ATTACHMENTS:
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Attachment A - 4 of July Fireworks Display Contract
Consent 202 PAGE 2 OF 2 - April 22, 2013
2013, 2014, 2015 FOURTH OF JULY
FIREWORKS DISPLAY AGREEMENT
THIS AGREEMENT
is made this ____ day of ______________, 2013 by and between
CITY OF WINTER SPRINGS, FLORIDA
the , a Florida municipal corporation, whose
CREATIVE
address is 1126 East State Road 4
PYROTECHNICS, LLC
, a Florida limited liability company, whose address is 14747 Baltusrol
Drive, Orlando, Florida 32828
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 consideration, the receipt and sufficiency all of which is hereby acknowledged, the
parties desiring to be legally bound do hereby agree as follows:
ARTICLE I
GENERAL PROVISIONS
1.1Definitions
. 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, as may be amended, which shall constitute authorization for the
Contractor to provide the services stated herein to the City.
(b)Springs, Florida, a Florida Municipal Corporation,
and its officers, agents, employees and attorneys.
(c)
company, and its officers, agents, employees and contractors.
(d)
this Agreement, and it shall be the date on which this Agreement shall go into
effect. The Agreement shall not be effective against any party until said date.
(e)s described in Chapter 119, Florida Statutes.
(f)
this Agreement.
1.2 Engagement.
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
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present agreements or representations shall be binding upon any of the parties hereto unless
expressly incorporated into this Agreement.
1.3 Due Diligence.
The Contractor acknowledges that it has investigated prior to execution of
this 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 insurance, permits, and
the steps necessary to complete the Services within the time set forth herein. The Contractor
warrants unto the City that it has the competence and ability to carefully and faithfully complete
the Services within the time set forth herein. The Contractor will perform the Services with due
and reasonable diligence consistent with sound professional practices.
ARTICLE 2
DESCRIPTION OF SERVICES TO BE PERFORMED
2.1Scope 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
(a/k/a fireworks display) in a manner traditionally seen throughout the United
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States of America on the 4 of July. Unless otherwise determined pursuant to
section 2.1(e) or (f) herein, the exhibitions shall be at Central Winds Park on the
lakefront on the evenings of July 4, 2013, July 4, 2014, and July 4, 2015
(collectively Exhibition Dates), each beginning at 9:10 PM. 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 and all
labor and equipment necessary for exhibition of pyrotechnics. Each exhibition
shall last a minimum of 18 minutes and shall contain a minimum of 2,329
fireworks shells and effects, the size and type specifically set forth and described
in attached hereto and incorporated herein. The exhibition shall be
coordinated with a musical score, which shall be played simultaneously with the
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exhibition of pyrotechnics. The score will be suitable for a traditional 4 of July
fireworks event. The score shall be provided to the City for review and approval,
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at the Citys sole discretion, no later than June 1 of each year of this Agreement.
(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 that, in the event of rain or inclement weather on one or more
Exhibition Date, the City, at its discretion, may reschedule the performance of the
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Services to the evening of the July 5immediately following the subject
Exhibition Date,or another date suitable for Contractor to carry out the Services.
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
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price upon advance, written approval of the City provided, however, the total of
such additional expenses shall not exceed ten (10%) percent of the price of this
contract.
(f) Contractor may cancel or delay the start or completion of the Services if, in its
professional opinion, continuing the display would violate any laws of any
governing bodies or pose any threat to human life, limb, or property. If
Contractor cancels the Services pursuant to this subsection, the display shall be
rescheduled by the City, at the Citys sole discretion.
(g) Contractor agrees to procure, at its sole expense, any and all permits or licenses
that may be required by governmental authorities.
2.2Professionalism.
The Contractor shall do, perform and carry out in a professional
manner all Services required to be performed by this Agreement.
2.3 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 it best skill and attention and shall enforce strict discipline and
good order among it employees and agents. The Contractor shall comply with all laws,
ordinances, rules, regulations, and lawful orders of 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
3.1Compensation.
For the performance and full completion of the Services specified
herein, City agrees to pay Contractor a total amount of Ten Thousand and no/100 Dollars
($10,000.00) for each display conducted pursuant to this Agreement. The City shall pay
Contractor for the total amount due immediately following each completed display. There shall
be no other compensation due Contractor for the Services provided under this Agreement, unless
specifically agreed to by the City in writing.
ARTICLE 4
GENERAL CONDITIONS OF SERVICES
4.1City Inspection
. Subject to a right of appeal to the City Commission, the City Manager
shall have authority to reject Services as not conforming to this Agreement. Prior to the
commencement of each 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.
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4.2Services 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 and the Contractor during or after the performance of the Services
under this Agreement.
4.3.
The City shall cooperate with the Contractor by:
(a)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;
(c)Providing, with the assistance of Contractor, the location of an area at Central
Winds
(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 Assignment and Subcontracting.
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.
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ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1 Governing 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 .
The Contractor shall designate an individual to act as a
representative for the Contractor under this Agreement with the authority to transmit
t 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
representative shall be given by written notice.
6.3Notices.
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. Kevin L. Smith
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
111 N. Orange Avenue, Ste. 2000
P.O. Box 2873
Orlando, FL 32802-2873
(407) 425-9566 (Phone)
(407) 425-9596 (Fax)
TO THE CONTRACTOR:
Creative Pyrotechnics, LLC
14747 Baltusrol Drive
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Orlando, FL 32828
(407) 233-4132 (Phone)
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 approval of the City. Upon request by the City, the Contractor shall promptly
supply copies of said public records of 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 Agreement.
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.
6.8Additional 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,
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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 off
or judgment.
6.9
. Should any litigation arise concerning this Agreement between the
6.10 Entire Agreement.
This Agreement represents the entire and integrated Agreement
between the parties and supersedes all prior negotiations, representations, or Agreements, either
oral or written, and all such matters shall be deemed merged into this Agreement.
6.11 Sovereign Immunity.
Notwithstanding any other provision set forth in this Agreement,
sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the
al liability under state or federal law. As such, the City shall not be liable under
this Agreement for punitive damages or interest for the period before judgment. Further, the
City shall not be liable for any claim or judgment, or portion thereof, to any one person for more
than two hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof,
which, when totaled with all other claims or judgments paid by the State or its agencies and
subdivisions arising out of the same incident or occurrence, exceeds the sum of three hundred
thousand dollars ($300,000.00). This paragraph shall survive termination of this Agreement.
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 .
Upon the effective date of this Agreement, Contractor shall
surance in the minimum amount required by law (if
required).
8.2 Professional Liability/Malpractice General Liability.
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.
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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
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 o
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
written notice to the City in compliance with other provisions of this Agreement. All insurance
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 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
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 them. In all events the City shall be permitted to choose legal counsel of its 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.
This Agreement may be terminated by mutual written agreement
between the parties. Further, the City may terminate this Agreement for convenience, at any
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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
the termination date, along with reimbursable expenses (if any) as provided in this Agreement,
provided the amount will not exceed the annual 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 Waiver.
Failure of the City to insist upon performance within any time period or upon a
failure to perform on the part of the Contractor.
ARTICLE 10
TERM OF AGREEMENT
10.1 Term.
The term of this Agreement shall commence upon full execution of this
Agreement by both parties hereto and, unless otherwise extended pursuant to this section, shall
terminate at such time Contractor has fully performed all the Services required by this
Agreement to the complete satisfaction of the City and all claims made pursuant to this
Agreement have been fully settled or the statute of limitations for bringing such claims has
expired.
10.2 Extension of Term.
The term of this Agreement may be extended for three (3)
additional one-year terms by mutual written agreement of both parties hereto.
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,
a Florida municipal corporation.
WITNESSES
________________________________
Kevin L. Smith, City Manager
________________________________
Dated: __________
Print Name:____________________________
______________________________
Print Name:_____________________________
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CONTRACTOR:
WITNESSES
Creative Pyrotechnics, LLC,
a Florida limited liability company.
________________________________
_______________________________
Print Name:____________________________
Elwood J. Weppel IV, Managing Member
________________________________ Dated: ___________
:________________________
Print Name
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