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HomeMy WebLinkAboutDeep South Fireworks, LLC 2023 4th of July Firework Agreement 2023 04 18 2023 FOURTH OFJUL.Y FIRI?'WORKS DISPLAY AGREEMENT THIS AGREEMENT is made tills 1 day of ADfi y and betweell the CITY OF WINTER SPRINGS, FLOI2ID:�,a Florida I Icipal corI)oi- tion,�whose address is 1126 Fast State Road 434, Winter Springs, Florida, 32708 ("City") TH FIREWORKS, LI,C, a foreign Profit Corporation, duly authorized to ondn't b IFi-�iFess in the State of Florida whose address is 47 Lake Susic Road,l lawkinsvilte,GA,31036("Contractor"). RECITALS: WIIERE:kS, City of Winter Springs conducts a 4th of July special event each year at Central Winds Park fear the benefit of the public to celebrate Independence Day,and WHEREAS, the Contractor is willing and able ro provide to the City certain fireworks exhibition 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. 1 GENERAL PROVISIONS 1.1 Definitions,For purposeS of this Agreement,the following louts and words shalt 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 may be amended, 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,and its officers,agents,employees and attorneys. (c) "Contractor" shall mean DEEP SOUTH FIRF-WORKS, LLC, a Foreign Profit Corporation, duly authorized to conduct business in the State of Florida whose principal address is 3534 Irwin Way. Columbus, GA, 31906, and its officers, agents,employees,and contractors. (d) "Filcctive 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 go into effect. The Agreement shall not be effective against any party until said date_ (e) "Public Record"is as defined in Section 1 19.01 1,Florida Statutes. Page I of Is 4`1 ol7uly Fireworks Di piny Agreement 2023 City or Wintcr springs Drop South Fireworks,I.1.(: (f) "Services" shall include the performance of the Services outlined in Article 2 of this Agreement. 1.2 En$!a1zement. 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 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 2.1 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 (a/k/a fireworks display)in a manner traditionally seen throughout the United States of America on the 4"' of July. Unless otherwise determined pursuant to section 2.1(e) herein, the exhibition shall be on the lakefront at Central Winds Park, 1000 Central Winds Drive,Winter Springs,Florida 32708,on the evening of July 4,2023 ("Exhibition Date"), beginning at 9:10 PM. The specific area for staging shall be at a location designated by the City and as indicated on the "Firework Display Location Map" attached hereto as Exhibit "A" and incorporated herein by this reference. (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 20 minutes from beginning to end and shall contain a minimum of 3,921 fireworks shells and effects, the size and type specifically set forth and described in Exhibit"B,"attached hereto and incorporated herein by this reference. Shells must be launched at a moderate rate at a minimum of every eight-ten seconds or shorter. The main body shot count shall be approximately 3,371 shots, and the "finale"shot count shall be approximately 550 shots,for a total shell count of 3,921. The fireworks display must be electronically fired, either from a manual control board, or a computer. Seminole County Fire Chief, Fire Marshal, or their designee reserve the right to inspect and count the shells and compare the actual inventory at the site to the fireworks material list attached as Exhibit"B." Failure to deliver and shoot all shells as agreed will result in a pro-rated amount being paid to the Contractor. Contractor must provide the City with the cell phone number of the Page 2 of 15 4111 of July Fireworks Display Agreement 2023 City of Winter Springs—Deep South Fireworks,LLC senior staff member that will be on-site to manage the display for communication purposes (c) The fireworks display shall be synchronized to music.Contractor shall work closely with the City in the production of a soundtrack for the fireworks display. The City shall have the ultimate authority to approve of the soundtrack. Contractor will be responsible for all musical scores and the design and choreography. The display must be choreographed to the musical score provided. The selected radio station will broadcast the music at no cost to Contractor. Contractor shall furnish the music CD to radio personnel as needed. The display shall commence with the United States National Anthem. (d) Contractor agrees to pay all freight, expenses and cartage charges. The Contractor will deliver all required equipment, mortar tubes, racks, shells, etc., to the location labeled as the "Launch Area" on the Firework Display Location Map attached as Exhibit"A." (e) Contractor agrees to pay all traveling and other expenses of pyrotechnist and assistants,which may be necessary for exhibition of pyrotechnics. (f) The fireworks display will be fired in all weather conditions except for in the case of torrential rain, severe lightning, sustained winds of 15 MPH or greater, or if a significant weather hazard exists which in the opinion of the Contractor and/or the City may pose any threat to human life, limb, or property, in the opinion of the Contractor and/or the City. Contractor agrees that, in the event of the aforementioned weather conditions on the Exhibition Date, the City, at its discretion, may reschedule the performance of the Services to the evening of July 5, 2023. 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 City, at its discretion, may reschedule the performance of the Services to the evening of July 5, 2023. 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, written approval of the City provided, however, the total of such additional expenses shall not exceed five (5%)percent of the price of this contract. The City will not reschedule the fireworks display past July 5,2023 unless mutually agreed upon by all parties in writing. If the fireworks display is cancelled due to torrential rain, severe lightning, sustained winds of 15 MPH or greater, or if a significant weather hazard exists which in the opinion of the Contractor and/or the City may pose any threat to human life, limb,or property,the Contractor will return fifty percent(50%) of the deposit to the City_. Page 3 of 15 411,of July Fireworks Display Agreement 2023 City of Winter Springs—Deep South Fireworks,LLC (g) Contractor agrees to procure, at its sole expense,any and all permits or licenses that may be required by governmental authorities, including but not limited to: i. General Public Display License; ii. Federal Explosive License issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives; and iii. Basic Commercial Licenses for all pyrotechnicians providing the fireworks display. (h) All fireworks shall be performed according to the National Fire Protection Association Code for the Outdoor Display of Fireworks, NFPA Standard 1123, 1995 edition. i. Regulations. Contractor must perform all work in strict accordance with all applicable Federal, State, and Local laws and regulations. ii. Storage. With prior arrangements, the City will provide overnight security for fireworks the night before the display and one additional night if the display is postponed to the following evening. 2.2 Professionalism. The Contractor shall perform all Services required to be performed by this Agreement in a professional manner. 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 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 any public authority bearing on performance of the Services. The Contractor shall pay all taxes, fees, and license fees required by law, including but not limited to occupational fees and withholding taxes and shall 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 Twenty-One Thousand and One Hundred Dollars and 00/100 ($21,100.00). The City shall provide a deposit in the amount of Ten Thousand Five Hundred and Fifty Dollars ($10,550.00)within fourteen(14)days of execution of this Agreement. The City shall pay Contractor for the remaining amount due (Ten Thousand Five Hundred and Fifty Dollars [$10,550.00]) immediately following the 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. Page 4 of 15 41h of July Fireworks Display Agreement 2023 City of Winter Springs—Deep South Fireworks,LLC 3.2 Payments shall be due and payable as provided by the Florida Local Government Prompt Payment Act s. 218.70 et. seq., Florida Statutes. ARTICLE 4 GENERAL CONDITIONS OF SERVICES 4.1 City 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. 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 and the Contractor 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 for the provision of Services; (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 ASSIGNMENT AND SUBCONTRACTING 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 Page 5of15 41"of July Fireworks Display Agreement 2023 City of Winter Springs—Deep South Fireworks,LLC discharge the assignor from any duty or responsibility under this Agreement. Further, the Contractor shall not subcontract all or any portion 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 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 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. All deletions or designations of individuals to serve as a Contract Administrator shall be given by written notice. 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: 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 Garganese, Weiss, D'Agresta & Salzman, P.A. I I I N. Orange Avenue, Ste. 2000 P.O. Box 2873 Page 6 of 15 4111 of July Fireworks Display Agreement 2023 City of Winter Springs—Deep South Fireworks,LLC Orlando, FL 32802-2873 (407) 425-9566 (Phone) (407) 425-9596 (Fax) TO THE CONTRACTOR: Devin Vargas Deep South Fireworks, LLC 47 Lake Susie Road, Hawkinsville, GA, 31036 Cell phone: (707) 501-8755 Email: devin.vargas a,me.com 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 Records. Pursuant to Section 119.0701, Florida Statutes, and other applicable public records laws(collectively,the"Public Records Laws"),Contractor agrees that any records, documents,transactions,writings,papers, letters,computerized information and programs,maps, books, audio or video tapes, films, photographs, data processing software, writings or other material(s), regardless of the physical form, characteristics, or means of transmission, of Contractor related,directly or indirectly,to the services provided to the City under this Agreement and made or received pursuant to law or ordinance or in connection with the transaction of official business by the City, may be deemed to be a public record under and pursuant to the Public Records Laws, whether in the possession or control of the City or the Contractor. Said records, documents,transactions,writings,papers, letters,computerized information and programs,maps, books, audio or video tapes, films, photographs, data processing software, writings or other material(s), regardless of the physical form, characteristics, or means of transmission of Contractor are subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City's designated custodian of public records. 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. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, THE CITY CLERK, AT (407) 327-65609 CITYCLERKDEPARTMENTkWINTERSPRINGSFL.ORG, 1126 EAST STATE ROAD 434, WINTER SPRINGS, FLORIDA, 32708. Page 7of15 411'of July Fireworks Display Agreement 2023 City of Winter Springs—Deep South Fireworks,LLC Contractor is required to and agrees to comply with public records laws. Contractor shall keep and maintain all public records required by the City to perform the services as agreed to herein. Contractor shall provide the City, upon request from the City Clerk, copies of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided by law. Contractor shall ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. Upon completion of the Agreement, Contractor shall transfer to the City, at no cost, copies of all public records in possession of the Contractor, provided the transfer is requested in writing by the City Clerk.Upon such transfer,Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. However, if the City Clerk does not request that copies of the public records be transferred,the Contractor shall continue to keep and maintain the public records upon completion of the Agreement and shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City Clerk, in a format that is compatible with the information technology systems of the City. Should the City not possess public records relating to this Agreement which are requested to be inspected or copied by the City or any other person,the City shall immediately notify Contractor of the request and the Contractor shall then provide such records to the City or allow the records to be inspected or copied within a reasonable time. If the Contractor does not comply with a public records request, the City may enforce this Section to the extent permitted by law. Contractor acknowledges that if the Contractor does not provide the public records to the City within a reasonable time, the Contractor may be subject to penalties under Section 119.10, Florida Statutes. The Contractor acknowledges that if a civil action is filed against the Contractor to compel production of public records relating to this Agreement, the court may assess and award against Contractor the reasonable costs of enforcement, including reasonable attorney fees. All public records in connection with this Agreement shall,at any and all reasonable times during the normal business hours of the Contractor, be open and freely exhibited to the City for the purpose of examination,audit,or otherwise. Failure by Contractor to grant such public access and comply with public records laws and/or requests shall be grounds for immediate unilateral cancellation of this Agreement by the City upon delivery of a written notice of cancellation. If the Contractor fails to comply with this Section, and the City must enforce this Section, or the City suffers a third-party award of attorney's fees and/or damages for violating Chapter 119, Florida Statutes, due to Contractor's failure to comply with this Section, the City shall collect from Contractor prevailing party attorney's fees and costs, and any damages incurred by the City, for enforcing this Section against Contractor.And, if applicable,the City shall also be entitled to reimbursement of all attorneys' fees and damages which the City had to pay a third party because of the Contractor's failure to comply with this Section.The terms and conditions set forth in this Section shall survive the termination of this Agreement. 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. Page 8of15 4",of July Fireworks Display Agreement 2023 City of Winter Springs—Deep South Fireworks,LLC 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 executives) 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 executives), 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 executives), 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. In the event of any action arising under this Agreement, whether or not a lawsuit or other proceeding is filed, each party shall bear its own costs and expenses of such action including, but not limited to, reasonable attorney's fees incurred in any way in connection with the matter, whether incurred before litigation, during litigation, during appeal, or in connection with enforcement of a judgment, including, but not limited to, attorneys' and experts' fees. This shall include fees and costs incurred in litigating entitlement to attorneys' fees and costs, as well as in determining or quantifying the amount of recoverable attorneys' fees and costs. The reasonable costs shall include costs that are taxable under any applicable statute,rule or guideline, as well as non-taxable costs, including but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable. 6.10 Entire Agreement. This Agreement states the entire understanding and agreement between the parties and supersedes any and all written or oral representations, statements, negotiations, or agreements previously existing between the parties with respect to the subject matter of this Agreement, save for the representations which are attached to this Agreement as Exhibits. The Contractor recognizes that any representations, statements, or negotiations made by the City staff do not suffice to legally bind the City in a contractual relationship unless they have been reduced to writing and signed by an authorized City representative. This Agreement shall Page 9of15 4°i of July Fireworks Display Agreement 2023 City of Winter Springs—Deep South Fireworks,LLC inure to the benefit of and shall be binding upon the parties,their respective assigns,and successors in interest. 6.11 Sovereign Immunity. The City intends to avail itself of the benefits of Section 768.28, Florida Statutes and any other statutes and common law governing sovereign immunity to the fullest extent possible. Neither this provision nor any other provision of 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 on the City's potential liability under state or federal law. Sponsor agrees that City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, City shall not be liable for any claim or judgment, or portion thereof, to any one person for over 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 three hundred thousand dollars ($300,000.00). Nothing in this Agreement is intended to inure to the benefit of any third party for the purpose of allowing any claim which would otherwise be barred under the doctrine of sovereign immunity or by operation of law. This paragraph shall survive termination of this Agreement. 6.12 Conflicts. In case of any inconsistency in any of the documents bearing on the Agreement between the City and the Contractor, the inconsistency shall be resolved by giving precedence in the following order: 1. Addenda, Amendments, or Change Orders to this Agreement entered subsequent to the Effective Date of this Agreement; 2. This Agreement; 3. Exhibits to this Agreement; Any inconsistency in the work description shall be clarified by the City and performed by the Contractor. 6.13 Appropriations. This Agreement is subject to the annual appropriations of funds from the City Commission. The City has the right to terminate this Agreement for fiscal non-funding at no additional cost or liability to the City. 6.14 Force Maieure. Any delay or failure of either party in the performance of its required obligations hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm; explosion; riot; war; sabotage; strike (except involving the Contractor's labor force); extraordinary breakdown of or damage to City's affiliates' facilities; court injunction or order; federal and/or state law and/or regulation; or order by any other regulatory agency, provided that prompt notice of such delay is given by such party to the other and each of the parties hereto shall be diligent in attempting to remove such cause or causes. If any circumstance of Force Majeure remains in effect for sixty (60) days, either party may terminate this Agreement. Monetary damages will not be awarded in the event of Force Majeure. 6.15 City Premises. Contractor acknowledges that its employees and agents will behave in an appropriate manner while on City property and while on any residential or commercial private Page 10 of 15 4111 of July Fireworks Display Agreement 2023 City of winter Springs—Deep South Fireworks,LLC property relating to the performance of Services in accordance with this Agreement and shall, at all times, conduct themselves in a manner consistent with City policies and within the discretion of the City Project Manager or designee. Professional and personal conduct of Contractor's staff shall conform to City's personnel policies and procedures.It is a material breach of this Agreement for any agent or employee of Contractor to behave in a manner which is inconsistent with appropriate conduct or decorum or to behave in any manner that will disrupt the functioning of the City or constitute any level of threat to the safety, health, and/or well-being of any citizen, invitee, licensee, agent, or employee of the City. Contractor agrees to immediately remove any agent or employee if directed to do so by the City Project Manager or designee. Contractor acknowledges that the City shall not be responsible for injury (including death) to Contractor's employees, agents, officers, or other personnel, nor shall the City be responsible for damage to Contractor's property, which occurs on the City's property, unless the injury is the result of the City's gross negligence or willful misconduct. At all times while on City's premises, Contractor shall comply with all rules and regulations of City. 6.16 Most Favored Customer. Contractor warrants and represents that all terms, including prices, charges, benefits and warranties, in this Agreement are at least as or more favorable than any terms that Contractor has offered to any other person or entity, for the types of Services covered by this Agreement. If at any time during this Agreement Contractor shall offer any other person or entity, terms more favorable, Contractor shall promptly notify City of such more favorable terms, and if such more favorable terms were offered by Contractor to another person or entity City shall immediately receive the benefit of the more favorable terms for the remainder of this Agreement, including any renewals thereof, as well as retroactively to the effective date such more favorable terms were offered by Contractor. Upon City's request, Contractor shall advise City in writing, executed by an officer of Contractor,that this section has not been contradicted by Contractor since the later of(i) the Effective Date of this Agreement or (ii) the date of the most recent notice provided by Contractor pursuant to this section. 6.17 The Contractor warrants that it has not employed or retained any company person, other than a bona fide employee working solely for the Contractor, to solicit or secure this Agreement, and that it has not paid or agreed to pay any City employee or official, person, company, corporation, individual,or firm,other than a bona fide employee working solely for the Contractor, any fee, commission,percentage, gift,or other consideration contingent upon or resulting from the award of making of this Agreement. 6.18 Contractor shall acquire no rights under this Agreement to, and shall not use, the name of the City, either alone or in conjunction with or as a part of any other name, word, mark, picture, logo, design, and/or trademark ("City Marks") in any of Contractor's advertising, publicity, or promotion,to express or imply any endorsement by the City of its Services,or in any other manner (whether or not similar to the uses hereinabove specifically prohibited) without the prior review and written approval by the City, except as expressly permitted herein. No advertisement, publication, or other use of the City Marks shall be published or otherwise promulgated by Contractor without City's prior inspection and written approval. This clause shall survive the expiration or termination of this Agreement. Page I I of 15 4111 of July Fireworks Display Agreement 2023 City of Winter Springs—Deep South Fireworks,LLC 6.19 The Contractor warrants and represents that it complies with all Federal and State requirements concerning fair employment and that Contractor does not and shall not discriminate by reason of race, color, religion, sex, age, national origin, disability, sexual orientation, gender identity or expression, genetic information, or any other category of persons protected pursuant to federal and/or Florida law. 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.Absent an agreement for extension of time approved by the City, violation of this Article shall be considered a material breach of this Agreement. ARTICLE 8 PROTECTION OF PERSONS AND PROPERTY: INSURANCE 8.1 Insurance. During the term of this Agreement, Contractor shall be responsible for providing the types of insurance and limits of liability as set forth under this Paragraph. The insurance policies provided hereunder by Contractor shall also include coverage with respect to services performed by all agents and independent contractors employed by Contractor to perform any Work hereunder. (a) The Contractor shall maintain comprehensive general professional liability insurance in the minimum amount of$1,000,000 as the combined single limit for each occurrence and $2,000,000 general aggregate with a deductible not less than $5,000 unless otherwise approved in writing by the City Manager to protect the Contractor from claims of property damages which may arise from any Work performed under this Agreement whether such Work are performed by the Contractor or by anyone directly employed by or contracting with the Contractor. (b) The Contractor shall maintain comprehensive automobile liability insurance in the minimum amount of$1,000,000 combined single limit bodily injury and minimum $1,000,000 property damage as the combined single limit for each occurrence to protect the Contractor from claims for damages for bodily injury, including wrongful death, as well as from claims from property damage, which may arise from the ownership, use, or maintenance of owned and non-owned automobiles, including rented automobiles whether such operations be by the Contractor or by anyone directly or indirectly employed by the Contractor. (c) The Contractor shall maintain,during the life of this Agreement,adequate Workers' Compensation Insurance in at least such amounts as are required by law and Employer's Liability Insurance in the minimum amount of$1,000,000 for all of its employees performing Work for the City pursuant to this Agreement. Page 12 of 15 4"'of July Fireworks Display Agreement 2023 City of Winter Springs—Deep South Fireworks,LLC All required insurance must be from insurance carriers that have a rating of"A" or better and a financial size category of"VII" or higher according to the A.M. Best Company (or equivalent rating and rating service as reasonably determined by the City Manager). Current,valid insurance policies meeting the requirements herein identified shall be maintained during the term of this Agreement.A copy of a current Certificate of Insurance shall be provided to the City by Contractor upon the Effective Date of this Agreement which satisfied the insurance requirements of this Section. Renewal certificates shall be sent to the City at the time of any expiration. There shall also be a 30-day advance written notification to the City in the event of cancellation or material modification of any stipulated insurance coverage. The City shall be an additional insured on all stipulated insurance policies as its interest may appear, from time to time, excluding worker's compensation and professional liability policies. 8.2 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 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 8.2 shall survive termination of this Agreement. 8.3 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. Precautions shall be exercised at all times for the protection of all persons (including City's employees) and property. The safety of all applicable laws,regulations,and codes shall be observed.Hazards arising from the use of vehicles, machinery, and equipment shall be guided or eliminated in accordance with the highest accepted standard of safety. Contractor shall be solely and absolutely responsible and shall assume all liability for the safety and supervision of its principles, employees, contractors, and agents when performing the Services provided hereunder. ARTICLE 9 TERMINATION 9.1 Termination. (a) Mutual termination. This Agreement may be terminated by mutual written agreement between the parties. Page 13 of 15 4111 of July Fireworks Display Agreement 2023 City of Winter Springs—Deep South Fireworks,LLC (b) Termination by the City.The City may terminate this Agreement for convenience, at any time, without penalty, by providing written notice of termination to Contractor. If no supplies have been purchased by the Contractor at that time,the full deposit will be returned to the City. However, to the extent that supplies have been purchased for the purpose of providing the Services pursuant to this Agreement, the Contractor may keep, as full payment for all Services performed and all expenses incurred, the sums for which Contactor provides detailed invoices and proof of payments,provided that in no event shall the amount not exceed the deposit price as provided in paragraph 3.1 above. Any amounts to be kept by the Contractor pursuant to this provision shall be subject to the Contractor supplying the City with detailed invoices as described in this Agreement, and which align with the product list provided as Exhibit "11." Within thirty days of termination by the City, Contractor shall return to the City the balance of the deposit which was not used to purchase supplies for the City's fireworks display. Upon notice of termination,the Contractor shall cease all Services being provided hereunder, including the ordering of additional supplies relating to this Agreement, unless otherwise directed by City in writing. (c) Termination by the Contractor. If the Contractor terminates this Agreement within sixty (60) days of the Exhibition Date, the Contractor shall return the full deposit to the City. Additionally, the Contractor agrees that the Contractor shall pay to the City the amount of Seven Thousand Dollars and 00/100 ($7,000.00)as liquidated damages, which amount the parties agree to be reasonable in light of the anticipated or actual harm caused by termination of this Agreement and the related increases in costs of securing replacement supplies, permits and an available professional to provide the Services in such close proximity to the Exhibition Date. 9.2 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. The City's payment of any invoice under this Agreement shall not be construed or operate as a waiver of any rights under this Agreement or any cause of action arising out of the performance of this Agreement and the Contractor shall remain liable to the City in accordance with applicable law for all damages to the City caused by the Contractor's performance of any services provided under this Agreement. 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. ARTICLE 11 E-VERIFY 11.1 E-Verify. Pursuant to section 448.095, Florida Statutes, beginning January 1, 2021, Contractor shall register with and use the U.S. Department of Homeland Security's E-Verify Page 14 of 15 4'1'of July Fireworks Display Agreement 2023 City of Winter Springs—Deep South Fireworks,LLC system, htyu:i/c-vcril'y.uscis.gav/cmp, to verify the work authorization status of all employces hired on and after January 1,2021. 11.2 Subcontractors: (a) Contractor shall also require all subcontractors performing work under this Agreement to use the L-Verily system for any employees they may hire during the term of this Agreement. (b) Contractor shall obtain from all SUch subcontractors an affidavit stating the subcontractor does not employ,contact with,or subcontract with an unauthorized alien, as defined in section 448.095,Florida SSta1UtCS. (c) Contractor shall provide a copy of ill subcontractor affidavits to the City upon receipt and shall maintain a copy fir the duration of the Agrecmcnt. 11.3 Contractor must provide evidence of compliance with section 445.095, Florida Statutes. Evidence shall consist of an affidavit from the Contractor stating all employces hired on and after January I,2021 have had their work authorization status verified through the E-Verify system and a copy of their proof of registration in the F-Verily system. 11.4 Failure to comply with this provision is a material breach of the Agreement,and shall result in the immediate termination of the Agreement without penalty to the City.To the extent provided by Florida law,Contactor shall be liable for any additional costs incurred by the City as a result of the termination of the Agreement, IN WITNESS WIIEREOU', the parties hereto causal this Agreement to be executed by their duly authorized representatives as of the date first written above. CONTRACTOR: CITY: Deep South Fireworks,I.I.0 City of Winter Springs,Florida, a Foreign Profit Corporation a I'lorida munici al corporation. �M1 li — Devin Vargas,Owner Phi I I ,In Brim City Manager Dated:'d 1_6 _C72 Dated: pate 15ol,15 -V ofJuly Fireworks DispLro Agrecmcnt 2023 City ol,winter Spain_., Uccp Suuda firc�rorks.LLC Firework Display Location Map, IN EXHIBIT < 0 E E R Eli U FIREWORKS Product list for Winter Springs FL July 4, 2023 30 Individual 1'13 Shot Slices with varying affects.Video Example: https://Voutu.be/egvllss87CQ 75 Individual 1'comets,mines, and combination of color and affects.Video Example: https://youtu.be/1 kpJQoUo- 1Q 384 2' Individual shells varying in size and affects.Video Example:https://youtu.be/bhVzAB5kUE4 50 1.5-2' Individual Cakes. Shot Count Varies from 9-50 shots per cake. Video Example:https://youtu.be/e-Ls YGA7KU 1001" Individual Cakes. Shot Count Varies from 8-40 per cake. Video Example:hftps:Hvoutu.be/Gi9FgaBOWR4 8 Individual Nine on a Board 3'Cakes. Shot count is 9 shots per cake. Video Example: https:HVoutu.be/B4JPVoswnp4 The product list is based on a 20-minute show. Total Shot Count broken down per inch. 1"or<=2,249 1.5-2'=1,000 1.75'=384 3'=288 Total Shot Count: 3,921 All product used in our display will be 1 AG and 1.4 Professional Fireworks. EXHIBIT "B"