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HomeMy WebLinkAboutPyrotechnico Industries-7/4/2003 Public Event Exhibtion Agreement -2003 02 12 CITY OF WINTER SPRINGS 4th of JULY FIREWORKS DISPLAY CONTRACT F~Q f!'tl ,<< 1'\ CD VJ ~) tD03 . THIS AGREEMENT is made this/riIJ.Jay of ~~ ' 2003 byandbetween the CITY OF WINTER SPRINGS, FLORIDA, a Florida M nicipal Corporation, whose address is 1126 East State Road 434, Winter Springs, Florida ("City"), and S. VITALE PYROTECHNIC INDUSTRIES, INC., a Pennsylvania Corporation d/b/a Pyrotecnico, whose address is 302 Wilson Road, New Castle, Pennsylvania, 16103 ("Contractor"), RECIT ALS: WHEREAS, the Contractor desires'to provide to the City certain services under the terms and conditions set forth in this Agreement. INCONStDERA TIONoftherrmtual covenantsandprovisioris 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 ofthis 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 S. VITALE PYROTECHNIC INDUSTRIES, INC., d/b/a PYROTECNICO, 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 go 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, (f) "Services" shall include the performance of the Services outlined in Article 2 of this Agreement. , 1.2 Engagement. The City hereby engages the Contractor and the Contractor agrees to perform the Services outlined in this A~reement for the stated fee arrangement. No prior or present agreements or representations shall be binding upon any ofthe parties hereto unless incorporated in this Agreement. 1.3 Due Dili~ence. 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 and coordinate with utilities as set forth herein, 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 abilities to carefully and faithfully complete the Services within the time set forth, The Contractor will perform its 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 (aJk/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 lake front on the evening of July 4, 2003 at 9:00 P,M, The specific areas for staging shall be at locations designated by the City anp reasonably approved by Contractor. (b) Contractor agrees to furnish a duly qualified and experienced pyrotechnist and all labor necessary for exhibition of pyrotechnics, The exhibition shall last approximately ~hirty (30) minutes and shall contain a minimum of 3,611 fireworks shells and effects, the size and type ofwhich 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 simuItaneouslywith 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 meet with a City Representative at Central Winds Park approximately .one (1) week before the schedule display, at which time Contractor will mark the location ofthe fueworks trench line, On the morning of July 3,2003 the Contractor will obtain a 3 to 4" trenching machine, at its sole cost and expense, to dig or otherwise create a trench along the marked line, with the supervision of an employee of the City, Contractor will then Page 2 of 10 provide a crew of workers, at its sole cost and expense, to dig the trench line out to the appropriate width, (1) Contractor agrees that in the event of rain or inclement. weather, a postponement may be made by the City, at its discretion, to a date to be determined by City, provided such date will not be more than ten (10) calendar days following July 4, 2003, 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 ofthe City, provided, however, the total of such additional expenses shall not exceed ten (10%) percent of contract price, (g) Contractor may 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 humari 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) City agrees to furnish and set up rope lines and other reasonable crowd control safeguards for the protection of the public and property, (i) City agrees to furnish ample police presence to provide crowd control for the protection of the public and Contractor. G) Contractor agrees, at its expense, to procure any and all permits or licenses which may be required by governmental authorities, 2.2 Professionalism, The Contractor shall do, perform and carry out in a professional manner all Services required to be performed by this Agreement. , 2.3 Submittalof Proeress Reports,,:(Jpon request by the City, Contractor shall submit a written progress report as to the status of all Services set forth in this Agreement. The report shall in a sufficient manner demonstrate what services were performed under this Agreement. Ifthe 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 arid 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 hearing on the performance ofthe Services, The Contractor Page 3 of 10 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$15,000,OO. Full payment shall be made by the City ,to the Contractor prior to 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 of Winter Springs, the City Manager shall have authority to reject Services as not conforming to this Agreement. Prior to the commencement ofthe exhibition ofthe pyrotechnics, the City shall have the right 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 the 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, during or after the performance of the Services under this Agreement. 4.3 City's Resp'onsibilities: The City shall cooperate with the Contractor by: (a) Designating a person with authority to acton the City's behalf on all matters concerning the Services being provided hereunder; (b) Arrange for access to public and private property by the Contractor as necessitated by the Services. (c) To provide, with the assistance of Contractor, the location of an area at Central Winds Park which can be considered a "Safe Firing Site", (d) To coordinate with the Contractor to provide for a Fireworks Trench as provided in Section 2,1 of this Agreement. Page 4 of 10 (e) Providing a musical score, produced by event contractor, Cox Radio, mc" no later than June 15,2003. ARTICLE 5 SUBCONTRACTS: ASSIGNMENT 5.1 ,Assignment and Subcontracting, Unless otherwise speci~cal1y required by this Agreement, the Contractor shall not assign, sublet, or transfer any rights or 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 assignment, 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 fro'm any duty or responsibility under this Agreement. Further, the Contractor shall not subcontract any portion or all ofthe Services without the written consent ofthe 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 for 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 therefor. ARTICLE 6 MISCELLANEOUS PROVISIONS 6.1 Governing Law: Veoue, This 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, Agree'ment 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, 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: Page 5 of 10 TO THE CITY: Mr. Ronald W. McLemore City Manger City of Winter Springs 1126 East State Road 434 Winter Springs, FI. 32708-2799 407-327-5957 (Phone) 407-327-6686 (Fax) w/copy to: Anthony A. Garganese City Attorney Brown, Ward, Salzman & Weiss, 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: Stephen J, Vitale S, Vitale Pyrotechnic Industries, Inc, d/b/a Pyrotecnico 302 Wilson Road P,O, Box 149 New Castle, PA. 16103 877-924-0102 (phone) 770-924-2646 (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 nam~ 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 to the City, All books, cards, registers, receipts, documents, and other papers in Page 6 of 10 connection with this Agreement shall at any and all reasonable times during the normal working hours ofthe 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 rio 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 ifsaid 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 ofthe City any pecuniary or otherbenefit 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 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 Soverei~n Immunity, 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, Page 7 of 10 ARTICLE 7 TIME 7.1 Time of 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 ofthis Agreement, Contractor shall ,provide proof of worker's compensation insurance in the minimum amount required by law (if required), '8;2 Professional Liability/l\'lalpractice and General Liability. Upon the effective date of this Agreement, Contractor shall submit proof of general liability insurance to cover claims for geneialliability because of bodily injury or death of any person or property damage arising out ofthis Agreement or any Services provided hereunder. The insurance shall have minimum limits of coverage of$l,OOO,OOO,OO 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, whichever 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 ofthis Agreement. All insurance policies or coverages required to be maintained by Contractor under this Agreement shall be "no deductible"policies and coverages, For all Services performed pursuant to this Agreement, the Contractor'shali continuousfymaintainsuch 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 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. Page 8 of 10 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 liability and all suits and actions of every name and description that may be brought against the City 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, 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 ifthe 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. 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,. Page 9 of 10 IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their duly authorized representatives as of the date first written above, Witnesses CITY: CITY OF WINTER SPRINGS, FLORIDA By: ;P~f} tJ ~ ~ Romlld W, McLe~ ' " ~~., Print Name:, " < "'!ftt(e5fYf Title: City Manager Dated: CONTRACTOR: S. VITALE PYROTECHNIC INDUSTRIES, INC. d/b/a PYROTECNICO Print Name: Title: /if/d M If-(f () Dated: 11-/[).-03 F:\Lawyer\VES\City of Winter Springs\Agreements\4th JulyFireworks Agr2003,wpd Page 10 of 10