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HomeMy WebLinkAboutPyro Engineering, Inc- 7/4/2011 Public Event Exhibition Agreement- 2011 04 29CITY OF WINTER SPRINGS 20114' of JULY FIREWORKS DISPLAY AGREEMENT THIS AGREEMENT is made this day of , 2011 by and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida municipal corporation, whose address is 1126 East State Road 434, Winter Springs, Florida, 32708 ( "City ") and PYRO ENGINEERING, INC., a foreign corporation authorized to conduct business in Florida, whose address is 400 Broadhollow Road, Suite 3, Farmingdale, New York, 11735 ( "Contractor "). RECITALS WHEREAS, the Contractor desires to provide to the City certain services under the terms and conditions set forth in this Agreement. IN CONSIDERATION of the mutual covenants and provisions hereof, and other good, and valuable 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 1.1 Definitions For purposes of this Agreement, the following terms and words shall have the meaning ascribed to them, unless the context clearly indicates otherwise. (a) "Agreement" or "Contract" shall be used interchangeably and shall refer to this Agreement, as 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 Pyro Engineering, Inc., a foreign corporation authorized to conduct business in Florida, and its officers, agents, employees and contractors. (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(12), Florida Statutes. (f) "Services" shall include the performance of the Services outlined in Article 2 of this Agreement. 1.2 Enaaeement 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 20114 1h of July Fireworks Display Agreement City of Winter Springs — Pyro Engineering, Inc. Page I of 9 a present agreements or representations shall be binding upon any of the parties hereto unless expressly incorporated into this Agreement. 1.3 Due Dilieence 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 th of July. The exhibition shall be at Central Winds Park on the lakefront on the evening of July 4, 2011 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. The exhibition shall last a minimum of twenty (20) minutes and shall contain a minimum of six thousand three hundred eight (6,308) fireworks shells and effects, the size and type specifically set forth and described in Exhibit "A ", attached hereto and incorporated herein. The exhibition shall be coordinated with a musical score, which shall be played simultaneously with the exhibition of pyrotechnics. The score will be suitable for a traditional 4 th 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 that, in the event of rain or inclement weather, the City, at its discretion, may postpone the performance of the Services to the evening of July 5, 2011. 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 ten (10 %) percent of the price of this contract. 20114 1h of July Fireworks Display Agreement City of Winter Springs — Pyro Engineering, Inc. Page 2 of 9 (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 shown at a later date in accordance with the terms of this Agreement. (g) Contractor agrees to procure, at its sole expense, any and all permits or licenses that 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 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 3.1 Compensation 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). The City shall pay Contractor for the total amount due immediately following the 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 4.1 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 the exhibition of the pyrotechnics, the City shall have the right, but not obligation, to inspect the fireworks to determine that the display is ready for public exhibition as required hereunder. 4.2 Services is a Private Undertaking With regard to any and all Services performed hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the City and Contractor is such that the Contractor is an independent contractor and is neither an agent nor employee of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent 20110 of July Fireworks Display Agreement City of Winter Springs — Pyro Engineering, Inc. Page 3 of 9 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 by the 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 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. 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. 20114 1h of July Fireworks Display Agreement City of Winter Springs — Pyro Engineering, Inc. Page 4 of 9 6.2 Contractor's Representative The Contractor shall designate an individual to act as a representative for the Contractor under this Agreement with the authority to transmit instructions, receive information, and make or interpret the Contractor's decisions. This person shall be the Contractor's contract administrator. The Contractor may from time to time designate other individuals or delete individuals with the authority to act for the Contractor under this Agreement with the authority to transmit instructions, receive information, and make or interpret the Contractor's decisions. All deletions or designation of individuals to serve as a representative shall be given by written notice. 6.3 Notices All projects hereunder, all notices, demands, requests, instructions, approvals, and claims shall be in writing. All notices of any type hereunder shall be given by U.S. mail or by hand delivery to an individual authorized to receive mail for the below listed individuals, all to the following individuals at the following locations: TO THE CITY: Mr. 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 Brown, Garganese, Weiss & D'Agresta, P.A. 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: Pyro Engineering, Inc. 400 Broadhollow Road, Suite 3 Farmingdale, NY 11735 (516) 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 20114 1h of July Fireworks Display Agreement City of Winter Springs — Pyro Engineering, Inc. Page 5 of 9 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. 6.8 Additional Assurances The Contractor certifies that: (a) No principal (which includes officers, directors, or executive) or individual holding a professional license and performing Services under this Agreement is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any Services required by this Agreement by any Federal, State, or local governmental commission, department, corporation, subdivision, or agency; (b) No principal (which includes officers, directors, or executive), individual holding a professional license and performing Services under this Agreement, employee, or agent has employed or otherwise provided compensation to, any employee or officer of the City; and (c) No principal (which includes officers, directors, or executive), individual holding a professional license and performing Services under this Agreement, employee or agent has willfully offered an employee or officer of the City any pecuniary or other benefit with the intent to influence the employee or officer's official action or judgment. 20114 1h of July Fireworks Display Agreement City of Winter Springs — Pyro Engineering, Inc. Page 6 of 9 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 Sovereign Immunity Notwithstanding any other provision set forth in this Agreement, 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 on the City's potential 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 one hundred thousand dollars ($100,000.00), 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 two hundred thousand dollars ($200,000.00). 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 Worker's Compensation Upon the effective date of this Agreement, Contractor shall provide proof of worker's compensation insurance in the minimum amount required by law (if required). 8.2 Professional 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. 8.3 Insurance Requirements This paragraph shall be applicable to Sections 8.1 and 8.2. The insurance required by this Article shall include the liability and coverage provided herein, or as required by law, whatever requirements afford greater coverage. All of the policies of insurance so required to be purchased and maintained for the certificates (or other evidence thereof) shall contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or renewal refused until at least thirty (30) days' prior written notice has been given to the City and the Contractor by certified mail, return receipt requested. All such insurance shall remain in effect until final payment. Unless agreed to by the City to the contrary, 2011 4` of July Fireworks Display Agreement City of Winter Springs — Pyro Engineering, Inc. Page 7 of 9 the City shall be named on the foregoing insurance policies as "additional insured ". The Contractor shall cause its insurance carriers to furnish insurance certificates specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days' prior written notice to the City in compliance with other provisions of this Agreement. All insurance policies or coverage's 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 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 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 8.4 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 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 2011 4` of July Fireworks Display Agreement City of Winter Springs — Pyro Engineering, Inc. Page 8 of 9 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 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 and all claims made pursuant to this Agreement have been fully settled or the statute of limitations for bringing such claims has expired. IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their duly authorized representatives as of the date first written above. 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