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HomeMy WebLinkAbout2013 04 22 Consent 202 July 4th Fireworks Agreement COMMISSION AGENDA     Informational Consent X ITEM202 Public Hearings Regular       April 22, 2013KSCC Regular MeetingCity ManagerDepartment         REQUEST: The Parks and Recreation Department is requesting the City Commission to approve the award of bid for Celebration of Freedom Fireworks Display to Creative Pyrotechnics and authorize the City Manager and City Attorney to prepare and execute a 3 year agreement for the period July 4, 2013 - July 4, 2015 with Creative Pyrotechnics.   SYNOPSIS: Our Celebration of Freedom Event attracts many guests due to the fireworks. We are structuring the show to be a continuous flow of fireworks for the full 18 minutes. Creative Pyrotechnics is recommended to be awarded the contract from their bid for a 18 minute show. The fireworks budget is $10,000. CONSIDERATIONS: Staff issued a bid for a 15-20 minute fireworks show for the $10K budgeted amount.    Three (3) Firework Display Companies submitted proposals.  These companies were  Creative Pyrotechnics, Zambelli, and Four Seasons.   After reviewing each of the bids, Creative Pyrotechnics is recommended for our  selection.   Creative Pyrotechnics provided the firework displays at last year’s (2012) July 4  Celebration of Freedom event.   Creative Pyrotechnics' bid includes $2,500 of donated shell product to enhance the  Consent 202 PAGE 1 OF 2 - April 22, 2013 show.   Creative Pyrotechnics is a Central Florida based business and is the only company  that offers a 100% electronically fired show.   Staff has received very good customer service from Creative Pyrotechnics and  verified their references & professional experience. FISCAL IMPACT: The cost of the Fireworks show for FY 2013 is $10,000, which will be covered in full by a sponsorship from Meritage Homes. COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney/Staff, and is available on the City’s Website, LaserFiche, and the City’s Server. Additionally, portions of this Agenda Item are typed verbatim on the respective Meeting Agenda which has also been electronically forwarded to the individuals noted above, and which is also available on the City’s Website, LaserFiche, and the City’s Server; has been sent to applicable City Staff, Media/Press Representatives who have requested Agendas/Agenda Item information, Homeowner’s Associations/Representatives on file with the City, and all individuals who have requested such information. This information has also been posted outside City Hall, posted inside City Hall with additional copies available for the General Public, and posted at five (5) different locations around the City. Furthermore, this information is also available to any individual requestors. City Staff is always willing to discuss this Agenda Item or any Agenda Item with any interested individuals.   RECOMMENDATION: The Parks and Recreation Department recommends the City Commission to approve the award of bid for Celebration of Freedom Fireworks Display to Creative Pyrotechnics and authorize the City Manager and City Attorney to prepare and execute a 3 year agreement for the period July 4, 2013 - July 4, 2015 with Creative Pyrotechnics. ATTACHMENTS: th Attachment A - 4 of July Fireworks Display Contract Consent 202 PAGE 2 OF 2 - April 22, 2013 2013, 2014, 2015 FOURTH OF JULY FIREWORKS DISPLAY AGREEMENT THIS AGREEMENT is made this ____ day of ______________, 2013 by and between CITY OF WINTER SPRINGS, FLORIDA the , a Florida municipal corporation, whose CREATIVE address is 1126 East State Road 4 PYROTECHNICS, LLC , a Florida limited liability company, whose address is 14747 Baltusrol Drive, Orlando, Florida 32828 RECITALS : WHEREAS , the Contractor desires to provide to the City certain services under the terms and conditions set forth in this Agreement. IN CONSIDERATION of the mutual covenants and provisions hereof, and other good, and valuable consideration, the receipt and sufficiency all of which is hereby acknowledged, the parties desiring to be legally bound do hereby agree as follows: ARTICLE I GENERAL PROVISIONS 1.1Definitions . For purposes of this Agreement, the following terms and words shall have the meaning ascribed to them, unless the context clearly indicates otherwise. (a) Agreement, as may be amended, which shall constitute authorization for the Contractor to provide the services stated herein to the City. (b)Springs, Florida, a Florida Municipal Corporation, and its officers, agents, employees and attorneys. (c) company, and its officers, agents, employees and contractors. (d) this Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement shall not be effective against any party until said date. (e)s described in Chapter 119, Florida Statutes. (f) this Agreement. 1.2 Engagement. The City hereby engages the Contractor and the Contractor agrees to perform the Services outlined in this Agreement for the stated fee arrangement. No prior or th 4of July Fireworks Display Agreement City of Winter Springs Creative Pyrotechnics, LLC Page 1 of 10 present agreements or representations shall be binding upon any of the parties hereto unless expressly incorporated into this Agreement. 1.3 Due Diligence. The Contractor acknowledges that it has investigated prior to execution of this Agreement and satisfied itself, as to the conditions affecting the Services, the availability of materials and labor, the cost thereof, the requirements to obtain necessary insurance, permits, and the steps necessary to complete the Services within the time set forth herein. The Contractor warrants unto the City that it has the competence and ability to carefully and faithfully complete the Services within the time set forth herein. The Contractor will perform the Services with due and reasonable diligence consistent with sound professional practices. ARTICLE 2 DESCRIPTION OF SERVICES TO BE PERFORMED 2.1Scope of Services. The Services to be performed under this Agreement are as follows: (a)Contractor agrees to furnish the City an outdoor public exhibition of pyrotechnics (a/k/a fireworks display) in a manner traditionally seen throughout the United th States of America on the 4 of July. Unless otherwise determined pursuant to section 2.1(e) or (f) herein, the exhibitions shall be at Central Winds Park on the lakefront on the evenings of July 4, 2013, July 4, 2014, and July 4, 2015 (collectively Exhibition Dates), each beginning at 9:10 PM. The specific areas for staging shall be at locations designated by the City and reasonably approved by Contractor. (b)Contractor agrees to furnish a duly qualified and experienced pyrotechnist and all labor and equipment necessary for exhibition of pyrotechnics. Each exhibition shall last a minimum of 18 minutes and shall contain a minimum of 2,329 fireworks shells and effects, the size and type specifically set forth and described in attached hereto and incorporated herein. The exhibition shall be coordinated with a musical score, which shall be played simultaneously with the th exhibition of pyrotechnics. The score will be suitable for a traditional 4 of July fireworks event. The score shall be provided to the City for review and approval, st at the Citys sole discretion, no later than June 1 of each year of this Agreement. (c)Contractor agrees to pay all freight, expenses and cartage charges. (d)Contractor agrees to pay all traveling and other expenses of pyrotechnist and assistants, which may be necessary for exhibition of pyrotechnics. (e) Contractor agrees that, in the event of rain or inclement weather on one or more Exhibition Date, the City, at its discretion, may reschedule the performance of the th Services to the evening of the July 5immediately following the subject Exhibition Date,or another date suitable for Contractor to carry out the Services. Any additional reasonable and actual out-of-pocket expenses that are incurred by the Contractor due to the postponement may be added to the original contract th 4of July Fireworks Display Agreement City of Winter Springs Creative Pyrotechnics, LLC Page 2 of 10 price upon advance, written approval of the City provided, however, the total of such additional expenses shall not exceed ten (10%) percent of the price of this contract. (f) Contractor may cancel or delay the start or completion of the Services if, in its professional opinion, continuing the display would violate any laws of any governing bodies or pose any threat to human life, limb, or property. If Contractor cancels the Services pursuant to this subsection, the display shall be rescheduled by the City, at the Citys sole discretion. (g) Contractor agrees to procure, at its sole expense, any and all permits or licenses that may be required by governmental authorities. 2.2Professionalism. The Contractor shall do, perform and carry out in a professional manner all Services required to be performed by this Agreement. 2.3 Warranty of Professional Services. The Contractor hereby warrants unto the City that it has sufficient experience to properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit of any Services, the Contractor shall supervise and direct the Services, using it best skill and attention and shall enforce strict discipline and good order among it employees and agents. The Contractor shall comply with all laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on performance of the Services. The Contractor shall pay all taxes, fees, license fees required by law, including but not limited to occupational fees and withholding taxes and assume all costs incident to the Services, except as provided herein. ARTICLE 3 COMPENSATION PAYMENT TERMS 3.1Compensation. For the performance and full completion of the Services specified herein, City agrees to pay Contractor a total amount of Ten Thousand and no/100 Dollars ($10,000.00) for each display conducted pursuant to this Agreement. The City shall pay Contractor for the total amount due immediately following each completed display. There shall be no other compensation due Contractor for the Services provided under this Agreement, unless specifically agreed to by the City in writing. ARTICLE 4 GENERAL CONDITIONS OF SERVICES 4.1City Inspection . Subject to a right of appeal to the City Commission, the City Manager shall have authority to reject Services as not conforming to this Agreement. Prior to the commencement of each exhibition of the pyrotechnics, the City shall have the right, but not obligation, to inspect the fireworks to determine that the display is ready for public exhibition as required hereunder. th 4of July Fireworks Display Agreement City of Winter Springs Creative Pyrotechnics, LLC Page 3 of 10 4.2Services is a Private Undertaking. With regard to any and all Services performed hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the City and Contractor is such that the Contractor is an independent contractor and is neither an agent nor employee of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor between the City and the Contractor during or after the performance of the Services under this Agreement. 4.3. The City shall cooperate with the Contractor by: (a)on all matters concerning the Services being provided hereunder; (b)Arranging for access to public and private property by the Contractor as necessitated by the Services; (c)Providing, with the assistance of Contractor, the location of an area at Central Winds (d)Agreeing to furnish and set up rope lines and other reasonable crowd control safeguards for the protection of the public and Contractor; and (e)Agreeing to furnish ample police presence to provide crowd control for the protection of the public and Contractor. ARTICLE 5 SUBCONTRACTS; ASSIGNMENT 5.1 Assignment and Subcontracting. Unless otherwise specifically required by this Agreement, the Contractor shall not assign, sublet, or transfer any rights of Services under or interest in (including, but without limitations, moneys that may become due) this Agreement without the written consent of the City, except to the extent that any assignments, sublet, or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to any assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Further, the Contractor shall not subcontract any portion or all of the Services without the written consent of the City. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the City and the Contractor, and all duties and responsibilities undertaken pursuant to this Agreement will be the sole and exclusive benefit of the City and the Contractor and not for the benefit of any other party. 5.2 Any costs caused by defective or ill-timed Services shall be borne by the party responsible therefore. th 4of July Fireworks Display Agreement City of Winter Springs Creative Pyrotechnics, LLC Page 4 of 10 ARTICLE 6 MISCELLANEOUS PROVISIONS 6.1 Governing Law: Venue. The Contract shall be governed by the law of the State of Florida. Venue of all disputes shall be properly placed in Seminole County, Florida. The parties agree that the Agreement was consummated in Seminole County, and the site of the Services is Seminole County. If any dispute concerning this Contract arises under Federal law, the venue will be Orlando, Florida. 6.2 . The Contractor shall designate an individual to act as a representative for the Contractor under this Agreement with the authority to transmit t administrator. The Contractor may from time to time designate other individuals or delete individuals with the authority to act for the Contractor under this Agreement with the authority to transmit instructions, receive information, and make or interpret representative shall be given by written notice. 6.3Notices. All projects hereunder, all notices, demands, requests, instructions, approvals, and claims shall be in writing. All notices of any type hereunder shall be given by U.S. mail or by hand delivery to an individual authorized to receive mail for the below listed individuals, all to the following individuals at the following locations: TO THE CITY: Mr. Kevin L. Smith City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708-2799 (407) 327-5957 (Phone) (407) 327-6686 (Fax) w/copy to: Anthony A. Garganese City Attorney 111 N. Orange Avenue, Ste. 2000 P.O. Box 2873 Orlando, FL 32802-2873 (407) 425-9566 (Phone) (407) 425-9596 (Fax) TO THE CONTRACTOR: Creative Pyrotechnics, LLC 14747 Baltusrol Drive th 4of July Fireworks Display Agreement City of Winter Springs Creative Pyrotechnics, LLC Page 5 of 10 Orlando, FL 32828 (407) 233-4132 (Phone) Notice shall be deemed to have been given and received on the date the notice is physically received if given by hand delivery, or if notice is given by first class U.S. mail, postage prepaid, then notice shall be deemed to have been given upon the date said notice was deposited in the U.S. Mail addressed in the manner set forth above. Any party hereto by giving notice in the manner set forth herein may unilaterally change the name of the person to whom notice is to be given or the address at which notice is to be received. 6.4 Public Record. It is hereby specifically agreed that any record, document, computerized, information and program, audio or video tape, photograph, or other writing of the Contractor related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or the Contractor. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Contractor is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City. Upon request by the City, the Contractor shall promptly supply copies of said public records of the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours of the Contractor be open and freely exhibited to the City for the purpose of examination and/or audit. 6.5 Interpretation. Both the City and the Contractor have participated in the drafting of all parts of this Agreement. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 6.6 Amendment of Agreement. Modifications or changes in this Agreement must be in writing and executed by the parties bound to this Agreement. 6.7 Severability. If a word, sentence, or paragraph herein shall be declared illegal, unenforceable, or unconstitutional, the said word, sentence, or paragraph shall be severed from this Contract, and this Contract shall be read as if said illegal, unenforceable, or unconstitutional word, sentence, or paragraph did not exist. 6.8Additional Assurances. The Contractor certifies that: (a)No principal (which includes officers, directors, or executive) or individual holding a professional license and performing Services under this Agreement is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any Services required by this Agreement by any Federal, State, or local governmental commission, department, corporation, subdivision, or agency; (b)No principal (which includes officers, directors, or executive), individual holding a professional license and performing Services under this Agreement, employee, th 4of July Fireworks Display Agreement City of Winter Springs Creative Pyrotechnics, LLC Page 6 of 10 or agent has employed or otherwise provided compensation to, any employee or officer of the City; and (c)No principal (which includes officers, directors, or executive), individual holding a professional license and performing Services under this Agreement, employee or agent has willfully offered an employee or officer of the City any pecuniary or other benefit with the intent to influence the employee or off or judgment. 6.9 . Should any litigation arise concerning this Agreement between the 6.10 Entire Agreement. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, or Agreements, either oral or written, and all such matters shall be deemed merged into this Agreement. 6.11 Sovereign Immunity. Notwithstanding any other provision set forth in this Agreement, sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the al liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, the City shall not be liable for any claim or judgment, or portion thereof, to any one person for more than two hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of three hundred thousand dollars ($300,000.00). This paragraph shall survive termination of this Agreement. ARTICLE 7 TIME 7.1 Time is the Essence. The Contractor acknowledges and agrees that time is of the essence for the completion of the Services to be performed under this Agreement. ARTICLE 8 PROTECTION OF PERSONS AND PROPERTY: INSURANCE 8.1 . Upon the effective date of this Agreement, Contractor shall surance in the minimum amount required by law (if required). 8.2 Professional Liability/Malpractice General Liability. Upon the effective date of this Agreement, Contractor shall submit proof of general liability insurance to cover claims for general liability because of bodily injury or death of any person or property damage arising out of this Agreement or any Services provided hereunder. The insurance shall have minimum amount of coverage of $ 1,000,000.00 per occurrence. th 4of July Fireworks Display Agreement City of Winter Springs Creative Pyrotechnics, LLC Page 7 of 10 8.3 Insurance Requirements. This paragraph shall be applicable to Sections 8.1 and 8.2. The insurance required by this Article shall include the liability and coverage provided herein, or as required by law, whatever requirements afford greater coverage. All of the policies of insurance so required to be purchased and maintained for the certificates (or other evidence thereof) shall contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or renewal refused until at least thirty (30 given to the City and the Contractor by certified mail, return receipt requested. All such insurance shall remain in effect until final payment. Unless agreed to by the City to the contrary, the City shall be named o Contractor shall cause its insurance carriers to furnish insurance certificates specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a written notice to the City in compliance with other provisions of this Agreement. All insurance Contractor shall continuously maintain such insurance in the amounts, type, and quality as required by Sections 8.1 and 8.2. In the event Contractor fails to maintain said insurance, City, at its option, may elect to terminate this Agreement without penalty by written notice to Contractor. 8.4 Indemnification and Hold Harmless. For all Services performed pursuant to this Agreement, the Contractor agrees to the fullest extent permitted by law, to indemnify and hold harmless the City and its employees, officers, and attorneys from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable Services provided pursuant to this Agreement. The indemnification provided above shall obligate the Contractor to defend at its own expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of or its employees, officers, and attorneys which may result from the Services under this Agreement whether the Services be performed by the Contractor or anyone directly or indirectly employed by them. In all events the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be reasonable and subject to and included with this indemnification provided herein. This paragraph 8.4 shall survive termination of this Agreement. 8.5 Standard of Care. In performing its Services hereunder, the Contractor will use that degree of care and skill ordinarily exercised, under similar circumstances by reputable members of its profession practicing in the same or similar locality. ARTICLE 9 TERMINATION OF THE CONTRACT 9.1 Termination By City. This Agreement may be terminated by mutual written agreement between the parties. Further, the City may terminate this Agreement for convenience, at any th 4of July Fireworks Display Agreement City of Winter Springs Creative Pyrotechnics, LLC Page 8 of 10 time, without penalty, by providing written notice of termination to Contractor. However, to the extent Services have been performed by Contractor, the City shall pay the Contractor, as full payment for all Services performed and all expenses incurred, the sums that are actually due and the termination date, along with reimbursable expenses (if any) as provided in this Agreement, provided the amount will not exceed the annual contract price as provided in paragraph 3.1 above. Any payment due shall be subject to the Contractor supplying the City with detailed invoices as described in this Agreement. Upon notice of termination, the Contractor shall cease all Services being provided hereunder unless otherwise directed by City in writing. 9.2 Waiver. Failure of the City to insist upon performance within any time period or upon a failure to perform on the part of the Contractor. ARTICLE 10 TERM OF AGREEMENT 10.1 Term. The term of this Agreement shall commence upon full execution of this Agreement by both parties hereto and, unless otherwise extended pursuant to this section, shall terminate at such time Contractor has fully performed all the Services required by this Agreement to the complete satisfaction of the City and all claims made pursuant to this Agreement have been fully settled or the statute of limitations for bringing such claims has expired. 10.2 Extension of Term. The term of this Agreement may be extended for three (3) additional one-year terms by mutual written agreement of both parties hereto. IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their duly authorized representatives as of the date first written above. CITY: City of Winter Springs, Florida, a Florida municipal corporation. WITNESSES ________________________________ Kevin L. Smith, City Manager ________________________________ Dated: __________ Print Name:____________________________ ______________________________ Print Name:_____________________________ th 4of July Fireworks Display Agreement City of Winter Springs Creative Pyrotechnics, LLC Page 9 of 10 CONTRACTOR: WITNESSES Creative Pyrotechnics, LLC, a Florida limited liability company. ________________________________ _______________________________ Print Name:____________________________ Elwood J. Weppel IV, Managing Member ________________________________ Dated: ___________ :________________________ Print Name th 4of July Fireworks Display Agreement City of Winter Springs Creative Pyrotechnics, LLC Page 10 of 10