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HomeMy WebLinkAboutCreative Pyrotechnics, LLC July 4th Fireworks Display Agreement- 2013, 2014, & 2015 2013, 2014, 2015 FOURTH OF JULY FIREWORKS DISPLAY AGREEMENT THIS AGREEMENT is made this�4`—�day of ��r� � , 2013 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 CREATIVE PYROTECHNICS, LLC, a Florida limited liability company, whose address is 14747 Baltusrol Drive, Orlando, Florida 32828 ("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 Creative Pyrotechnics, LLC, a Florida limited liability company, 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 Chapter 119, Florida Statutes. (� "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 Agreement for the stated fee arrangement. No prior or 4`h of July Fireworks Display Agreement City of Winter Springs—Creative Pyrotechnics,LLC Page 1 of 10 t 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 (a1k/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) or (� 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 Exhibit "A", attached hereto and incorporated herein. The e�ibition 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�' of July fireworks event. The score shall be provided to the City far review and approval, at the City's sole discretion, no later than June 1 S`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 E�ibition Date, the City, at its discretion, may reschedule the performance of the Services to the evening of the July 5�' immediately 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 4`h of July Fireworks Display Agreement City of Winter Springs—Creative Pyrotechnics,LLC Page 2 of]0 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. (fl 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 City's sole discretion. (g) Contractor agrees to procure, at its sole expense, any and all permits or licenses that may be required by governmental authorities. 2.2 Professionalism. The Contractor shall do, perform and carry out in a professional manner all Services required to be performed by this Agreement. 2.3 Warrantv of Professional Services. The Contractor hereby warrants unto the City that it Y�as sufficient experience to properly complete the Services specified herein or as may be per:formed 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 goc�d 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) 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 mo 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 Citv 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 connmencement 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 e�ibition as required hereunder. 4`h of July Fireworks Display Agreement City of Winter Springs—Creative Pyrotechnics,LLC Page 3 of 10 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 uncier this Agreement. 4.3 Citv's Resqonsibilities. 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 Contractar, 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 Assi�nment 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 traaisfer 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 res�ponsible therefore. 4`h of 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 Senninole County. If any dispute concerning this Contract arises under Federal law, the venue will be Orlando, Florida. 6.2 Contractor's Renresentative. 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: Creative Pyrotechnics, LLC 14747 Baltusrol Drive 4�h of July Fireworks Display Agreement City of Winter Springs—Creative Pyrotechnics,LLC Page 5 of 10 Orlando, FL 32828 (407) 233-4132 (Phone) No�ice 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 mamner 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 tlus 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 Contractar 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, an� 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 Severabilitv. 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 wo�rd, 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, deparhnent, 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, 4`h of July Fireworks Display Agreement City of Winter Springs—Geative 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 officer's official action or judgment. 6.9 Attornev's Fees. Should any litigation arise concerning this Agreement between the panties 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. Notwithstanding any other provision set forth in this Agreement, nofhing 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 Cit;y'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 Cit:y 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 ($300,000.00). This paragraph shall survive termination of this Agreement. ARTICLE 7 TIME 7.1 Time is the Essence. The Contractor acknowledges and agrees that time is of the ess��nce for the completion of the Services to be performed under this Agreement. ARTICLE 8 PROTECTION OF PERSONS AND PROPERTY: INSURANCE 81 Worker's Compensation. Upon the effective date of this Agreement, Contractor shall provide proof of worker's compensation insurance in the minimum amount required by law (if required). 8.2 Professional Liabilitv/Malpractice General Liabilitv. Upon the effective date of this Ag:reement, Contractor shall submit proof of general liability insurance to cover claims for general liability because of bodily injury or death of any person or property damage arising out of this Agreement or any Services provided hereunder. The insurance shall have minimum amount of coverage of$ 1,000,000.00 per occurrence. 4`h of 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 thereo� shall contain a provision or endorsement that the coverage afforded will not be canceled, mat:erially 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 inst�rance 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 Coutractor 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 82. 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 Ag��eement, 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 attarney'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 Agr.eement. 8.5 Standard of Care. In performing its Services hereunder, the Contractor will use that deg;ree 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 Terminallon Bv Citv. This Agreement may be terminated by mutual written ageement bet�ween the parties. Further, the City may terminate this Agreement for convenience, at any 4`h of 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 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 annual contract price as provided in paragraph 3.1 abc+ve. 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 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 101 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 corpo tion. WITN SES � � Kev' . S ' , ity 1V�;�rag€r Print Name: � /�' Da ed: y Z �!7 � C Print Name: ��/Q,��fiVGrl•� 4`h of July Fireworks Display Agreement City of Winter Springs—Creative Pyrotechnics,LLC Page 9 of 10 CONTRACTOR: WITNESSES Creafive Pyr techni LLC, , a Flari i i ed liabi i company. ��� � Print Name: �!'f'�/'r �.�,G�^� � Elwood . eppel �,Ma iu�Member �-,��-�� �� Dated: PrintName: ��.✓,� /�.,,z�rt/•x/�'�- 4`h of July Fireworks Display Agreement City c�f Winter Springs—Creative Pyr�atechnics,LLC Page 10 of 10 Exhibit A � CREATIVE � � PYROTECH N ICS ORLANDO , FLORIDA Phone: 407-234-0270 Fax: 407-826-5179 www.creative�,vro.com Winter S�rings Celebration of Freedom Pro�osal 4`h of July Fireworks Dispiny 2013, 2014 � 2015 A. Shell Count ✓ A total of 2,329 Display Shells will be provided for this Display. The Shell Count is as follows: 1.5/2": 1,600 2.5"/3": 350 4": 180 5": 124 6": 75 B. Shell Brands, Specialty Shells, Pattern Shells ✓ All Shells included in the Display will be of the following brands: Lidu-Very High Quality Chinese Display Shells Vulcan-Highest Quality Premium Brand Chinese Display Shells Yun -g Feng-Japanese Display Shells Euro-Color-European Display Shells Caballer- Spanish Display Shells LaRosa- Italian Display Shells ✓ Specialty Shells will be included in the display. Several of the effects included are: Pixie Dust Willow- (Shimmering Giant Willows with Color Pistils) Nishiki Kamuro-Japanese Willows Falling Leaves- (Cluster of Stars Slowly Falling Towards the Ground) ✓ Pattern Shells will be included in the Display. Several of the effects included are: Star- (Five Pointed Star in Spangle Circle) Rin�- (Full Circle Pattern Cluster of Stars) Starfish- (Actual Starfish Pattern Shell with Color Center) C. Length of Display ✓ Display will last a FULL 18-20 Minutes. Breakdown of Each Segment of Display is noted Below: D. Opener of Show ✓ 30 second Length of Opener ✓ Entire Opener of Display will be electronicallv fired. ✓ 229 Shells will be used in the opener of the display 1.5/2": 180 2.5"/3": 30 4": 12 5": 4 6": 3 E. Body of Show ✓ 17-19 Minute Length of Main Body ✓ Entire body of Display will be electronicallv fired. ✓ 1,612 Shells will be used in the body of display. 1.5/2": 1,210 2.5"/3": 120 4": 118 5": 112 6": 52 F. Finale of Show ✓ 30 second Grand Finale ✓ Finale of Display will be electronicallv fired. ✓ 488 Shells will be used in the finale of display 1.5/2": 210 2.5"/3": 200 4": 50 5": 8 6": 20 ✓ Display will feature a three feature Finale: 1 S`Feature: Color Shells Finale 2"d Feature: Red, White, & Blue Finale 3`a Feature: Salute Finale G. Choreography ✓ 18-20 Minute Display will have a uniyue Soundtrack/Music Score that is appropriate for the occasion. ✓ Soundtrack will be mastered and created by Creative Pyrotechnics. ✓ Soundtrack will be provided by June lg`,2013. H. Equipment/Materials/Personnel Provided ✓ Professional and Qualified Technicians to Setup Display ✓ Certified and Qualified Shooter to Fire Display ✓ Digital Firing System and Modules ✓ All Racks,Nails, Lumber, Materials, etc. ✓ Professional and Qualified Technicians to Tear-Down Display ✓ Fireworks Permit ✓ Transportation ✓ Fuel ✓ Food ✓ Any other Miscellaneous Costs. I. Equipment/Materials/Personnel NOT Provided ✓ Sound System to Play Music Score J. Liability Insurance ✓ $5,000,000.00 General Liability Insurance will be provided by Creative Pyrotechnics for display. ✓ $5,000,000.00 Auto Liability Insurance will be provided by Creative Pyrotechnics for display. ✓ The City of Winter Springs, FL will be named as additional insured for display. K.CostlBudget � 2013, 2a14, 2015 4th af July Firework Display(s). $12,500.0� valued display each year �2,,5Q0 40� In-I�ind s�onsorshi� from Creative PXrotechnics each year $10,400.00 Total Cast ta City each year Propasal Created and Autharized on 111612Q13 by; E.J. We��el Title: President