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Home My WebLink About2019- ContractPROFESSIONAL SERVICES AGREEMENT THIS PROFESSION*SERVICES AGREEMENT ("Agreement") is made and entered into this the �O 7� day of / , 2019 by and etween: CITY OF SEBASTIAN, FLORIDA (hereinafter "CITY") AND Xtreme FX LLC (hereinafter "CONTRACTOR") IN CONSIDERATION of the mutual covenants and undertakings and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do mutually covenant and agree as follows: SCOPE OF SERVICES CONTRACTOR shall fumish to the CITY one (1) twenty (20) minute fireworks display, including shells ranging from 1.5-6 inches as shown in EXHIBIT A from the CONTRACTOR, in the City of Sebastian on the evening of July 4, 2019, at a location determined by the CITY. Should inclement weather prevent the presentation of this display on the above mentioned date, the parties shall agree to a mutually convenient alternate date, within six (6) months of the original display date. The determination to postpone the show because of inclement or unsafe weather conditions shall rest within the sole discretion of the CONTRACTOR and/or the Fire Marshal. 1.1 Permits and Licenses CONTRACTOR shall be responsible for acquiring all necessary permits/licenses required. 1.2 Materials & Personnel CONTRACTOR agrees to furnish all necessary fireworks display materials and personnel for fireworks display in accordance with the program approved by the parties. 2. CITY TO PROVIDE: 2.1 Display Set Back Sufficient area for the display, including a minimum spectator set back at all points from the discharge area as approved by the Fire Marshal. 2.2 Blast Zone Protection Protection of the display area by fencing, roping off or similar measure and adequate protection to prevent unauthorized entry. The blast area will be closed to all personnel except for the fireworks company, emergency personnel (fire/police as required) or others deemed essential by the fireworks company a minimum of 45 minutes prior to the show start and until cleared by the Fire Marshal A search of the fallout area the morning following the night when the demonstration described herein occurred. 3. ASSIGNMENT CONTRACTOR shall not assign, or transfer its rights, title or interests in the Agreement nor shall CONTRACTOR delegate any of the duties and obligations undertaken by CONTRACTOR without CITY'S priorwriden approval. 4. TERM OF AGREEMENT This Agreement shall become effective upon execution by both parties from the date of execution. itials 1 City Initials Any terms or conditions of this Agreement that require acts beyond the date of the term of this Agreement, including, but not limited to Section 11, Indemnification, shall survive termination of this Agreement and shall remain in full force and effect unless and until the terms or conditions are completed and shall be fully enforceable by either party. COMPENSATION CONTRACTORS total compensation for services shall be the sum of $25,000.00. CONTRACTOR shall submit an invoice to: City of Sebastian Leisure Services Department 1225 Main Street Sebastian, FL 32958 5.1 Deposit With respect to the 2019 fireworks display, a deposit of fifty percent (50%) of the total amount shall be made by the CITY within two weeks after the execution of the Agreement, and after receipt and approval of the invoice by the Director of Leisure Services. The balance shall be payable on the date of the show at the completion of the fireworks. 5.2 Postponement If the fireworks display is postponed in accordance with Section 5.1, CONTRACTOR shall retain the fifty percent (50%) deposit previously paid by the CITY. Additionally, the balance shall be payable on the date of the re -scheduled show. If the show cannot be rescheduled the deposit will be applied as a credit to the following year. The CITY agrees to pay the CONTRACTOR a nominal fee, not to exceed $2,000, for expenses related to additional labor and travel costs. CONTRACTOR must submit receipts and documentation. 6. RELATIONSHIP OF THE PARTIES It is further agreed and mutually understood that nothing in this Agreement shall be constructed or interpreted to mean a partnership, both parties being hereto responsible for their separate and individual debts and obligations, and neither party shall be responsible for any agreements not stipulated in this Agreement. The parties hereto do mutually and severally guarantee terms, conditions, and payments of this Agreement, these articles to be binding upon parties, themselves, their heirs, executors, administrators, successors and assigns. 6.1 Independent Contractor CONTRACTOR, its personnel, subcontractors, volunteers and agents shall be and remain independent contractors and not agents or employees of CITY with respect to the acts and services performed by and under the terms of this Agreement. This Agreement shall not in any way be construed to create an employer/employee relationship, a partnership association, joint venture or undertaking between the parties. 62 No Benefits: Neither CONTRACTOR nor any of its employees, subcontractors, volunteers and agents shall receive or be entitled to any benefits afforded to CITY employees. 6.3 Taxes and Other Employment Levies: CITY shall not be responsible for reporting or paying to CONTRACTOR employment taxes or other similar levies which may be required by federal or state law. 6.4 Control of Work: CONTRACTOR shall control the manner, means and procedures used in providing the services set out in this Agreement. DUTY TO USE REASONABLE CARE FOR ACCIDENT PREVENTION: CONTRACTOR shall exercise reasonable care and precaution at all times for the protection of persons and property at the premises provided under this Agreement. 8. LANDOWNER For the purpose of this Agreement, LANDOWNER is defined as the owner of real property used, controlled or operated by the CONTRACTOR for any and all firework displays, operations or activities arising from this AZ,,, itials 2 City Initials TAXES CONTRACTOR shall pay all applicable sales, consumer, use and other similar taxes required by law. 10. LICENSE FEES AND ROYALTIES CONTRACTOR shall pay all license fees and royalties and assume all costs arising out of or from the use of any invention, design, process, product or device which is the subject of patents rights of copyrights held by others and used in the performance of the work which is the subject of this Agreement, except those items specifically provided by the CITY. 11. INDEMNIFICATION 11.1 Indemnification To the fullest extent permitted by law, the CONTRACTOR agrees to indemnify, defend and hold harmless the CITY from and against all claims, damages, losses, and expenses, including but not limited to attorneys' fees, court costs, or other alternative dispute resolution costs arising out of or resulting from the performance of work under this Agreement (1) provided that any such claims, damages, losses or expenses are attributable to bodily injury, sickness, disease, death, or personal injury, or property damage, and (2) are caused in whole or in part by the tortious acts, negligent acts, errors, or omissions of the CONTRACTOR, CONTRACTOR'S subcontractor(s), or anyone directly or indirectly employed or hired by CONTRACTOR or anyone for whose acts CONTRACTOR may be liable, REGARDLESS OF WHETHER OR NOT CAUSED IN PART BY THE CITY. The CITY reserves the right, but not the obligation, to participate in the defense without relieving CONTRACTOR of any obligation hereunder. CONTRACTOR agrees this indemnity obligation shall survive the completion or earlier termination of the Agreement. 11.2 Sovereign Immunity Nothing contained in this agreement shall be deemed to waive or otherwise surrender the sovereign immunity or other governmental immunities enjoyed by the CITY pursuant to Section 768.28, Florida Statutes, or otherwise recognized by law. 12. INSURANCE 12.1 Insurance CONTRACTOR agrees to maintain, on a primary noncontributory basis and at its sole expense, at all times during the life of this Agreement the following insurance coverages, limits, including endorsements described herein. The requirements contained herein, as well as CITY'S review or acceptance of insurance maintained by CONTRACTOR is not intended to and shall not in any manner limit or qualify the liabilities or obligations assumed by CONTRACTOR. Any coverage maintained by the CITY shall apply excess of, or contingent upon the absence of, insurance required or maintained by CONTRACTOR. 122 Commercial General Liability CONTRACTOR agrees to maintain Commercial General Liability at a limit of liability not less than $5,000,000 Each Occurrence. Coverage shall not contain any endorsement(s) excluding nor limiting Product/Completed Operations, Contractual Liability or Separation of Insureds. 12.3 Commercial Umbrella/Excess Liability CONTRACTOR agrees to maintain either a Commercial Umbrella or Excess Liability at a limit of liability not less than $4,000,000 Each Occurrence $4.000,000 Aggregate. The CONTRACTOR agrees to endorse the CITY and OTHER ADDITIONAL INSUREDS listed in Section 12.5 below on the Commercial Umbrella/Excess Liability, unless the Commercial Umbrella/Excess Liability provides coverage on a purettrue follow -form basis, or the CITY and OTHER ADDITIONAL INSUREDS are automatically defined as an Additional Protected Persons by virtue of Additional Insured endorsements to the underlying liability policy. The CONTRACTOR agrees any Self -Insured -Retention or deductible shall not exceed $25,000- 12.4 Worker's Compensation Insurance & Employers Liability The CONTRACTOR agrees to maintain its own Worker's Compensation & Employers Liability Insurance in accordance with Chapter 440, Florida State Statutes. 12.5 Additional Insured The CONTRACTOR agrees to endorse the CITY and their respective officers, directors, agents, and employees" (collectively referred to hereinafter as "OTHER ADDITIONAL INSUREDS") on the Commercial General Liability with the following, or similar end Taisls ant providing equal or broader Additional Insured coverage, the CG 2026 07 04 or 2026 0413 Additional Insured 3 City Initials - Designated Person or Organization endorsement; or alternatively the CG20 10 07 04 or GC 2010 04 13 Additional Insured - Owners, Lessees, or Contractors endorsement, including the additional endorsement of GC2037 04 13 Additional Insured - Owners, Lessees, or Contractors - Completed Operations shall be required to provide back coverage for the contractors "your work" as defined in the policy and liability arising out of the productscomplated operations hazard. The certificate of insurance for the CITY as additional insured shall read ("City of Sebastian, Florida"), at the address in Section 12.7 below. 12.6 Waiver of Subrogation CONTRACTOR agrees by entering into this Agreement to a Waiver of Subrogation for each required policy herein. When required by the insurer, or should a policy condition not permit CONTRACTOR to enter into a pre -loss agreement to waive subrogation without an endorsement, then CONTRACTOR agrees to notify the insurer and request the policy be endorsed with a Waiver of Transfer of Rights of Recovery Against Others, or its equivalent. This Waiver of Subrogation requirement shall not apply to any policy, which includes a condition specifically prohibiting such an endorsement, or voids coverage should CONTRACTOR enter into such an agreement on a pre -loss basis. 12.7 Cerhficate(s) of Insurance CONTRACTOR agrees to provide the CITY certificates of insurance evidencing that all coverages, limits and endorsements required herein are maintained and in full force and effect. Said Certificate(s) of Insurance shall provide a minimum thirty (30) day endeavor to notify, when available by CONTRACTOR'S insurer. If the CONTRACTOR receives a non -renewal or cancellation notice from an insurance carrier affording coverage required herein, or receives notice that coverage no longer complies with the insurance requirements herein, CONTRACTOR agrees to notify the CITY and the OTHER ADDITIONAL INSUREDS by fax or email within five (5) business days with a copy of the non -renewal or cancellation notice, or written specifics as to which coverage is no longer in compliance. The Certificate Holders' address and fax numbers or email addresses are as follows Original to City of Sebastian Attn: Leisure Services Director 1225 Main Street Sebastian, FL 32958 12.8 Right to Revise or Reject CITY reserves the right, but not the obligation, to revise any insurance requirement, not limited to limits, coverage and endorsements, or to reject any insurance policies which fail to meet the criteria stated herein. Additionally, CITY reserves the right, but not the obligation, to review and reject any insurer providing coverage due of its poor financial condition or failure to operating legally. 13. WARRANTIES CONTRACTOR warrants to CITY that it shall comply with all applicable federal, state, and local laws, regulations and orders in carrying out its obligations under the Agreement. CONTRACTOR warrants to CITY that it is not insolvent, it is not in bankruptcy proceedings or receivership, nor is t engaged in or threatened with any litigation or other legal or administrative proceedings or investigations of any kind which would have an adverse effect on its ability to perform its obligations under the Agreement. Should CONTRACTOR be determined to be in any condition listed within this paragraph, CITY has the right to terminate this Agreement without notice, shall be entitled to a return of its deposit in full, and shall be entitled to all available remedies to cover. 14. TERMINATION 14.1 Termination for Convenience of CITY This Agreement may be terminated by the CITY without cause upon sixty (60) days' written notice to the CONTRACTOR 15. CLEANING UP CONTRACTOR shall be provided with activity space while utilizing LANDOWNER'S or CITY'S premises. CONTRACTOR shall keep the premises free from accumulation of waste material or rubbish caused by the provision of the services set out in Section I . At the completion of the event, CONTRACTOR shall remove all waste materials and rubbish from or about the premises as well as all equipment, and materials and return the space to a condition suitable for use by LANDOW;City ER CITY. I 4 s 16. ADVERTISEMENTS Requests for signs or advertisements of any kind shall be directed to the Director of Leisure Services who will work with the Director of the CITY'S Community Development Department in obtaining any necessary approvals for such signs or advertisements. Posters and/or flyers advertising any programs shall be approved in advance, in writing by the Director of Leisure Services or designee. 17, PUBLIC RECORDS The CONTRACTOR shall comply with all applicable requirements contained in the Florida Public Records Law (Chapter 119, Florida Statutes), including but not limited to any applicable provisions in Section 119.0701, Florida Statutes. To the extent that the CONTRACTOR and this Agreement are subject to the requirements in Section 119.0701, Florida Statutes, the CONTRACTOR shall: (a) keep and maintain public records required by the CITY to perform the services provided hereunder, (b) upon request from the CITY'S custodian of public records, provide the CITY with a copy of the requested records or allow public records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law; (c) ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law for the duration of the term of this Agreement and following completion of this Agreement if the CONTRACTOR does not transfer the records to the CITY; and (d) upon completion of the Agreement, transfer, at no cost, to the CITY all public records in the possession of the CONTRACTOR or keep and maintain public records required by the CITY to perform the service. If the CONTRACTOR transfers all public records to the CITY upon completion of the Agreement, the CONTRACTOR shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the CONTRACTOR keeps and maintains public records upon completion of the Agreement, the CONTRACTOR shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the CITY, upon request from the CITY'S custodian of public records, in a format that is compatible with the information technology systems of the CITY. If the CONTRACTOR fails to comply with the requirements in this Section 17, the CITY may enforce these provisions in accordance with the terms of this Agreement. If the CONTRACTOR fails to provide the public records to the CITY within a reasonable time, it may be subject to penalties under Section 119.10, Florida Statutes. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, THE CONTRACTOR SHOULD CONTACT THE CITY'S CUSTODIAN OF PUBLIC RECORDS: THE CITY CLERK, JEANETTE WILLIAMS, BY TELEPHONE (772388-8215), E-MAIL (JWILLIAMS@CITYOFSEBASTIAN.ORG), OR MAIL (CITY OF SEBASTIAN, OFFICE OF THE CITY CLERK, 1225 MAIN STREET, SEBASTIAN, FLORIDA 32958). 18. SAFETY The CONTRACTOR shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the work. The CONTRACTOR shall comply with the standards set forth in the Occupational Safety and Health Act of 1970 (OSHA) and their amendments. The CONTRACTOR shall take all reasonable precautions for the safety of and shall provide all reasonable protection to prevent damage, injury or loss to: (a) All employees on the work site and all other persons who may be affected thereby. (b) The work and all materials and equipment. (c) Other property at the site or adjacent to the site, including trees, shrubs, lawns, walks, pavements, structures and utilities not designated for removal, relocation or replacement in the course of the work. 19. NON -EXCLUSIVITY This Agreement is considered a non-exclusive agreement between the parties. The CITY shall have the right to purchase the same kind of services to be provided by CONTRACTOR from other sources during the term of this Agreement. 20. PUBLIC ENTITY CRIMES Pursuant to Section 287.133, Florida Statutes, a person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity; may not submit a bid, proposal, or reply on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids, proposals, or replies on leases of real property to a u i entity; may not be awarded or (' JOttials 5 ty I perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity; and may not transact business with any public entity in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO for a period of 36 months following the date of being placed on the convicted vendor list By execution of this Agreement, CONTRACTOR certifies that it has not been placed on the convicted vendor list as provided in Section 287.133, Florida Statutes. 21. DISCRIMINATORY VENDOR LIST Pursuant to Section 287.134, Florida Statutes, an entity or affiliate who has been placed on the discriminatory vendor list may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity; may not submit a bid, proposal, or reply on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids, proposals, or replies on leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant undera contract with any public entity; and may not transact business with any public entity. By execution of this Agreement, CONTRACTOR certifies that it has not been placed on the discriminatory vendor list as provided in Section 287.134, Florida Statutes. 22. SCRUTINIZED COMPANY Pursuant to Section 287.135, Florida Statutes, CONTRACTOR certifies that it is not on the Scrutinized Companies that Boycott Israel List created pursuant to Section 215.4725, Florida Statutes and that it is not engaged in a boycott of Israel. Pursuant to Section 287.135, in the event the Agreement is for one million dollars or more, CONTRACTOR certifies that it is not on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroteum Energy Sector List created pursuant to Section 215.473, Florida Statutes; and CONTRACTOR further certifies that it is not engaged in business operations in Cuba or Syria. Pursuant to Section 287.135, Florida Statutes, City may, at the option of the City Commission, terminate this Agreement if CONTRACTOR is found to have submitted a false certification as provided under subsection 287.135(5), Florida Statutes; has been placed on the Scrutinized Companies that Boycott Israel List, or is engaged in a boycott of Israel; has been placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List; or has been engaged in business operations in Cuba or Syria. 23. NON-DISCRIMINATION No person, on the grounds of race, color, national origin, religion, age, sex, gender identity, sexual orientation, disability/handicap, or family or income status shall be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination. 24. GOVERNING LAW; VENUE This Agreement shall be governed by the laws of the State of Florida. Except as set forth in Section 11, should the parties be involved in legal action arising under, or connected to this Agreement, each party will be responsible for its own attomeys' fees and costs. The venue for any litigation will be Indian River County, Florida. Both parties hereby waive a jury trial and will proceed to a trial by judge, if necessary. 25. ENTIREAGREEMENT This Agreement contains the entire understanding of the parties relating to the subject matter superseding all prior communications between the parties whether oral or written. This Agreement may not be altered, amended, modified or otherwise changed nor may any of its terms be waived, except by a written instrument executed by both parties. The failure of a party to seek redress for violation of or to insist on strict performance of any of the covenants of this Agreement shall not be construed as a waiver or relinquishment for the future of any covenant, tern, condition or election but the same shall continue and remain in full force and effect. 26. CUMULATIVE REMEDIES The remedies expressly provided in this Agreement to CITY shall not be deemed to be exclusive but shall be cumulative and in addition to all other remedies in favor of CITY now or in the future existing at law or in equity. 27. SEVERABILITY Should any part, term of provision of this Agreement be by the courts decided to be invalid, illegal or in conflict with any law of this state, the validity of the remaining portions or provisions shall not be affected. Is s 6 City Initials 28. PARAGRAPH HEADINGS All paragraph headings in this Agreement are included for convenience only and are not to be construed as a part hereof or in any way as limited or expanding the terms set out in this Agreement. 29. NOTICES All notices or other communications required by this Agreement shall be in writing and deemed delivered upon hand delivery or upon mailing by certified mail, return receipt requested or overnight mail, to the following persons and addresses: CITY: Leisure Services Department 1225 Main Street Sebastian, FL 32958 With copy to: City Attorney City Attorney's Office City of Sebastian 1225 Main Street Sebastian, FL 32958 CONTRACTOR: Xtreme FX LLC Ryan Pedraza 20416 Loretta Ave. Port Charlotte, FL 33954 (800)695-9739 7 IN WITNESS WHEREOF, the parties have made and executed this cp the respective dates under each sign �t re: THE CITY, s' n1'pg by and through its duly autdrized representative on the � day of 'ffi / ,2019. CITY Cirf of stian. By: P Carlisle City %tanager ATTE' Jeanett A; liams, :M1"IC Clhr C!e (SEAL) Approved to as Form and Legality for Reliance iy the es,�i ngnJy- By. Jame . Stokes City Attorney CONTRACTOR: Xtrame FX, I ^ r.. Sig ai � V BY:v',(t`;1 Print Name Signed, sed d nd d4lered in )ye presancAf 1�IinIlo�L' Liss Ann Heasley t(7c41Y Notary Public VVV ��/// State of Florida (NOTARY/) My Commission Expires 02/20/2022 ��/// Commission No. GG 167973 �amtausio r� uo aw aao woms,p ussgng {e /aunwJ P� I -tc G 10a1111S 'f, kiinitiats IN WITNESS WHEREOF, the parties have made and executed this - 7:e reseectve dams ;,nder each signs THE CITY, s ni by nd through its duly autorized representative on I he /lJ�l day of /?Y� • / ,2019. CITY City of Seb r 6y PaAnage, le Cit -1 . — �iz ,iaanetTe4 , . CiFJ Clerk (SEAL) Approved to as Form and Legality for Reliance by the C Dy James tokes City Attorney CONTRACTOR Xtrerne FX LLQ Sg�at r� Print Name S:gneo. sekjkd 9no 04-lered in lye creserAf --H4Q ffL Lisa Ann Haseley NAME/ '�� Notary Public State of Florida (NOTARY) My Commission Fxplrea 02/20/2022 Commission No. GG 187973 (8)MRIJ8lS "V . eW aq t„oats ns If io kunoo oz�r r,4 Q w et9ls