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HomeMy WebLinkAboutContractPROFESSIONAL SERVICES AGREEMENT FIREWORKS DISPLAY { This Agreement is entered into by the parties this .J . day of U'.(MLII K I .2019 1. Parties: City of Sebastian, a municipal corporation of the State of Florida, (City). and Xtreme FX LLC (Contractor). 2. Designated Contact Person as to City: 3. Designated Contact Person "to Contractor. Brian Benton, CPRP Nicole Johnson Leisure Services Director Show Producer 1225 Main Street 992 Tamiami Trail, E2 Sebastian, Florida 32958 Port Charlotte, FL 33953 Phone: 772-228-7057 Phone: 800-695-9739 Cell: 772-205-7560 Cell: 865-560-6087 Email: bbenton@cityofsebastian.org Email: nicolej@jxtmmespecialeffects.com 4. Term of Agreement. The term of the Agreement shall be for three (3) years from the date of execution, unless otherwise terminated earlier as provided in Section 20. This agreement may be extended by mutual agreement for two (2), one (1) year periods. Notification of a price change should be communicated within 120 days prior to the anniversary date of this agreement. S. Scope of Services. Contractor shall furnish to the City one (1) fireworks display on the evening of July 4 of each year the agreement is active at a show minimum of fifteen (15) minutes, including shells ranging from 1.5-6 inches in the City of Sebastian, at a location determined by the City. Contractor shall also provide fireworks display services for special occasions as requested by the City, in accordance with prices proposed in EXHIBIT A. Should inclement weather prevent the presentation of this display on the above mentioned date, refer to Section 16.2 and 18. S. Contractor to Provide: a) Permits, Licenses & Royalties. Contractor shall be responsible for acquiring all necessary permits/licenses required to provide services in accordance with the terms and conditions herein. 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 tams specifically provided by the City. b) Materials & Personnel. Contractor agrees to furnish all necessary materials and personnel for fireworks display in accordance with the program approved by the parties. City of Sebastian, Florida / Xbeme FX LLC Initial Fireworks Display Page 1� 7. City to Provide: a) 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. b) Blast Zone Protection. Protection of the display area by fencing, roping off or similar measure and adequate protection to prevent unauthorized entry. The blest area will be closed to all personnel except for Xtreme FX LLC, emergency personnel (firelpolice as required) or others deemed essential by Xtreme FX LLC, a minimum of 45 minutes prior to the show start and until cleared by the Fire Marshal. c) Fallout Area. A search of the fallout area the morning following the night when the demonstration described herein occurred. d) Overnight Security, if applicable. Overnight Security will be required for multiple day setups due to the complexity and size of the show. The City will provide overnight security (Security Company, Police, etc.) from the time Contractor leaves he site to the time Contractor arrives back to site, generally a 12-hour shift. Contractor will communicate the times with the City to allow for scheduling. 8. Notices. All notices between City and Contractor, as required under the Agreement, shall be by telephone, facsimile, e-mail, mail, or by personal delivery to the respective designated contact person identified above. Either designated recipient may notify the other, in writing, if someone else is designated to receive notice. 9. Modification of Agreement The Agreement may only be modified or amended upon mutual written agreement of City and Contractor. No oral agreements or representations shall be valid or binding upon City or Contractor. No alteration or modification of the Agreement terms, including substitution of product, shall be valid or binding unless approved by the City. Contractor may not unilaterally modify the terms of the Agreement by affixing additional terms by incorporating such terms onto Contractor's documents forwarded by Contractor to City for payment. City's acceptance of product or processing of documentation on forms furnished by Contractor to City for approval or payment shall not constitute acceptance of the proposed modification to terns and conditions. 10. 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 prior written approval from the City. 11. 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. 11.1 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 terns 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. 11.2 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. 11.3 Texas 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. 11.4 Control of Work. Contractor shall control the manner, means and procedures used in providing the services set out in this Agreement. r City of Sebastian, Florida / Xtreme FX LLC Initials Fireworks Display Page 2 0/ 0 12. City's Contact Person. All work done by the Contractor shall be subject to the review, inspection and acceptance of the Contact Person named in Section 2 and the City. Any and all technical questions which may arise as to the quality, completeness and acceptability of work performed, or work to be performed shall be referred to the Contact Person who will resolve such questions. All work shall be subject, at all times, to inspection and review by the Contact Person and the City. In addition, the inspection and review may also include and apply to the tools and equipment used by the Contractor for the performance of Work. 13. Cleaning Up. Contractor shall be provided with activity space while utilizing Landowners 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 5. 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 Landowner or City. 14. 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 shell 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. 15. Insurance. During the term of the Agreement, Contractor, at its sole expense, shall provide insurance of such a type and with such terms and limits as noted below. Providing and maintaining adequate insurance coverage is a material obligation of Contractor. Contractor shall provide City a cenficate(s) of insurance, evidencing such coverage. It is the Contractors responsibility to ensure that the City has current Certificate(s) of Insurance at all times during the duration of the agreement, including renewal terms. Comprehensive General an amount not less than: Liability . $5,000,000 Combined Single Limit per each occurrence Commercial Umbrella/Excess an amount not less than: Liability . $4,000,000 Combined Single Limit per each occurrence . $4,000.000Aggregate Worker's Compensation Contractor shall submit and maintain Workers Compensation & Employers Liability Insurance in accordance with Chapter 440, Florida State Statutes. City of Sebastian, Florida / Xbeme FX LLC Initials . Fireworks Display Page 3 or 0 15.1 Other Insurance Provisions: 15_1.1 City of Sebastian, its council members, officers, employees and agents are to be covered as an Additional Named Insured on all policies except Worker's Compensation. The coverage shall contain no special limitation on the scope of protection afforded to the City, ifs council members, officers, employees and agents. Contractor shall provide a Certificate of Insurance to City with a thirty (30) day notice of cancellation and/or changes in policy language, and ten (10) day notice if cancellation is for nonpayment of premium. The certificate shall indicate if coverage is provided under a "claims made" or "occurrence" form. 15_1.2 All required insurance policies must be written with an insurance carrier having a minimum A.M. Best rating of A+. 15_1.3 Contractor has sole responsibility for all insurance premiums and shall be fully and solely responsible for any costs or expenses as a result of a coverage deductible, co-insurance penalty, or self -insured retention; including any loss not covered because of the operation of such deductible, co-insurance penalty, seff4nsured retention, or coverage exclusion or limitation. For deductible or self -insured amounts that exceed $10.000, Contractor shall maintain a Commercial Surety Bond or Letter of Credit in an amount equal to said deductible or self -insured retention. 15_1A Contractor's insurance coverage shall be primary insurance as respects the City, its officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers shall be excess of Contractors insurance and shall be noncontributory. 15_1.5 For all policies of insurance: Contractor and its insurance carrier waive all subrogation rights against City for all losses or damages that occur during the contract and for any events occurring during the contract period, whether the suit is brought during the contract period or not. The City requires General Liability policies to be endorsed with CG 24 04 Waiver of Transfer of Rights of Recovery Against Others to Us or similar endorsement, and a WC 00 0313 Waiver of Our Right to Recover from Others for Workers Compensation coverage. 16. Compensation to Contractor. Compensation to be paid to Contractor for the provision of the Services agreed to in accordance to the prices set forth on EXHIBIT A. Contractor shall submit invoices to: City of Sebastian ATTN: Leisure Services Department 1225 Main Street Sebastian, FL 32958 16.1 Deposit and Balance. A depostt of fifty percent (50%) of the total annual amount for the 0 of July Fireworks Display shall be made by the City no later than December I' to ensure timely scheduling and preparation by the Contractor. The balance shall be payable on the date of the show at the completion of the fireworks display. An invoice for the deposit and balance is required and shall be submitted and approved by the Leisure Services Director to process payment. 16.2 Postponement If the fireworks display is postponed, the fifty percent (50%) deposit paid to the Contractor by the City in accordance with Section 12 shall be retained. 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. In the event of cancellation or rescheduling, the City agrees to pay the Contractor a nominal fee, not to exceed $2,000, for expenses related to additional labor and travel costs as a direct result of a postponement. Contractor must submit receipts and documentation for this requested nominal fee. This fee will not be paid if the postponement is a result of the Contractors actions. 16.3 Taxes. Contractor shall pay all applicable sales, consumer, use and other similar taxes required by law. r City of Sebastian, Florida I Xtreme FX LLC Initials Flreworks Display Page4'o— 17. Payment of Payment Requests 17.1 Payment Requests8nvolces. All requests for paymentfinvoices shall be submitted in sufficient detail to demonstrate compliance with the terns of the Agreement and to allow for the proper pre -audit and post -audit thereof. Upon receipt of Contractor's payment requestlnvoice, the City will review such to ensure completion with required basic information and that the Services covered under the payment request have been completed in accordance with this Agreement. 17.2 Prompt Payment. City shall make payment of a payment request in accordance with Chapter 218, Part VII of the Florida Statutes "Local Government Prompt Payment Act' from the date which a properly received payment requestlinvoice is recorded as recelved by City, for Services completed to the satisfaction of City. 17.3 Form of Request. If the payment request is not received in proper order, City may reject the payment request within ten (10) business days after the date on which the payment request is recorded as received by City. City shall provide Contractor with a written notification of the rejection specifying the deficiency and corrective measures necessary to make the payment request proper. Upon receipt of a payment request that corrects the deficiency, City shall make payment in accordance with Chapter 218, Part VII of the Florida Statutes "Local Government Prompt Payment Act", or reject the payment request, within ten (10) business days after the date on which the corrected and proper payment request is recorded as received by City. 17.4 Resolution of Payment Request Disputes. In the event of a dispute between Contractor and City concerning the full or partial payment of a payment request, such disagreement shall be finally determined by City. If the dispute between Contractor and City involves a portion of a payment request, the undisputed portion shall be paid by City in a timely manner, as long as the payment request for the undisputed portion is in proper order. Proceedings to resolve the dispute will be commenced within forty-five (45) business days after the date the payment request in dispute was recorded as being received by City. The proceedings may include meetings between the parties, telephone conferences or such other measures to clarify the dispute and attempt to resolve the problem; they will be concluded by a final written decision by City within sixty (60) business days after the date on which the payment request was recorded as being received by City. Such procedures do not constitute an administrative proceeding that prohibits a court from deciding de now any action arising out of the dispute. a) 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. 18. Inclement Weather. In the event of inclement weather on date of event, dependent on the severity, Contractor will perform the services in an open window with no rain lightning, high seas, and high winds over 20mph. In the event there is severe weather such as lightning, driving rain, high winds over 20mph, high seas, and any other acts of God that would limit the performance or safety, Contractor will reschedule on a date agreed upon by both Parties for a nominal fee of hotel stay, and labor costs, refer to Section 16.2. In the event the display is cancelled, the deposit, will be applied as a credit to the following year. 19. Change Orders. City may at any time, as the need arises, order changes within the scope of the services without invalidating the Agreement. If such changes result in an increase or decrease in the Contract Price, or in the time required for performance of the Services, an equitable adjustment shall be authorized by way of a Change Order. 20. Warranties. Contractor warrants to the 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 the City that it is not insolvent, it is not in bankruptcy proceedings or receivership, nor is it 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 If the Contractor is found to be in any condition listed within this paragraph, the 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. A City of Sebastian,Florida /Xtreme FX LLC Initials Fireworks Display play Paga 5 10 21. Termination of Agreement. This Agreement maybe terminated by the City without cause upon sixty (60) days' written notice to the Contractor. Either party may terminate this Agreement by giving the other party sixty (60) days written notice. In the event of termination, City will be responsible for compensating Contractor only for those services satisfactorily completed or partially completed up to the date of termination. 22. Advertisements. Requests for signs or advertisements of any kind shall be directed to the Leisure Services Director who will work 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. 23. Public Records: Contractor will keep and maintain public records required by the City to perform the service. Upon request from the City's custodian of public records, Contractor will provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time and at a cost that does not exceed the cost provided in Chapter 119, Florida Statues, or as otherwise provided by law. Contractor will ensure that the 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 the Agreement and following completion of the Agreement if Contractor does not transfer the records to the City. Upon completion of the Agreement, Contractor will transfer, at no cost, to the City all public records in possession of the Contractor or keep and maintain public records required by City to perform the service. If Contractor transfers all public records to City upon completion of the Agreement, Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If Contractor keeps and maintains public records upon completion of the Agreement, Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the Chys custodian of public records, in a format that is compatible with the information technology system of the City. If Contractor does not comply with the City's request for public records, the City shall enforce the provisions of the Agreement in accordance with the terms of the Agreement and may cancel the Agreement. IF CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT JEANETTE WILLIAMS, CUSTODIAN OF PUBLIC RECORDS, AT 1225 MAIN STREET, SEBASTIAN, FL 32958; EMAIL: jwllllams@cityofsebastian.org; PHONE: 772-388-8215. City L of Sebastian, Florida / Xtreme FX LC Inf ials j Fireworks Display Page 6 CF 10 VVV"' 22. Indemnification. The Contractor shall indemnify and hold the City harmless from any and all personal injury or property damage claims, liabilities, losses or causes of action which may arise out of the use and occupancy of the property by the Contractor, its family, associates, contractors, agents, employees, customers and attendees. Nothing in this agreement shall be construed as the City waiving its immunity pursuant to §768.28, at seq., Florida Statutes, or any other sovereign or governmental immunity. The Contractor shall pay all claims and losses in connection therewith, and shall investigate and defend all claims, suits, or actions of any kind or nature in the name of the City, where applicable, including appellate proceedings, and shall pay all costs, judgments, and attorney's fees which may be incurred thereon. The Contractor expressly understands and agrees that any insurance protection required by this contract agreement or otherwise provided by the Contractor shall in no way limit the responsibility to indemnify, keep and save harmless, and defend the City or Its officers, employees, agents, and instrumentalities as herein provided. Any terms or conditions of this Agreement that require acts beyond the dale 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. 24. Non-ExclusWity. 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. 25. Tariff. In the event tariffs affect product cost and shipping, the City will be responsible to compensate Contractor for the percentage of the tariff increase for entire show cost for the years affected in this agreement. Shipments under this Agreement shall be subject to, and the Parties shall be required to comply with, the provisions of any applicable Tariff. 26. Bankruptcy or Insolvency. Contractor shall promptly notify City in writing of the fling of any voluntary or involuntary petition for bankruptcy and/or of any insolvency of Contractor or any of its subcontractors who are involved in the provision of the Services under this Agreement. 27. Compliance with Laws. Contractor shall comply with all laws, rules, codes, ordinances, and licensing requirements that are applicable to the conduct of its business, including those of Local, State and Federal agencies having jurisdiction and authority. These laws, shall include, but not be limited to, Chapter 287 of the Florids Statutes, the Uniform Commercial Code, the Immigration and Nationalization Act, the Americans with Disabilities Act, the United States Occupational Safety and Health Act, the United States Environmental Protection Agency, the State of Florida Department of Environmental Protection, and all prohibitions against discrimination on the basis of race, religion, sex, creed, national origin, handicap, marital status, sexual orientation, gender identity or expression or veteran's status. Violation of such laws shall be grounds for termination of the Agreement. 28. Conflict of Interest. Contractor covenants that it presently has no interest and shall not acquire any interest which would conflict in any manner of degree with the performance of the Services covered under this Agreement. Furthermore, Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for Contractor to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for Contractor any fee, commission, percentage, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Contractor, and its subcontractors at any tier, certify that they have not entered into any contract, sub -contract, or arrangement in connection with the Project covered under this Agreement, or of any property included or planned to be included in the Project, in which any member, officer, of employee of Contractor or its subcontractors, during its tenure, or for two years thereafter, has any interest, direct or indirect. 29. City Funds. if sufficient funding is not available for Contractor to complete the Services, City reserves the right to modify the terms and conditions of the Agreement to change the Scope of Services to reduce the cost to match any available funding. If such modifications to the Scope of Services are not feasible, or if funding has been totally exhausted prior to Contractor's completion of its Services, the Agreement shall be terminated on terms reasonably acceptable to both parties. Additionally, in accordance with Section 216.347, Florida Statutes, and as provided herein, Contractor may not expend any City funds for the purpose of lobbying the legislature, or local, state or feder# agencie . City of Sebastian, Florida / Xtreme FX LLC Initials Fireworks Display Page 7 dr 10 30. Debarment. Contractor certifies to the best of their knowledge and belief, that they and their principals 1) are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Municipal, City, State or Federal department or agency, 2) have not, within a three-year period preceding execution of this Agreement, been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records; making false statements; or receiving stolen property, 3) are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated above, 4) have not within a three-year period preceding execution of this Agreement had one or more public transactions (Federal, State or local) terminated for cause or default, and 5) will advise City immediately if their status changes and will provide an explanation for the change in status. 31. Dispute Resolution. For any dispute conceming performance of the Agreement, which includes without limitation controversies based upon breach of contract, mistake, misrepresentation, or other cause for contract modification or rescission, City shall attempt to reach a mutual agreement as to the settlement and resolution of the dispute with Contractor. Should a mutual agreement not be reached, City shall render a decision and reduce such to writing and serve a copy on Contractor. The decision shall be final and conclusive. 32. Drug Free Workplace: Contractor certifies that it has in place a Drug -Free Workplace Program in accordance with the Drug -Free Workplace Act of 1988 (41 U.S.C. 702-706). Refer to Form D submitted with Bid. 33. Employees, Subcontractors and Agents. All Contractor employees, subcontractors, and agents performing any of the Services under the Agreement shall be property trained to meet or exceed any specified training qualifications. Upon request, Contractor shall furnish a copy of certification or other proof of qualification. All employees, subcontractors, and agents of Contractor must comply with all security and administrative requirements of City. City may conduct, and Contractor shall cooperate in, a security background check or otherwise assess any employee, sub -contractor, and agent of Contractor. City may refuse access to, or require replacement of, any of Contractor's employee, subcontractor and agent for cause, including, but not limited to, technical or training qualifications, quality of services, change in security status, or non-compliance with City's security or other requirements. Such refusal shall not relieve Contractor of its obligation to perform all Services in compliance with the Agreement. City may reject and bar from any facility for cause any of Contractor's employees, subcontractors, or agents. City shall have the right to review and approve any sub -contractor used by Contractor. Contractor shall be fully responsible to City for the acts and omissions of its subcontractors, and persons directly or indirectly employed by them. It is Contractors responsibility to ensure that their subcontractors are property licensed to do business in the State of Florida and City of Sebastian, as required by law. 34. Environmental Issues. All notifications regarding environmental issues or requirements shall be sent immediately to City's Contact Person. Unless directed otherwise by City, Contractor is not to contact any local, state or federal governmental agencies conceming environmental issues involving the Project Site. 35. E-Verification System. Contractor shall comply with the Executive order No. 12989 as amended, and Executive Order No. 11-116, and agrees to utilize the U.S. Department of Homeland Security's E-Verify system, httgs11e-verify.uscis.aovlemD, to verify the employment eligibility of: (1) all persons employed by Contractor during the contract term to perform any duties within Florida, and; (2) all persons, including subcontractors, assigned by Contractor to perform work pursuant to this Contract. Contractors meeting the terms and conditions of the E-Verify System are deemed to be in compliance with this provision. City of Sebastian, Florida I Xtreme FX U-C InlBals 'J/Irtl Rreworks Display Page 8 10 1.1VV --- 36. Force Majeure Event. Neither party shall be considered to be in default in the performance of its obligations under this Agreement, except obligations to make payments with respect to amounts already accrued, to the extent that performance of any such obligations is prevented or delayed by any muse, existing or future, which is beyond the reasonable control, and not a result of the fault or negligence of, the affected party (a "Force Majeure Event"). If a party is prevented or delayed in the performance of any such obligations by a Force Majeure Event, such party shall immediately provide notice to the other party of the circumstances preventing or delaying performance and the expected duration thereof. Such notice shall be confirmed in writing as soon as reasonably possible. The party so affected by a Force Majeure Event shall endeavor, to the extent reasonable, to remove the obstacles which prevent performance and shall resume performance of its obligations as soon as reasonably practicable. A Force Majeure Event shall include, but not be limited to acts of civil or military authority (including courts or regulatory agencies), act of God (excluding normal or seasonal weather conditions), war, riot, or insurrection, inability to obtain required permits or licenses, hurricanes and severe floods. 37. Governing Law and Venue. The Agreement shall be governed in accordance with the laws of the State of Florida. In the event of litigation with respect to the obligation of the parties to the Agreement, the jurisdiction and venue of such action shall be an appropriate State Court in Indian River County, Florida. 38. Immigration and Nationality Act: Contractor shall comply with all immigration laws as outlined in 8 USC S 1324a - Unlawful emolo�(ment of aliens. City will not intentionally award City contracts to any Contractor who knowingly employs unauthorized Alien workers. Any violation of the employment provisions outlined in the Immigration and Nationality Act throughout the term of any Agreement with City may result in immediate termination of the Agreement. City will consider the employment of unauthorized aliens a violation of Section 274A (a) of the Immigration and Nationality Act. Such violation will be muse for unilateral cancellation of the Agreement, by City, if Contractor knowingly employs unauthorized aliens. 39. Lobbying. Contractor shall not, in connection with the Agreement, directly or indirectly (1) offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for any City officer or employee's decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to anyone any gratuity for the benefit of, or at the direction or request of, any City officer or employee. For purposes of clause (2), 'gratuity' means any payment of more than nominal monetary value in the form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, Services, employment, or contracts of any kind. 40. Non -Collusion. Contractor agrees that neither it, nor any of its officers, partners, agents or employees have entered into any agreement, participated in any collusion, or otherwise taken any action which is in restraint of a free competitive solicitation in connection with this Agreement, and that Contractor intends to do the work with its own bona fide employees or subcontractors and has not provided a response for the benefit of another contractor. Furthermore, Contractor certifies that its affiliates, subsidiaries, directors, officers, and employees are not currently under investigation by any governmental authority and have not in the last ten (10) years been convicted or found liable for any act prohibited by law in any jurisdiction, involving conspiracy or collusion with respect to submitting a response on any public contract. 41. Non -Performance Clause. The Contractor recognizes that due to the nature of the services to be performed under this Agreement, it is essential that the Work be completed in a timely manner in accordance with the schedules approved by the City. Non-performance/deficiencies as identified by the City to the Contractor shall be addressed (1) Verbally (2) Written Notice. If the deficiency has not been corrected to the satisfaction of the City within the time frame provided, the City may have the work performed by either its internal personnel or a third party and charge the cost against payments due the Contractor. Repeated deficiencies may result in the termination of this Agreement. 42. Project Site Conditions. Contractor shall be deemed to have examined Project Stela), if applicable and to have secured full knowledge of all conditions under which the Services are to be executed and completed. i City of Sebastlan, Florida I Xaeme FX U-C Initials - Fireworks Display Page 9 10 43. Public Entity Crime. 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 public entity; may not be awarded or 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, Florida Statutes for CATEGORY TWO for a period of 36 months following the date of being placed on the convicted vendor list. 44. Security and Confidentiality. Contractor shall comply fully with all security procedures of City in the performance of the Agreement. Contractor shall not divulge to third parties any information obtained by Contractor or its agents, distributors, resellers, subcontractors, officers or employees in the course of the provision of the Services without the written consent of City. However, Contractor shall be permitted to release information to third parties if such information is publicly available through no fault of Contractor, information that Contractor developed independently without relying on City's information, or information that is otherwise obtainable under State and Federal law as a public record. To insure confidentiality, Contractor shall take appropriate measures as to its personnel, agents, and subcontractors. The warranties of this paragraph shall survive the Agreement. 45. Severabllity. If a court deems any provision of the Agreement void or unenforceable, that provision shall be enforced only to the extent that it is not in violation of law or is not otherwise unenforceable and all other provisions shall remain in full force and effect. 46. Survival. All express representations, waivers, Indemnifications, and limitations of liability included in this Agreement will survive completion or termination of the Agreement for any reason. 47. Waiver. The delay or failure by City to exercise or enforce any of its rights under this Agreement shall not constitute or be deemed a waiver of City's right thereafter to enforce those rights, nor shall any single or partial exercise of any such right preclude the City of any other or further exercise thereof or the exercise of any other right. 48. Authority. Each person signing the Agreement warrants that he or she is duly authorized to do so and to bind the respective party to the Agreement. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed, the day and year noted above. ATTEST (SEAL): ILLIAMS, MMC TY CLERK Approved as to form and legality for reliance by the City of Sebastian only: JAMES D` GKES, CITY ATTORNEY THE CITY OF SEBASTIAN AUL . CAR ISLE, (ITYMANAGER XTREME FX LLC BY: AN D ,OWNER / City of Sebastian, Florida / Xtreme FX LLC Initials Fireworks Display Page 10 0910 SSW HOME OF PELICAN ISLAND CITY COUNCIL AGENDA TRANSMITTAL Council Meetino Date: November 20, 2019 Aaenda Item Title: Authorize to Enter into a Three (3) Year Agreement with Xtreme FX LLC for the City's Fireworks Displays. Recommendation: Staff recommends that the Council AUTHORIZE the City Manager to enter into a three (3) year agreement with Xtreme FX LLC for the City's Fireworks Displays, justified as an exemption to the Procurement process; Code of Ordinance Sec. 2-10(d)(2) as "works of art for public display." Background: The Procurement Division, on behalf of the Leisure Services Department, requests Council's authorization for the City Manager to enter into a three (3) year agreement with Xtreme FX LLC to provide the City Fireworks Displays in the amount of $25,000 annually for 4' of July and set pricing for additional requested events. This purchase is justified as an exemption to the Procurement process; Code of Ordinance Sec. 2-10(d)(2) as "works of art for public display."Xtreme FX LLC provided these services for 2019, in which we received stellar reviews from residents and the City Council alike. A solicitation for 0 of July Fireworks Display (Bid 17-19) was released and awarded in November 2017. The awarded vendor provided services in 2018 but due to legality issues experienced by the Contractor in 2019, it was in the City's best interest to terminate the agreement in place. With short notice, Xtreme FX LLC was solicited by the Leisure Services Director and agreed to provide services at the same price agreed with the terminated agreement. Because of the quality of the fireworks display along with sound setup and cleanup, the City is interested in entering into an agreement to guarantee annual scheduling. If ygenda Item Repuires Expenditure of Funds: Estimated Annual Expenditure: $25,000 Amount Budgeted in Current FY: $25.000 Fund to Be Utilized for Appropriation: Leisure Services_ 1 Administrative Services Department Review:' Attachments: (/11 1. Proposals 2. Proposed Agreement City Managerqut orization: Dale: Overview At Xtreme FX our mission to simply entertain you and your audience with the most spectacular display you have never seen before in the safest way possible for the audience as well as our technicians. All product in the show Is of the highest quality produced In the industry today. With the product that Is used, fire marshals feel mare comfortable with the firing of a show simply because It Is safer than the traditional fireworks normally used. All of our equipment is state of the an and the highest in the technology world today. X r me Fix strictly follows the Federal, state, county, and local taws. We also strictly enforce all NFPA 1123 and 1126 codes. Show Date: Alternate Dates Show Price: $1,300.00 per minute with a minimum of 5 minutes This includes the followine: - 5 minutes Minimum of a multi -position Fireworks display - Choreographed Xtreme Display (Multiple positions if preferred) -Audio Mixing or Preselected Track out of the Xtreme Library -Competition Level display - Fire Inspection Fees - Fire Permitting Fees -Stand-by Fees Computer Firing System - Highly qualified technician am with a minimum of 5 years of experience - Insurance Coverage and certificates Show Values: 97.500.00 Permittine: We will apply for all necessary permitting Technicians: One lead technician with one main assistant and at least 3 other show technicians Insurance: 5 million Liability, 5 million in commercial auto, state limit of worker's compensation .If you would I!ke to add additional funding towards the disolay. the additional funds will go 100% into Droduct only to create that Ultimate WOW! Factor! This disolav will he at camgg�jtiq[! Igygl Duality as well! Overview At Xtreme FX. our mission to simply entertain you and your audience with the most spectacular display you have never seen before In the safest way possible for the audience as well as our technicians. All product in the show is of the highest quality produced in the Industry today. With the product that is used, fire marshals feel more comfortable with the firing of a show simply because it is safer than the traditional fireworks normally used. All of our equipment is state of the an and the highest In the technology world today. Xtreme FX strictly follows the Federal, state, county, and local laws. We also strictly enforce all NFPA 1123 and 1126 codes. Show Date: July 0, 2020 Show Price: $25,000.00 This includes the followma: -15-17 minutes of a mural -position fireworks display -Choreographed Xtreme Display -Competition Level display - Fire Inspection Fees - Fire permitting Fees -Stand-by Fees -Computer Firing System - Highly qualified technician am with a minimum of 5 years of experience - Insurance Coverage and certificates -Travel Expenses • Security to be provided in addition to cost by City Show Values: S30.575.00 Permitting: We will apply for all necessary permitting Technicians: One lead technician with one main assistant and at least 3 other show technicians Insurance: 5 million Liability, 5 million in commercial auto, state limit ofworker's compensation -if you would like to add additional funding towards the disolay. the additional funds will go 300% Into product oniv to create that Ultimate WO W I Factorl This disolav will be at competition level quality as welll Description of Displav When choreographing displays to music the amount of shots in the display, colors, and effects can change. With an Xtreme display, there are multiple scenes throughout and each display will complement the scene before. Some examples of scenes are as follows: In an opening scene, we use every position in the display to create a wow factor that will grab your audience's attention. This first scene will last approximately 30-45 seconds. For the main body of the display, there will be stunning scenes that tell a story in the sky that coincides with the audio provided. This will be 80% of the display. Lastly, with an Xtreme Finale, the client really gets two finales. The first finale is what you typically see with 95% of displays today, a single position, non -angled finale. We will then pause for 2-3 seconds for the audience to think the display is over and applaud. Once after the pause, we light up the sky with hundreds of shells of many heights and angles all at the same time! This two-part finale is always one for the books! The audience will be talking about this display for years to came!!! Shell Count 1.5 — 21nch — 2000 shots appx 3inch-510 shots appx 4mch — 280 shots appx Sinch — 75 shots appx 6inch — 40 shots appx Total shots: 2,905 appx Total NOTE: Smaller calibers will be brought in closer to achieve desired effect Shot counts can vary due to music selection and choreography to the music. Any shell count differential will be substituted for a specialty shell with a higher value if shell count is reduced to reflect the contract price. Specialty Shells The effects below can be used In the displays throughout the season along -side with the standard effects such as single color peonies and single color dahlia. Brocade Crown with Tail Brocade Waterfall Brocade with Color Pistl Golden Chrysanthemum Twitter Glitter Pixie Burt Willow with Stained Glass Cackling Pistil Hearts Smiley's Saturn Rings Assorted color Crossettes Hour Glass/Bow Tie Tiger Tall Crackling Palm Silver Time Rain Assorted Time Rain Dahlia to Silver Glitter Crackling Chrysanthemum with Crackling Tail Twinkling Kimura Twinkling Kamuro with Color Pistil Crown Silver with Silver Tail Brocade with Silver Glitter Pistil Silver Spider with White Strobe Pistil with Silver Tail Gold Willow to Blue Water Fall Assorted Peonies Tourbllllons with and without Report Red, White, and Blue Bees Time Belay Chains Assorted White Strobe Waterfalls Red Ear Moving Stars Falling Leaves Assorted Since. Peanut Shells Ghosting Shells Red, White, Blue Star Shells Dragon Eggs Red and White Strobes Letter Shells Close Proximitv Effects Green Crackling Coco nut Tree with Silver Tail Quick Assorted Whistles Red, White, and Blue Colorful Salute Silver Crackling Stars Happy Stan Fan Willow Crackling & White Strobe Mines Fan Silver Ilon to Color Crackling Chrysanthemum Z shaped Blue &Sliver & Red Coconut Tree & Salute ❑ Silver Crackling Stars with Red, Silver, and Blue Tolls Red Mines and Silver Tiger Tall Red Peony and Silver Rose Red Chrysanthemum with Silver Coconut Tree PLAN Rainstorm with Report While aahlla with Red Bees Mines Silver Peony with Red, White, and Blue Mines Titanium Salute with Tag W Shape Red Tag to Silver Coconut with arogon Fan Shaped Four Season Variegated Strobe Willow Z Shaped Blue Light to Blue & Brocade Crown Fan Shaped Red and Green Strobe Mine to Silver Crosette Fan Shaped Blue Tall to Golden Ifannura A Shaped Red IS Green Cmenthe Z Shaped Red Tail to Silver Strobe Willow Fan Red, White, Blue, Red, and White Crossene Green Strobe and Brocide Mines MUBicoks Blooming with Cockle New Color Colorful Horse Tail • New Color To Happy Sus& Crackling Flower Tail Red, White, and Blue Scenery Peacock Tall -Twilight Gutter to Blue Cannot I assonec colon) Close Proximity Effects that will be used will Be specifically designed to have ZERO fall out! All Close Proximity effects that Xtreme FX uses is made in the U.S and is of the highest quality in the industry today.