HomeMy Public PortalAbout2007-14 Agreement with Fireworks by Grucci, IncRESOLUTION NO. 2007-14
A RESOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA; APPROVING
FIREWORKS DISPLAY CONTRACT BETWEEN
FIREWORKS BY GRUCCI, INC., AND THE VILLAGE OF
KEY BISCAYNE CONCERNING FIREWORKS DISPLAY
FOR JULY 4TH, 2007; PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the Village Council of the Village of Key Biscayne desires to utilize the
professional services of Fireworks by Grucci, Inc. ("Grucci"), a recognized expert in the provision
of fireworks displays, to conduct the Village's fireworks display for the July 4th, 2007 celebration;
and
WHEREAS, upon the advice of the Village Attorney, the. Village Council finds that the
proposed fireworks display services constitute professional services which are exempt from
competitive bidding pursuant to Section 2-87(2) of the Village Code; and
WHEREAS, the Village Council finds that, in any event, the short time period remaining
from the present date until the July 4th, 2007 celebration makes it impracticable to apply the
competitive bidding procedures of the Village Code, and that pursuant to Section 2-85 of the Village
Code, the Village Council is authorized to waive the competitive bidding procedures of the Village
Code upon such basis, and does hereby grant said waiver; and
WHEREAS, the Village Council finds that the approval of the Professional Services
Agreement between Grucci and the Village (the "Agreement") is in the best interest of the Village.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE VILLAGE
OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
VILLAGE OF KEY BISCAYNE
AGREEMENT FOR PROFESSIONAL SERVICES
FIREWORKS DISPLAY
THIS AGREEMENT, made and entered into this 10th day of April, 2007, by and between
the VILLAGE OF KEY BISCAYNE (the "VILLAGE") and FIREWORKS BY GRUCCI, INC., a
corporation authorized to do business in Florida ("GRUCCI").
RECITALS:
The VILLAGE wants to engage GRUCCI to perform certain professional services
consisting of organizing, producing, managing, staging and providing the July 4th Fireworks
Display (the "Fireworks Display") for the VILLAGE's 2007 July 4 celebration, as specifically
described herein and in the Scope of Services provided in Exhibit "A" to this Agreement (the
"Specified Services").
GRUCCI wants to provide the Specified Services.
In consideration of the mutual covenants set forth in this Agreement, the parties agree
as follows:
1. SCOPE OF SERVICES
A. GRUCCI agrees to provide the Specified Services upon written request from the
Village Manager.
B. GRUCCI shall utilize its special skills, and shall expend all necessary efforts to
competently and professionally complete all tasks of the Fireworks Display, so that the Fireworks
Display is successfully and safely provided. GRUCCI shall provide all necessary materials,
equipment, personnel and services for the Fireworks Display including, but not limited to, all
fireworks technicians, fireworks, music, barge and tug or barge towing and related marine services
(the "Tug and Barge Services"), and all necessary governmental permits. VILLAGE shall
cooperate with GRUCCI concerning GRUCCI's actions to obtain all necessary governmental
permits and approvals for the Fireworks Display. Any Village permit fees shall be waived.
2. FEES FOR SERVICES
A. As full compensation for satisfactory performance of the Specified Services, GRUCCI
agrees to charge and shall be paid by the Village in accordance with the following fee schedule:
Date of Fireworks Display Total Fireworks Contract Price
July 4, 2007 $ 90,000.00 Fee (Option B Display)
Village has selected Fireworks Display Option B.
B. Payment for the July 4, 2007 Fireworks Display shall be paid by VILLAGE, as follows:
(i) A fifty (50%) percent deposit of the Fee shall be due and payable on or
before May 8 ,2007 ;
(ii) The remaining balance of the Fee shall be sent out via Federal Express on
July 5, 2007;
(iii) A fee of $200.00, plus one (1 %) percent monthly interest will be imposed
upon any unpaid balance after July 6, 2007.
C. GRUCCI has already included a charge of $25,000 in the fee amount set forth above
for Tug and Barge Service costs. However, in any event, VILLAGE shall not be liable for any
excess Tug and Barge Service costs which are incurred by GRUCCI.
3. TERM
The duration of the term of this Agreement shall commence upon the date of execution
hereof and shall be for a term which expires on July 6, 2007, unless extended by the parties or
earlier terminated pursuant to paragraph 8.
4. RECORDS
All Firework Display program plans that result from GRUCCI providing the Specified
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Services shall be the property of the VILLAGE for use by the VILLAGE for the July 4, 2007
celebration only .
5. INSURANCE
A. GRUCCI shall at all times carry: comprehensive general liability and contractual
liability insurance; any insurance required by the U.S. Longshoreman's and Harbor Workers Act
and the Jones Act; workers' compensation insurance (if applicable); and automotive liability
insurance, with minimum policy limits for each coverage in the amount of at least Two Million
($2,000,000.00) Dollars per occurrence, combined single limit, for property damage and bodily
injury, including death, except that the dollar amount of workers' compensation coverage (if
applicable) and for any insurance required by the U.S. Longshoreman's and Harbor Workers Act
and the Jones Act, shall be as provided by applicable law. The liability insurance may have a
deductible of Two Thousand Five Hundred ($2,500.00) Dollars per claim, unless prohibited by
law. The VILLAGE shall be named as an additional insured on all of the above referenced
insurance policies, to the extent permitted by law. Each insurance policy shall state that it is not
subject to cancellation or reduction in coverage without written notice to the VILLAGE 30 days
prior to the effective date of cancellation or reduction of coverage. A Certificate of Insurance
reflecting coverage in strict compliance with this paragraph shall be provided by GRUCCI to
VILLAGE upon execution of this Agreement, for review and approval by VILLAGE's risk
management consultant and shall be kept current by GRUCCI throughout the Agreement term.
GRUCCI shall require all of its subcontractors, including Barge and Tow Service providers to
likewise maintain the pertinent forms and amounts of insurance specified herein, unless said
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insurance is directly maintained by GRUCCI for the purposes of covering GRUCCI and its
subcontractors' activities and operations hereunder.
B. GRUCCI shall indemnify and hold harmless the VILLAGE, its officers and
employees, from liabilities, damages, losses and costs, including, but not limited to,
reasonable attorneys' fees, to the extent caused by the negligence, recklessness or intentional
wrongful conduct of GRUCCI and persons employed or utilized by GRUCCI in the
performance of the Agreement.
6. ASSIGNMENT
This Agreement shall not be assignable by GRUCCI or by the VILLAGE.
7. PROHIBITION AGAINST CONTINGENT FEES
GRUCCI warrants that it has not employed or retained any company or person, other than a
bona fide employee working solely for GRUCCI, to solicit or secure this Agreement, and that it has
not paid or agreed to pay any person(s), company, corporation, individual or firm, other than a bona
fide employee working solely for GRUCCI any fee, commission, percentage, gift, or any other
consideration, contingent upon or resulting from the award or making of this Agreement.
8. TERMINATION
A. GRUCCI Event of Default. Without limitation, failure by GRUCCI to
substantially fulfill any of its material obligations in accordance with this Agreement, shall
constitute a "GRUCCI Event of Default". If a GRUCCI Event of Default should occur, VILLAGE
shall have all of the following rights and remedies which it may exercise singly or in combination:
(a) The right to declare that this Agreement together with all rights granted to GRUCCI
hereunder are terminated, effective upon such date as is designated by VILLAGE;
(b)
B.
provided, however, that an Event of Default shall be defined to consist of a default
that shall occur by the default in performance of any of the covenants and conditions
required herein to be kept and performed by GRUCCI and such default continues
for a period of fifteen (15) days after receipt of written notice from VILLAGE of
said default. Provided that (1) if the nature of the default is such that it cannot be
cured in a period of fifteen (15) days from the date of the default and (2) GRUCCI
shall commence good faith efforts to cure such default no later than fifteen (15) days
after such notice, and (3) such efforts are prosecuted to completion, to VILLAGE'S
reasonable satisfaction, then it shall be deemed that no Event of Default shall have
occurred under the provisions of this paragraph.
Any and all rights provided under the laws of Florida.
VILLAGE Event of Default. Without limitation, the failure by VILLAGE to
substantially fulfill any of its material obligations in accordance with this Agreement, shall
constitute a "VILLAGE Event of Default". If a VILLAGE Event of Default should occur, GRUCCI
shall have the following rights and remedies which it may exercise singly or in combination:
(a) The right to declare that this Agreement together with all rights granted to
VILLAGE hereunder are terminated, effective upon such date as designated by
GRUCCI; provided, however, that an Event of Default shall be defined to consist of
a default that shall occur by the default in performance of any of the covenants and
conditions required herein to be kept and performed by VILLAGE and such default
continues for a period of fifteen (15) days after receipt of written notice from
GRUCCI of said default. Provided that (1) if the nature of the default is such that it
cannot be cured in a period of fifteen (15) days from the date of the default, and (2)
VILLAGE shall commence good faith efforts to cure such default, no later than
fifteen (15) days after such notice, and (3) such efforts are diligently prosecuted to
completion to GRUCCI's reasonable satisfaction, then it shall be deemed that no
Event of Default shall have occurred under the provisions of this paragraph.
(b) Any and all rights provided under the laws of the State of Florida.
9. NONEXCLUSIVE AGREEMENT
The services to be provided by GRUCCI pursuant to this Agreement shall be nonexclusive
and nothing herein shall preclude the VILLAGE from engaging other firms to perform the same or
similar services for its future July 4th firework needs.
10. ENTIRE AGREEMENT
The parties hereby agree that this is the entire agreement between the parties. This
Agreement cannot be amended or modified without the express written consent of the parties. The
Village Manager shall act for VILLAGE hereunder.
11. WARRANTIES OF GRUCCI
GRUCCI hereby warrants and represents that at all times during the term of this Agreement
it shall maintain in good standing all required licenses, certifications and permits required under
Federal, State and local laws necessary to perform the Specified Services for VILLAGE as an
independent contractor of the VILLAGE. GRUCCI shall be responsible for obtaining any and all
necessary governmental permits and approvals which are required to conduct the Specified
Services.
12. NOTICES
All notices and communications to the VILLAGE or GRUCCI shall be in writing and shall
be deemed to have been properly given if transmitted by registered or certified mail (return receipt
requested) or hand delivery. All notices and communications shall be effective upon receipt.
Notices shall be addressed as follows:
Village: Jacqueline R. Menendez
Village Manager
Village of Key Biscayne
88 West McIntyre Street
Key Biscayne, FL 33149
With a copy to:
GRUCCI:
Village Attorney
c/o Weiss Serota Helfman Pastoriza
Cole & Boniske, P.L.
2525 Ponce De Leon Boulevard
Suite 700
Miami, Florida 33134
Attention: Scott Cooper
Fireworks by GRUCCI, Inc.
One Grucci Lane
Brookhaven, NY 11719
13. MISCELLANEOUS
A. Crediting. The VILLAGE agrees to credit GRUCCI in all Firework Display
event programs, invitations, press releases, advertising or promotion copy which is within
VILLAGE's authority and control.
B. Reschedule Date. If the applicable Fireworks Display needs to be rescheduled
for inclement weather or any other cause which is beyond the reasonable control of the parties,
GRUCCI shall, if requested by the Village Manager, reserve July 5, 2007 for such purpose in
consideration for a supplemental fee ("Rescheduled Date Fee") in the amount of fifteen (15%)
percent of the Fee specified in paragraph 2(A) above together with payment for any reasonable and
required out-of-pocket production costs. This Rescheduled Date Fee shall be paid by the
VILLAGE at the time that the rescheduled Fireworks Display is conducted. If the date of July 5,
2007 is not feasible because of weather or other unforeseen conditions, the parties may agree upon
an alternate date to be used within the following three (3) months.
C. Music. VILLAGE and GRUCCI agree that the music selection to be utilized for
the display shall be finalized on or before June 5, 2007. In the event that the parties fail to timely
confer and finalize the music selection, GRUCCI shall use a format consisting of well recognized
American patriotic music.
D. Barge and Tow Services. GRUCCI agrees to retain as subcontractors of
GRUCCI, the necessary Barge and Tug Service providers and to provide necessary management for
said Barge and Tug Services, so as to accomplish the Fireworks Display. GRUCCI shall assure that
the Barge and Tug Services are in place at the designated marine firing location at least sixty (60)
minutes prior to the scheduled Fireworks Display time. The barge shall be anchored or held under
tow as per U.S. Coast Guard regulations for the Fireworks Display. Further, a safety boat shall be
provided by GRUCCI's independent contractor as part of the Barge and Tow Services for security
of the marine safety zone in the vicinity of the barge. Prior to June 1, 2007, GRUCCI shall provide
to the VILLAGE Fire Chief a specific plan of operation concerning the utilization and deployment
of the Barge and Tug Services, for review and approval by the Fire Chief. This shall not replace
any applicable review by the U.S. Coast Guard or other governmental entities having jurisdiction.
E. Weather Problems. VILLAGE recognizes that GRUCCI shall not be responsible
for any weather or atmospheric conditions that may interfere with the Fireworks Display
performance or with the aesthetic quality of the fireworks.
F. Disruption of Show. In the event that the Fireworks Display is cancelled by
VILLAGE prior to commencing or is terminated by VILLAGE or GRUCCI before completion due
to weather conditions or to other unforeseen conditions, which are not within the reasonable control
of the parties, which render it impossible or unsafe to complete the Fireworks Display, the
VILLAGE shall, request a refund from GRUCCI in an amount which represents the fair market
value of the unused fireworks. The refund shall be made within sixty (60) days of VILLAGE's
request. This subparagraph (F) shall not apply if the Fireworks Display is rescheduled by
agreement of both parties.
14. GOVERNING LAW; LITIGATION
This Agreement shall be construed in accordance with the laws of the State of Florida and
any proceeding arising between the parties in any manner pertaining or related to this Agreement
shall, to the extent permitted by law, be held in Miami -Dade County, Florida. Each party hereby
knowingly, voluntarily and intentionally waives any right they may have to a trial by jury in
respect of any litigation based upon the Agreement or arising out of, under or in connection with
any other agreement contemplated to be executed in conjunction herewith, or any course of
conduct, course of dealing, statements (whether verbal or written) or actions of any party. This
provision is a material inducement for the parties entering into this Agreement.
IN WITNESS WHEREOF, the parties hereto have accepted, made and executed this
Agreement upon the terms and conditions above stated on the day and year first above written.
GRUCCI:
FIREWORKS BY GRUCCI, INC.
One Grucci Lane
Brookhaven, NY 11719
By: /g &- axe
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Title:
Attest: tvi
Corporate cretary
(Affix Seal)
VILLAGE:
VILLAGE OF KEY BISCAYNE
88 West McIntyre Street
Key Biscayne, FL 33149
illage Clerk
Approved as to Form . • Le .l Sufficiency:
Village A : me
EXHIBIT "A"
Scope of Services
GRUCCI shall provide a world class fireworks show (the "Fireworks Display") consisting
of a duration corresponding to the Option B description contained in GRUCCI's proposal of March
7, 2007 for the annual July 4, 2007 Fireworks Display. The start time for the Fireworks Display
shall be 9:00 p.m., unless otherwise agreed to by GRUCCI and VILLAGE. GRUCCI shall, at
VILLAGE's request, advance the Fireworks Display commencement time, if adverse weather is
expected to commence at or after the scheduled start time.
All fireworks shall be launched from a marine barge which is anchored (or secured by tow)
approximately one thousand (1,000') feet off of (i.e.: east of) the Village of Key Biscayne beach
front as measured from the mean high water line within the vicinity depicted on the geographic
sketch set forth below as Attachment "A". The specific location of the barge shall be marked by a
buoy installed or placed in the water by VILLAGE at least three (3) hours prior to the scheduled
start of the Fireworks Display, or which is otherwise indicated to GRUCCI by Global Positioning
System ("GPS") coordinates provided by the Chief of the Fire Rescue Depailinent of the
VILLAGE. The barge shall be positioned by GRUCCI so as to optimize the view of the
Fireworks Display for persons who are present at or adjacent to the Atlantic Ocean public beaches
within the Village of Key Biscayne.
The fireworks shall consist of at least the quantity and quality of shells and other types of
fireworks, which are described in Attachment "B", attached hereto.
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