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HomeMy Public PortalAbout2017 Agreement.pdfVILLAGE OF KEY BISCAYNE AGREEMENT FOR PROFESSIONAL SERVICES FIREWORKS DISPLAY THIS NEW AGREEMENT ("2017 Agreement") is made and entered into as of this 17th day of February, 2017 (the "Effective Date"), by and between the VILLAGE OF KEY BISCAYNE (the "VILLAGE") and FIREWORKS BY GRUCCI, INC., a New York corporation authorized to do business in Florida ("GRUCCI"). RECITALS: WHEREAS, GRUCCI and the VILLAGE entered into an agreement ("2012 Agreement") for Professional Services dated April 10, 2012, relating to GRUCCI's organizing, producing, managing, staging and providing of the 2012 July 4th Fireworks Display on behalf of the VILLAGE; and WHEREAS, the VILLAGE exercised options in the Former Agreement and entered into an Amendment to the [2012] Agreement to extend the Professional Services awarded to GRUCCI through 2016; and WHEREAS, the 2012 Agreement and its Amendment have expired; and WHEREAS, because of the successful and safe provision of the July 4th Fireworks Displays provided by GRUCCI in the years 2012 through 2016, the Village Council authorized the Village Manager to enter into a new 2017 Agreement with GRUCCI to perform the July 4th Fireworks Display for the year 2017 with four (4) one year renewals to perform July 4th Fireworks Displays through 2021. NOW THEREFORE, in consideration of the mutual covenants set forth in this 2017 Agreement, the parties agree as follows: 1. The VILLAGE hereby engages GRUCCI to provide the Key Biscayne July 4th Fireworks Display (Event), as presented by GRUCCI in its proposal, dated October 20, 2016, (2016 Proposal) (Exhibit "A", attached hereto) for the year 2017.. This agreement will renew on an annual basis for four additional one year periods, unless otherwise informed in writing by Aug 1st of the year prior to the next Event, subject to Annual Price increases and/or adjustments as described below. 2. ANNUAL PRICES Prices for each of the years covered by this 2017 Agreement (Event Years) are as negotiated between the VILLAGE and GRUCCI as follows: Date of Fireworks Display l otal r''reworks Display Contract Yrice July 4, 2017 $118,500 Annual Prices for Fireworks Displays to occur on July 4`h, 2018, 2019, 2020 and 2021 shall be one - hundred and three percent (103%) of the Annual Price for the previous year, unless overall expenses are expected to increase greater than three percent (3%) per year, in which case, the next Annual Price and/or performance will be increased or adjusted according to mutually agreeable terms to be included in a renewal amendment by the parties by August 1St of the year prior to the next Event. 3. PAYMENTS Payment for each of the July 4th Fireworks Displays shall be paid by the VILLAGE, as follows: a. A fifty percent (50%) deposit of the Contract Price shall be due and payable on or before April 15`h of the Event Year; and b. An additional twenty five percent (25%) partial payment of the applicable Contact Price shall be due and payable on or before June 1 S` of the Event Year; and c. The remaining balance of the Contract Price shall be due and payable on or before July 5`h of the Event Year. 4. }SCOPE OF SERVICES a. GRUCCI agrees to provide the Fireworks Display in accordance with the terms, specifications and conditions of GRUCCI's 2016 Proposal and this Agreement for the July 4th Fireworks Displays which shall include a minimum twenty-eight (28) minute synchronized pyrotechnical and music fireworks performance to be launched from a marine barge in the same approximate location as in previous years, with the quantity and quality of shells and other types of fireworks as described in the 2016 Proposal. b. GRUCCI shall utilize its special skills, and shall expend all necessary efforts to competently and professionally complete all elements of the Fireworks Display . as described in its 2016 Proposal, so that the Fireworks Display is successfully, timely and safely provided. GRUCCI shall provide all necessary materials, equipment, personnel and services for the Fireworks Displays including, but not limited to, all fireworks technicians, fireworks, music as well as a barge to serve as the Fireworks Display platform and all necessary barge towing and related marine services (the "Tug and Barge Services"). In addition, GRUCCI shall be responsible for obtaining any and all necessary governmental permits and approvals in connection with its providing of the —2— Fireworks Displays and providing the Tug and Barge Services. The VILLAGE shall cooperate with GRUCCI, at GRUCCI's expense, in obtaining all necessary governmental permits and approvals for the Fireworks Displays. Any VILLAGE permit fees shall be waived. GRUCCI promises and agrees that all set up and staging for the Fireworks Display shall be completed no later than 5:00 p.m. of the day of a Fireworks Display. GRUCCI agrees to have the barge, serving as the fireworks platform, relocated out of the Miami River no later than 7:00 p.m. on the day prior to the Fireworks Display. However, it is expressly understood by the VILLAGE that GRUCCI shall not be liable for any unforeseen blockages to the barge and tug's navigation, US Coast Guard and/or governmental interference or inclement weather that would prevent the barge from being relocated no later than 7:00 p.m. the day prior to the Fireworks Display. It is further expressly understood and agreed that GRUCCI shall promptly commence the Fireworks Display at 9:00 p.m. on the day of performance. 5. TERM The term of this 2 017 Agreement shall commence upon the Effective Date and shall expire on July 25, 2021, unless extended by the parties or earlier terminated in accordance with the terms of this 2017Agreement. 6. RECORDS All Firework Display program plans that result from GRUCCI providing the specified services shall be the property of the VILLAGE for use by the VILLAGE for its July 4`h celebration. Upon termination of this 2017 Agreement or upon request by the VILLAGE during the term of this 2017Agreement, any and all such plans shall be delivered to the VILLAGE by GRUCCI. 7. INSURANCE AND INDEMNIFICATION, a. GRUCCI shall carry at all times all insurance coverages in the minimum amounts and types of insurance as specified in the GRUCCI 2016 Proposal including comprehensive general liability and contractual liability insurance; workers' compensation; automotive liability insurance; any insurance required by the U.S. Longshoreman's and Harbor Workers Act; and the Jones Act. 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. All required liability insurance policies may have a deductible of up to 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 at least 30 days prior to the effective date of cancellation or reduction of coverage. A Certificate of Insurance —3— reflecting coverage in strict compliance with the GRUCCI 2016 Proposal shall be provided by GRUCCI to the 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 term of this Agreement. GRUCCI shall require all of its subcontractors, including Barge and Tow Service providers, to maintain the pertinent policies and amounts of insurance specified herein, unless such 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 Fireworks Displays. This provision shall survive the expiration or termination of this Agreement. 6. ASSIGNMENT This Agreement shall not be assignable by GRUCCI or by the VILLAGE. 7. 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. PROHIBITION AGAINST CONTINGENT FEES 8. TERMINATION a. GRUCCI Event of Default. Subject to the limitations found within this Agreement, failure by GRUCCI to fulfill any of its 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: (i) The right to declare that this 2017 Agreement, together with all rights granted to GRUCCI hereunder, is terminated, effective upon such date as is designated by the VILLAGE; 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 the 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) —4— 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 the VILLAGE'S reasonable satisfaction, then it shall be deemed that no GRUCCI Event of Default shall have occurred under the provisions of this paragraph. (ii) Subject to Article 8(c) of this 2017Agreement, GRUCCI's failure to commence the Fireworks Display promptly at 9:00 p.m. on the Display Date shall be an incurable GRUCCI Event of Default entitling VILLAGE to liquidated damages in the amount of ten percent (10%) of the price of the Fireworks Display for the Event Year. (iii) Any and all rights provided under the laws of the State of Florida. b. VILLAGE Event of Default. Subject to the limitations found within this Agreement, the failure by the VILLAGE to substantially fulfill any of its material obligations in accordance with this 2017 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: (i) The right to declare that this 2017 Agreement, together with all rights granted to the VILLAGE hereunder, is 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 the 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) the 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 VILLAGE Event of Default shall have occurred under the provisions of this paragraph. (ii) Any and all rights provided under the laws of the State of Florida. c. Force Majeure. Neither the VILLAGE nor GRUCCI shall be in default or liable for any type of damages under this 2017 Agreement for any Force Majeure event. A Force Majeure Event is any such unforeseen act or event this is beyond the reasonable control of a party that prevents the VILLAGE or GRUCCI from performing and is not the fault of the VILLAGE or GRUCCI; and in addition a Force Majeure Event is also defined as war, government intervention, un-navigable waterways, strikes, inclement weather, fire, explosions, civil disturbance, act of God or the public —5— enemy, military action, terrorist act, unforeseeable or unpreventable lack of materials or equipment. 9. NONEXCLUSIVE AGREEMENT The services to be provided by GRUCCI pursuant to this 2017 Agreement shall be nonexclusive and nothing herein shall preclude the VILLAGE from engaging other firms to perform the same or similar services for the benefit of the VILLAGE within the VILLAGE's sole and absolute discretion. 10. ENTIRE AGREEMENT The parties hereby agree that the 2016 Proposal and this 2017 Agreement constitute 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 the VILLAGE hereunder. 11. WARRANTIES OF GRUCCI GRUCCI hereby warrants and represents that at all times during the term of this 2017 Agreement it shall maintain in good standing all required licenses, certifications and permits required under Federal, State and local laws necessary to perform the Scope of Services for the VILLAGE as an independent contractor of the VILLAGE. 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: To VILLAGE: With a copy to: To GRUCCI: John C. Gilbert Village Manager Village of Key Biscayne 88 West McIntyre Street Key Biscayne, FL 33149 Village Attorney c/o Weiss Serota Helfman Cole & Bierman P.L. 2525 Ponce De Leon Boulevard, Suite 700 Miami, Florida 33134 Phil Grucci Attention: Scott Cooper Fireworks by GRUCCI, Inc. 20 Pinehurst Drive Bellport, NY 11713 -6- 13. MISCELLANEOUS a. Crediting. The VILLAGE agrees to credit GRUCCI in the Fireworks 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 either of the parties, GRUCCI shall, if requested by the VILLAGE Manager, reserve July 5th of each applicable Event Year for such purpose in consideration for a supplemental fee ("Rescheduled Date Fee") in the amount of fifteen (15%) percent of the Contract Price specified above. The Rescheduled Date Fee shall be paid by the VILLAGE at the time that the rescheduled Fireworks Display is conducted. c. Music. The VILLAGE and GRUCCI agree that the music selection to be utilized for the Fireworks Display shall be finalized on or before May 21St of each applicable Event Year. 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. GRUCGI agrees to retain as subcontractors of GRUCCI, all Barge and Tug Service providers and to provide all necessary administration, management and oversight for said Barge and Tug Services, so as to accomplish the Fireworks Display in accordance with the terms of the RFP and this 2017 Agreement. GRUCCI agrees to have the barge, serving as the fireworks platform, relocated out of the Miami River no later than 7:00 p.m. the day prior to the Fireworks Display. However, it is expressly understood by the VILLAGE that GRUCCI shall not be liable for any unforeseen blockages to the barge and tug's navigation, US Coast Guard and/or governmental interference or inclement weather that would prevent the barge from being relocated no later than 7:00 p.m. the day prior to the Fireworks Display. 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 1st of each applicable Event Year, 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. The VILLAGE recognizes that GRUCCI shall not be responsible or in default for —7— any weather or atmospheric conditions that may interfere with the Fireworks Display performance or with the aesthetic quality of the fireworks. d. Disruption of Show. [n the event that the Fireworks Display is cancelled by the VILLAGE prior to commencing the applicable Fireworks Display or is terminated by the 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 upon request be entitled to a refund from GRUCCI in an amount which represents the fair market value of the unused fireworks. The refund shall be made within thirty (30) days of the VILLAGE's request. This subparagraph shall not apply if the Fireworks Display is rescheduled by agreement of the parties. 14. GOVERNING LAW; LITIGATION This 2017 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 2017 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 this 2017 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 2017 Agreement. IN WITNESS WHEREOF, the parties hereto have accepted, made and executed this 2017 Agreement upon the terms and conditions above stated on the day and year first above written. By GRUCCI: FIREWORKS BY GRUCCI, INC. 20 Pinehurst Drive Bellport, NY 1 171 By: Phil Grucci Title: Presidentitt,�eDi u- 77 Attest: ,/ Corporate Secretary (Affix Seal) Approved as to Form and Legal Sufficiency: —8— By the VILLAGE: VILLAGE OF KEY BISCAYNE 88 West McIntyre FL 33149 illage Clerk /4;dAti- Village Attorney -9- EXHIBIT "A" FIREWORKS BY GRUCCI PROPOSAL, October 20, 2016 J:ICONTRACT tNF012017 Displays100_To be Determined117-07-04 - Key Biscayne, Village ofl2017 Grucci Inc Fireworks Display Agreement (Rev2)- Grucci Revised - Clean.docx