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
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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
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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)
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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
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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
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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
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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:
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By the VILLAGE:
VILLAGE OF KEY BISCAYNE
88 West McIntyre
FL 33149
illage Clerk
/4;dAti-
Village Attorney
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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