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2007-040 Bid Award for July Fourth Fireworks DisplayRESOLUTION 2007-40 ~-- A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA ACCEPTING THE BID SUBMITTED BY PYRO ENGINEERING, INC. FOR THE JULY 4, 2007 FIREWORKS DISPLAY AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE AN AGREEMENT RELATING TO SUCH SERVICES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Village issued an Invitation for Sealed Bids for the July 4, 2007 fireworks display; and WHEREAS, upon opening the bids received, Village Administration recommended accepting the bid submitted by Pyro Engineering, Inc., a New York corporation, at a total cost of $20,000.00; and WHEREAS, the Village Council determines that the acceptance of the bid recommended by Village Administration is in the best interests of the Village. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA as follows: Section 1. The foregoing recitals are ratified as true and incorporated herein. Section 2. The Village Council of the Village of North Palm Beach, Florida, hereby accepts the bid submitted by Pyro Engineering, Inc. for the July 4, 2007 fireworks display at a total cost of $20,000, to be eXperided froiii Village ACCOUiIt No. A8229-34932 ("Public Events"). Section 3. The Village Council further authorizes the Mayor and Village Clerk to execute an agreement with Pyro Engineering, Inc. for the performance of such services. Section 3. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED THIS 22"d DAY OF MARCH, 2007. r (Village Seal) MAYOR AT 1 EST: C ~_ ~ VILLAGE CLER CONTRACT FOR 2007 FOURTH OF JULY FIREWORKS DISPLAY ~?~/D This Contract is made as of the day of ~ 2007, by and between the VILLAGE OF NORTH PALM BEACH, Palm Beach County, Florida a Political Subdivision of the State of Florida, by and through its Village Council, hereinafter referred to as the VILLAGE, and PYRO ENGINEERING, INC., a foreign corporation authorized to do business in the State of Florida, hereinafter referred to as the CONTRACTOR, whose Federal I.D. is 753044987. In consideration of the promises and mutual covenants herein contained, it is hereby agreed that the CONTRACTOR shall provide to the VILLAGE all goods and services requested under the VILLAGE's Invitation to Bid for July 4, 2007 Fireworks ("ITB" hereafter) and as further stated in CONTRACTOR'S responsive bid to the ITB and pursuant to the terms and conditions of this Contract. SECTION 1 -SERVICES OF THE CONTRACTOR. A. The CONTRACTOR shall provide all goods and services as stated in ITB, which is incorporated by reference in this Contract as if fully set forth herein, and CONTRACTOR's proposal, which is incorporated by reference in this Contract as if fully set forth herein, to that degree of care and skill ordinarily exercised, under similar circumstances, by reputable members of its profession practicing in the same or similar locality at the time the services are provided. Specifically, CONTRACTOR shall provide all goods and services as follows: 1. On or before July 4, 2007 so as to be able to provide the fireworks, equipment and all related services for the display of fireworks on July 4, 2007 at the VILLAGE's designated location. 2. In the event of inclement weather, July 5, 2007 shall be the date for provision of the fireworks, equipment and all related services for the display of fireworks at the VILLAGE'S designated location. 3. If inclement weather continues and the VILLAGE decides in its sole discretion not to re-schedule the fireworks display, the VILLAGE shall pay CONTRACTOR for the cost of goods and services provided to date with said costs not exceeding fifty (50%) of CONTRACTOR'S compensation stated in Section 4 below. 4. CONTRACTOR shall obtain all permits and inspections required for all goods and services to be provided under this Contract. To the extent permitted by law, the VILLAGE shall waive all VILLAGE permit and inspection fees charged by the VILLAGE. 5. CONTRACTOR shall be responsible for maintaining, storing and protecting all goods and/or equipment needed for the fireworks display from all acts of nature, theft, vandalism or other destruction. 6. CONTRACTOR and VILLAGE shall cooperate to secure a clear area for the fireworks display. However, it shall be CONTRACTOR'S obligation to ensure the clear area is consistent with all permitting and inspection requirements. 7. CONTRACTOR is responsible for removing all excess material and cleaning the fireworks display area and any related debris. B. The goods and services to be provided by the CONTRACTOR shall be commenced subsequent to the execution and approval of this Contract and as stated in the ITB. SECTION 2 -PERIOD OF SERVICE. A. This Contract and the provision of all work, material and equipment hereunder to complete the services by CONTRACTOR shall be for such period of time in order for CONTRACTOR to provide all goods and services requested in the ITB, as stated in CONTRACTOR's proposal and in accordance with the terms and conditions of this Contract. Time is of the essence under this Contract. B. The CONTRACTOR shall not be considered in default by reason of any failure in performance if such failure arises out of causes reasonably beyond the control of the CONTRACTOR or its subcontractors and without their fault or negligence. Such causes include, but are not limited to: acts of God; natural or public health emergencies; labor disputes; freight embargoes; unreasonable permitting and abnormally severe and unusual weather conditions. C. Upon the CONTRACTOR's request, the VILLAGE shall consider the facts and extent of any failure to perform the work and, if the CONTRACTOR's failure to perform was without it or its subcontractor's fault or negligence, the Contract schedule and/or any other affected provision of this Contract shall be revised accordingly; subject to the VILLAGE'S rights to change, terminate, or stop any or all of the work at any time. D. Notwithstanding the foregoing, the CONTRACTOR shall not be entitled to an increase in the agreed to compensation in this Contract or payment or compensation of any kind from the VILLAGE for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference or hindrance from any cause whatsoever. Provided, however, that this provision shall not preclude recovery or damages by the CONTRACTOR for hindrances or delays due solely to fraud, bad faith or active interference on the part of the VILLAGE or its agents. Otherwise, the CONTRACTOR shall be entitled only to extensions of the schedule in this Contract as the sole an exclusive remedy for such resulting delay, in accordance with and to the extent specifically provided above. SECTION 3: VILLAGE'S REPRESENTATIVE. Unless otherwise specified by the VILLAGE, the VILLAGE'S representative shall be Mark Hodgkins. SECTION 4: COMPENSATION AND METHOD OF PAYMENT. A. CONTRACTOR shall be compensated by the VILLAGE for the provision of all goods and services requested in the ITB and stated in CONTRACTOR'S proposal in an amount not to exceed TWENTY THOUSAND DOLLARS ($20,000). CONTRACTOR shall submit an 2 invoice(s) to the VILLAGE for said compensation on the date and time mutually agreed upon by the VILLAGE and CONTRACTOR. All invoice(s) received from the CONTRACTOR pursuant to this Contract will be reviewed and approved by the VILLAGE'S representative, indicating that goods and services have been provided and rendered in conformity with the Contract and then will be sent to the Finance Department for payment. CONTRACTOR will invoice the VILLAGE in advance for each payment period. Invoices will normally be paid within thirty (30) days following the VILLAGE representative's approval. B. Services undertaken or expenses incurred by the exceeding an amount set forth in this Contract without prior written authorization from the VILLAGE shall be the liability of the CONTRACTOR. C. CONTRACTOR waives consequential or incidental damages for claims, disputes or other matters in question arising out of or relating to this Contract. D. In order for both parties herein to close their books and records, CONTRACTOR will clearly state "final invoice" on the CONTRACTOR'S final/last billing to the VILLAGE. This certifies that all goods and services have been properly performed and all charges have been invoiced to the VILLAGE. Since this account will thereupon be closed, any and other further charges if not properly included in this final invoice are waived by the CONTRACTOR. The VILLAGE will not be liable for any invoice from the CONTRACTOR submitted thirty (30) days after the provision of all goods and services. E, If the VILLAGE fails to make any payment due the CONTRACTOR for services and expenses under this Contract within forty-five (45) days after the CONTRACTOR'S transmittal of its invoice to the VILLAGE, the CONTRACTOR may, after giving notice to the VILLAGE, suspend services under this Contract until it has been paid in full all amounts due. F. If the VILLAGE disputes any invoice or part of an invoice, VILLAGE shall notify CONTRACTOR of such dispute within fifteen (15) days of receipt of the invoice. VILLAGE reserves the right to off-set, reduce or withhold any payment to CONTRACTOR in accordance with the terms and conditions of this Contract. SECTION 5: INDEMNIFICATION. The CONTRACTOR shall indemnify and save harmless and defend the VILLAGE, its agents, servants, and employees from and against any and all claims, liability, losses, and/or cause of action which may arise from any negligent act or omission of the CONTRACTOR, its agents, servants, or employees in the performance of services under this Contract. The CONTRACTOR further agrees to indemnify, save harmless and defend the VILLAGE, its agents, servants and employees from and against any claim, demand or cause of action of whatsoever kind or nature arising out of any conduct or misconduct of the CONTRACTOR .Nothing contained in this provision shall be construed or interpreted as consent by the VILLAGE to be sued, nor as a waiver of sovereign immunity beyond the waiver provided in Section 768.28, Fla. Stat. 3 SECTION 6: PERSONNEL. A. The CONTRACTOR represents that it has, or will secure at its own expense, all necessary personnel required to perform the services under this Contract. Such personnel shall not be employees of or have any contractual relationship with the VILLAGE. B. All of the services required hereunder shall be performed by the CONTRACTOR or under its supervision, and all personnel engaged in performing the services shall be fully qualified and, if required, authorized or permitted under state and local law to perform such services. C. All of the CONTRACTOR'S personnel (and all sub-contractors) while on VILLAGE premises, will comply with all VILLAGE requirements governing conduct, safety, and security. SECTION 7: TERMINATION. This Contract may be cancelled by the CONTRACTOR upon ninety (90) days prior written notice to the VILLAGE'S representative in the event of substantial failure by the VILLAGE to perform in accordance with the terms of this Contract through no fault of the CONI'RAC'I'OR. It may also be terminated, in whole or in part, by the VILLAGE, with or without cause, upon thirty (30) days written notice to the CONTRACTOR. Unless the CONTRACTOR is in breach of this Contract, the CONTRACTOR shall be paid for services rendered to the VILLAGE's satisfaction through the date of termination. SECTION 8: FEDERAL AND STATE TAX. The VILLAGE is exempt from payment of Florida State Sales and Use Tax. The VILLAGE will sign an exemption certificate submitted by the CONTRACTOR. The CONTRACTOR shall not be exempted from paying sales tax to its suppliers for materials used to fill contractual obligations with the VILLAGE, nor is the CON TRACTOR authorized to use the VILLAGE's Tax Exemption Number in securing such materials. SECTION 9: INSURANCE. A. Prior to commencing any work, the CONTRACTOR shall provide certificates evidencing insurance coverage as required hereunder. All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida. The Certificates shall clearly indicate that the CONTRACTOR has obtained insurance of the type, amount, and classification as required for strict compliance with this Section and that no material change or cancellation of the insurance shall be effective without thirty (30) days' prior written notice to the VILLAGE'S representative. Failure to comply with the foregoing requirements shall not relieve the CONTRACTOR of its liability and obligations under this Contract. 4 B. The CONTRACTOR shall maintain, during the life of this Contract, Public Liability Insurance with a minimum combined single limit of ONE MILLION DOLLARS ($1,000,000) to protect the CONTRACTOR from claims for damages for bodily and personal injury, including wrongful death, as well as from claims of property damages which may arise from any operations under this Contract, whether such operations be by the CONTRACTOR or by anyone directly employed by or contracting with the CONTRACTOR. C. The CONTRACTOR shall maintain, during the life of this Contract, comprehensive automobile liability insurance in the minimum amount of $500,000 combined single limit for bodily injury and property damages liability to protect the CONTRACTOR from claims for damages for bodily and personal injury, including death, as well as from claims for property damage, which may arise from the ownership, use, or maintenance of owned and non-owned automobiles, including rented automobiles whether such operations be by the CONTRACTOR or by anyone directly or indirectly employed by the CONTRACTOR. D. The parties to this Contract shall carry Workers' Compensation Insurance and Employer's Liability Insurance for all employees as required by Florida Statutes. In the event that a party does not carry Workers' Compensation Insurance and chooses not to obtain same, then such party shall in accordance with Section 440.05, Florida Statutes, apply for and obtain an exemption authorized by the Department of Insurance and shall provide a copy of such exemption to the VILLAGE. E. All insurance, other than Worker's Compensation, to be maintained by the CONTRACTOR shall specifically include the VILLAGE as an Additional Insured. CONTRACTOR shall be responsible for any deductibles related to said insurance. SECTION 10: SUCCESSORS AND ASSIGNS. The VILLAGE and the CONTRACTOR each binds itself and its partners, successors, executors, administrators, and assigns to the other party of this Contract and to the partners, successors, executors, administrators and assigns of such other party, in respect to all covenants of this Contract. Except as above, neither the VILLAGE nor the CONTRACTOR shall assign, sublet, convey or transfer its interest in this Contract without the written consent of the other. Nothing herein shall be construed as creating any personal liability on the part of any officer or agent of the VILLAGE which may be a party hereto, nor shall it be construed as giving any rights or benefits hereunder to anyone other than the VILLAGE and the CONTRACTOR. SECTION 11: DISPUTE RESOLUTION, LAW, VENUE AND REMEDIES. A. All claims arising out of this Contract or its breach shall be submitted first to mediation in accordance with the local rules for mediation in Palm Beach County, Florida. The parties shall share the mediator's fee equally. The mediation shall be held in Palm Beach County, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. 5 B. This Contract shall be governed by the laws of the State of Florida. Any and all legal action necessary to enforce the Contract will be held in Palm Beach County. No remedy herein conferred upon any party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by any party of any right, power, or remedy hereunder shall preclude any other or further exercise thereof. SECTION 12: INDEPENDENT CONTRACTOR RELATIONSHIP. The CONTRACTOR is, and shall be, in the performance of all Services under this Contract, an Independent CONTIZ~~C1'OR, and not an employee, agent, or servant of the VILLAGE. All persons engaged in any of the Services performed pursuant to this Contract shall at all times, and in all places, be subject to the CONTRACTOR'S sole direction, supervision, and control. The CON1'R~~C"fOR shall exercise control over the means and manner in which it and its employees perform the Services. SEC'T'ION 13: ACCESS AND AUDITS. The CONTRACTOR shall maintain adequate records to justify all charges, expenses, and costs incurred in estimating and performing the Services for at least three (3) years after completion of this Contract. The VILLAGE shall have access to such books, records, and documents as required in this section for the purpose of inspection or audit during normal business hours, at the CONTRACTOR'S place of business. In no circumstances will CONTRACTOR be required to disclose any confidential or proprietary information regarding its products and service costs. SEC'T'ION 14: NONDISCRIMINATION. The CONTRACTOR warrants and represents that all o ~ its employees are treated equally during employment without regard to race, color, religion, disability, sex, age, national origin, ancestry, marital status, or sexual orientation. SECT I (? \T 15: ENFORCEMENT COSTS. Except for mediation, if any legal action or other proceeding is brought for the enforcement of this Contract, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Contract, the successful or prevailing party or parties shall be entitled to recover reasonable attorney's fees, court costs and all expenses (including taxes) even if not taxable as court awarded costs (including, without limitation, all such fees, costs and expenses incident to appe~~'.~ ?. incurred in that action or proceeding, in addition to any other relief to which such party or parties maybe entitled. SEC"~'.; : ~ I6: AUTHORITY TO PRACTICE. The CONTRACTOR hereby represents and warrants tLat it has and will continue to maintain all licenses and approvals required to conduct i.s business and provide the goods and services under this Contract and that it will at all tin~cs conduct its business and provide the Services under this Contract in a reputable manner. Proof of such licenses and approvals shall be submitted to the VILLAGE's repress;~,tative upon request. SEC'I'i : ~ ~ 17: SEVERABILITY. If any term or provision of this Contract, or the applicat~~~n thereof to any person or circumstances shall, to any extent, be held invalid or 6 unenforceable, to remainder of this Contract, or the application of such terms or provision, to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and every other term and provision of this Contract shall be deemed valid and enforceable to the extent permitted by law. SECTION 18: MODIFICATIONS OF WORK. A. The VILLAGE reserves the right to make changes in the work, including alterations, reductions therein or additions thereto. Upon receipt by the CONTRACTOR of the VILLAGE's notification of a contemplated change, the CONTRACTOR shall, in writing: (1) provide a detailed estimate for the increase or decrease in cost due to the contemplated change, (2) notify the VILLAGE of any estimated change in the completion date, and (3) advise the VILLAGE if the contemplated change shall effect the CONTRACTOR's ability to meet the completion dates or schedules of this Contract. B. If the VILLAGE so instructs in writing, the CONTRACTOR shall suspend work on that portion of the work affected by the contemplated change, pending the VILLAGE'S decision to proceed with the change. C. If the VILLAGE elects to make the change, the VILLAGE shall initiate a Contract Amendment and the CONTRACTOR shall not commence work on any such change until such written amendment is signed by the CONTRACTOR and approved and executed by the Village of North Palm Beach. SECTION 19: PUBLIC ENTITY CRIMES. CONTRACTOR acknowledges and agrees that 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, sub-contractor, or CONTRACTOR under a contract with any public entity; and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, Florida Statues, for CATEGORY TWO for a period of 36 months following the date of being placed on the convicted vendor list. The CONTRACTOR will advise the VILLAGE immediately if it becomes aware of any violation of this statute. SECTION 20: PROTECTION OF WORK AND PROPERTY. A. The CONTRACTOR shall continuously maintain adequate protection of all goods, equipment and work from damage, and shall protect the VILLAGE'S property from injury or loss arising in connection with the Contract. Except for any such damage, injury, or loss, except that which maybe directly due to errors caused by the VILLAGE or employees of the VILLAGE, the CONTRACTOR shall provide any necessary materials to maintain such protection. 7 B. The CONTRACTOR shall take every necessary precaution against injury or damage to any property, goods, equipment and area utilized for the provision of all goods and services under this Contract. C. The CONTRACTOR will also take every necessary precaution to ensure the safety of the VILLAGE, public and other guests and invitees thereof at or near the areas where work is being accomplished during and throughout the completion of all work. SECTION 21: NOTICE. All notices required in this Contract shall be sent by certified mail, return receipt requested, and if sent to the VILLAGE shall be mailed to: Village of North Palm Beach Attn: Mark Hodgkins Village Hall 501 US Highway 1 North Palm Beach, FL 33408 and if sent to the CONTRACTOR shall be mailed to: Pyro Engineering, Inc. Attn: ~•~.'~iUf~ /~~/ 110 Route 110 Suite 102 ~ Huntington Station, NY 11746 The foregoing names and addresses maybe changed if such change is provided in writing to the other party. SECTION 22: ENTIRETY OF CONTRACTUAL AGREEMENT. The VILLAGE and the CONTRACTOR agree that this Contract sets forth the entire agreement between the parties, and that there are no promises or understandings other than those stated herein. None of the provisions, terms and conditions contained in this Contract may be added to, modified, superseded or otherwise altered, except by written instrument executed by the parties hereto. SECTION 23: TERMINOLOGY AND CAPTIONS. All pronouns, singular, plural, masculine, feminine or neuter, shall mean and include the person, entity, firm or corporation to which they relate as the context may require. Wherever the context may require, the singular shall mean and include the plural and the plural shall mean and include the singular. The term "Contract" as used herein, as well as the terms "herein", "hereof', "hereunder", "hereinafter" and the like mean this Contract in its entirety and all exhibits, amendments and addenda attached hereto and made a part hereof. The captions and paragraph headings are for reference and convenience only and do not enter into or become a part of the context of this Contract, nor shall such headings affect the meaning or interpretation of this Contract. 8 SECTION 24: WAIVER. Failure of a party to enforce or exercise any of its right(s) under this Contract shall not be deemed a waiver of that parties' right to enforce or exercise said right(s) at any time thereafter. SECTION 25: PREPARATION. This Contract shall not be construed more strongly against either party regardless of who was more responsible for its preparation. SECTION 26: CONTRACT DOCUMENTS AND CONTROLLING PROVISIONS. This Contract consists of the ITB, the CONTRACTOR'S proposal to the TIB and this Contract. The CONTRACTOR agrees to be bound by all the terms and conditions set forth in the aforementioned documents. To the extent that there exists a conflict between this Contract and the remaining contract documents, the terms, conditions, covenants, and/or provisions of this Contract shall prevail with the ITB taking precedence over CONTRACTOR'S proposal to the ITB. Wherever possible, the provisions of such documents shall be construed in such a manner as to avoid conflicts between provisions of the various documents. SECTION 27: LEGAL EFFECT. This Contract shall not become binding and effective until approved by the Village Council of the Village of North Palm Beach. SECTION 28: SURVIVABILITY. Any provision of this Contract which is of a continuing nature or imposes an obligation which extends beyond the term of this Contract shall survive its expiration or earlier termination. SECTION 29: WAIVER OF SUBROGATION. CONTRACTOR hereby waives any and all rights to Subrogation against the VILLAGE, its officers, employees and agents for each required policy. When required by the insurer, or should a policy condition not permit an insured to enter into apre-loss agreement to waive subrogation without an endorsement, then CONTRACTOR shall agree to notify the insurer and request the policy be endorsed with a Waiver of Transfer of Rights of Recovery Against Others, or its equivalent. This Waiver of Subrogation requirement shall not apply to any policy, which a condition to the policy specifically prohibits such an endorsement, or voids coverage should CONTRACTOR enter into such an agreement on a pre-loss basis. SECTION 30: REPRESENTATIONS/BINDING AUTHORITY. has full power, authority and legal right to execute and deliver this Contract and perform all of its obligations under this Contract. By signing this Contract, hereby represents to the VILLAGE that he/she has the authority and full legal power to execute this Contract and any and all documents necessary to effectuate and implement the terms of this Contract on behalf of the party for whom he or she is signing and to bind and obligate such party with respect to all provisions contained in this Contract. fTHE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANKI 9 IN WITNESS WHEREOF, the VILLAGE and CONTRACTOR hereto have made and executed this Contract for 2007 Fourth of July Fireworks Display as of the day and year first above written. PYRO ENGINEERING, INC -- Print Name: ~/~%~~ /~'~~~ Position: ~~~-S~L~~ VILLAGE QF NORTH PALM BEACH BY: / ' Gf/,Q ~- ~/.f S~ ..ATTEST: ~- B1': MELI SA TEAL, VILLAGE CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY: VILLAGE ATTORNEY 10