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07-0605_PYRO SPECTACULARS, INC_Personal Services AgreementPERSONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this day of �Tj 6�q 2007, by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and Pyro Spectaculars, Inc. (hereinafter referred to as "Contractor"). RECITALS: WHEREAS, City desires to retain the services of Contractor to provide an aerial fireworks sky concert display on the 4th of July; and WHEREAS, Contractor has represented itself as being capable of providing such service. NOW, THEREFORE, City and Contractor mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by the Contractor and The City shall consist of those tasks as set forth in Exhibit A, (Contractors Display Agreement and Program B, which are attached hereto and incorporated herein by this reference as though set forth in full). Each party warrants that all of its services shall be performed in a competent, professional and satisfactory manner and in accordance with the prevalent standards of its profession. Section 2. Term. This Agreement shall commence on the effective date of this Agreement and services required hereunder shall be completed as set forth in the Exhibit A. Section 3. Compensation and Pricing. 3.1 Amount, Payment Schedule, and Credit. Compensation shall be payable as set forth in Exhibit A. Any Credit due the City shall be made as follows: 9 0 • In the event the Display substantially complies with the scope of work as set forth in the Exhibit A but does not begin by 9:05 p.m., PDT on July 4, 2007, as a result of the sole negligence of Pyro Spectaculars, Inc. Pyro Spectaculars, Inc. shall credit Purchaser $50 for each full minute of delay up to $2,000. • In the event the Display substantially complies with the scope of work as set forth in Exhibit A, but is interrupted as a result of the sole negligence of Pyro Spectaculars, Inc., Pyro Spectaculars, Inc. shall credit Purchaser $50 for each full minute of interruption up to $1,000. An interruption resulting from the malfunction of one or more fireworks devices, including interruptions resulting from injury or damage caused thereby, shall not be considered to result from the negligence of Pyro Spectaculars, Inc. for the purposes of this paragraph. • In the event the Display substantially complies with the scope of work as set forth in Exhibit A, but fireworks in excess of the industry standard 3% fail to fire, Pyro Spectaculars, Inc. shall credit Purchaser with the full list value of the product that failed to fire in excess of 3%. • In the event that the Display fails to substantially comply with the scope of work as set forth in Exhibit A, Pyro Spectaculars, Inc., shall credit Purchaser with up to 25% of the Display price. Such credit shall be inclusive of any credits set forth in paragraphs 1, 2, and 3. • Nothing in this paragraph shall prevent the parties from reaching agreement that all or a portion of the credit may be in the form of enhancements to future displays. Section 4. Independent Contractor. It is agreed that Contractor shall act and be an independent Contractor and not an agent or employee of City, and shall obtain no rights to any benefits which accrue to City's employees. Section 5. Limitations Upon Subcontracting and Assignment. Contractor shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Contractor. City will deal directly with and will make all payments to Contractor. Section 6. Familiarity with Work and Display Site. Should Contractor discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. Section 7. Compliance with Law. Contractor shall comply with all existing applicable laws, ordinances, codes and regulations of federal, state and local government. Section 8. Conflicts of Interest. Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Contractor. Section 9. Indemnity. Contractor agrees to protect, defend and hold harmless City, its elected and appointed officials and employees from any and all claims, liabilities, expenses or damages, for injury or death of any person or damage to property or interference with use of property to the extent such arises from or in connection with the work, operation or activities of Contractor, its agents, employees and subcontractors in carrying out its obligations under this Agreement. Section 10. Insurance. Insurance required herein shall be provided by Authorized Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A - Class VII or better. Contractor is to provide City with copies of the following: 10.1 Commercial General Liability. (See Exhibit A) 10.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Contractor shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non -owned vehicles in the following minimum amounts: $5,000,000 combined single limits per occurrence property damage and personal injury. 10.3 Worker's Compensation. Contractor shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statuary amount as required by state law. 10.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Contractor shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement to the Contractor's general liability policy to the City Clerk's office for certification that the insurance requirements of this Agreement have been satisfied. 10.5 Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverage/s reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. Section 11. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: 0 0 To City: City of San Juan Capistrano 25925 Camino del Avion San Juan Capistrano, CA 92675 Attn: Karen Crocker, Community Services Director To Contractor: Pyro Spectaculars, Inc. P.O. Box 2329 Rialto, CA 92377 Attn: Sam Bruggema, Show Producer Section 12. Entire Agreement. This Agreement and Exhibit A constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. APPROVED AS TO FORM: John R. Shaw, City Attorney By, M. l kfu " 4 aures R. Souza, reside Pyro Spectaculars, Inc. Exhibit: Exhibit A, Display Agreement & Program B PYRO SPECTACULARS, INC. Display Agreement 1) THIS AGREEMENT, entered irtio this Aay of 20QZ by and between PYRO SPECTACULARS, INC., a California corporation hereinafter referred to as "PYR(" and City of San .roan Cap(atrann hereinafter referred to as "PURCHASER. 2) PYRO agrees to furnish PURCHASER, in accordance with the terms and conditions hereinafter set forth, —ifireworks display as per Program 8_ , submitted, accepted and made part hereof, including the services of a licensed pyrotechnic operator to take charge of and, along with sufficient helpers, safely discharge the display. The said display is scheduled to be performed on July 4 '2W at San Juan Capistrano Sp0rtatarkl San Juan Ciipjstrano. CA 3) PURCHASER, at its own expense, agrees to provtdc to PYRO: A) A suitable DISPLAY SITE in which to stage the fireworks display, including a firing and fallout zone reasonably acceptable to PYRO in which the fireworks and firework debris may be exhibited, rise and fall safely. B) Adequate policing, guard protection, roping, fencing and/or other crowd control measures to prevent the sores of the public or its property or any other people or property not authorized by PYRO into the DISPLAY SITE. C) The services and cat of standby firemen and/or any applicable permit fees as required by state and local statutes, ordinances or regulations. D) Access by PYRO, at all times, to the DISPLAY SITE to set up the display. If PURCHASER fails to fully comply with requirements A, B, C and/or D set (brth above, PYRO shall have no obligation to perform and PURCHASER agrees to pay to PYRO the entire contract price plus any additional expenses incurred because of said failure. If, in its sok discretion, PURCHASER designates an aces for mwnbers of the public to view the Display ("Spectator Ares") and/or an area for vehicular parking ("Parking Area'), the PURCHASER shall: B) Ensurethat the gpegator Area does not infringe on the Display Area; F) Have sole responsibility for ensuring that the terrain of the Spectator Area and any structures thereon, Including, but not limited to grandstands and bleachers are safe for use by spectrums; G) have sole responsibility for ensuring that the Parking Area is safe for use; H) Have sole responsibility to police, monitor and appropriately control spectator access to the Spectator Area and the Parking Area and police, monitor and appropriately control the behavior of persons in time areas. It is expressly agreed that PYRO, (including its operators and helpers) shall not inspect, police, monitor or otherwise supervise any area of the site other than the Display Area, except to ensure: 1) That any Spectator or Parking Areas are outside the Display Area; and .l) After completion of the Display, that the Display Area is cleared of any live firework debris originating from the program. 4) PURCHASER shall pay to PYRO the sum of TWENTY NINE THOUSAND -------------------------Dollars A deposit of S 14 50fl-Oft and Ore department fees approximated at S 00.00 must be paid by May 4.2007. Full final payment is due the first regular business day after the date set for the display. A finance charge at a periodic rate of 1.5% per month, 18% annual percentage rate, or the maximum rate permitted by law, whichever is less, will be charged on the unpaid balance after ten days from the date of the display. PURCHASER, by signing this agreement, authorizes PYRO to receive and verify financial information concerning PURCHASER from any person or entity. 5) PURCHASER agrees to assume the riskof weether, or other causes beyond PYRO's control, which may preventthe display from being safely discharged on the scheduled date, which may cause the cancellation of any event for which PURCHASER has purchased the display, or which may affect or damage such portion of the exhibits as must be placed and exposed a necessary time before the display. It shall be within PYRO's sole discretion to determine whether or not the display maybe safely discharged on the scheduled date and at the telteduled time. If, for any reason beyond PYRO's control, including, without limitation, inclement weather, PYRO is unable to safely discharge the display on the scheduled dare or should any event foe which PURCHASER has purchased the display be cancelled, the parties shall attempt to negotiate a new display date, which shall be within 60 days of the original display date. PURCHASER further agrees to pay PYRO for any additional expenses made necessary by this postponement. If they are unable to agree on a new display date, PYRO shall be entitled to liquidated damages from PURCHASER as if PURCHASER had cancelled the display on the date set for the display, as provided in the following paragraph. 6) PURCHASER shall have the option to unilaterally cancel this display prior to the date of the display. if PURCHASER exercises this option, PURCHASER agrees to pay to PYRO, as liquidated damages, the following percentages of the agreed contract price. 1) 250A if cancellation three (3) or more days prior to the scheduled day of the display, 2) 50°A if cancellation occurs within two (2) days of the actual date sat for the display, 3) 75°A if cancellation occurs on the date set for the display but prior to the time physical set-up of the display actually beghw, 4) 100°/6 thereafter. If cancellation occurs prior to the date act for the display, PURCHASER agrees to Pay PYRO in addition to the above percentages, the value associated with any specific custom work performed by PYRO or its agents including but not limited to music/narration tape production and/or sponsors logos. (continued on reverse) "Exhibit A" Exhibit A 0 0 PYRO SPECTACULARS, INC. Display Agreement 7) In die event PURCHASER cancels the display, it will be impractical or extremely difficult to fix the actual amount of PYRO's damages. The foregoing represents a reasonable estimate of the damages PYRO will suffer if PURCHASER cancels the display. S) PYRO reserves the ownership rights and trade names that are used in or are a product of the pyrotechnic display to be performed herein. Any reproduction by sound, video or other duplication or recording process without the express written permission of PYRO is prohibited. 9) PYRO agrees to furnish insurance coverage in connection with the Display gaiy, for the following risks and amounts: bodily injury and property damage, including products liability ONE MILLION DOLLARS ($1,000,000) combined single limits. Such insurance shall include PURCHASER as an additional insured regarding claims made against PURCHASER for bodily injury or property damage arising from the operations of PYRO in performing die Display provided for in this Agreement. Such insurance afforded by PYRO shall not include claims made against PURCHASER for bodily injury or property damage arising from A) Failure of PURCHASER, including through or by its employees, agents and/or independent contractors, to perform its obligations under this agreement, including, without limitation, those contained in Paragraph 3 of this Agreement; B) Failure of the PURCHASER to provide discretionary SpectAtor and Parking Areas referred to in Paragraph 3 of this Agreement. PURCHASER shall indemnify and hold PYRO harmless from all claims and suits made against PYRO for bodily injury or property damage arising from A) and B) of this Paragraph. 10) If any legal action is brought to enforce or interpret the terms or provisions of this Agreement, the prevailing party shall be entitled to reasonable attorney fees and costs in addition to any other relief to which they may be entitled. 11) In the event PYRO branches this agreement, or is otherwise negligent in perfunning tha fireworks display provided for herein, PURCHASER shall, under no circumstances, be entitled to recover monetary damages from PYRO beyond the amount PURCHASER agreed to pay PYRO under this Agreement. PURCHASER shall nol, under any circumstances, be entitled to recover any consequential damages from PYRO including, without limitation, for loss of income, business or profits. Nothing in this paragraph shall be construed as a modification or limitation on the insurance coverages afforded to Paragraph 9 above. 12) It is agreed, nothing in this Agreement or in PYRO's performance of the display provided for herein, shall be construed as forming a partnership or joint venture between PURCHASER and PYRO. The parties hereto shall be severally responsible for their own separate debts and obligations acid neither party shall be held responsible for any agreements or obligations not expressly provided for herein. 13) This Agreement shall be governed and interpreted under the laws of the State of California. it is further agreed that the courts of the State of California shall have exclusive jurisdiction to adjudicate any disputes arising out of this contract or performance of the display provided for herein. It is further agreed drat the Central Judicial District of San Bernardino County, California, shall be proper venue for any such action. 14) Any Notice to the parties permitted or required under this Agreement may be given by mailing such Notice in the United States Mail, postage prepaid, first class, addressed as follows: PYRO - Pyro Spectaculars, Inc., P. 0. Box 2329, Rialto, California 92377. PURCHASER - City of San Juan Cmiistmw 25925 Camino del Avian. CA 92675 - July 4.2007 - Proaram "B" 15) All terms of this Agreement are in writing and may only be modified by written agreement of both paries hereto. Both parties acknowledge they have received a copy of said written Agreement and agree to be bound by said terms of written Agreement only. 16) If there is more than one PURCHASER, they shall be jointly and severally responsible to perform PURCHASER's obligations under this agreement. Ibis Agreement shall become effective after it is executed and accepted by PURCHASER and after it is executed by PYRO at PYRO's offices in Rialto, California. This Agreement may be executed in several counter parts, including faxed copies, each one of which shall be deemed an original against the party executing same. This Agreement shall be binding upon the parties hereto and upon their heirs, successors, executors, administrators and assigns. PURCHASER recognizes that because of the nature of fireworks, an industry accepted level of 3% of the product used in any display may not firection as designed and this level of nonperformance is acceptable as fill performance. In Witness Whereof the parties hereto, by and through their duly authorized agents, have of , OQZ n c1 -1Title PRESIDENT j JAMES R. OUZA . PYRO SPECTACULARS, IN . PURCHASER , Title PRINTNAME "Exhibit A" set their hands and seals this day X Initial Here • Purchaser Is responsible toy payment of fire department permit and standby fees, If applicable. • Purchaser to provide firing site, communication, and security. • Price firm through July 4, 2007. • Price includes full electronic firing. Show Prodxer; Sam a ema 0 Product Synopsis Pyrotechnic Proposal for City of San Juan Capistrano Program B $29,000.00 Opening Description Quantity ♦ 3" Souza Designer Opening Salutes 25 Total of Opening 25 Main Body - Aerial Shelia Description Quantity, ♦ 3" Souza Designer Selections 145 ♦ 4" Souza Designer Selections 150 ♦ 5" Souza Designer Selections 115 ♦ 6" Souza Designer Selections 110 Total of Main Body - Aerial Shells 520 Pyrotechnic Devices Description guantitv ♦ Sousa Platinum Line - Muitishot Device 120 Shots ♦ Sousa Diamond Una - Muttishot Device 300 Shots Total of Pyrotechnic Devices 420 Grand Finale Description guantity ♦ 3" Souza Designer bombardment Shells 200 ♦ 4" Souza Designer Finale Shells 30 ♦ 5" Souza Designer Finale Shells g ♦ 6" Souza Designer Finale Shells 6 Total of Grand Finale 245 Grand Total 1,210 "Exhibit A" E AGENDA REPORT TO: Dave Adams, City Manager 9� FROM: Karen Crocker, Community Services Director 0 6/5/2007 SUBJECT: Consideration of Award of Contract for the 2007 4th of July Celebration Fireworks Sky Concert (Pyro Spectaculars, Inc.) RECOMMENDATION: By motion, approve contract for the 2007 4th of July Celebration Fireworks Sky Concert to Pyro Spectaculars, Inc., for the amount of $29,000. SITUATION: A. Summary and Recommendation The City of San Juan Capistrano hosts an annual aerial fireworks display as part of the 4th of July Celebration that is conducted at the Sports Park. Staff has solicited formal bids for an electronically fired aerial sky concert to be choreographed and synchronized to music. A Request for Proposal (RFP) was sent to four (4) recognized fireworks companies. Staff is recommending that the contract be awarded to Pyro Spectaculars, Inc. not to exceed $29,000. B. Background The Request for Proposals were sent to Pyro Spectaculars, Inc., Lantis Fireworks & Laser, Fireworks America, and Zambelli Fireworks Internationale. Staff received bids from Pyro Spectaculars, Inc. and Fireworks America whose cost proposals were the same ($29,000), but Pyro Spectaculars, Inc. provided more shells for the program than Fireworks America. Pyro Spectaculars, Inc.'s bid proposal included 1,210 shells. Fireworks America's total shell count was 1,100. The other two companies did not submit bids. Pyro Spectaculars, Inc. has been providing the City of San Juan Capistrano with outstanding fireworks shows throughout the years. Staff has received numerous compliments from residents regarding the quality of the aerial show that this company has provided. Pyro Spectaculars, Inc. is a well-qualified fireworks company that has complied with the City's performance standards for the past few years .This contract will be for the 2007 event only (Attachment 1). The proposed Personal Service Agreement includes a Scope of Work with Pyro Spectaculars, Inc. (Exhibit A). 0 Agenda Report Page 2 40 June 5, 2007 The event will be held on Wednesday, July 4, 2007, from 4:00 p.m. -9:30 p.m., at the San Juan Capistrano Sports Park. The day's festivities will include food and information booths that are sponsored by community-based non-profit organizations, kiddie inflatable attractions, family games, live stage entertainment, and an aerial fireworks sky concert. COMMISSION/BOARD REVIEW, RECOMMENDATION: This item will be presented to the Parks, Recreation, and Equestrian Commission at their June 18, 2007, meeting as information only. FINANCIAL CONSIDERATIONS: The annual fireworks display is a budgeted item. Half of the $29,000 ($14,500) will be paid from the current fiscal year's budget, with the remaining half being included in the proposed budget for fiscal year 2007-08. NOTIFICATION: James R. Souza, President, Pyro Spectaculars, Inc.` Sam Bruggema, Pyro Spectaculars, Inc. " Mailed copy of agenda report RECOMMENDATION: By motion, approve contract for the 2007 4th of July Celebration Fireworks Sky Concert to Pyro Spectaculars, Inc., for the amount of $29,000. Respectfully submitted, Karen Crocker Community Services Director Attachment: 1. Personal Service Agreement Prepared byt 4CLL Cynthia Alexander Interim Community Services Manager 0 0 PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this day of 2007, by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and Pyro Spectaculars, Inc. (hereinafter referred to as "Contractor"). RECITALS: WHEREAS, City desires to retain the services of Contractor to provide an aerial fireworks sky concert display on the 4th of July; and WHEREAS, Contractor has represented itself as being capable of providing such service. NOW, THEREFORE, City and Contractor mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by the Contractor and The City shall consist of those tasks as set forth in Exhibit A, (Contractors Display Agreement and Program B, which are attached hereto and incorporated herein by this reference as though set forth in full). Each party warrants that all of its services shall be performed in a competent, professional and satisfactory manner and in accordance with the prevalent standards of its profession. Section 2. Term. This Agreement shall commence on the effective date of this Agreement and services required hereunder shall be completed as set forth in the Exhibit A. Section 3. Compensation and Pricing. 3.1 Amount, Payment Schedule, and Credit. Compensation shall be payable as set forth in Exhibit A. Any Credit due the City shall be made as follows: Attachment 1 0 0 • In the event the Display substantially complies with the scope of work as set forth in the Exhibit A but does not begin by 9:05 p.m., PDT on July 4, 2007, as a result of the sole negligence of Pyro Spectaculars, Inc. Pyro Spectaculars, Inc. shall credit Purchaser $50 for each full minute of delay up to $2,000. • In the event the Display substantially complies with the scope of work as set forth in Exhibit A, but is interrupted as a result of the sole negligence of Pyro Spectaculars, Inc., Pyro Spectaculars, Inc. shall credit Purchaser $50 for each full minute of interruption up to $1,000. An interruption resulting from the malfunction of one or more fireworks devices, including interruptions resulting from injury or damage caused thereby, shall not be considered to result from the negligence of Pyro Spectaculars, Inc. for the purposes of this paragraph. • In the event the Display substantially complies with the scope of work as set forth in Exhibit A, but fireworks in excess of the industry standard 3% fail to fire, Pyro Spectaculars, Inc. shall credit Purchaser with the full list value of the product that failed to fire in excess of 3%. • In the event that the Display fails to substantially comply with the scope of work as set forth in Exhibit A, Pyro Spectaculars, Inc., shall credit Purchaser with up to 25% of the Display price. Such credit shall be inclusive of any credits set forth in paragraphs 1, 2, and 3. • Nothing in this paragraph shall prevent the parties from reaching agreement that all or a portion of the credit may be in the form of enhancements to future displays. Section 4. Independent Contractor. It is agreed that Contractor shall act and be an independent Contractor and not an agent or employee of City, and shall obtain no rights to any benefits which accrue to City's employees. Section 5. Limitations Upon Subcontractina and Assianment. Contractor shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If 0 Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Contractor. City will deal directly with and will make all payments to Contractor. Section 6. Familiarity with Work and Display Site. Should Contractor discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. Section 7. Compliance with Law. Contractor shall comply with all existing applicable laws, ordinances, codes and regulations of federal, state and local government. Section 8. Conflicts of Interest. Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Contractor. Section 9. Indemnity. Contractor agrees to protect, defend and hold harmless City, its elected and appointed officials and employees from any and all claims, liabilities, expenses or damages, for injury or death of any person or damage to property or interference with use of property to the extent such arises from or in connection with the work, operation or activities of Contractor, its agents, employees and subcontractors in carrying out its obligations under this Agreement. Section 10. Insurance. Insurance required herein shall be provided by Authorized Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A - Class VII or better. Contractor is to provide City with copies of the following: 0 0 10.1 Commercial General Liability. (See Exhibit A) 10.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Contractor shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non -owned vehicles in the following minimum amounts: $5,000,000 combined single limits per occurrence property damage and personal injury. 10.3 Worker's Compensation. Contractor shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statuary amount as required by state law. 10.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement, Contractor shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement to the Contractor's general liability policy to the City Clerk's office for certification that the insurance requirements of this Agreement have been satisfied. 10.5 Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverage/s reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. Section 11. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: 0 To City: City of San Juan Capistrano 25925 Camino del Avion San Juan Capistrano, CA 92675 Attn: Karen Crocker, Community Services Director To Contractor: Pyro Spectaculars, Inc. P.O. Box 2329 Rialto, CA 92377 Attn: Sam Bruggema, Show Producer Section 12. Entire Agreement. This Agreement and Exhibit A constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO By: Sam Allevato, Mayor By: , J es R. Souza, Presiden Pyro Spectaculars, Inc. ATTEST: Margaret R. Monahan, City Clerk APPROVED AS TO FORM: 4--� John R. Phaw, City Atto ey Exhibit: Exhibit A, Display Agreement & Program B 0 0 PYRO SPECTACULARS, INC. Display Agreement 1) THIS AGREEMENT, entered into this day of 2047, by and between PYRO SPECTACULARS, INC, a California corporation hereinafter referred to as "PYRO" and Cily of Can Juan (51plattann hereinafter referred to as "PURCHASER. 2) PYRO agrees to fbrnish PURCHASER, in accordance with the terms and conditions hereinafter act forth, I fireworks display ere as per Program �_ , submitted, accepted and made part hof, including the services of a licensed pyrotechnic operator to take charge of and, along with sufficient helpers, safely discharge the display. The said display is scheduled to be performed on July 4 29Q7 at San .Tuan Capistrano Sports Parke San Juan Cao'e no, CA 3) PURCHASER, at its own expense, agrees to provide to PYRO: A) A suitable DISPLAY SITE in which to stage the fireworks display, including a firing and fallout zone reasonably acceptable to PYRO in which the fireworks and firework debris may be exhibited, rise and fall safety. 8) Adequate policing, guard protection, roping, fencing and/or other crowd control measures to prevent the aocess of the public or its property or any other people or property not authorized by PYRO into the DISPLAY SITE. C) The services and cost of standby firemen and/or any applicable permit fees as required by state and local statutes, ordinances or regulations. D) Access by PYRO, at all times, to the DISPLAY SITE to set up the display. If PURCHASER fails to fully comply with requirements A, 8, C and/or b set forth above, PYRO shall have no obligation to perform and PURCHASER agrees to pay to PYRO the entire contract price plus any additional expenses incurred because of said failure. If, in its sole discretion, PURCHASER designates an area for members of the public to view the Display ("Spectator Ares") and/or an area for vehicular parking ("Parking Area"), the PURCHASER shall: E) Ensure that the Spectator Area does not infringe on the Display Area; F) Have sole responsibility for ensuring that the torrain of the Spectator Area and any structures thereon, including, but not limited to grandstands and bleachers are safe for use by spectators; 0) have sole responsibility for ensuring that the Parking Area is safe for use; H) Have sole responsibility to police, monitor and appropriately control spectator access to the Spectator Area and the Parking Area and police, monitor and appropriately control the behavior of persons in thane areas. It is expressly agreed that PYRO, (including its operators and helpers) shall not inspect, police, monitor or otherwise supervise any area of the site other than the Display Area, except to ensure: I) That any Spectator or Parking Areas are outside the Display Area; and J) After completion of the Display, that the Display Area is cleared of any live firework debris originating from the program. 4) PURCHASER shall pay to PYRO the sum of TWENTY NINE THOUSAND ---------------------------Dollars ($Z9.000AO ). A deposit of $ 14.5 00 0n and fire department fees approximated at $ 00.00 must be paid by Mav 4.2007. Full final payment is due the first regular business day after the date set for the display. A financecharge at a periodic rate of 1.5% per month, 18% annual percentage rate, or the maximum rate permitted by law, whichever is less, will be charged on the unpaid balance after ten days from the date of the display. PURCHASER, by signing this agreement, authorizes PYRO to receive and verify financial information concerning PURCHASER from any person or entity. 5) PURCHASER agrees to assume the risk of weather, or other causes beyond PYR.O's control, which may prevent the display from being safely discharged on the scheduled date, which may cause the cancellation of any event for which PURCHASER has purchased tine display, or which may affect or damage such portion of the exhibits as must be placed and exposed a necessary time before the display. It shall be within PYRO's sole discretion to determine whether or not the display may be safely discharged on the scheduled date and at the scheduled time. If, for any reason beyond PYRO's control, including, without limitation, inclement weather, PYRO is unable to safely discharge the display on the scheduled date or should any event for which PURCHASER has purchased the display be cancelled, the patties shall attempt to negotiate a new display date, which shall be within 60 days of the otigh ud display date. PURCHASER further agrees to pay PYRO for any additional expenses made necessary by this postponement. If they are unable to agree on a new display date, PYRO shall be entitled to liquidated damages from PURCHASER as if PURCHASER had cancelled the display on the date set for the display, as provided in the following paragraph. 6) PURCHASER shall have the option to unilaterally cancel this display prior to the date of the display. If PURCHASER exercises this option, PURCHASER agrees to pay to PYRO, as liquidated damages, the following percentages of the agreed contract price. I) 25% if cancellation three (3) or more days prior to the scheduled day of the display, 2) 500A if cancellation occurs within two (2) days of the actual date set for the display, 3) 75% if cancellation occurs on the date set for the display but prior to the time physical set-up of the display actually begins, 4) 100% thereafter. If cancellation occurs prior to the date set for the display, PURCHASER agrees to pay PYRO In addition to the above percentages, the value associated with any specific custom work performed by PYRO or its agents including but not limited to musWaarration tape production and/or sponsors logos. (continued on reverse) "Exhibit All Exhibit A 0 0 PYRO SPECTACULARS, INC. Display Agreement 7) In die event PURCHASER cancels the display, it will be impractical or extremely difficult to fix the actual amount of PYRO's damages. The foregoing represents a reasonable estimate of the damages PYRO will suffer if PURCHASER cancels the display. 8) PYRO reserves the ownership rights and trade names that are used in or are a product of the pyrotechnic display to be performed herein. Any reproduction by sound, video or other duplication or recording process without the express written permission of PYRO is prohibited. 9) PYRO agrees to furnish insurance coverage in connection with the Display 01y, for the following risks and amounts; bodily injury and property damage, including products liability ONE MILLION DOLLARS ($1,000,000) combined single limits. Such insurance shall include PURCHASER as an additional insured regarding claims made against PURCHASER for bodily injury or property damage arising from the operations of PYRO in performing the Display provided for in this Agreement. Such insurance afforded by PYRO shall not include claims made against PURCHASER for bodily injury or property damage arising from A) Failure of PURCHASER, including through or by its employees, agents and/or independent contractors, to perform its obligations under this agreement, including, without limitation, those contained in Paragraph 3 of this Agreement; B) Failure of the PURCHASER to provide discretionary Spectator and Parking Areas referred to in Paragraph 3 of this Agreement. PURCHASER shall indemnify and hold PYRO harmless from all claims and suits made against PYRO for bodily injury or property damage arising from A) and B) of this Paragraph. 10) If any legal action is brought to enforce or interpret the terms or provisions of this Agreement, the prevailing party shall be entitled to reasonable attorney fees and costs in addition to any other relief to which they may be entitled. 11) In the event PYRO breaches this agreement, or is otherwise negligent in performing the fireworks display provided for herein, PURCHASER shall, under no circumstances, be entitled to recover monetary damages from PYRO beyond the amount PURCHASER agreed to pay PYRO under this Agreement. PURCHASER shall not, under any circumstances, be entitled to recover any consequential damages from PYRO including, without limitation, for loss of income, business or profits. Nothing in this paragraph shall be construed as a modification or limitation on the insurance coverages afforded to Paragraph 9 above. - 12) It is agreed, nothing in this Agreement or in PYRO's performance of the display provided for herein, shall be construed as forming a partnership or joint venture between PURCHASER and PYRO. The parties hereto shall be severally responsible for their own separate debts and obligations and neither patty shall be held responsible for any agreements or obligations not expressly provided for herein. 13) This Agreement shall be governed acid interpreted under the laws of the State of California. It is funher agreed that the courts of the State of California shall have exclusive jurisdiction to adjudicate any disputes arising out of this contract or performance of the display provided for herein. It is further agreed that the Central Judicial District of Sen Bernardino County, California, shall be proper venue for any such action. 14) Any Notice to the parties permitted or required under this Agreement may be given by mailing such Notice in the United States Mail, postage prepaid, first class, addressed as follows: PYRO - Pyro Spectaculars, Inc., P. 0. Box 2329, Rialto, California 92377. PURCHASER -City of San Juan Capistrano: 25925 Camino del Avion. CA 92675 - July 4.2007- Prooram "B" 15) All terms of this Agreement are in writing and may only be modified by written agreement of both parties hereto. Both porties acknowledge they have received a copy of said written Agreement and agree to be bound by said terms of written Agreement only. 16) If there is more than one PURCHASER, they shall be jointly and severally responsible to perform PURCHASER's obligations under this agreement. This Agreement shall become effective after it is executed and accepted by PURCHASER and atter it is executed by PYRO at PYRO's offices in Rialto, California. This Agreement may be executed in several counter parts, including faxed copies, each one of which shall be deemed an original against the party executing same. This Agreement shall be binding upon the parties hereto and upon their heirs, successors, executors, administrators and assigns. PURCHASER recognizes that because of the nature of fireworks, an industry accepted level of 3% of the product used in any display may not function as designed and this level of nonperformance is acceptable as fill performance. In Witness Whereof the parties hereto, by and through their duly authorized agents, have of OQZ. i ' �� - ;Title PRESIDENT JAMES R. OUZA PYRO SPECTACULARS, IN . PURCHASER ,Title PRINT NAME "Exhibit A" set iner mamas sun sears mrs aay X IJritial Here • Purchaser Is responsible for payment of fire department permit and standby fees, If applicable. • Purchaser to provide firing site, communication, and security. • Price firm through July 4, 2007. • Pike includes full electronic firing. 0 Product Synapsis Pyrotechnic Proposal for City of San Juan Capistrano Program B $29,000.00 Opening Grand Total 1,210 "Exhibit A" Deacriotion Quantity ♦ 3" Souza Designer Opening Salutes 25 Total of Opening 25 Main Body - Aerial Shells Description Quantity ♦ 3" Souza Designer Selections 145 ♦ 4" Souza Designer Selections 150 ♦ 5" Souza Designer Selections 115 ♦ 6" Souza Designer Selections 110 Total of Main Body - Aerial Shells 520 Pyrotechnic Devices Description Quantity ♦ Sousa Platinum Line - Muitishot Device 120 Shots ♦ Sousa Diamond Line - Multishot Device 300 Shots Total of Pyrotechnic Devices 420 Grand Finale Description Quantity t 3" Souza Designer Bombardment Shells 200 ♦ 4" Souza Designer Finale Shells 30 ♦ 5" Souza Designer Finale Shells g ♦ 6" Souza Designer Finale Shells 6 Total of Grand Finale 246 Grand Total 1,210 "Exhibit A" n u 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAx www sanjuancapeslrano. org IA[AAIAAAIEA • (Sp 1EIfX(0 1961 1776 MEMBERS OF THE CITY COUNCIL NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL SAM ALLEVATO THOMAS W. HRIBAR MARK NIELSEN JOE SOTO DR. LONDRES USO The City Council of San Juan Capistrano will meet at 7:00 p.m. on June 5, 2007 in the City Council Chamber in City Hall, to consider: "Consideration of Award of Contract for the 2007 4th of July Celebration Fireworks Sky Concert (Pyro Spectaculars, Inc)" — Item No. D9. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the City Council through correspondence addressed to the Council and/or by attending the meeting and speaking to the Council during the public meeting. Correspondence related to this item must be received at the City Clerk's office by 5:00 p.m. on Monday, June 4, 2007 to allow time for the Council to consider its content. If you would like to speak at the meeting, please complete a yellow "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Mayor when the item is considered. You have received this notice at the request of the City staff member Cynthia Alexander, Interim Community Services Manager. You may contact that staff member at (949) 443-6390 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancapistrano.oro. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: citvclerkasanivancapistrano.oM. Meg Monahan, MMC City Clerk cc: James R. Souza, President, Pyro Spectaculars, Inc*; Sam Bruggema, Pyro Spectaculars, Inc*; Karen Crocker, Community Services Director; Cynthia Alexander, Interim Community Services Manager * Received staff report San Juan Capistrano: Preserving the Past to Enhance the Future 01, Printed on too% recycletl paper 0 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493.1053 PAX www.sanjuancapistrano.org TRANSMITTAL TO: James R. Souza, President Pyro Spectaculars, Inc. P.O. Box 2329 Rialto, CA 92377 DATE: May 11, 2007 (✓✓J/�� IAOANAAI[I (SIAI(ISA(I I 1961 1776 FROM: Maria Morris, Deputy City Clerk (949) 443-6309 RE: Personal Services Agreement — July 4t' Fire Works Display MEMBERS OF THE CITY COUNCIL SAMALLEVATO THOMAS W. HRIBAR MARK NIELSEN JOE SOTO DR. LONDRES USO Thank you for providing documentation confirming compliance with the terms of the agreement related to insurance. Please keep in mind this documentation must remain current with our office during the term of this agreement. If you have questions related to insurance requirements, please call me at (949) 443-6309. If you have questions concerning the agreement, please contact Cynthia Alexander, Interim Community Services Manager (949) 443-6395. An original agreement is enclosed for your records. Cc: Cynthia Alexander, Interim Community Services Manager Karen Crocker, Community Services Director San Juan Capistrano: Preserving the Past to Enhance the Future 40 Pnnietl on 100% recycled paper