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10-0518_PYRO SPECTACULARS, INC._Personal Services AgreementPERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into this 18`h day of May, 2010, by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and Pyro Spectaculars, Inc. (hereinafter referred to as the "Contractor"). RECITALS: WHEREAS, City desires to retain the services of Contractor to provide an aerial fireworks sky concert display of the 4th of July; and WHEREAS, Contractor is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Contractor mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by Contractor shall consist of those tasks as set forth in Exhibit B, attached and incorporated herein by reference. To the extent that there are any conflicts between the provisions described in Exhibit B and those provisions contained within this Agreement, the provisions in this Agreement shall control. 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 and shall terminate, and all services required hereunder shall be completed as set forth in Exhibits A and B. Section 3. Compensation. 3.1 Amount, Payment Schedule and Credit Total compensation for the services hereunder shall not exceed $31,500, as set forth in Exhibits A and B, attached and incorporated herein by reference. Any Credit due the City shall be made as follows: In the event the Display substantially complies with the scope of work as set forth in the Exhibit B but does not begin by 9:05 p.m., PDT on July 4, 2010, 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. 0 0 In the event the Display substantially complies with the scope of work as set forth in Exhibit B, 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 B, 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 B, 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 bullets 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 the Contractor shall act and be an independent Contractor and not an agent of employee of the City, and shall obtain no rights to any benefits which accrue to City's employees. Section 5. Limitations Upon Subcontracting and Assignment. 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. Reserved. Section 7. Familiarity with Work and/or Construction 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 the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. 2 0 0 Section 8. Compliance with Law: E -Ven . 8.1. Compliance with Law. Contractor shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. 8.2. E-Verify/ATF Employee Possessor Questionnaire. a. If Contractor is not already enrolled in the U.S. Department of Homeland Security's E -Verify program, Contractor shall enroll in the E -Verify program within fifteen days of the effective date of this Agreement to verify the employment authorization of new employees assigned to perform work hereunder. Contractor shall verify employment authorization within three days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at http://www.uscis.gov, or access the registration page at hftps://www.vis- dhs.com/emp(overregistration. Contractor shall certify its registration with E -Verify and provide its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated. b. As an alternative to the requirement in subsection (a) above, contractorshall certify that (i) it is a federal explosives licensee or permitee and (ii) is in compliance with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives' Employee Possessor Questionnaire Program for all persons assigned to perform work at the Display. Section 9. 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 10. Indemnity. Contractor agrees to protect, defend, and hold harmless the City and its elective and appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, for injury or death of any person, or damages 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 11. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Contractor, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Contractor shall not allow any subcontractor to commence work on any 3 0 0 subcontract until all insurance required of the Contractor has also been obtained for the subcontractor. Insurance required herein shall be provided by Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A- Class VII or better. 11.1 Commercial General Liability. Throughout the term of this Agreement, Contractor shall maintain in full force and effect Commercial General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. 11.2 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. 11.3 Worker's Compensation. Contractor shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 11.4 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. 11.6 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. G! 0 0 Section 12. 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: 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 13. Entire Agreement This Agreement and Exhibit A and B constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertain to the subject matter thereof. Section 14 Reserved. [SIGNATURE PAGE TO FOLLOW] 61 0 IN WITNESS WHEREOF, the parties hereto have Ipxecu* this Agreement. APPROVED AS TO FORM: mai •• ' City —Attorney In ISTRANO Dr.-Londres Uso, M PYRO SPECTACULARS, INC. By: ames R. Souza,Pr&sidebY^ Pyro Spectaculars, Inc. Exhibit A: RFP Exhibit B: Display Agreement; Program A; Display Checklist; Scope of Work 11 January 27, 2010 City of San Juan Capistrano Cynthia Alexander 25925 Camino del Avion San Juan Capistrano, CA 92675 Dear Ms. Alexander, Pyro Spectaculars, Inc. is pleased to present to you our pyrotechnic proposal for your July 4, 2010 event. We are proposing our special Sky Concertm Program "A" in the amount of $31,500.00. Your display is scheduled for 9:00 p.m. and will be approximately 15-20 minutes in duration. Our full service display includes the services of a licensed pyrotechnic operator, an electronic firing system, show choreography and design, insurance coverage, sales tax and delivery. We will process the necessary fire department permit applications. Our winning combination of products, people and production capabilities help produce the best fireworks entertainment package possible. City of San Juan Capistrano will be responsible for payment of the Orange County Fire Authority permit fee and/or standby firemen fees, if any. The Fire Department may bill you directly for any standby fees for inspections. City of San Juan Capistrano will also be responsible for providing the display location and all necessary security for the display site. Enclosed you will find a Product Synopsis, Personal Service Agreement and Display Agreements for signature. Please have one copy of this fully executed agreement returned to our office by March 15, 2010 along with your deposit. Please take the time to review this proposal in detail. If you wish to discuss any changes in your program or need more information, please call either myself or your Customer Service Representative Connie Martinez at (909) 355-8120 ext. 227. Sincerely, PYRO SPECTACULARS, INC. ( 314JOWQV Sam Breiggema0 d PYRO Show Producer SB/cm Enclosures EXHIBIT A PYRO SPECTACULARS, INC. P.O. Box 900186 • San Diego, CA 92190 • Phone: (619) 583.6141 or (800) 624.9360 • Fax: (619) 583.6185 0 Proposal Offtlifte City of Son Awn, 9 Product Synopsis • Conclusion and Commitment * Production Agreement & Scope of Work Product $YINOPSIS Pyro teclinic Proposal City of San Aran Cap1strava Pro raw A s3"'fr. leo of Opening Description ♦ 3" Souza Designer Opening Salutes Total of Opening Main Body - Aerial Shells Description ♦ 3" Souza Designer Selections ♦ 4" Souza Designer Selections ♦ 5" Souza Designer Selections ♦ 6" Souza Designer Selections Total of Main Body -Aerial Shells Pyrotechnic Devices Description ♦ Sousa Dazzlers Custom Multishot Device ♦ Sousa Platinum Line Custom Multishot Device Total of Pyrotechnic Devices Grand Finale Description ♦ 3" Souza Designer Bombardment Shells ♦ 4" Souza Designer Finale Shells ♦ 5' Souza Designer Finale Shells ♦ 6" Souza Designer Finale Shells Quantity 25 25 Quantity 140 140 100 100 480 Quantity 1100 Shots 286 Shots 1,386 Quanti 200 30 9 6 Total of Grand Finale 246 Grand Total 2,136 0 conn/usloo & caniv intent KGB sky show 2008 We'd like to thank the City of San Juan Capistrano for allowing us to make this presentation. Our sincere effort has gone into preparing this proposal. We are eager to hear your comments and answer any questions you may have. We are confident that after your complete review of our ideas and performance capabilities you will select Pyro Spectaculars by Souza as your fireworks company. saw Z mg- erica 0 0 PYRO SPECTACULARS, INC, Display Agreement (Special) 1) THIS AGREEMENT, entered into this day of 2010, by and between PYRO SPECTACULARS, INC., a California corporation hereinafter referred to as "PYRO" and City of San Juan Capistrano referred to as "PURCHASER." 2) PYRO agrees to furnish PURCHASER, in accordance with the terms and conditions hereinafter set forth, 1 fireworks display as per Program A 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, 2010 at San Juan Capistrano Sports Park, San Juan Capistrano, 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 fireworks debris may be exhibited, rise and fall safely. B) Adequate policing, guard protection, roping, fencing and/or other crowd control measures to prevent the access 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, B, C and/or D 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 Area's 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 terrain of the Spectator Area and any structures thereon, including, but not limited to grandstands and bleachers are safe for use by spectators; 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 these 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 J) After completion of the Display, that the Display Area is cleared of any live fireworks debris originating from the program. 0 PYRO SPECTACULARS, INC. P.O. Box 2329 Rialto, CA 92377 Tel: 909-355-8120::::: Fax: 909-355-9813 City of San Juan Capistrano Program "A° July 4, 2010 Page 2 of 4 4) PURCHASER shall pay to PYRO the sum of THIRTY ONE THOUSAND FIVE HUNDRED Dollars ($31,500.00). A deposit of $15,750.00, plus estimated fire department permit and/or standby fees of $00.00 must be paid by March 15, 2010. 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 10 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 PYRO'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 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 which discretion shall be exercised reasonably 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 canceled, 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 canceled 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) 50% if cancellation occurs 30 to 90 days prior to the scheduled date of the display, 2) 75% if cancellation occurs 15 to 29 days prior to the date set for the display, 3) 100% if cancellation occurs 14 or fewer days prior to the date set for the display. If cancellation occurs 30 days or more 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 music/narration tape production and/or sponsors logos. 7) In the 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. City of San Juan Capistrano PSI - Display Agreement - Special July 4, 2010 EXHIBIT B 0 PYRO SPECTACULARS, INC. P.O. Box 2329 Rialto, CA 92377 Tet: 909-355-6120::::i Fax: 909-355-9813 0 City of San Juan Capistrano Program W July 4, 2010 Page 3 of 4 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 only, 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 coverage afforded in 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 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 that the Central Judicial District of San Bernardino County, California, shall be proper venue for any such action. City of San Juan Capistrano PSI - Display Agreement - Special July 4, 2010 EXHIBIT B 9 9 PYRO SPECTACULARS, INC. City of San Juan Capistrano P.O. Box 2329 Program "A" Rialto, CA 92377 July 4, 2010 Tel: 909-355-8120::::: Fax: 909-355-9813 Page 4 of 4 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. O. Box 2329, Rialto, California 92377. PURCHASER - City of Sart Juan Capistrano: 25925 Camino Del Avion, San Juan Capistrano, CA 92675 — July 4, 2010 — Program "A." 15) All terms of this Agreement are in writing and may only be modified by written agreement of both parties 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. This 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 function as designed and this level of nonperformance is acceptable as full performance. In Witness Whereof the parties hereto, by and through their duly authorized agents, have set their hands and seals this day of 2010. PYRO SPECTACULARS, INC.: dNi-� , Title President J S R. SOUZA L/ I #� PURCHASER: Title City of San Juan Capistrano PSI - Display Agreement - Special July 4, 2010 EXHIBIT B 0 CITY OF SAN JUAN CAPISTRANO YEAR 2010 4TH OF JULY FIREWORKS DISPLAY SCOPE OF WORK Electronically Fired Show With Choreographed & Synchronized Music Not To Exceed $31,500 Proposals shall be evaluated based on the contractor's satisfactory and reliable performance history, compliance with Scope of Work, quality of proposed aerial display, the impact of pyrotechnic effects, and the length, pacing, and music proposed for the show. Contractor To: Submit a proposal for an aerial display that includes the following, using a minimum shell size: 3", and maximum shell size: 6" to provide a 15-20 minute show. Please ensure that the proposal is divided into the three (3) categories and specify what would be included within each category: 1. Opening Finale 2. Main Program 3. Closing Finale Provide a written description of the company's policy for monetary compensation to the City when, due to the company's actions (or inactions): 1. The aerial display does not begin on time, or there is a delay during the show 2. The show does not comply with the scope of work and/or the bid package that was submitted by contractor and approved by the City. 3. There is a modification to the show, even though the show began on time and there were no delays during the show. 4. Even though the correct amount of shells are delivered, all the shells are not fired. • Provide California licensed pyrotechnic operator and crew; transportation of crew and all supplies and materials to and from event. Operator and crew will be responsible for all site preparation and site cleaning, including removal of debris associated with the display. City will not accept responsibility for advance storage of fireworks and/or vehicle(s). • Schedule operator and crew adequate time for setup; schedule adequate time for take-down/clean-up of the firing site and fall -out area immediately after the show and the following morning. • Coordinate with the Orange County Fire Authority and comply with all regulations • Schedule representative(s) to meet on site with City staff and Fire Authority prior to event to coordinate event details. 0 0 Provide music that is choreographed and synchronized to the aerial fireworks show. Music is to be provided to City via both a DAT and a back-up CD. Provide a 15-20 minute show; be responsible for the timely completion of all preparation work so the display will begin at its official starting time of 9:00 pm. Provide the City with a certificate of insurance* for public liability and property damage, minimum sum of $1,000,000 AND provide the City with a liability endorsement form* naming the City of San Juan Capistrano, its elected and appointed officials, employees and servants as additional named insureds. Also to be included on certificate and endorsement: South Coast Farms, Orange County Fire Authority. Provide the City with proof of Workers' Compensation Insurance* for all employees as required by State laws governing fireworks displays and proof of Automobile Insurance coverage* for all employees who will be driving automobiles associated with this event. Provide references for all July 4th displays conducted for the past three (3) years in Orange County, CA. This listing will be used to determine a satisfactory and reliable performance history. City To: Provide sand, DAT and CD Players, Clear -Com communication system, sound system, suitable firing site, and City liaison. Term: The term of the agreement with the selected contractor shall be for the year 2010 aerial firework display. *Must be received by City minimum of 21 working days prior to the event. 0 SUPPLEMENTARY AGENDA REPORT TO: Joe Tait, City Manage FROM: Omar Sandoval, City Attorney • 5/18/2010 SUBJECT: Consideration of Award of Contract for the 2010 4th of July Celebration Fireworks Sky Concert (Pyro Spectaculars, Inc.) By motion, approve the contract for the 2010 4th of July Celebration Fireworks Sky Concert to Pyro Spectaculars, Inc., in the amount of $31,500 pursuant to the attached revised contract. SITUATION: City staff is requesting approval of a contract for the 2010 4th of July Celebration to Pyro Spectaculars, Inc. on substantially the same terms as agreed to last year. It has come to our attention that some provisions of the contract agreed to last year were left out or not revised for the current contract period. Attached is a revised contract, which contains the terms in substantially the same form as approved by the Council last year. The revisions to the contract that was included in the agenda packet are redlined and affect the date of the agreement and Sections 8.2 (page 3) and 11 (top of page 4). The Council does not need to pull the item from the consent calendar to approve the attached revised contract. Respectfully submitted, QWardSanlA1460- City Attorney Attachment: Revised Contract with Pyro Spectaculars, Inc. D7 0 0 PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into this 18th day of , May, 2010, by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and Pyro Spectaculars, Inc. (hereinafter referred to as the "Contractor"). RECITALS: WHEREAS, City desires to retain the services of Contractor to provide an aerial fireworks sky concert display of the 4th of July; and WHEREAS, Contractor is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Contractor mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by Contractor shall consist of those tasks as set forth in Exhibit B, attached and incorporated herein by reference. To the extent that there are any conflicts between the provisions described in Exhibit B and those provisions contained within this Agreement, the provisions in this Agreement shall control. 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 and shall terminate, and all services required hereunder shall be completed as set forth in Exhibits A and B. Section 3. Compensation. 3.1 Amount, Payment Schedule and Credit Total compensation for the services hereunder shall not exceed $31,500, as set forth in Exhibits A and B, attached and incorporated herein by reference. Any Credit due the City shall be made as follows: • In the event the Display substantially complies with the scope of work as set forth in the Exhibit B but does not begin by 9:05 p.m., PDT on July 4, 2010, 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. 0 0 In the event the Display substantially complies with the scope of work as set forth in Exhibit B, 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 B, 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 B, 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 bullets 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 the Contractor shall act and be an independent Contractor and not an agent of employee of the City, and shall obtain no rights to any benefits which accrue to City's employees. Section 5. Limitations Upon Subcontracting and Assignment. 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. Reserved. Section 7. Familiarity with Work and/or Construction 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 the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. 2 0 0 Section 8. Compliance with Law; E -Verify. 8.1. Compliance with Law. Contractor shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. 8.2. E-Verify/ATF Employee Possessor Questionnaire. a. If Contractor is not already enrolled in the U.S. Department of Homeland Security's E -Verify program, Contractor shall enroll in the E -Verify program within fifteen days of the effective date of this Agreement to verify the employment authorization of new employees assigned to perform work hereunder. Contractor shall verify employment authorization within three days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at http://www.uscis.gov, or access the registration page at https://www.vis- dhs.com/emploverregistration. Contractor shall certify its registration with E -Verify and provide its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated. b. As an alternative to the requirement in subsection (a) above contractor shall Questionnaire Program for all persons assigned to perform work at the Display. Section 9. 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 10. Indemnity. Contractor agrees to protect, defend, and hold harmless the City and its elective and appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, for injury or death of any person, or damages 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 11. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Contractor, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof that is acceptable to the City, the insurance 9 0 specified below with insurers and under forms of insurance satisfactory in all respects to the City. Contractor shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Contractor has also been obtained for the subcontractor. Insurance required herein shall be provided by °tea Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A- Class VII or better. 11.1 Commercial General Liability. Throughout the term of this Agreement, Contractor shall maintain in full force and effect Commercial General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. 11.2 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. 11.3 Worker's Compensation. Contractor shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 11.4 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. 11.6 Notice of Cancel lation/Term!nation 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. 4 Section 12. 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: 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 13. Entire Agreement This Agreement and Exhibit A and B constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertain to the subject matter thereof. Section 14 Reserved. [SIGNATURE PAGE TO FOLLOW] 5 • 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO 0 Dr. Londres Uso, Mayor PYRO SPECTACULARS, INC. 0 ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: Omar Sandoval, City Attorney James R. Souza, President Pyro Spectaculars, Inc. Exhibit A: RFP Exhibit B: Display Agreement; Program A; Display Checklist; Scope of Work 11 r 0 5/18/2010 Ll■ AGENDA REPORT TO: Joe Tait, City Manage FROM: Karen Crocker, Community Services Director SUBJECT: Consideration of Award of Contract for the 2010 4t' of July Celebration Fireworks Sky Concert (Pyro Spectaculars, Inc.) RECOMMENDATION: By motion, approve the contract for the 2010 4th of July Celebration Fireworks Sky Concert to Pyro Spectaculars, Inc., in the amount of $31,500. 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 the contract be awarded to Pyro Spectaculars, Inc., in the amount of $31,500 for July 4, 2010. B. Backsaround A Request for Proposals was sent to Pyro Spectaculars, Inc., Lantis Fireworks & Laser, Fireworks & Stage Fx America, Inc. and Zambelli Fireworks Internationale. Staff received bids from Pyro Spectaculars, Inc. and Zambelli Fireworks Internationale whose cost proposals were comparable (Attachment 1 and Exhibit B). Staff has reviewed previous history with both contractors noting the Pyro Spectaculars, Inc.'s presentation, equipment, and staff had been delivered with professionalism for over 19 years. In 1999, when the City contracted Zambelli Fireworks Internationale, there was negative input from staff and the community due to the unanticipated intermission in the aerial show resulting from the proper firing equipment not being delivered to the site. It was also through other comments from surrounding cities experiencing the same problems that influenced staff to support the recommendation. The other two companies did not submit bids. The proposed Personal Service Agreement (Attachment 2) includes a Scope of Work, Display Agreement, and Display Checklist with Pyro Spectaculars, Inc. (Exhibits A and B).The Agreement will be valid for July 4, 2010. 0 Agenda Report Page 2 E May 18, 2010 Staff 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 in past years. The event will be held on Sunday, July 4, 2010, from 6:00 p.m. -9:30 p.m., at the San Juan Capistrano Sports Park. The day's festivities include live stage entertainment, rides, games and an aerial fireworks sky concert. COMMISSION/BOARD REVIEW, RECOMMENDATION: This item was presented at the May 17, 2010 Parks, Recreation and Equestrian Commission meeting, and any changes or modifications to the item requested by the Commission will be incorporated in staffs verbal presentation to the City Council the evening of May 18, 2010. FINANCIAL CONSIDERATIONS: The annual fireworks display is a budgeted item. Half of the $31,500 ($15,750) will be paid from the current fiscal year's budget, with the remaining half being included in the proposed budget for fiscal year 2010-11 and the payment for this one (1) year contract follow payment procedure. NOTIFICATION: James R. Souza, President, Pyro Spectaculars, Inc. Sam Bruggema, Pyro Spectaculars, Inc. By motion, approve the contract for the 2010, 4t" of July Celebration Fireworks Sky Concert to Pyro Spectaculars, Inc., in the amount of $31,500. WRe pecttull submitted, Ka n Crocker Community Services Director Pre ar y, I ynthia Alexander Community Services Manager Attachments: 1. Zambelli Fireworks Internationale and Pyro Spectaculars, Inc. Proposals 2. Personal Services Agreement 3. Location Map Zambel I ZAMOBLLI FIREWORKS INT@RNWWNAL Revised Proudly Presents A Pyrotechnic Extravaganza to be held July 4, 2010 on behalf of Community Services San Juan Capistrano, California ATTACHMENT 1 0 zambe10 l Il7ONALE Community Services San Juan Capistrano, California Revised February 1, 2010 With your choreographed display for $31,500.00 we will provide the following: OPENING FANFARE: 100 Three Inch Assorted Color Star Shells, Fancy Star Shells, Peonies, Chrysanthemums, Flash & Titanium Salutes 12 Four Inch Assorted Finale Shells 10 Five Inch Assorted Finale Shells S Six Inch Assorted Finale Shells BODY OF PROGRAM: THREE INCH ASSORTED AERIAL DISPLAY SHELLS - 250 - Consisting oh Color Star Shells Multi -Color Star Shells Fancy Star Shells Super Fancy Shells Special Compartmental Shells Super Deluxe Compartemental Shells Oriental Chrysanthemum Shells Zambelli Multi -Break Shells FOUR INCH ASSORTED AERIAL DISPLAY SHELLS - 216- Consisting of: Color Star Shells Multi -Color Star Shells Fancy Star Shells Super Fancy Shells Special Compartmental Shells Super Deluxe Compartemental Shells Oriental Chrysanthemum Shells Zambelli Multi -Break Shells 0 z ZAMeELu Community Services San Juan Capistrano, California E ambelli RREWORKE IWMRNATIONALE Revised February 1, 2010 FIVE INCH ASSORTED AERIAL DISPLAY SHELLS -150 - Consisting of: Color Star Shells Multi -Color Star Shells Fancy Star Shells Super Fancy Shells Special Compartmental Shells Super Deluxe Compartemental Shells Oriental Chrysanthemum Shells Zambelli Multi -Break Shells SIX INCH ASSORTED AERIAL DISPLAY SHELLS -120 - Consisting of: Color Star Shells Multi -Color Star Shells Fancy Star Shells Super Fancy Shells Special Compartmental Shells Super Deluxe Compaxtemental Shells Oriental Chrysanthemum Shells Zambel 1 ZAM13ELLI FIREWORKS IN RNATIONALE Community Services San Juan Capistrano, California GRAND FINALE: Revised February 1, 2010 400 Three Inch Assorted Color Star Shells, Fancy Star Shells, Peonies, Chrysanthemums 40 Three Inch, Flash & Titanium Salutes 30 Four Inch Assorted Finale Shells 25 Five Inch Assorted Finale Shells 20 Six Inch Assorted Finale Shells • Zambell1• ZAMBB"I FIREWORKS INTERNATIONALS Community Services San Juan Capistrano, California Description Fanfare M Finale Three Inch Finale Shells Four Inch Finale Shells Five Inch Finale Shells Six Inch Finale Shells Three Inch Display Shells Four Inch Display Shells Five Inch Display Shells Six Inch Display Shells Three Inch Finale Shells Four Inch Finale Shells Five Inch Finale Shells Six Inch Finale Shells SYNOPSIS July 4, 2010 Offered in 2009 $31,500 AERIAL PROGRAM 100 12 10 8 150 216 150 100 440 30 25 20 Revised February 1, 2010 Offer for 2010 $31.500 100 12 10, 8' 250 216 150 120 440 30 25 20 Total Shells 1261 1381 ZAM13ELLI Community Services San Juan Capistrano, California 0 a,mbelli Fliiswows INTERMATIONALE SYNOPSIS (cont) July 4, 2010 Revised February 1, 2010 In addition to the 1381 aerial shells previously listed -- we will include the following multi -shot Barrage Cakes which will be choreographed to enhance the aerial presentation and add another element of depth to the display. Multi -Shot Cakes (Rise 150' to 200' into the sky) 100 Shot Cakes 4 200 Shot Cakes 4 300 Shot Cakes 2 408 Shot Cakes 2 Individual Multi -Shot Cakes 12 Total'shots' from Cakes 2616 Zarnbeffi* ZAMBELLI FIREWORKS INTERNATIONAI.E Revised Community Services February 1, 2010 San Juan Capistrano, California SCHEDULE OF SERVICES 1. Display uses shells from 3 -inch to 6 -inch and will be 19 - 20- minutes in length 2. Cost includes Licensed Pyrotechnician, crew, transportation, and supplies and materials required to produce the display. 3. Required permits will be obtained from the OCFA to be in compliance with all local, state and federal regulations. 4. A certificate of General Liability Insurance of $10,000,000 will be provided to Community Services. 5. A Proof of Insurance endorsement naming the City of San Juan Capistrano as additionally insured will be provided. 6. Proof of Workers Compensation Insurance through State Compensation Fund will be provided. 7. Zambelli will work with the City's support vendors to determine communication and sound support requirements. S. Zambelli will work with the Community Services/Parks & Recreation department to approve a soundtrack of appropriate music for the show. 9. Our lead choreographers Mr. Michael Richards and Parick Brault (Mr. Brawl's resume is enclosed) will have the responsibility of designing your display. 10. We will customize the soundtrack to include opening and closing statements. 0 Louis Martini Winery Ms. Alecia Robbins Zambel i References 2010 ZAmss"I FIRKW RKB INTERNATIONALFE References 2olo P.O. Box 12 Stockton, CA 95219 Thunder Over Louisville, Kentucky Derby Mount Rushmore National Memorial Mr. Wayne Hettinger Ms. Diana Saathoff 10420 Covered Bridge Road 825 St. Joseph Street, 3rd Floor Prospect, KY 40059 Rapid City, SD 57702 502 228-6080 605 574-2523 Ventura County Fair Ms. Barbara Boester-Quaid 4349 Duffer Drive. Ste 1311 10 W. Harbor Blvd. Ventura, CA 93001 805 207-7667 LA Beaches and Harbors AVI Hotel/Casino Ms. Catrina Love Mr. Fred Muirhead 13837 Fiji Way P.O. Box 89020 Marina del Rey, CA 90292 Lau hlin, NV 77011 102 310 305-9511 535-5530 2000 Main Street Weaverville Chamber of Commerce Huntington Ms. Pat Zugg. 831 685-3317 P.O. Box 1648 714 374-5312 Weaverville, CA 96093 Twen%Nine Palms Marine Base 530 623-3212 Channel Islands Knott's Berry Farm Ms. Michele Gilmour Ms. Julie Owens 3900 Pelican Way 8039 Beach Boulevard Oxnard, CA 93035 Buena Park, CA 90620 805 382-3013 714 220-5092 Brookside Country Club Louis Martini Winery Ms. Alecia Robbins Ms. Carolyn Martini 3603 St. Andrews Drive P.O. Box 12 Stockton, CA 95219 Saint Helena, CA 94574 209 956-6200 800 321 -WINE Nellis Air Force Base Ms.Elena Cortez 4349 Duffer Drive. Ste 1311 Nellis AFB, NV 89191 -702 652-2909 The Monte Fund Cityof Huntington Beach Ms. Kim Gallick s. Naida Osline 783-39 Rio del Mar Blvd 2000 Main Street Aptos, CA 95003 Huntington Beach, CA 92648-3703 831 685-3317 714 374-5312 Twen%Nine Palms Marine Base Mr. Robert L. Miller MAGTFTC MCAGCC, Box 788100 Twentynine Palms, CA 92278-8700 760 830-5053 San Gennaro Feast Edwards Air Force Base Mr. Anthony Palmisano Mr. Nicholas Condos 3675 South Rainbow Blvd. tl107-131 5 South Wolfe Avenue Las Vegas, NV 89103 Edwards AFB, CA 93524-1185 702 286-4944 661 277-9118 January 27, 2010 City of San Juan Capistrano Cynthia Alexander 25925 Camino del Avion San Juan Capistrano, CA 92675 Dear Ms. Alexander, Pyro Spectaculars, Inc. is pleased to present to you our pyrotechnic proposal for your July 4, 2010 event. We are proposing our special Sky ConcertTM Program "A" in the amount of $31,500.00. Your display is scheduled for 9:00 p.m. and will be approximately 15-20 minutes in duration. Our full service display includes the services of a licensed pyrotechnic operator, an electronic firing system, show choreography and design, insurance coverage, sales tax and delivery. We will process the necessary fire department permit applications. Our winning combination of products, people and production capabilities help produce the best fireworks entertainment package possible. City of San Juan Capistrano will be responsible for payment of the Orange County Fire Authority permit fee and/or standby firemen fees, if any. The Fire Department may bill you directly for any standby fees for inspections. City of San Juan Capistrano will also be responsible for providing the display location and all necessary security for the display site. Enclosed you will find a Product Synopsis, Personal Service Agreement and Display Agreements for signature. Please have one copy of this fully executed agreement returned to our office by March 15, 2010 along with your deposit. Please take the time to review this proposal in detail. If you wish to discuss any changes in your program or need more information, please call either myself or your Customer Service Representative Connie Martinez at (909) 355-8120 ext. 227. Sincerely, PYRO SPECTACULARS, INC, (k?o Sam Bruggema PYRO Show Producer SB/cm Enclosures PYRO SPECTACULARS, INC. P.O. Box 900186 • San Diego, CA 92190 • Phone: (619) 583-6141 or (800) 624-9360 • Fax: (619) 583-6185 9 0 Proposal Outline for City of San Jaen Capistrano • Product Synopsis • Conclusion and Commitment *Production Agreement& Scope of Work 0 0 Product Synapsis Pyro teC1117C Proposal City of San .lean Capistrano Pro rran� A 3 (,3004, 00 Opening Description ♦ 3" Souza Designer Opening Salutes Main Body - Aerial Shells Description ♦ 3" Souza Designer Selections ♦ 4" Souza Designer Selections ♦ 5' Souza Designer Selections ♦ 6" Souza Designer Selections Quantity 25 Total of Opening 25 Total of Main Body - Aerial Shells Pyrotechnic Devices Description ♦ Sousa Dazzlers Custom Multishot Device ♦ Sousa Platinum Line Custom Multishot Device Total of Pyrotechnic Devices Grand Finale Description ♦ 3" Souza Designer Bombardment Shells ♦ 4" Souza Designer Finale Shells ♦ 5" Souza Designer Finale Shells ♦ 6" Souza Designer Finale Shells Total of Grand Finale Grand Total Quantity 140 140 100 100 480 Quantity 1100 Shots 286 Shots 1,386 Quantity 200 30 9 6 245 2,136 0 r Conclusion & Commitment KGB Sky Show 2008 We'd like to thank the City of San Juan Capistrano for allowing us to make this presentation. Our sincere effort has gone into preparing this proposal. We are eager to hear your comments and answer any questions you may have. We are confident that after your complete review of our ideas and performance capabilities you will select Pyro Spectaculars by Souza as your fireworks company. ,Sara gruggewa 7�r F20 -hew pnducer 0 0 PERSONAL SERVICES AGREEMENT THIS AGREEMENT is made, entered into this day of , 2010, by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and Pyro Spectaculars, Inc. (hereinafter referred to as the "Contractor'). RECITALS: WHEREAS, City desires to retain the services of Contractor to provide an aerial fireworks sky concert display of the 4t" of July; and WHEREAS, Contractor is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Contractor mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by Contractor shall consist of those tasks as set forth in Exhibit B, attached and incorporated herein by reference. To the extent that there are any conflicts between the provisions described in Exhibit B and those provisions contained within this Agreement, the provisions in this Agreement shall control. 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 and shall terminate, and all services required hereunder shall be completed as set forth in Exhibits A and B. Section 3. Compensation. 3.1 Amount, Payment Schedule and Credit. Total compensation for the services hereunder shall not exceed $31,500, as set forth in Exhibits A and B, attached and incorporated herein by reference. Any Credit due the City shall be made as follows: In the event the Display substantially complies with the scope of work as set forth in the Exhibit B but does not begin by 9:05 p.m., PDT on July 4, 2010, 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. Attachment 2 0 0 In the event the Display substantially complies with the scope of work as set forth in Exhibit B, 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 B, 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 B, 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 bullets 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 the Contractor shall act and be an independent Contractor and not an agent of employee of the City, and shall obtain no rights to any benefits which accrue to City's employees. Section 5. Limitations Upon Subcontracting and Assignment. 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. Reserved. Section 7. Familiarity with Work and/or Construction 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 the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. 2 0 0 Section 8. Compliance with Law: E -Verify. 8.1. Compliance with Law. Contractor shall complywith all applicable laws, ordinances, codes and regulations of federal, state and local government. 8.2. E-Verify/ATF Employee Possessor Questionnaire. a. If Contractor is not already enrolled in the U.S. Department of Homeland Security's E -Verify program, Contractor shall enroll in the E -Verify program within fifteen days of the effective date of this Agreement to verify the employment authorization of new employees assigned to perform work hereunder. Contractor shall verify employment authorization within three days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at hftp://www.uscis.gov, or access the registration page at https://www.vis- dhs.com/employerregistration. Contractor shall certify its registration with E -Verify and provide its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated. Section 9. 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 10. Indemnity. Contractor agrees to protect, defend, and hold harmless the City and its elective and appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, for injury or death of any person, or damages 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 11. Insurance. On or before beginning any of the services or work called for by any term of this Agreement, Contractor, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Contractor shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Contractor has also been obtained for the subcontractor. Insurance required herein shall be provided by Admitted Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A- Class VII or better. 3 11.1 Commercial General Liability. Throughout the term of this Agreement, Contractor shall maintain in full force and effect Commercial General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. 11.2 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. 11.3 Worker's Compensation. Contractor shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 11.4 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. 11.6 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 12. 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 11 • 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 13. Entire Aureement This Agreement and Exhibit A and B constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertain to the subject matter thereof. Section 14 Reserved. [SIGNATURE PAGE TO FOLLOW] 5 0 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO 0 Dr. Londres Uso, Mayor PYRO SPECTACULARS, INC. M ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: Omar Sandoval, City Attorney James R. Souza, President Pyro Spectaculars, Inc. Exhibit A: RFP Exhibit B: Display Agreement; Program A; Display Checklist; Scope of Work 11 0 0 January 27, 2010 City of San Juan Capistrano Cynthia Alexander 25925 Camino del Avion San Juan Capistrano, CA 92675 Dear Ms. Alexander, Pyro Spectaculars, Inc, is pleased to present to you our pyrotechnic proposal for your July 4, 2010 event. We are proposing our special Sky ConcertTM Program "A" in the amount of $31,500.00. Your display is scheduled for 9:00 p.m. and will be approximately 15-20 minutes in duration. Our full service display includes the services of a licensed pyrotechnic operator, an electronic firing system, show choreography and design, insurance coverage, sales tax and delivery. We will process the necessary fire department permit applications. Our winning combination of products, people and production capabilities help produce the best fireworks entertainment package possible. City of San Juan Capistrano will be responsible for payment of the Orange County Fire Authority permit fee and/or standby firemen fees, if any. The Fire Department may bill you directly for any standby fees for inspections. City of San Juan Capistrano will also be responsible for providing the display location and all necessary security for the display site. Enclosed you will find a Product Synopsis, Personal Service Agreement and Display Agreements for signature. Please have one copy of this fully executed agreement returned to our office by March 15, 2010 along with your deposit. Please take the time to review this proposal in detail. If you wish to discuss any changes in your program or need more information, please call either myself or your Customer Service Representative Connie Martinez at (909) 355-8120 ext. 227. Sincerely, PYRO SPECTACULARS, INC. &%Uwm� Sam Bruggema PYRO Show Producer SB/cm Enclosures EXHIBIT A PYRO SPECTACULARS, INC. P.O. Box 900186 • San Diego, CA 92190 • Phone: (619) 583-6141 or (800) 624-9360 • Fax: (619) 583-6185 L Proposal Outline for City of San Juan Capistrano • Product Synopsis • Conclusion and Commitment • Production Agreement & Scope of Work 0 0 Product Synopsis Pyro technic Proposal City of San Juan Capistrano Program A $3f,✓Oo.00 Opening Description ♦ 3" Souza Designer Opening Salutes Main Body - Aerial Shells Description ♦ 3" Souza Designer Selections ♦ 4" Souza Designer Selections ♦ 5" Souza Designer Selections ♦ 6" Souza Designer Selections Quantity 25 Total of Opening 26 Total of Main Body - Aerial Shells Pyrotechnic Devices Description ♦ Sousa Dazzlers Custom Multishot Device ♦ Sousa Platinum Line Custom Multishot Device Total of Pyrotechnic Devices Grand Finale Description ♦ 3" Souza Designer Bombardment Shells ♦ 4" Souza Designer Finale Shells ♦ 5' Souza Designer Finale Shells ♦ 6" Souza Designer Finale Shells Total of Grand Finale Grand Total Quantity 140 140 100 100 480 Quantity 1100 Shots 286 Shots 1,386 Quantity 200 30 9 6 245 2,136 0 1] Conclusion & commitment KGB Sky Show 2008 We'd like to thank the City of San Juan Capistrano for allowing us to make this presentation. Our sincere effort has gone into preparing this proposal. We are eager to hear your comments and answer any questions you may have. We are confident that after your complete review of our ideas and performance capabilities you will select Pyro Spectaculars by Souza as your fireworks company. ,sato gruggevua P,P-0 Show Prrducer 0 0 PYRO SPECTACULARS, INC. Display Agreement (Special) 1) THIS AGREEMENT, entered into this_ day of 2010, by and between PYRO SPECTACULARS, INC., a California corporation hereinafter referred to as "PYRO" and City of San Juan Capistrano referred to as "PURCHASER." 2) PYRO agrees to furnish PURCHASER, in accordance with the terms and conditions hereinafter set forth, 1 fireworks display as per Program A 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, 2010 at San Juan Capistrano Sports Park, San Juan Capistrano, 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 fireworks debris may be exhibited, rise and fall safely. B) Adequate policing, guard protection, roping, fencing and/or other crowd control measures to prevent the access 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, B, C and/or D 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 Area") 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 terrain of the Spectator Area and any structures thereon, including, but not limited to grandstands and bleachers are safe for use by spectators; 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 these 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 J) After completion of the Display, that the Display Area is cleared of any live fireworks debris originating from the program. PYRO SPECTACULARS, INC. P.O. Box 2329 Rialto, CA 92377 Tel: 909-355-8120 :::;: Fax: 909-355-9813 City of San Juan Capistrano Program "A" July 4, 2010 Page 2 of 4 4) PURCHASER shall pay to PYRO the sum of THIRTY ONE THOUSAND FIVE HUNDRED Dollars ($31,500.00). A deposit of $15,750.00, plus estimated fire department permit and/or standby fees of $00.00 must be paid by March 15, 2010. 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 10 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 PYRO'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 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 which discretion shall be exercised reasonably 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 canceled, 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 canceled 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) 50% if cancellation occurs 30 to 90 days prior to the scheduled date of the display, 2) 75% if cancellation occurs 15 to 29 days prior to the date set for the display, 3) 100% if cancellation occurs 14 or fewer days prior to the date set for the display. If cancellation occurs 30 days or more 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 music/narration tape production and/or sponsors logos. 7) In the 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. City of San Juan Capistrano PSI - Display Agreement - Special July 4, 2010 EXHIBIT B PYRO SPECTACULARS, INC. City of San Juan Capistrano P,O. Box 2329 Program "A" Rialto, CA 92377 July 4, 2010 Tel: 909-355-8120::::: Fax: 909-355-9813 Page 3 of 4 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 only, 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 coverage afforded in 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 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 that the Central Judicial District of San Bernardino County, California, shall be proper venue for any such action. City of San Juan Capistrano PSI - Display Agreement - Special July 4, 2010 EXHIBIT B 0 PYRO SPECTACULARS, INC. P.O. Box 2329 Rialto, CA 92377 Tel: 909-355-8120::::: Fax: 909-355-9813 0 City of San Juan Capistrano Program "A" July 4, 2010 Page 4 of 4 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. O. Box 2329, Rialto, California 92377. PURCHASER 15) All terms of this Agreement are in writing and may only be modified by written agreement of both parties 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. This 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 function as designed and this level of nonperformance is acceptable as full performance. In Witness Whereof the parties hereto, by and through their duly authorized agents, have set their hands and seals this day of 2010. PYRO SPECTACULARS, INC.: I,Title President J S R. SOUZAUl PURCHASER: Title City of San Juan Capistrano PSI - Display Agreement - Special July 4, 2010 EXHIBIT B E 0 CITY OF SAN JUAN CAPISTRANO YEAR 2010 4TH OF JULY FIREWORKS DISPLAY SCOPE OF WORK Electronically Fired Show With Choreographed & Synchronized Music Not To Exceed $31,500 Proposals shall be evaluated based on the contractor's satisfactory and reliable performance history, compliance with Scope of Work, quality of proposed aerial display, the impact of pyrotechnic effects, and the length, pacing, and music proposed for the show. Contractor To: Submit a proposal for an aerial display that includes the following, using a minimum shell size: 3", and maximum shell size: 6" to provide a 15-20 minute show. Please ensure that the proposal is divided into the three (3) categories and specify what would be included within each category: 1. Opening Finale 2. Main Program 3. Closing Finale Provide a written description of the company's policy for monetary compensation to the City when, due to the company's actions (or inactions): 1. The aerial display does not begin on time, or there is a delay during the show 2. The show does not comply with the scope of work and/or the bid package that was submitted by contractor and approved by the City. 3. There is a modification to the show, even though the show began on time and there were no delays during the show. 4. Even though the correct amount of shells are delivered, all the shells are not fired. Provide California licensed pyrotechnic operator and crew; transportation of crew and all supplies and materials to and from event. Operator and crew will be responsible for all site preparation and site cleaning, including removal of debris associated with the display. City will not accept responsibility for advance storage of fireworks and/or vehicle(s). Schedule operator and crew adequate time for set up; schedule adequate time for take-down/clean-up of the firing site and fall -out area immediately after the show and the following morning. • Coordinate with the Orange County Fire Authority and comply with all regulations • Schedule representative(s) to meet on site with City staff and Fire Authority prior to event to coordinate event details. 0 0 • Provide music that is choreographed and synchronized to the aerial fireworks show. Music is to be provided to City via both a DAT and a back-up CD. • Provide a 15-20 minute show; be responsible for the timely completion of all preparation work so the display will begin at its official starting time of 9:00 pm. • Provide the City with a certificate of insurance* for public liability and property damage, minimum sum of $1,000,000 AND provide the City with a liability endorsement form* naming the City of San Juan Capistrano, its elected and appointed officials, employees and servants as additional named insureds. Also to be included on certificate and endorsement: South Coast Farms, Orange County Fire Authority. • Provide the City with proof of Workers' Compensation Insurance* for all employees as required by State laws governing fireworks displays and proof of Automobile Insurance coverage* for all employees who will be driving automobiles associated with this event. • Provide references for all July 4th displays conducted for the past three (3) years in Orange County, CA. This listing will be used to determine a satisfactory and reliable performance history. City To: • Provide sand, DAT and CD Players, Clear -Com communication system, sound system, suitable firing site, and City liaison. Term: • The term of the agreement with the selected contractor shall be for the year 2010 aerial firework display. • *Must be received by City minimum of 21 working days prior to the event. L��J� THE CITY OF SAN JUAN CAPISTRANO #+ I N n A Location of the 2010 4" of July Celebration Fireworks Sky Concert (Pyro Spectaculars, Inc.) sti San Juan Capistrano Sports Park 25925 Camino de Avion M1 i / r ±4ni, i 4 l 0 3000 6000 9000 Feet Attachment 3 11 32440 PASVO AOELANTO &AN .IUAN cAPISTRANO, CA 92675 (949) 4931171 (949) 493.1653 FAX WKWsanjuancaptstrano.org • NOTIFICATION OF MEETING OF POTENTIAL INTEREST OF THE SAN JUAN CAPISTRANO CITY COUNCIL SAMALLMTO LAURAFREESE THOWS W. HROM MANN NIELSEN OR LONOWS USO The City Council of San Juan Capistrano will meet at 6:30 p.m. on Tuesday, May 18, 2010, in the City Council Chamber in City Hall, to consider: "Consideration of Award of Contract for the 2010 4th of July Celebration Fireworks Sky Concert (Pyro Spectaculars, Inc.)" — Item No. D7. 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, May 17, 2010, 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, Community Services Manager. You may contact that staff member at (949) 443-6395 with any questions. The agenda, including agenda reports, is available to you on our web site: www.sanivancapistrano.org. 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: cityclerkCa) san i ua ncap istra no.org. Maria Morris, CMC City Clerk cc: James R. Souza, President, Pyro Spectaculars, Inc.; Sam Bruggema, Pyro Spectaculars, Inc.. San Juan Capistrano: Preserving the Past to Enhance the Future 0 Debbie Evenson 0 From: Laurie Collins [Icollins@pyrospectaculars.com] Sent: Monday, June 07, 2010 1:58 PM To: Debbie Evanson Subject: FW: Supplemental Agreement from the City of San Juan Capistrano Debbie, See my email below regarding agreement to changes. Thanks, Laurie L. Collins Legal Assistant Pyro Spectaculars, Inc. 3196 N. Locust Avenue Rialto, CA 92377 P:(909)355-8120 F:(909)355-9813 From: Laurie Collins [mailto:Icollins@pyrospectaculars.com] Sent: Tuesday, May 25, 2010 8:20 AM To: 'Debbie Evenson' Subject: RE: Supplemental Agreement from the City of San Juan Capistrano Dear Debbie, Thank you. Mr. Brown and Mr. Sandoval discussed these changes last week and yes we do agree to the revisions. Regards, Laurie L. Collins Legal Assistant Pyro Spectaculars, Inc. 3196 N. Locust Avenue Rialto, CA 92377 P:(909)355-8120 F:(909)355-9813 From: Debbie Evenson [mailto:DEvenson@sanjuancapistrano.org] Sent: Monday, May 24, 2010 4:48 PM To: Icollins@pyrospectaculars.com Subject: FW: Supplemental Agreement from the City of San Juan Capistrano Dear Laurie, Attached please find the revised agreement. 40 From: Debbie Evenson Sent: Thursday, May 20, 2010 8:02 AM To: 'sbruggema@pyrospectaculars.com' Cc: Cynthia Alexander Subject: Supplemental Agreement from the City of San Juan Capistrano Dear Sam, Could you please send in writing (email is OK) that you agree to the attached Personal Services Agreement? Our City Attorney made a few changes and submitted it to Council as a supplemental agenda item. Council approved the agreement May 18, 2010. As soon as we get your email confirming that you agree to the changes, I will forward it to City Clerk and she will have the Mayor sign the agreement. Debbie Evanson, Administrative Coordinator City of San Juan Capistrano Community Services Department 25925 Camino del Avion San Juan Capistrano, CA 92675 e-mail: devenson(a)sanivancapistrano.org Phone: (949) 443-6380 Fax: (949) 661-6660 ACORDR CERTIFICATE OF L PRODUCER Phone: 440-248-4711 Fax: 440 -544 - Britton -Gallagher and Associates, Inc. 624D SOM Center Rd. Cleveland OH 44139 INSURED Pyro Spectaculars Inc. San Diego Fireworks P. O. Box 2329 Rialto CA 92377 COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS ERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSRD'L LRRC TYPE OF INSURANCF POLICY NUMBER POLICYEFFECTIVE DATE MMIDDrM POUCYEXPIRATION DATE fMMIDOM) LIMITS GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY CLAIMS MADE ID OCCUR EACH OCCURRENCE f PREMISES Eaoccurence S MEDEXP(Anypnepersan) E PERSONAL B ADV INJURY f GENERAL AGGREGATE $ GENT AGGREGATE POLICY LIMIT APPLIES PRO-IFQ.T F-1 PER: LOC PRODUCTS-COMP/OP AGO $ A AUTOMOBILE X $ X LIABILITY ANYAUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON-OWNEDAUTOS CAS3460083 1/13/2010 1/13/2011 COMBINEDSiNGLE LIMIT (se actltlen) f 1, DDD, DDD BODILY INJ URY (Per person) f BODILYINJURY (Perapaitlenl) $ PROPERTYDAMAGE $ (Peraoatlent) GARAGE LIABILITY ANYAUTO AUTO ONLY -EA ACCIDENT f OTHERTHAN EA ACC S AUTO ONLY: AGG f B EXCESSIUMBREL" LIABILITY X OCCUR CLAIMS MADE DEDUCTIBLE RETENTION $ JFP0024510 1/13/2010 1/13/2011 EACH OCCURRENCE $4,000,000 AGGREGATE E4 000 000 S $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETORIPARTNERIEXECUTIVE OFFICE RIMEMBER EXCLUDEDT IlyyCIea. tl L PRO under SPEALPROVISKINS Oebw WCSTATIUOTH- JIM T E.L. EACH ACCIDENT E E.L. DISEABE - EA EMPLOYEE S EI. DISEASE -POLICY LIMIT E OTHER DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT/ SPECIAL PROVISIONS ertificate Holder i8 Named as an additional insured. City of San Juan Capistrano 25925 Camino Del Avion San Juan Capistrano CA 92675 LO ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED RE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE IFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO L IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON INSURER, ITS AGENTS OR REPRESENTATIVES. 0 0 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. 12001/081 0 Policy Number: CA000002771.24 ENDORBEMENr 13 Al: 08 76 03 03 Effective Date: 01/13/2010 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance pmvidod under the following: COMMERCIAL GENERAL LIAI311MY COVERAGE PART COMMERCIAL PROPERTY COVERAGE PART PROFESSIONAL LIABILITY COVERAGE PART It is agreed the following -are included as additional insureds hereunder. Sponsors, landowners, bargeownan, and/or Licensing with respect to operations of the named insured in connection with the preparations for, the firing of, or cleanup following, fireworks displays performed by the named insured or the named-lnswed's employees and to whom cer ificate(s) of insurance are issued which specify date( a) and location(a) of such displays. The coverage afforded such Additional lowed's does not apply to injury or damage arising from the failure of any such Additional insured to fulfill its obligations specified in its contract with the Named insured. At 08 76 02 03 Page t of 1 0 • POLICYHOLDEJfPY SO P.O. BOX 420807, SAN FRANCISCO,CA 94142-0807 CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 10-14-2009 ORANGE COUNTY FIRE AUTHORITY 8081 WESTERN AVENUE BUENA PARK CA 90920 GROUP POLICY NUMBER: 0803749-2009 CERTIFICATE ID: 112 CERTIFICATE EXPIRES: 10-14-2010 10-14-2009/10-14-2010 SO JOB:ALL OPERATIONS This is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the California Insurance Commissioner to the employer named below for the policy period indicated. This policy is not subject to cancellation by the Fund except upon 30 days advance written notice to the employer, We will also give you 30 days advance notice should this policy be cancelled prior to its normal expiration. This certificate of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded by the policy listed herein. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate of insurance may be issued or to which it may pertain, the insurance afforded by the policy described herein is subject to all the terms, exclusions, and conditions, of such policy. THORIZED REPRESENTATI PRESIDENT EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE. ENDORSEMENT #2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 10-14-2002 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. EMPLOYER PYRO SPECTACULARS, INC. PO BOX 2329 RIALTO CA 92377 SO M0410 (REv.2-05) PRINTED : 09-17-2009 D&ON INSURANCE BROKER ANC. 2500 CENTER POINT ROAD, SUITE 301 POST OFFICE BOX 94067 BIRMINGHAM, ALABAMA 35215 BIRMINGHAM, ALABAMA 35220 TELEPHONE (205) 8545806 FAX. (205) 8545899 CERTIFICATE OF INSURANCE NO. 020212 We certify that insurance as outlined below is aBorded the Named Insured under policy CAOOM2771-24 issued by Admiral Insurance Company. NAMED INSURED Pyre Spectaculars, Inc. Pyre Spectaculars by Sours Pyro Events, Inc. Pyre Spectacular Industries, Inc. Pyro Spectaculars Productions, Inc. North American Fireworks Co., hic. (NAPCO) P.O. Box 2329 San Diego Fireworks Rialto, California 92377 PERIOD January, l3, 2010 to January 12, 2011; Both days inchrsive. COVERAGE LIMITS OF LIABILITY Commercial General Liability. Covering against the legal liability of the Named burned for Bodily Injury and Property Damage caused by, or arising Goan, the preparation for, the firing of or the clearance following fireworks display(s) stated below. A) Each Oocmmace B) General Aggregate C) Products & Completed Operations Aggregate $1,000,000 $2,000,000 $z000,000 The addition of more dean one insured does not save to increase the limits of liability. Aggregate limits shown may have been reduced by paid claims. It is citified that, in accordance with, and subject to, the tams of the above policy, the following SPONSORS AND PROPERTY OWNERS AND LICENSING AUTHORITIES me included as Additional IasumAs), but only in respect oft e legal liability ofsudh Additional Insured(s) for Bodily Injury and Property Damage caused by the operations of the Named Insured in oomeaim with the firms ofthe fireworks display(s) stated below. The insurance afforded any Additional Insured does not mdude coverage for any injury or damage arising from the Gilme of such Additional Insured to fulfill its obligations specified in its contract with the Named homed. NAME & ADDRESS OF INSURED 5 PROPERTY OWNERS, LICENSORS City of San Juan Capistrano 25925 Camino Del Avion San Juan Capistrano, CA 92675 ADDITIONAL LNSURED(S): City of San Joan Capistrano, County of Orange, Orange County Fire Authority, South Coast Farms, and their officers, agents and employees when acting in their official capacity as such. DISPLAY LOCATION San Juan Capistrano Sports Parc San Juan Capistrano, CA DISPLAY DATE(S) July 4, 2010 This insurance applies automatically if the described display is fired many alternative date because of cancellation on the date shown due to weather or other cause; however, IN NO EVENT WILL COVERAGE APPLY TO BODILY INJURY OR PROPERTY DAMAGE SUSTAINED AP TER January 12, 2011. Ibis certificate a not an insurance policy and does not in any way amend, extend or ager the coverage afEwded bytlw policy listed above. For pmlierulins concerning fire terms, exclusions and conditions ofsudn Policy MA Additional banned is Wki ed lo die policy dommtans m fire possession of the Named Insured. Should fire above described policy be cance®cd before die expiation dale themo& the isswng company will mail 30 days` prior written notice to the above named Additional Insured. DRAYTON INSURANCE BROKERS, INC. May 24 2010 DATE OF ISSUEJ.J. STRINGER, CALIFORNIALICEN .OA18664 0 Today's Date: 5/6/10 0 CONTRACT TRANSMITTAL CIP No. (if any): Transmittal Routing (Check All That Apply) ® City Attorney ❑ City Manager ® City Clerk Project Manager's Last Name: Alexander Phone Extension: 6395 Council or CRA Meeting Date (if applicable): 05/18/10 APPROVING AUTHORITY: (Check One) ❑ Mayor ❑ CRA Chair ❑ City Manager Provide (1) executed original contract for each signing party, including the City. If the agreement is to be recorded — only (1) original will be recorded with certified copies going to other parties. Please provide the mailing address of any party to receive an agreement — unless the mailing address is included within the body of the agreement: (Not necessary if information is included in the contract) Names Street city St I Zi 4 Omar, this is the agreement for Pyro Spectaculars, Inc., signed by them. Could you give these to Maria after you have signed them? Thank you so much for your help in this matter. Sly i� ; �}� �� �f L P)MV 0 32400 PASEO ADEI.ANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493.1171 (949) 493.1053 PAx www, sanjuancapistrano. org TRANSMITTAL /� IADIIIIIIFI ' IsunuAll � 1961 1776 Pyro Spectaculars, Inc Attn: Sam Bruggema, Show Producer P.O. Box 2329 Rialto, CA 92377 MEMBERS OF THE CITY COUNCIL SAMALLEVATO LAURA FREESE THOMAS W. HRIBAR MARK NIELSEN DR LONDRES USO DATE: June 9, 2010 FROM: Christy Jakl, Deputy City Clerk (949) 443-6310 RE: Personal Services Agreement — Fireworks Shy Concert Display for the 4th of July 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) 443-6310. If you have questions concerning the agreement, please contact Cynthia Alexander, Community Services Manager at (949) 443-6395. An original Agreement is enclosed for your records. Cc: Cynthia Alexander, Community Services Manager San Juan Capistrano: Preserving the Past to Enhance the Future 0 Printed on 100% recydetl paper