13-0305_BAY FIREWORKS_Personal Services Agreement PERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective this 5th day
of MARCH,2013, by and between the City of San Juan Capistrano(hereinafter referred to
as the"City") and Pyro Engineering, Inc., a New York Corporation doing business as Bay
Fireworks (hereinafter referred to as the "Contractor").
RECITALS:
WHEREAS, City desires to retain the services of Contractor to provide an aerial
firework display of the 4th of July Celebration; and
WHEREAS, Contractor is qualified by virtue of its 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"A,"attached and incorporated herein by reference. To the extent that there
are any conflicts between the provisions described in Exhibit "A" 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, no later than July 4, 2013, as set forth in
Exhibit"A."
Section 3. Compensation.
3.1 Amount, Payment Schedule and Credit
Total compensation for the services hereunder shall not exceed$29,000, as
set forth in Exhibit"A,"attached and incorporated herein by reference. Any Credit due the
City shall be made as follows:
• In the event the fireworks display substantially complies with the
Scope of Work as set forth in the Exhibit "A" but does not begin by
9:05 p.m., PDT on July 4, 2013, as a result of the sole negligence of
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Contractor, Contractor shall credit City $50 for each full minute of
delay up to $2,000.
• In the event the fireworks display substantially complies with the
Scope of Work as set forth in Exhibit"A,"but is interrupted as a result
of the sole negligence of Contractor, Contractor shall credit City $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 Contractor for
the purposes of this paragraph.
• In the event the fireworks display substantially complies with the
Scope of Work as set forth in Exhibit "A," but fireworks in excess of
the industry standard 3% fail to fire, Contractor shall credit City with
the full list value of the product that failed to fire in excess of 3%.
• In the event that the fireworks display fails to substantially comply with
the Scope of Work asset forth in Exhibit"A," Contractor, shall credit
City with up to 25%of the fireworks display price. Such credit shall be
inclusive of any credits set forth in bullets 1, 2, and 3 above.
• 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 or employee of the City, and shall obtain no rights to any benefits which accrue to
City's employees.
Section S. Limitations Upon Subcontracting and Assignment
The experience, knowledge, capability and reputation of Contractor, its principals
and employees were a substantial inducement for the City to enter into this Agreement.
Contractor shall not contract with any other entity to perform the services required without
written approval of the City. This Agreement may not be assigned, voluntarily or by
operation of law, without the prior written approval of the City. If Contractor is permitted to
subcontract any part of this Agreement by City, Contractor shall be responsible to the 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.
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Section 6. Cancellation by City.
City shall have the right, in its complete and sole discretion, to cancel this
Agreement in its entirety upon written notice given on or before June 4, 2013. In the event
of cancellation pursuant to this section, Contractor shall retain the first deposit in the
amount of$14,500 as full and complete payment under this Agreement.
Section 7. Familiarity with Work and/or Construction Site.
By executing this Agreement, Contractor warrants that: (1) it has investigated the
work to be performed; (2) if applicable, it has investigated the work site(s), and is aware of
all conditions there; and (3) it understands the facilities, difficulties and restrictions of the
work to be performed under this Agreement. 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.
Section 8. Time of Essence.
Time is of the essence in the performance of this Agreement.
Section 9. Compliance with Law.
Contractor shall comply with all applicable laws,ordinances, codes and regulations
of federal, state and local government.
Section 10. 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 11. Indemnity.
To the fullest extent permitted by law,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, including
attorneys' fees, for injury or death of any person, or damages of any nature, including to
property or interference with use of property, arising out of, or in any way connected with
the negligence, recklessness and/or intentional wrongful conduct of Contractor,
Contractor's agents,officers, employees, subcontractors,or independent contractors hired
by Contractor in the performance of the Agreement. The only exception to Contractor's
responsibility to protect, defend, and hold harmless the City, is due to the negligence,
recklessness and/or wrongful conduct of the City, or any of its elective or appointive
boards, officers, agents, or employees.
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This hold harmless agreement shall apply to all liability regardless of whether any
insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by Contractor.
Section 12. 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 Insurers in good standing
with the State of California and having a minimum Best's Guide Rating of A- Class VII or
better.
12.1 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 three million
dollars per occurrence($3,000,000.00), 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.
12.2 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 an amount not less than five million dollars per occurrence
($5,000,000.00).
12.3 Workers' Compensation.
If Contractor intends to employ employees to perform services under this
Agreement, Contractor shall obtain and maintain, during the term of this Agreement,
Workers'Compensation Employer's Liability Insurance in the statutory amount as required
by California law.
12.4 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 naming City, its officers, employees, agents, and volunteers as
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additional insured as respects each of the following: Liability arising out of activities
performed by or on behalf of Contractor, including the insured's general supervision of
Contractor; products and completed operations of Contractor; premises owned, occupied
or used by Contractor; or automobiles owned, leased, hired, or borrowed by Contractor.
The coverage shall contain no special limitations on the scope of protection afforded City,
its officers, employees, agents, or volunteers.
12.6 Notice of Cancellation/Termination of Insurance.
The above policy/policies shall not terminate, nor shall they be cancelled, nor
the coverage 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.
12.7 Terms of Compensation.
Contractor shall not receive any compensation until all insurance provisions
have been satisfied.
Section 13. Termination.
City shall have the right to terminate this Agreement without cause by giving thirty
(30) days' advance written notice of termination to Contractor.
In addition, this Agreement may be terminated by any party for cause by providing
ten (10) days' notice to the other party of a material breach of contract. If the other party
does not cure the breach of contract, then the agreement may be terminated subsequent
to the ten (10) day cure period.
Section 14. 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: Cynthia Alexander, Community Services Manager
Contractor: Bay Fireworks
400 Broadhollow Road, Suite 3
Farmingdale, NY 11735
Attn: Dennis Brady Jr., CEO
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Section 15. Entire Agreement
This Agreement and Exhibit"A"constitutes the entire understanding and agreement
between the parties and supersedes all previous negotiations between them pertaining to
the subject matter thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CITY OF SAN JUAN CAPISTRANO
By: L '�L
o Taylor M y r
PYRO ENGINEERING, INC. D.B.A.
BAY FIREWORKS
By: V
irris
, Ci Jerk
APP V AS TO FORM:
Hans NhN igten, City ney---.
Exhibit"A": Bay Fireworks Proposal, Scope of Work
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CITY OF SAN JUAN CAPISTRANO
YEAR 2013 4TH OF JULY AERIAL FIREWORKS DISPLAY
SCOPE OF WORK
Electronically Fired Show with Choreographed & Synchronized Music
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:
e Submit a proposal for an aerial display that includes the following, using a minimum
shell size: 3", and maximum shell size: 5"to provide a 18-20 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
c 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, but all the shells
are not fired (compensation).
o 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).
o 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.
1 o Coordinate with the Orange County Fire Authority and comply with all regulations
o Schedule representative(s)to meet on site with City staff and Fire Authority prior to
event to coordinate event details.
EXHIBIT A
i
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b Provide music that is choreographed and synchronized to the aerial fireworks
display with ample time for City staff to preview the music genre. Music is to be
provided to City via both a MP3 and a back-up CD.
o Provide an 18-20 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 p.m.
a 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.
a 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:
a Provide sand, hand radio 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
2013 aerial firework display.
a Acceptance of the City of San Juan Capistrano's Personal Service Agreement
provided by the City Attorney.
*Must be received by City minimum of 21 working days prior to the event.
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