15-0303_GARDEN STATE FIREWORKS, INC_Personal Services AgreementPERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective this 3 day of
March, 2015, by and between the City of San Juan Caplstrano (hereinafter referred to as
the "City") and Garden State Fireworks, Inc. (hereinafter referred to as the "Contractor").
RECITALS:
WHEREAS, City desires to retain the services of Contractor to design, produce and
perform a public, aerial fireworks display on the 4^*^ of July Celebration pursuant to the
terms and conditions set forth; and
WHEREAS, Contractor Is qualified by virtue of Its training, education and expertise
to accomplish such services;
NOW, THEREFORE, City and Contractor in consideration of the terms, conditions,
and covenants contained herein do mutually agree as follows:
Section 1. Scope of Work.
The Scope of Work to be performed by Contractor accepts such engagement upon
all of the promises, terms and conditions in 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
continue in full force and effect until completion of all aerial fireworks display services and
work, as set forth in Exhibit "A."
Section 3. Payment Schedule. Expenses and Credit.
3.1 Payment Schedule.
City agrees to pay Contractor the services fee hereunder, which shall not
exceed $30,000, as set forth in Exhibit "A," for the aerial fireworks display. City shall pay to
Contractor $15,000 of the aerial fireworks display fee as a deposit upon execution of this
Agreement by both parties. Except as otherwise provided below, the balance of the aerial
fireworks display fee shall be paid by the City no later than July 17, 2015.
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3.2 Expenses.
Contractor shall pay all normal expenses directly related to the aerial
fireworks display including, but not limited to, freight, insurance as set forth herein,
pyrotechnic products, pyrotechnic equipment, experienced pyrotechnic personnel to set up
and discharge the pyrotechnics, and those additional items outlined as the Contractor's
responsibility under this Agreement
3.3 Credit.
Any credit due to the City as a result of operator error, or malfunction or
failure of pyrotechnic equipment or materials, and therefore agrees to the following credited
damages provisions:
• If Contractor, as a result of operator error, or malfunction or failure of
the pyrotechnic equipment or materials, is unable to start the aerial
fireworks display within five to fifteen minutes after the Schedule
Time, or if at any time after the aerial fireworks display has begun and
is undenvay, there is/are a gap(s) or break(s) in the program lasting
two to five minutes in total. Contractor shall pay to the City as
liquidated damages 20% of the aerial fireworks display fee, or $4,900.
• I n the event the aerial 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, 2015, as a result of the sole negligence of
Contractor, Contractor shall credit the City $50 for each full minute of
delay up to $2,000.
• In the event the aerial 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 $100
for each full minute of interruption up to $2,000. 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 aerial 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 aerial fireworks fails to substantially comply with
the Scope of Work as set forth in Exhibit "A," Contractor, shall credit
City with up to 50% of the aerial fireworks display price. Such credit
shall be inclusive of any credits set forth in bullets 1, 2, and 3 above.
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• 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 aerial fireworks 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 5. 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. Ail 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. Force Majeure.
City agrees to partially assume the risks of weather, strike, civil unrest, terrorism,
military action, governmental action, and other causes beyond the control of the Contractor
which may prevent the aerial fireworks display from being safely discharged on the
scheduled date. If, for any such reason. Contractor is not reasonably able to safely
discharge the aerial fireworks display on the scheduled date, City may: (1) reschedule the
aerial fireworks display on a mutually agreed upon date occurring not later than six months
from the scheduled date, and pay to Contractor the balance of the aerial fireworks display
fee within fifteen business days of completion of the rescheduled aerial fireworks display;
or (2) cancel the aerial fireworks display, forfeit the deposit, and be relieved of any
obligation to pay Contractor the balance of the aerial fireworks display fee.
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 the 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.
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Section 8. Time of Essence.
Time is of the essence in the performance of this Agreement.
Section 9. Continuity.
Contractor shall establish aerial fireworks display "continuity" (i.e., test and confirm
the functionality of eiectrically fired pyrotechnic lines, channels and circuits) by no later than
7:00 p.m. on the Scheduled Date, or no less than two hours prior to the Scheduled Time,
as such time may be modified by the City.
Section 10. Compliance with Law.
Contractor shall comply with all applicable laws, ordinances, codes and regulations
of federal, state and local government.
Section 11. 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 12. 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 anyway 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.
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 13. 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
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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.
13.1 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 five million
dollars per occurrence ($5,000,000.00), 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.
13.2 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 three million dollars ($3,000,000.00) per
occurrence
13.3 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.
13.4 Proof of Insurance Requirements/Endorsement.
Priorto 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
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.
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13.5 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, exceptthat
ten (10) days' notice shall be given if there is a cancellation due to failure to pay a
premium.
13.6 Terms of Compensation.
Contractor shall not receive any compensation until all insurance provisions
have been satisfied.
Section 14. 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 15. 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: Attn: Cynthia Alexander, Community Services Director
City of San Juan Caplstrano
25925 Camino del Avion
San Juan Caplstrano, CA 92675
Contractor: Attn: Augie Santore, President
Garden State Fireworks, Inc.
383 Carlton Road
Millington, NJ 07946
Section 16. 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.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CITY OF SAN JUAN CAPISTRANO
By:
Derek Reeve, Mayor
Mana MbViSi, City Clerk
APPROVED AS TO FORM:
GARDEN STATE FIREWORKS, INC.
Augie S^tore, President
H^Vis Van Ligten, City Attorney
Exhibit "A": Scope of Work
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EXHIBIT "A"
SCOPE OF WORK
THE CITY OF SAN JUAN CAPISTRANO
2015 4™ OF JULY CELEBRATION
AERIAL FIREWORKS DISPLAY
Electronically Fired Show with Choreographed and Synchronized Music Not To
Exceed $30,000
Contractor To:
Submit a proposal for an aerial fireworks display that includes the following:
using a 3" minimum sheli size, and a 5" maximum shell size, to provide an 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:
a. Opening Finale
b. Main Program
0. Closing Finale
Provide a written description of the company's policy for monetary compensation
to the City due to the company's actions (or inactions) when:
a. The aerial fireworks display does not begin on time, or there is a delay
during the show.
b. The show does not comply with the Scope of Work and/or the bid package
that was submitted by the Contractor and approved by the City.
0. There is a modification to the show, even though the show began on time
and there were no delays during the show,
d. Even though the correct amounts of shells are delivered, all the shells are
not fired.
3. Provide a California licensed lead pyrotechnic operator (Operator) and crew;
provide transportation of the crew and all supplies and materials to and from
event. The Operator and the crew will be responsible for all site preparation and
site cleaning, including removal of debris associated with the aerial fireworks
display. City wili not accept responsibility for advance storage of fireworks and/or
vehicle(s).
4. Contractor's Operator shall have a minimum of three (3) years of experience
providing public aerial fireworks displays, and/or has suooessfuily provided no
less than ten (10) public aerial fireworks displays.
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5. Contractor shall furnish to the City of San Juan Caplstrano, no later than June 5,
2015, the name of the Operator responsible for the aerial fireworks display and a
copy of his/her Basic Commercial or Special Effects 1^* Class License.
6. Schedule the Operator and crew adequate time for setup, takedown and cleanup
of the firing site and fall-out area immediately after the show and the foliowing
morning.
7. Coordinate with the Orange County Fire Authority and comply with all
regulations.
8. Schedule representative(s) to meet on site with the City staff and the Orange
County Fire Authority prior to the event to coordinate event details.
9. Provide music that is choreographed and synchronized to the aerial fireworks
show. Music Is to be provided to the City by mp3 and a backup CD.
10. Provide an 18-20 minute show; be responsible for the timely completion of all
preparation work so the aerial fireworks display wilt begin at its official starting
time of 9:00 p.m.
11. Provide the City with a certificate of insurance* for public liability and property
damage, minimum sum of $5,000,000 AND provide the City with a liability
endorsement form* naming the City of San Juan Caplstrano, its elected and
appointed officials, employees and sen/ants as additional named insureds. Also
to be included on oertifioate and endorsement: South Coast Farms, Crange
County Fire Authority.
12. Provide the City with proof of Workers' Compensation Insurance* for all
employees as required by State iaws governing aerial fireworks displays and
proof of Automobile Insurance coverage* for all employees who will be driving
automobiles associated with this event.
13. Provide references for ail July 4* aeria! displays conducted for the past three (3)
years in Crange County, CA. This listing will be used to determine a satisfactory
and reliable performance history.
City To:
• Provide sand, hand radio and CD Players, Clear-Com oommunication system,
sound system, suitable firing site, and City liaison.
Term;
• The term of the agreement with the Contractor shall be for the year 2015 aerial
fireworks display.
*Must be received by the City a minimum of 21 working days priorto the event.
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Description of shells and cakes for Garden State Fireworks, Inc.
to be performed for the July 4, 2015 Fireworks Aerial Display
DESCfflFTTONOF SHELL RFF'KiailNCETO
IITERATUBE
QTY
3" Aerial Display Shells **See pgs. 5 and 6 150
4" Aerial Display Shells **See pgs. 5 and 6 36
5" Aerial Display Shells **See pgs. 5 and 6 20
1.2"64 Shot Silver Crossette **See pgs. 5 and 6 64 Shots
1.2" 100 Z Fan Waving Red Crossette **See pgs, 5 and 6 100 Shots
I" Red Silver Blue Comets (ISO) **See pgs. 5 and 6 180 Shots
Total of Intro/Opening Finale - Aerial Shells/Effects: 550
DISCKIPTIOKOF SHELL KEFESENOETO
IITEKATDKE
QTY
3" Aerial Display Shells **See pgs. 5 and 6 350
4" Aerial Display SheOs **See pgs. 5 and 6 208
5" Aerial Display SheDs **Se6pgs. 5 and 6 176
•
Total of Main Body -- Aerial Shells : 734
Main Body; Miilti Shot Pyrotechnic Devices
Malti4Shot Devices l"-!" REFESENCIF.TO
IITERATyME
QTY
36 Shot Multicolors (8) **Seepgs. 5 and 6 288 Shots
100 Shot Red Peony with White Tail **See pgs. 5 and 6 100 Shots
72 shot RWB Peony **See pgs. 5 and 6 • 72 Shots
408 Z Fan Waving RWB Comete **See pgs, 5 and 6 408 Shots
408 2 Fan Waving Rainbow Comets **See pgs. 5 and 6 408 Shots
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88 Shots Red With Silver Glitter **Seepgs. 5 and 6 88 Shots
88 Shots Blue Peony with White Tail **See pgs. 5 and 6 88 Shots
100 Shots Brocade and Blue **See pgs, 5 and 6 100 Shots
90 Shots Silver Spmners **See pgs. 5 and 6 90 Shots
64 Shot Color Comet to Crossettes **See pgs. 5 and6 . 128 Shots
100 Shot Crackling Bouquet **See pgs. 5 and 6 100 Shots
300 Shot Dragon And Phoenix **See pgs. 5 and 6 300 Shots
165 Shot 8 Shape Chrysantherautn **See pgs. 5 and 6 165 Shots
90 Shot Ancient War (2) **See pgs. S and 6 180 shots
90 Shot Porple and Green Comets (2) **See pgs. 5 and 6 180 shots
TOTAL Pyrotechnic Special Eflfect Devices : 2,695 Shots
GRAND FINALE:
• DESCRimONOF
SHF-T,T,/EFFECT
QTY
100 Shot Red and Blue Peony (2) **See pgs. 5 and 6 200 Shots
100 Shot Whistle (2) **S66 pgs. 5 and 6 200 Shots
665 Shot Multi Color to Saltrte Fan **Se6 pgs, 5 and 6 1330 Shots
372 Shot Golden l^in & Red W Fan **See pgs. 5 and 6 372 Shots
Aerial Display Shells
3" Finale Shells **See pgs. 5 and 6 380
4" Finale Shells **See pgs- 5 and. 6 36
5" Finale Shells **Seepgs. 5 and. 6 24
Tots! of Grand Finale - Aerial Shells/Effects; 2,542
Production Total Shells and Pyrotechnic Effects: 6,521 Pieces
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DISPLAY SHELL AND EFFECT DESCRIPTION
The following list is a reference of the shells and variety of effects that will be used in the display
and corresponds to the pieces itemized in the cost proposal. Garden State Fireworks is proud to
be the largest mannfactnrer of display fireworks in the countiy. We continue to innovate, design
and manufacture our own products at our facility in New Jersey to incorporate in our displays.
We also use our 100 plus years of experience to research, design and purchase the highest qualify
and largest selection of import products from China and Japan. We also use our manufacturing
knowledge to perform rigorous quality and safety testing on all imported products^
Mnlti-shot Cake Effects:
Effects Listed in the Cost proposal ranging troni 88 shots to 665 shots are self-contained
repeater units custom desigrred by Garden State Fireworks and manufactured to the highest
quality standards. Effects repeat in a variety of multiple angled simultaneously fan shapes, or
elaborate zigrzagging wave configurations. Shots range from 1.5 inches to 2 inches and create
ground to sky coverage to be coordinated with aerial display shells.
**Special Note:
More then ninety percent of the display shells fired in the display and listed below include a
rising sOver or color tailed tracer that follows the shell from launch to break. We purchase
display shells at an additional premium to include a. fancy rising tail to create absolute continuity
of slcy coverage. As each display shell has a 2-4 second lift time the absence of a tracer effect
creates a dark sky. The premiums of our designs eliminate the lag time to create constant sky
coverage and momentum.
A sample of our massive library is available for review in Schedule A enclosed. The July 4*
Display will draw from our diverse library of effects and include the broad spectrum and
maximum variety of shells.
The following List of Materials is a condensed version, of our extensive library of effects that
will be displayed in. your program. Color combinatious within individual effects as well as
transformation color changing effects expand the list below to hundreds of vari.eties.
3" Assorted Color and Retwrt Shells:
Red Peony
White Peony
Blue Peony
Red White And Blue Peony
Green Peony
Yellow Peony
Trtaaium Reports
Mttlti-Salutes
Silver Peony
Red and Blue Wave
Color Changing Peonies
Flash Reports
Spider Webs
Aqua Peony
Variegated Chrysanthemums
Ring Patterns
Purple Peony
Golden Willow
Crackling Chrysanthemum
Rainbow Peony
Tiger Tails
Multi Color Combinations
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4" Assorted Color and Fancy Aerial Sbelis;
Red Peony
White Peony
Blue peony
Red White And Bine Peony
Green Peony
Yellow Peony
Lemon Peony
Orange Peony
Aqua Peony
Rainbow Peouy
MuW Color Combinations
Titaninm Reports
Multi-Salutes
White Strobe
Red Strobe
Color Changing Peonies
Flash Reports
Spider Webs
Whistling Shells
Variegated Chrysanthemuras
Wave Ring Patterns
Golden Strobe
Purple Peony
Golden Willow
5" Assorted Color and Fancy Aerial Shells:
***ALL COLORS AND EFFECTS LISTED
Smile Face Patterns
Heart Shape Patterns
Lemon Crossette w/Strobe Pistfl
Variegated Strobes
Thousands of Flowers
Red Falling Leaves
Blue to White Flashing Willow
Half Red and Half Bine Peony
Half Purple/BWf Yellow Peony
Sky Waterfall
Silver Crossette
CrackMng Crossette
Sea Blue Peony
Purple Bees
Varigated Falling Leaves
Thousands of Red White & Blue
Pink Peony
Four Color Changing Peonies
Red Coconut Tree
Aqua to Lemon w/Lemon to Aqua Pistil
Brocade Chrysanthemum
Cntckling Chrysanthemum
Crackling Rain Willow
Tiger Tails
Red Wave
Green Wave
Colors w/Palm Core Centers
Peonies w/Fancy Center Pisdls
WMstling Shells
Red Crossettes
Green Crossettes
Silver Palm Trees
Tourbillions & Serpents
Silver Crown c/c Green
Gold Karauro c/c Blue
Red and Green Bees
Variegated Fish
ThoHsands of Crackling Flowers
Colors to Crackling
Dragon Eggs
Glittering Willows
Color & Timed Reports
Hummer Shells
Gold Flitter
ABOVE IN 4" DISPLAY SECTION
Green Coconut Tree
Aqua Crossette
Whirl Flower w/Strobe Pistil
Three Color Changing Peonies
Glittering Gold to Purple
Red and Blue Wave
Green and Blue Wave
White w/Red Pistil
Purple w/Green Pistil
Lemon to Purple w/PnrpIe to Lemon
Pistil
Red Dahlia w/Whitc Strobe
Aqua Dahlia w/Red Strobe Pistil
Red to Silver Wave w/BIue Pistil
Nishiki Karauro Nlagra Falls
Red Strobing Nishiki Kamaro
Reddish Gamboge to Green
Blue Circle with Twice Crackling Pistil
Multi Color Gycas
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