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16-0517_GARDEN STATE FIREWORKS, INC_F18_Agenda Report5t17t2016 TO: FROM PREPARED BY DATE: SUBJECT F18 City of San Juan Capistrano Agenda Report Honorable Mayor and Members of City Council .Æ^S iegel, City Manager Dori Budde, Community Services Director þr^y^ þf pb May 17,2016 Consideration of a Professional Services Agreement for the Fireworks Displays of the 2016, 2017 and 2018 Fourth of July Celebrations (Garden State Fireworks, lnc.); and a Professional Services Agreement for a Three Day Carnival as an Extension of the City's Annual Fourth of July Celebration (Guadagno & Sons Amusements) RECOMMENDATION: By motion, 1. Approve a Professional Services Agreement with Garden State Fireworks, lnc. in the amount of $30,000 annually for the Fireworks Displays of the 2016,2017 and 2018 Fourth of July Celebrations; and, 2. Approve a Professional Services Agreement with Guadagno & Sons Amusements to provide a three (3) day carnival, July 2, 3 & 4, 2016, at the San Juan Capistrano Sports Park; and, 3. Authorize the City Manager to execute the agreements. EXECUTIVE SUMMARY: Staff conducted a Request for Proposals (RFP) and is recommending a three (3) year Professional Services Agreement (PSA) with Garden State Fireworks, lnc., in the amount of $30,000 annually, for the 2016, 2017, and 2018 Fourth of July celebration fireworks displays. Staff is also recommending the approval of a Professional PSA with Guadagno & Sons Amusements to manage and operate a three (3) day, full-scale carnival with mechanical rides, games and other attractions, at no cost to the City. City Council Agenda Report May 17 , 2016 Paoe 2 of 4 DISCUSSION/ANALYSIS The 2016 Fourth of July Celebration event will be held on Monday, July 4, from 3:00 p.m. to g:30 p.m., at the San Juan Capistrano Sports Park. The proposed festivities include live siage entertainment, carnival rides, games, food vendors, and a fireworks display. The cainival is scheduled to begin on Saturday, July ?, *it! operating hours of 12'.00 p m -10:00 p.m., Sunday, July 3 with operating hours of 12:00 p.m. - 10:00 p.m', and conclude on Monday, July 4, with operating hours of 12:00 p.m.-10:30 p.m. All ride attractions will pause at 8:45 p.m. during the fireworks display, and resume at 9:30 p.m. Removal of all equipment, including rides, trailer and trucks, is scheduled to commence on Tuesday, July 5 after 9:00 a.m., and be completed by 7:00 p.m. on Wednesday, July 6. On February 23,2016, staff sent a RFP to five (5) recognized fireworks companies, Exposhows, lnc., Fireworks & Stage FX America, lnc., Garden State Fireworks Inc., Pyro Spectacular, lnc., and Zambelli Fireworks for an electronically fired aerial fireworks display to be choreographed with synchronized music. The City received three (3) competitive proposals offering a variety of pyrotechnic devices, which are summarized below. The City has experience working with Garden State Fireworks, lnc. The company successiully conducted the City's Fourth of July fireworks shows in both 2014 and 2015. ln addition, Garden State Fireworks, lnc. demonstrated a focus on quality and their staff was knowledgeable and professional. Based on price/value, work on City previous fireworks shows, and references from previous clients, staff is recommending Garden State Fireworks, lnc. The Scope of Work (Attachment 1) will be performed forthe 2016, 2017 and 2O1B Fourth of July celebrations at a cost of $30,000 each year. Additionally, staff contacted four (4) carnival service providers that service Orange County: Christiansen Amusements, Carnival Services, Candyland Amusements and Guadagno & Sons Amusements. Three (3) of the companies were either unable to provide a comparable carnival to the City's 2015 carnival or were not available for the requested dates. Only Guadagno & Sons Amusements was available and able to provide a comparable carnival. Municipal Code Section 3-4.306 provides the Request for Proposals or Request for Quotes (RFP/RFQ) process to be bypassed when only one known service is available, or when extenuating circumstances would make the formal RFP/RFQ process not the most cost effective approach. Therefore, Guadagno & Sons Amusements is the recommended vendor for the proposed three (3) day carnival for the 2016 Fourth of July event (Attachment2). The carnival will be operated at no cost to the City. The City will also receive revenue sharing from the event, as described below. Fireworks Company Price for the 4th of July Display Total Fireworks Garden State Fireworks $30,000 2,542 Fireworks & Stage FX. lnc $29,800 1,171 Pyro Spectaculars, lnc.$30,000 2,298 City Council Agenda Report May 17,2016 Paoe 3 of 4 FISCAL IMPACT: Garden State Fireworks, lnc. proposed a fee of $30,000 per show. For the 2016 show, a payment of $15,000 will be made from the current Fiscal Year 2015-2016 budget prior to'the Fourth of July celebration event. The remaining balance of $15,000 will be paid from the Fiscal Year 2016-2017 budget after completion of the event. Guadagno & Sons anticipates that the gross revenue will total $65,000 for the three day event aid has agreed to pay the City 20o/o of the cash and credit card sales made at the event up to the first $30,000, and 25% of the ride gross thereafter. The City expects to receive between $'15,000 - $18,000 based on last year's event and similar carnivals in surrounding cities. NMENTAL IMP The City's Environmental Administrator completed a preliminary review of the project in accordance with Section 15061 of the California Environmental Quality Act (CEOA) Guidelines. Based on that review, the Environmental Administrator has determined that the project is categorically exempt under Section 15304, Class 4, (e) - minor temporary use of iand having negligible or no permanent effects on the environment. A Notice of Exemption (NOE) will be posted should the requested action receive final approval. ION/COMMI RD REVIEW ENDATION At the April 18,2016, Parks, Recreation, Senior and Youth Services Commission Meeting, the Commission recommended to the City Council to approve a PSA with Garden State Fireworks, lnc. for the Aerial Fireworks Displays of the 2016, 2017 and 2018 4th of July Celebrations and a PSA with Guadagno & Sons Amusements for the 2016 event. a NCIL REVIEW MENDATION Not applicable. NOTIFICATION Staff distributed an event notification letter for residents and owners within a radius of 1,000 ft. of the Sports Park (Attachment 3). Chris Santore Garden State Fireworks, lnc. Anthony Guadagno Guadagno & Sons Amusements (G & S Shows) Garden State Fireworks, Inc. CITY OF SAN JUAN CAPISTRANO PROFESSIONAL SERVICES AGREBMENT This Agreement is made and entered into as of May 17,2016 by and between the City of San Juan Capistrano, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675 ("City"), and Garden State Fireworks, lnc., a SOLE PROPRIETORSHIP with its principal place of business at 383 Carlton Road, Millington, NJ 07946 (hereinafter referred to as "Contractor"). City and Contractor are sometimes individually referred to as 'Party" and collectively as "Parties" in this Agreement. RECITALS A. City is a public agency of the State of California and is in need of professional services for the following project: 2U6,2A17 and 2018 Aerial Fireworks Display (hereinafter referred to as "the Project"). B services. Contractor is duly licensed and has the necessary qualifications to provide such C. The Parties desire by this Agreement to establish the terms for City to retain Contractor to provide the services described herein. AGREEMENT NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. Services Contractor shall provide the City with the services described in the Scope of Services attached hereto as Exhíbit "A." 2. Compensation. a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit "8." b. City agrees to pay Contractor the services fee hereunder, which shall not exceed $30,000, per event per year as set forth in Exhíbit "A," for the aerial fireworks display. City shall pay to Contractor $15,000 of the aerial fireworks display fee as a deposit for each event no laterthan May 31 ,2016, May 31 ,2017 and May 31,2018. The remaining balance of $15,000 of the aerial fireworks display fee shall be paid by the City no later than July 15, 2016, July 14, 2O17 and July 1 3, 2018. ATTACHMENT 11 3. AdditionalWork. lf changes in the work seem merited by Contractor or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Contractor with a statement of estimated changes in fee or tíme schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement. 4. Maintenance of Records Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Contractor and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City. 5. Time of Performance. Contractor shall perform its services in a prompt and timely manner and shall commence performance upon receipt of written notice from the Gity to proceed ("Notice to Proceed"). Contractor shall provide an aerial fireworks display on Monday, July 4, 2016, Tuesday, July 4, 2017 and Wednesday, July 4, 2018. 6. Delavs in Performance a. Neither City nor Contractor shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint. b. Should such círcumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. 7. Compliance with Law. a. Contractor shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Ca|/OSHA requirements. b. lf required, Contractor shall assist the City, as requested, in obtaining and maintaining all permits required of Contractor by federal, state and local regulatory agencies. c. lf applicable, Contractor is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement. 2 8. Standard of Care Contractor's services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar condítions. 9. Assiqnment and Subcontractor Contractor shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Contractor from employing independent associates, and subcontractors as Contractor may deem appropriate to assist in the performance of services hereunder. 10. lndependentContractor Gontractor is retaíned as an independent contractor and is not an employee of City. No employee or agent of Contractor shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. 11. lnsurance. Contractor shall not commence work for the City until it has provided evidence satisfactory to the City ít has secured all insurance required under this section. ln addition, Contractor shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a.Commereial General Liabilitv (i) The Contractor shall take out and maintain, duríng the performance of all work under this Agreement, in amounts not less than specífied herein, Commercial General Liability lnsurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following: (1) lnsurance Services Office CommercÍal General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (i¡i) Commercial General Liability lnsurance must include coverage for the following: Bodily lnjury and Property Damage Personal I njury/Advertising lnjury PremiseslOperations Liability Products/Completed Operations Liability Aggregate Límits that Apply per Project Explosion, Collapse and Underground (UCX) exclusion deleted ( ( ( ( ( 1) 2) (6 3 4 5 3 (7) Contractual Liability with respect to this Contract(8) Broad Form Property Damage(9) lndependentContractorsCoverage (iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liabillty exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. (v) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liabilitv (i) At all times during the performance of the work under this Agreement, the Contractor shall maintain Automobile Liability lnsurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii) Coverage for automobile liability insurance shall be-at least as broad as lnsurance Services Office Form Number CA 00 01 covering automobile líability (Coverage Symbol 1, any auto). (iii) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. c. Workers'Comoensation/Emplover's Liabilitv (¡) Contractor certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) To the extent Contractor has employees at any time during the term of this Agreement, at all times during the performance of the work under thís Agreement, the Contractor shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the "Workers' Compensation and lnsurance Act," Division lV of the Labor Code of the State of California and any acts amendatory thereof, and Employer's Liability Coverage in amounts indicated herein. Contractor shall require all subcontractors to obtain and maintain, for the 4 period required by this Agreement, workers' compensation coverage of the same type and limits as specified in this section. d. Professional Liabilitv lErrors and Omissions) At all times during the performance of the work under this Agreement the Contractor shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Contractor. "Covered Professional Services" as designated in the policy must specifically include work performed under this Agreement. The policy must "pay on behalf of' the insured and must include a provision establishing the insurer's duty to defend. e. Minimum Policy Limits Required (¡) The following insurance limits are required for the Agreement: Combined Sinole Limit Commercial General Liability $1,000,000 per occurrence/ $5,000,000 aggregate for bodily injury, personal injury, and property damage Automobile Liability $1,000,000 per occurrence for bodily injury and property damage Employer's Liability $1,000,000 per occurrence Professional Líabílity $1,000,000 per claim and aggregate (errors and omissions) (ii) Defense costs shall be payable in addition to the limits. (i¡i) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional lnsured pursuantto this Agreement. f. Evjdence Required Prior to execution of the Agreement, the Contractor shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ¡SO CG 00 01 (or insurer's equivalent) signed by the insurer's representative and Certificate of lnsurance (Acord Form 25- S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. 5 g. Policv Provisions Reouired (i) Contractor shall provide the Cíty at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Contractor shall provide at least ten (10) days priorwritten notice of cancellation of any such policy due to non-payment of premium. lf any of the required coverage is cancelled or expires during the term of this Agreement, the Contractor shall deliver renewal certificate(s) including the General Liability Additional lnsured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Contractor's policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any foss. (ii¡) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Contractor shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Contractor shall purchase a one (1) year extended reporting periotJ A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contaín or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waíve their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors (v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability, Further the limits set forth herein shall not be construed to relieve the Contractor from liability in excess of such coverage, nor shall it limit the Contractor's indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. h. Qualifvinq lnsurers (i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: (1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:Vll and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance 6 through surplus line brokers under applicable provisions of the California lnsurance Code or any federal law. i. Additional lnsurance Provisions nts as to the types and limits of insurance coverage to be maintained by Contractor, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Contractor pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (ii) lf at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Contractor or City will withhold amounts sufficient to pay premium from Contractor payments. ln the alternative, City may cancel this Agreement. (iii) The City may require the Gontractor to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liabílity arising under or by virtue of this Agreement. j. Subcontractor lnsurance Requirements. Contractor shall not allow any subcontractors or subcontractors to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subcontractors shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. ff requested by Contractor, City may approve different scopes or minirnum limits of insurance for particular subcontractors or su bcontractors. 12. lndemnification. a. To the fullest extent permitted by faw, Contractor shall defend (with counsel reasonably approved by the City), indemnify and hold the City, its officials, officers, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, "Claims') in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, Contractors or agents in connection with the performance of the Contractor's services, the Project or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys' fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Contractor's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to Claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. Contractor's obligation to 7 indemnify shall not be restrícted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers . b. Additional lndemnitv Oblioations. Contractor shall defend, with counsel of City's choosing and at Contractor's own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against the City, its officials, officers, employees, agents or volunteers. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the City, its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by the City, its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for the City's attorney's fees and costs, including expert witness fees. Contractor shall reimburse the City, its officials, officers, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the C1ty, its officials, officers, employees, agents and volunteers. 13. California Labor Code Reouirements. a. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. lf the services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws, if applicable. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabílities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. lt shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages, employment of apprentices, hours of labor and debarment of contractors and subcontractors. b. lf the Services are being performed as part of an applicable "public works" or "maintenance" project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of lndustrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of lndustrial Relations. lt shall be Contractor's sole responsibility to comply with all applicable registration and labor compliance req uirements. 14. Verification of Emplovment Elisibilitv. By executing this Agreement, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the lmmigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub- subcontractors to comply with the same. 15. Laws and Venue. 8 This Agreement shall be interpreted in accordance with the laws of the State of California. lf any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Orange, State of California. 16, Termination or Abandonment a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Contractor. ln such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Contractor the reasonable value of services rendered for any portion of the work completed prior to termination. lf said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Contractor of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work. b. Contractor may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days' written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Contractor. 18 Documents. Except as othenruise provided in "Termination or Abandonment," above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the seruices described in this Agreement, be furnished to and become the property of the City. 19. Orqanization Contractor shall assign Steve Jefferies as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City. 20. Limitation of A.qreement. This Agreement is limited to and includes only the work included in the Project described above- 21. Notice Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to: 9 CITY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Kipp Lyons and shall be effective upon receipt thereof 22. Third Partv Riqhts CONTRACTOR: Garden State Fireworks, lnc 383 Carlton Road Millington, NJ 07946 Attn:August N. Santore Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Contractor. 23. EqualOpportunityEmplovment. Contractor represents that it ís an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, allactivities related to initial employment, upgrading, detnotiorr, transfer, recruitnrent or recruitment advertising, layoff or termination. 24. Entiç Aqreement This Agreement, with its exhibits, represents the entire understanding of City and Contractor as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement rnay not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement. 25. Severability The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal. 26. Successors and Assions This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Contractor shall not assign or transfer by operation of law or othen¡vise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void. 10 27. Non-Waiver None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing. 28 Time of Essence Time is of the essence for each and every provision of this Agreement. 29. CitVþ Right to Emoloy Other Contractors City reserves its right to employ other Contractors, including engineers, in connection with this Project or other projects. 30. Prohibited lnterests Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee workÍng solely for Contractor, any fee, commissíon, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtaín any present or anticipated material benefit arising therefrom. ISTGNATURES ON FOLLOW¡NG PAGEI 11 SIGNATURE PAGE FOR PROFESSIONAL SER\rICES AGREEMENT BETWEEN TIIE CITY OF SA¡I JUAN CAPISTRANO AND GARDEN STATE ß'IREWORKS lN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CITY OF SAN JUAN CAPISTRANO GARDEN STATE FIREWORKS, INC Ben Siegal City Manager ATTEST: By: City Clerk APPROVED AS TO FORM: By: City Attorney By: Its: Printed 12 1 EXHIBIT A SCOPE OF WORK THE CITY OF SAN JUAN CAPISTRANO 2016,2017 and 2018 FOURTH 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 shell 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 c. 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.c. 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. Provide a California licensed lead pyrotechnic operator (Operator) and crew; provide transportatíon 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 will not accept responsibility for advance storage of fireworks and/or vehicle(s). Contractor's Operator shall have a minimum of three (3) years of experience providing public aerial fireworks displays, and/or has successfully provided no less than ten (10) public aerial fireworks displays. 2 3 4. 13 5 6. Contractor shall furnish to the City of San Juan Capistrano, 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't Class License. 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 following morning. Coordinate with the Orange County Fire Authority and comply with all regulations. 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. 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 at 19-20 minute show; be responsible for the timely completion of all preparation work so the aerial fireworks display will 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 Capistrano, its elected and appointed officials, employees and sen¡ants as additional named insureds. Also to be included on certificate and endorsement: South Coast Farms, Orange County Fire Authority. 12-Provide the City with proof of Workers' Compensation Insurance* for all employees as required by State laws governing aerial irreworks 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 aerial 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. 7 I I 13 City To: Term: a Provide sand, hand radio and CD Players, Clear-Com communication system, sound system, suitable firing site, and City liaison. The term of the agreement with the Contractor shall be for the year 2015 aerial fireworks display. a *Must be received by the City a minimum of 21 working days prior to the event. 14 J J t Total of Intro/Opening Finale -Aerial ShellsÆffects: 550 ûf ArN ROÍIY,AF'.RIAI. DfSPr.¡\Y SHELLS: Total of Main Body -Aerial Shells z 734 Main Body: Multi Shot þrotechnic Devices DESCRIPTION OT'SHELL REFERENCE TO LITERATURE QTY 3" Aerial Display Shells **See Exhibit "A"150 4" Aerial Display Shells **See Exhibit "A"36 5" Aerial Display Shells **See Exhibit "A"20 1.2"64 Shot Silver Crossette **See Exhibit "A"64 Shots 1.2"100 Z Fan Waving Red Crossette *+See Exhibit "A"100 Shots l" Red Silver Blue Comets (180)È*See Exhibit "A"180 Shots DESCRIPTIONOF STIT¡tr REFERENCETO LITERATT]RE QTY 3" Aerial Display Shells **See Exhibit "A"350 4" Aerial Display Shells **See Exhibit *4"208 5" Aerial Display Shells **See Exhibit "A"t76 Multi-Shot I)evices 1"-2"R.EFER"ENCE TO LITERATURE QTY 36 Shot Multi Colors (8)**See Exhibit "A"288 Shots 100 Shot Red Peony with White Tail **See Exhibit "A"100 Shots 72 shot RWB Peony **See Exhibit "A"72 Shots 15 408ZFan Waving RWB Comets **See Exhibit "4"408 Shots 408 ZFan Waving Rainbow Comets **See Exhibit "A"408 Shots 88 Shots Red With Silver Glitter **See Exhibit "A"88 Shots 88 Shots Blue Peony with White Tail **See Exhibit "A"88 Shots 100 Shots Brocade and Blue **See Exhibit "A"100 Shots 90 Shots Silver Spinners **See Exhibit "A"90 Shots 64 Shot Color Comet to Crossettes **See Exhibit "A"128 Shots 100 Shot Crackling Bouquet **See Exhibit "A"100 Shots 300 Shot Dragon And Phoenix **See Exhibit ooA"300 Shots 165 Shot I Shapc Chrysanthemum **See Exhibit "A"165 Shots 90 Shot Ancient War (2)**See Exhibit'oA"180 shots 90 Shot Purple and Green Comets (2)**See Exhibit "A"180 shots GRANDFINALE: TOTAL Pyrotechnic Special Effect Devices : 2,695 Shots Total of Grand Finale - Aerial Shells/Effects: 2,542 Production Total Shells and Pyrotechnic Effects z 6,521Pieces DESCRIPTIONOf,' SHELLÆFFECT REFERENCE TO LITERATT]RE QTY 100 Shot Red and Blue Peony (2)**See Exhibit "A"200 Shots i00 Shot Whistle (2)*+See Exhibit "A"200 Shots 665 Shot Multi Color to Salute Fan **See Exhibit "A"1330 Shots 372 Shot Golden Rain & Red W Fan **See Exhibit "A"372 Shots Aerial Display Shells 3" Finale Shells **See Exhibit "A"380 4" Finale Shells **See Exhibit "A"36 5" Finale Shells **See Exhibit "A"24 16 "Exhibit A" Display Shell and Effect Descriptions 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 manufacturer of display fireworks in the country, 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 ptus years of experience to research, design and purchase the highest quality 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. Multi-shot Cake Effects: Effects Listed in the Cost proposal ranging from 88 shots to 665 shots are self-contained repeater units custom designed by Garden State Fireworks and manufactured to the highest quality standards. Effects repeat in a variety of multiple angled simultaneously fan shápes, or elaborate zig-zagging wave configurations. Shots range from 1.5 inches to 2 inches anã create ground to sþ 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 silver 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 sþ 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 tibrary is available for review in Schedule A enclosed. The July 4'h Display will draw from our diverse library of effects and Ínclude 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 combinations within individual effects as well as transformation color changing effects expand the list below to hundreds of varieties. 3" Assorted Color ¡nd Renort Shells: Red Peony White Peony Blue Peony Red White And BIue Peony Green Peony Yellow Peony Titanium Reports Multi-Salutes Silver Peony Red and Blue Wave Color Changing Peonies Flash Reports Spider Webs Aqua Peony Variegated Chrysanthemums Ring Patterns Purple Peony Golden Wíllow Crackling Chrysanthemum RaÍnbow Peony Tiger Tails Multi Color Combinations 17 4" AssoÉed Color ¡nd F¡ncv AerÍal Shells: Red Peony White Peony Blue Peony Red White Ancl Blue Peony Green Peony Yellow Peony Lemon Peony Orange Peony Aqua Peony Rainbow Peony Multi Color Combinations Titanium Reports Multi-Salutes White Strobe Red Strobe Color Ch¡nging Peonies Flash Reports Spider Webs Whistling Shells Variegated Chrysanthemums \ilave Ring Patterns Golden Strobe Purple Peony Golden Willow Sky Waterfall Silver Crossette Crackling 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 Crackling Chrysanthemum Crackling Rain Willow Tiger Tails Red Wave Green Wave Colors MPalm Core Centers Peonies WFancy Center Pistils Whistling Shells Red Crossettes Green Crossettes SÍlver Palm Trees Tourbillions & Serpents Silver Crown c/c Green Gold Kamuro c/c Blue Red and Green Bees Variegated Fish Thousands of Crackling Flowers Colors to Crackling Dragon Eggs Glittering Willows Color & Timed Reports Hummer Shells Gold Flitter Lemon to Purple w/Purple to Lemon Pistil Red Dahlia wAVhite Strobe Aqua Dahlia w/Red Strobe Pistil Red to Silver Wave dBlue Pistil Nishiki Kamuro Niagra Falls Red Strobing Nishiki Kamuro Reddish Gamboge to Green Blue Circle with Twice Crackling Pistil Multi Color Cycas 5" Assorted Color ¡nd Fancv Aerial Shells:***AT,L COLORS AND EFFECTS LISTED ABOVE IN 4'DISPLAY SECTION Smile Face Patterns Green Coconut Tree Heart Shape Patterns Aqua Crossette Lemon Crossette w/Strobe Pistil Whirl Flower w/Strobe Pistil Variegated Strobes Three Color Changing Peonies Thousands of Flowers Glittering Gotd to Purple Red Falling Leaves Red and Blue Wave Blue to White Flashing Willow Green and Blue Wave Half Red and Half Blue Peony White ilRed Pistil Half Purple/Half Yellow Peony Purple w/Green Pistil 18 Exhibit B Payment City agrees to pay Contractor the services which shall not exceed $30,000 per event, per year, for the aerial fireworks display.City shall pay to Contractor $15,000 of the aerial fireworks display fee as a deposit for each event. The Cig shall pay to the Contractor a deposit fee of $15,000.00 no later than May 31,2016, May 31 ,2017 and May 31 2018. The remaining balance of $15,000, of the aerial fireworks display fee shall be paid by the City no later than July 15,2016, July 14,2017 and July 13, 2018. 6 I | 47.A21O0\t097 4777 . t 19 Guadagno & Sons, AKA G&S Shows CITY OF SAN JUAN CAPISTRANO PROFESSIONAL SERVICES AGREEMENT This Agreement is made and entered into as of May 17,2016 by and between the City of San Juan Capistrano, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675 ("City"), and Guadagno & Sons, AKA (G&S Shows), a SOLE PROPRIETORSHIP with its principal place of business a|12842 Valley View Street, Ste. 103, Garden Grove, CA 92845 (hereinafter referred to as "Contractod'). City and Contractor are sometimes individually referred to as "Party" and collectively as "Parties" in this Agreement. REC¡TALS A. City is a public agency of the State of California and is in need of professional services for the following project: Three Day Carnival at the San Juan Capistrano Sports Park (hereinafter referred to as "The Project"). B. Contractor is duly licensed and has the necessary qualifications to provide such services. C. The Parties desire by this Agreement to establish the terms for City to retain Contractor to provide the services described herein. AGREEMENT NOW, THEREFORE, IT ¡S AGREED AS FOLLOWS: 'l . Services. Contractor shall províde the City with the services described in the Scope of Servíces attached hereto as Exhibit "A." 2. Compensation. a. Contractor is providíng the tasks and services set forth in Exhibit "4" at no cost to the Cíty. All costs for tasks and services provided under this Agreement shall be the responsibility of the Contractor. The City shall not be obligated to pay Contractor or reimburse Contractor for any costs. b. The Contractor and the City will divide the total cash and credit card sales revenues from the rides at the event ("Ride Gross") as follows: the Contractor shall pay the City 20 o/o of the first $30,000.00 Ride Gross and 25o/o of the ride gross thereafter. ln context of this Agreement, the terms "Rides" shall mean and include all rides, mechanical and inflatable. c. Contractor shall remit full payment to the City on July 4, 2016 at the conclusion of the event. Payment shall be made in the form of cash or check and include 1 ATTACHMENT 2 cop¡es of all receipts and or financial reports for the 3 day event. 3.Additi lWork. lf changes in the work seem merited by Contractor or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be fonruarded to the City by Contractor with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the Gity will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement. 4. Maintenance of Records. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Contractor and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City. 5. Time of Performance. 1. Contractor shall perform its services in a prompt and timely manner and shall commence performance upon receipt of written notice from the City to proceed ("Notice to Proceed"). Contractor will provide a carnival on and between the dates of July 2 - 4, 2016. The hours of operatíon will be Saturday, July 2 from 12:00 p.m. to 10:00 p.m., Sunday, July 3 from 12:00 p.m. to 10:00 p.m. and Monday, July 4,2016 from 12:00 p.m. to 10:30 p.m. Rides will pause at 8:45 p.m. - 9:30 p.m. during the firework display, then resume from 9:30 p.m. - 10:30 p.m. Ticket booth will close at 10:00 p.m. on Monday, July 4, 2016. Carnival closes at 10:30 p.m. on Monday, July 4, 2106. 2. Removal of all equipment by the Contractor shall complete the seruices requÍred hereunder by Wednesday, July 6, 2016 at 7:00 p.m. 6. Delavs ín Performance. a. Neither City nor Contractor shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint. b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. 7. Cgmpliance with Law. 2 a. Contractor shafl comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including CaIiOSHA requirements. b. lf required, Contractor shall assist the City, as requested, in obtaining and maintaining all permits required of Contactor by federal, state and local regulatory agencíes. c. lf applicable, Contractor is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement. 8. Standard of Care Contractor's services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. 9. Assionment and Subconsultant Contractor shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated ín this Agreement. Nothing contained herein shall prevent Contractor from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder. 10. lndeoendentConsultant Contractor is retained as an independent contractor and is not an employee of City. No employee or agent of Contractor shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. 11. lnsurance. Contractor shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. ln addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. CommercíalGeneral Liabilitv ffi*",o. shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability lnsurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following: (1) lnsurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. 3 (iii) Commercial General Liabifity lnsurance must include coverage for the following: (1) Bodily lnjury and Property Damage(2) PersonallnjuryiAdvertísinglnjury(3) Premises/Operations Liability(4) Products/CompletedOperationsLiability(5) Aggregate Limits that Apply per Project(6) Explosion, Collapse and Underground (UGX) exclusion deleted(7) Contractual Liability with respect to this Contract(8) Broad Form Property Damage(9) lndependentConsultantsCoverage (iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suíts by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. (v) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi) The general liability program may utifize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. At¡tomobile Liabilitv (í) At all times during the performance of the work under this Agreement, the Consultant shall maíntain Automobile Liability lnsurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in-a fôrm and with insurance companies acceptable to the City. (ii) Coverage for automobile liability insurance shall be at least as broad as lnsurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto). (iii) The policy shall give City, its officÍals, officers, emptoyees, agents and City designated volunteers additional insured status. (¡v) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. c. Workers'Compensation/Emplover's Liabilitv (i) Contractor certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. 4 (ii) To the extent Contractor has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreernent, the Contractor shall maÍntain full compensation insurance for all persons employed directly by himlher to carry out the work contemplated under this Agreement, all in accordance with the "Workers' Compensation and lnsurance Act," Division lV of the Labor Code of the State of California and any acts amendatory thereof, and Employer's Liability Coverage in amounts indicated herein. Contractor shall require all subconsultants to obtain and maintain, for the period requíred by this Agreement, workers' compensation coverage of the same type and limits as specified in this section. d. Professíonal Liabilitv (Errors and Omissions) At all times during the performance of the work under this Agreement the Contractor shall maintaín professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Contractor. "Covered Professional Services" as designated in the policy must specifically include work performed under this Agreement. The policy must "pay on behalf of'the insured and must include a provision establishing the insurer's duty to defend. e. Minimum Policy Limits Required (i) The following insurance limits are required for the Agreement: Combined Sinale Limit Commercial General Liability $5,000,000 per occurrence/ $5,000,000 aggregate for bodily injury, personal injury, and property damage Automobile Liability $1,000,000 per occurrence for bodily injury and property damage Employer's Liability $1,000,000 peroccurrence Professional Liability $1,000,000 per claim and aggregate (errors and omissions) (¡i) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional lnsured pursuant to this Agreement. f. Ëvidence Required Prior to execution of the Agreement, the Contractor shall file with the City evidence of insurance from an insurer or insurers cerlifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer's equivalent) signed by the insurer's representative and Certificate of lnsurance (Acord Form 25- S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. g. Policv Provisions Required (i) Contractor shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Contractor shall provide at least ten (10) days priorwritten notice of cancellation of any such policy due to non-pâyment of premium. lf any of the required coverage is cancelled or expires during the term of this Agreement, the Contractor shall deliver renewal certificate(s) including the General Liability Additional lnsured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ií) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Contractor's policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Contractor shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Contractor shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss- Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractor. (v) The limits set forth herein shall apply separately to each ínsured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Contractor from liability in excess of such coverage, nor shall it limit the Contractor's indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. h. Qualifuing lnsurers (i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: o (1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:Vll and admitted to transact in the business of insurance in the State of California, or othen¡vise allowed to place insurance through surplus line brokers under applicable provisions of the California lnsurance Code or any federal law. i" Additional lnsurance Provisions nts as to the types and limits of insurance coverage to be maintained by Contractor, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations othenuise assumed by the Contractor pursuant to this Agreement, includíng but not limited to, the provisions concerning indemnification. (ii) lf at any tíme during the life of the Agreement, any poticy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. ln the alternative, City may cancel this Agreement. (ii¡) The City may require the Contractor to provide complete copies of alf insurance polícÍes ín effect for the duration of the project. (iv) Neither the Gity nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. j. Subcontractor lnsurance Reguírementq. Contractor shall not allow any subcontractors or subcontractors to commence work on any subcontraet until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subcontractors shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. lf requested by Contractor, City may approve different scopes or minimum limits of insurance for particular subcontractors or su bcontractors. 12. lndemnification. a. To the fullest extent permitted by law, Contractor shall defend (with counsel reasonably approved by the City), indemnify and hold the City, its officials, officers, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, "Claims') in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Contractor, its olicials, officers, employees, subcontractors, Contractors or agents in connection with the performance of the Contractor's services, the Project or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys' fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Contractor's services are subject to Civil Code Section 2782.8, the above índemnity shall be limited, to the extent 7 required by Civil Code Section 2782.8, to Claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers . b. Additional lndemnitv Obliqations. Contractor shall defend, with counsel of City's choosing and at Contractor's own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against the City, its officials, officers, employees, agents or volunteers. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the City, its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Contractor shall also reimburse City for the cost of any settlement paid by the City, its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for the City's attorney's fees and costs, including expert witness fees. Contractor shall reimburse the City, its officials, officers, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents and volunteers, 13. California Labor Code Requirements. a. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 el seq., which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. lf the services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevaíling Wage Laws, if applicable. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. lt shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages, employment of apprentices, hours of labor and debarment of contractors and subcontractors. b. lf the Services are being performed as part of an applicable "public works" or "maintenance" project, then pursuant to Labor Code Sections 1725.5 and 177'1.1, the Contractor and all subcontractors performing such Services must be registered with the Department of lndustrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of lndustrial Relations. lt shall be Contractor's sole responsibility to comply with all applicable registration and labor compliance requirements. 14. Verification of Elnployment Fligibilítv By executing this Agreement, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the lmmigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub- subcontractors to comply with the same. B 15. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. lf any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Orange, State of California. 16 Termination or Abandonment a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Contractor. ln such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Contractor the reasonable value of services rendered for any portion of the work completed prior to termination. lf said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for servíces performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Contractor of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work. b. Contractor may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days' written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Contractor. 17 Documents. Except as otherwise provided in "Termination or Abandonment," above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City. 18. Orqanization Contractor shall assign Anthony Guadagno as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City. 19. Limitation of Aqreement. This Agreement is limited to and includes only the work included in the Project described above 20. Notice Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by deposíting the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to: I CITY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Heidi lvanoff CONTRACTOR: Guadagno & Sons Amusements, AKA (G&S) Shows 12842 Valley View Street, Ste. 103 Garden Grove, CA 92845 Attn: Anthony Guadagno and shall be effective upon receipt thereof. 22. Third Party Riqhts Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Contractor. 23. EqualOpportunitvEmolovment. Contractor represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other ínterests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, allactivities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 24. Entire Aqreemenl This Agreement, with its exhibits, represents the entire understanding of City and Contractor as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any persons which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except ín writing signed by both Parties hereto. This is an integrated Agreement- 25. SevergþilitV The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal. 26. Successors and Assiqns This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Contractor shall not assign or transfer by operation of law or othenruise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void. 10 27. Non-Waiver None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing. 28. Time of Essence Time is of the essence for each and every provision of this Agreement. 29. Citv's Riqht to Emplov Other Contractors City reserves ¡ts right to employ other Contractors, including engineers, in connection with this Project or other projects. 30. Prohibited lnterests Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. ISTGNATURES ON FOLLOW|NG PAGEI 11 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SAN JUAN CAP¡STRANO AND GUADAGNO & SONS AMUSEMENTS, AKA, (G&S SHOWS) lN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CITY OF SAN JUAN CAPISTRANO Guadagno & Sons, AKA, (G&S Shows) By:By Ben Siegel City Manager ATTEST By: City Clerk APPROVED AS TO FORM: By: City Attorney Its: Printed Name 12 CITY OF SAN JUAN CAPISTRANO COMMUN ITY SERVICES DEPARTMENT 25925 Camino Del Avion, San Juan Capistrano (949) 493-591 1 EXHIBIT A SCOPE OF WORK Guadagno & Sons (G & S Shows) Guadagno & Sons (Contractor) agrees to provide the following list of services for the City's 3 day Fourth of July Carnival at the San Juan Capistrano Sports Park located at25925 Camino Del Avíon. 1. (Contractor) is to return all necessary, contracts, W-9 form, Proof of Workman's Compensation, Certificate of Liability lnsurance and current San Juan Capistrano Business License to the City prior to the event. 2. (Contractor) will provide a carnival on and between the dates of July 2 - 4,2016. the hours of operation will be Saturday, July 2 from 12:00 p.m. to 10:00 p.m., Sunday, July 3 from 12:00 p.m. to 10:00 p.m. and Monday, July 4,2016 from 12:00 p.m. to 10:30 p.m. Rides will pause at 8:45 p.m. - 9:30 p.m. during the firework display, then resume from 9:30 p.m. - 10:30 p.m. Ticket booth will close at 10:00 p.m. on Saturday, July 4, 2016. Carnivalcloses at 10:30 p.m. 3. (Contractor) will provide 100 posters describing the event, at no cost to the City. 4. (Contractor) will províde a crew to clean the grounds each evening and at the close of the event at no cost to the City. 5. (Contractor) will provide all ticket booth staff, ride operators and monitors 6. (Contractor) will provide and operate credit card terminals 7. (Contractor) will provide an ATM on site B. (Contractor) will provide overnight on-site security during set-up, event operation and tear-down. 9. (Contractor) will deliver, park and secure equipment and rides in designated Sports Park parking lots prior to staging of equipment and rides. 10. (Contractor)willbegin staging and set-up of equipmenton Wednesday, June 29,2016after 8:00 a.m. Removal of equipment from property to be completed by 7:00 p.m. on Wednesday, July 6, 2016. 1 1. (Contractor) and all staff employed by Guadagno & Sons (G&S Shows) are prohibited from using drugs or alcohol before, during or at the conclusion of the event. 12. (Contractor) will provide documentation that all staff employed by Guadagno & Sons (G&S Shows) completed and passed a background check with the Department of Justice (DOJ). I have read the above listed conditions and hereby agree and certify that I shall abide by the City's conditions for the Fourth of July Carnival listed above. Failure to comply with this scope of work will result in immediate termination due to breach of contract. Signed Date Title:Printed Name: q ¡¡ 43 City of San Juan Capistrano M[ilãE Event: Proposed Fourth of July Carnival (3-day) When: Saturday, July 2 Time: 12:00 p.m. to 10:00 p.m. Sunday, July 3 Time: 12:00 p.m. to 10:00 p.m. Monday, July 4 Time: 12:00 p.m. to 10:30 p.m. The City of San Juan Capistrano's annual Fourth of July Celebration will take place on Monday, July 4, 2016 at the San Juan Capistrano Sports Park located at 25925 Camino Del Avion. The Community Services Ðepartment is proposing a 3 day Camival as part of the Fourth of July Celebration. The proposed carnival includes operations starting Saturday, July 2 from 12:00 p.m. - 10:00 p.m,, Sunday, July 3 from 12:00 p.m. - 10:00 p.m. and Monday, July 4, from 12:00 p.m. - 10:30 p.m. This notification is being sent to residents that could be dírectly impacted by noise and lighting during the carnival's hours of operation. The Community Services Department is aware and sensitive to the concerns of residents living in close proximity to the Sports Park. All efforts will be made to minimize any inconvenience, íncluding traffic and noise levels. The Carnival will feature a total of 15 rides, a food truck and a midway with carnival games. City staff and police will be on site to monitor all activities and ensure public safety. The proposed carnival will appear on the agenda for City Council's consideration on Tuesday, May 17,2016. There will be an opportunity for public comment in favor or opposition of the proposed carnival. The City Council meeting begins at 5:00 p.m. at City Hall 32400 Paseo Adelanto, San Juan Capistrano. lf you have any questions or concerns pfease contact: Heidi lvanoff, Senior Program & Special Events Coordinator (949) 443-6391 hivanoff@saniuancaoistra no.orq Gil Leon, Coordinator (e49) 443-6393 gleon(ôsan iuancapi stra no. oro We appreciate the opportunity to bring a fun, wholesome activity for the community to enjoy Sincerely, Heidi lvanoff Senior Program & Special Events Coordinator ATTACHMENT 3