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HomeMy WebLinkAboutPYRO SPECTACULARS, INC. (2)INSURANCE ON FILL WORK MAY PROCEED N-2019-158 UNTIL INSURANCE EXPIRES Pyro Spectaculars, file. �q City (if Santa Ana P.O. Box 2329 -- - Program A Rialto, CA 92377 CCLLERK 0 �{C UNCIL October 27, 2019 © Tel: 909-355-8120 :::: Fax:90ATfi-9814UG 2 9 2019 Page I o1`4 PRODUCTION AGREEMENT IJ ac Pxw gv.r.Wey This agreement ("Agreement") is made this _—day of _. _ _,2019 by and between Pyro Spectaculars, Inc., a Califamia corporation, hereinnflene(aredtoas("PYRO"),and Cilyor Santa Ana. hereinafter referred to as ("CLIENT"). PYRO and CLIENT ace sometimes refencd to as "Party" or collectively as "Proms' herein. I. Finsmarmeal - CLIENT herby engages PYRO to provide to CLIENT one fireworks production ("Production"). and PYRO accepts such engagement upon all of the promises, lens and conditions hereinafter set forth. The Pmduclion shall be substantially as outlined in Program "A", attached hereto and incorporated herein by This reference. 1.1 PYRO Duties- PYRO shall provide all pyrotechnic equipment, trained pyrotechnicians, shipping, pyrotechnic products, application for specific pyrotechnic petits (the cost of which, including standby fees, shall be paid by CLIENT) relating to [he Production, insurance coveting the Production and the other things on its pan to be performed as more specifically set forth below in this Agreement and in the Scope of Work ("Scope of Work"), attached hereto, incorporated herein by this reference, and trade a pan of this Agreement as though set forth fully herein. 1.2 CI.1 ENTI)n tics -CLIENT shall provide to PYRO a suitable site ("Site')for the Production, security for the Site asset forth in Parogmph 6 Inicaf, access to the Site, any pennission necessary to utilize the Site for the Production, and the other things on its pan to be perfonmed as more specifically set forth below in this Agreement and in the Scope of Work. All Site anangements are subject to PYRO's reasonable approval as to pyrotechnic safety, suitability, and security. All other conditions of the Site shall be the responsibility of CLIENT, including, but not limited to, access, use, control, parking and general safety with respect to the public, CLIENT personnel and otherconlmmlors. 2. TImeaud Place-TlteProduction shall take placeon Oeroher 27. 2019. atappruximately •OOn.m. mCentennial Recional Park Alldnir F'iehL East rod of perk 3062 %V. F.dineer Ate,. Santa Ana, CA, Site. 3. Fees, hnernt. and Expenses - 3 1 Fee -CLIENT agrees to pay PYRO a fee ors Io.000.00 USD fTF N TIIOUSAND DOLLARS) ("Fee') for [Ire Production. CLIENT shall pay to PYRO 000.0a USD(FIVE T110USAND DOLI.ATIE)ofthe Fee plus wtinated permit and standby fees, specified production costs, and other regulatory costs approximated at $00.00 OR an amount to be determined, for a total of co00.00 as a deposit ("Deposit") upon the execution of this Agreement by both parties but no later Ilion Scotemher 27,201 The balance of the Fee shall be paid no later than October 2g. 21119. CLIENT authorizes PYRO to receive and verify credit and financial infonnation commenting CLIENT from any agency, person or entity including but not limited to credit reporting agencies. The "PRICE FIRM" date, the date by which the executed Agreement must be delivered to Pyro, is set forth in paragraph 20. 3.2 Interest - In [he even( llal the Fee is not paid in a timely manner, CLIENT will be responsible for the payment of 1.5%interest per month or 18% annually on the unpaid balance. If litigation arises out of this Agreement, the prevailing party shall be entitled to reasonable costs incurred in connection wish the litigation, including, but not limited to anomeys' fees. 3.3 Expenses- PYRO shall pay all normal expenses directly related to the Production including freight, insurance as outlined, pyrotechnic products, pyrotechnic equipment, experienced pyrotechnic personnel to setup and discharge the pyrotechnics and thoseadditional items as outlittedas PYRO's responsibility in the Scope of Work CLIENT shall pay all costs related to Ole Production not supplied by PYRO including, but clot limited to, those i[ens outlined as CLIENT's responsibility in this Agreement and Scope of Work. 4. Prnnrletiry Rights- PYRO represents and wants that it owns all copyrights, including performance rights, to this Production. except Oral PYRO doer not own CLIENT -owned maletial or Third -parry -owned material that has been included in the Production, and as to such CLIENT -owned and third -par y- owned material, CLIENT assumes full responsibility therefore. CLIENT agrees that PYRO shot) retain ownership of, and all copyrights and other rights to, the Production, except (hit PYRO stall not acquire or retain any ownership or other rights in or to CLIENT -owned material and third -pally -owned material and shall not be responsible in any way for such mteial. If applicable, CLIENT consents to the use of CLIENT -owned material and represents that it has or will obtain any permission fiom appropriate Third panics sufficient to nulhhmize public exhibition of any such mateial in connection with this Prnduction. PY RO reserves the ownership rights in its Trade panes that are used in or are a product of the Production. Any reproduction by sound, video or olher duplication or recording process without the express written permission o f PYRO is prohibited. 5. Safety - PYRO and CLIENT shall each comply with applicable federal, stale and local laws and regulations and employ safety progmns and measure consistent with recognized applicable industry standards and practices. A( all times before and during the Production, it shall be within PY RO's sole discmxtion to determine whetlwr or anbe Pmductiort may be safely discharged or contintwd. It shall not cunstiluc a breach of this Agreement by PYRO fir fireworks to fail or inatfunetion, or for PYRO to ddennine that the Production casino( be discargcd or cont{nucd os a result of any conditions or ciniumslmrces arrmmrg safely beyond the mso»able control of PYRO. - 6. Sernrit, -CLIENT shall provide adequate security personnel, barricades. and Police Detainment services is may be necessary to preclude individuals otherthut hose amborized by PYRO bunt enacting an area to be designated by PYRO as the area for the seo-up and discharge of [lie Production. including a ratio,,[ am satisfaclory to PYRO whar the pyrotechnics ray safely riseand any debris may safely fall. PYRO shall have no responsibility for monitoring or controlling CLIENT's other comrac[ors, providersor volunteers: the public. arms to which the public or contractors have access. or any other public or contractor facilities associated with the Pmduction 7 ('Wnnp r . PYRO shall be responsible for the removal ol'all equipment provided by PYRO and clean up of any live pynnechnic debris made necessary by PYRO. CLIENT shall be reslonsible tin' any outer clean up which may be required of the Pmmduclion or set-up, discharge and Gdlout areas including any environmental cheat -up. PS V 1.2c Pyro Spectaculars, Inc. P.O. Box 2329 Rialto, CA 92377 Tel: 909-355-8120 :::: Fax: 909-355.9813 City of Santa Alta Program A October 27, 2019 Page 2 of 4 8. permits - PYRO agrees to apply for permits for the tiring of pyrotechnics only front the Ora it go Co anty Fire Ant [in rity, FAA, and USCG, if required, CLIENT shalt be responsible for any fees associated with theseperntitsincludhngstandby fees. CLIENT shall be responsible for obtaining any other necessarypennits, paying associated fees, and making other appropriate arrangements fort Police Departments, other Fire Depadmcnls, road closures, event/activily or hand use pennits at any permission or permit required by any Local, Region 1, State or Federal Government. 9. llist rlice - PYRD shall at all times during the performance of services herein ensure that the following insurance is maintained in correction will, PYRO's perfonttance of this Agreement: (I) cormneroial general liability insurance, including products, completed operations, and contmetual liabiI ily under this Agreement; (2) automobile liability insurance, (3) workers' compensation insurance and employer IinbiIity insurance. Such insurance is to protect CLIENT fiom claims for bodily injury, including death, personal injury, and tram claims of property danage, which may, arise from PYRO's perlatinoncc of this Agreement, only. The types and anroums or coverage shall be asset forth in the Scope of Work. Such insurance shall not include claims which arise from CLIENT's negligence or will lot conduct or from thiluicof CI.IENT to perform its obligations under this Agreement, coverage for which shall be provided by CLIENT. Thecovemgeofthese policies shillbe subjecto reasonable inspection by CLIENT. Certificates of Insurance evidencing the required general liability coverage shall be furnished to CLIENT prior to the rendering ofscrvices hereunder and shall include that the following are named is additionally insured: CLIENT; Sponsors, landowners, Burge Owners, i f any; and Penniuing Authorities, with respect to the operations of PYRO at the Production. Pyrotechnic subcononcons or providers, if any, not covered under policies of insurance required hereby, stall secure, maintain and provide their own insurance coverage with respect to their respective operations and services. 10, jiidomOrwiffluit- PYRO represents and warrants that it is capable offinnishing the necessary experience, personncl, equipment, materials, providers, and expertise to produce the Production in a safe and professional manner. Notwithstanding anything in this Agreement to the contrary, PYRO shell indemnify, hold hannless, and defend CLIENT and the additional insureds from and against any and all claims, actions, damages, liabilities and expenses, including but not limited to, attorney and other professional fees and court costs, in connection with Elie loss of life, personal injury, and/or damage to property, arising loan or out of the Production and the presentation thereof lothe extent such are occasioned by any net or omission of PYRO, their officers, agents, contractors, providers, or employees. CLIENT shall indemnify, hold hannless, and defend PYRO from and against any and all claims, actions, damages, liability and expenses, including but not limited to, attorney and other professional fees and count costs in connection with the loss of life, personal injury, and/or damage to property, arising front or out of the Production and the presentation thereof to the extent such are occasioned by any net or omission of CLIENT, its officers, agents, contractors, providers, or employees. In no event shall eirlrerpmYy be liable for the consequential damages of the other party. I I. I.buiuttion of Damages for Ordinary at cntcl - Except in the case of bodily injury and property damage as provided in the insurance and indemnification provisions of Paragraphs 9 and 10, above, in the event CLIENT claims that PYRO has breached this Agreement or was otherwise negligent in perfonning the Production Provided for herein, CLIENT shall not be entitled to claim or recover monetary darnages from PYRO beyond the amount CLIENT has paid to PYRO under this Agreement, and shall not be entitled to claim or recover any consequential damages Gam PYRO including, without limitation, damages for loss of income, business or profits. 12, Itorce hlalenrc- CLIENT agrees to assume die risks of wenther, strike, civil unrest, teRnri6m, military action, governmental action, and any other causes beyond the control of PYRO which may prevent the Production from being safely discharged on the scheduled date, which may cause the cancellation of any event for which CLIENT has purchased the Production, or which may affect or damage such portion of the exhibits as must be placed and exposed a necessary time before the Production. If, Florally such reason, PYRO is not reasonably able to safely discharge the Production oil the scheduled date, oral the scheduled time, or should any event but, which CLI ENT has purohased the Production be canceled us a result of such causes, CLIENT may (i) reschedule Ore Production and pay PYRO such sums us provided in Paragraph 13, or (i)cancel [lie Production and pay PYRO such sums as provided in Paragraph 14, based upon when the Production is canceled. 13. Resehedolhtg Qf Event - ITCLIENT elects to reschedule the Production, PYRO shall be paid theoriginal Pee plus all additional expenses made necessary by rescheduling plus a 15% service fee on such additional expenses. Said expenses will be invoiced separately and payrnew will be due in fitI within 5 days of receipt. CLIENrnnd PYRO shall agree upon the rescheduled date taking into consideration availability ofpennits, malaria Is, equipment, transportation and labor. Tire Production shall be rescheduled fort a date not more than 90 Days subsequent to the date fail set tart he Production. 7"he Production shall not be rescheduled to ad a I c. or for an even I, that historically has involved a fh'eworks production The Production shall not be rescheduled between June I Sth and July 151h unless the original date was July 4th of that same year, or between December I Sill and Jan only 15th unless the original date was December 31 st of the earlier year unless PYRO agrees that such rescheduling will not adversely afTeet normal business operations during those periods. 14, Itighl-i'o (7a nrot —CLIENT shall have the option to unilaterally cancel the Production prior to the scheduled dole. If CLIENT exercises this option, CLIENT agrees to pay to PYRO, as liquidated damages, the following percentages or die Fee as set Ibith in Paragraph 3.1. 1) 50% if cancellation occurs 30 to 90 daysprim' to thescheduled dale, 2)75% if cancellation occurs 15 to 29days priorto the scheduled date, 3)100%therea la. In the event CLIENTcancels the Production, if will beimpractical or extremely difficult to fix actual arnounl of PYRO's dangers. The foregoing represents a reasouableeslhnate of the damages PYRO will suffer if CLIENTcancels the Production. 15. No Joint Ycuture- If is agreed, nothing in this Agreement or in PYRO's pedmmance of the Production shall be construed as fanning a partnership or joint venture between CLIENT and PYRO- PYRO shall be and is in independent couoactm-with CLIENTand nol an employee of CLIENT The Parries herald shall be severally responsible for their own separate debts and obligations and neither Party shall be held responsible tin' any agreements or obligations not expressly provided for herein. 16. Appllraldc Law -This Agreement and the rights and obligations of lire Parties hereunder shall be consl,ned in accordance will, the lows of Cald unia. It is further agreed that the Central Judicial District of San Bernardino County, Ci libunia, shnll be proper venue barony such action. In the event That the scope of Ore Production is reduced by aulhonnes having jurisdiction or by either Party for solely concerns, the full dollar amounts outlined in this Agreement are en inccible 17. Notices - Any Notice to the Panics penninod or required under this Agicianem nay be given by nailing such Notice in the United States Mail, posagr prepaid, fast class, addietsed as follows. PYRO - Pyro Spectaculars, lac„ P 0- Box 2329, Rialto, Calil'ontia. 92377, or for overnight delivery to 3190 N. Locust Avenue, Rialto, California 92377. CLIENT -Chi ofSnntn Ana 211 Cir'cCentel' 143ZA SI is Alin, CA 9 701 PS Y 1-2c Pyro Spectaculars, Inc. P.O. Box 2329 Rialto, CA 92377 Tel: 909-355-8120 :::: Fax: 909-355-9813 City of Santa Ana ProgranlA October 27, 2019 Page 3 of 4 18. Modification of Terms —All terms of the Agreement are in writing and may only be modified by written agreement of both Parties hereto. Boil] Parties acknowledge they have received a copy of said written Agreement and agree to be bound by said tenors of written Agreement only. 19. sevrrnlrilily - If there is more tban one CLIENT. they slaII be jointly and severally responsible to perform CLIENT's obligations under this Agreement, This Agreement stall become effective alter it is executed and accepted by CLIENT and after it is executed and accepted by PYRO at PYRO's offices in Rialto, Calif nnia. This Agreement may be executed in several counterparts. including faxed and emaiIof topics, each one of which shall be deaned an migiwl against Ilse Party executing same. This Agreement shall be binding upon the Parries hereto and upon their heirs, successors, executors, administrators and assigns. 20. Price Firm — If any changes or alterations arc made by CLIENT to this Agreement or if this Agreement is not executed by CLIENT and delivered to PYRO on or before the PRICE FIRM date shown below, then the price, date, and scope of the Production am subject to review and acceptance by PYRO fora period of 15 days fallowing delivery to PYRO of the executed Agreement. In the event it is not accepted by PYRO, PYRO shall give CLIENT written notice, and this Agreement shall be void. PRICE FIRM through September 27, 2019 EXECUTED AGREEMENT MUST BE DELIVERED TO PYRO BY THIS DATE. See PRICE FIRM conditions, paragraph 20, above. EXECUTED as of the dale first written above: PYRO SPECTACULARS, INC. By. Its: President SHOW PRODUCER: Brendan Mckenney PS V 1 2c Cily of Santa Ana Its: City Manager KRISTINE RIDGE Print Narne TO FORM: SONIA City AI, RECOMMENDED FOR APPROVAL: STEVEN MENDOZ.A Executive Director, Community Development Agency Pyro Spectaculars, Inc. City of Santa Ann P.O. Box 2329 Program A Rialto, CA 92377 October 27, 2019 Tel: 909-355-8120 :::: Fax: 909-355-9813 Page 4 of 4 SCOPE OF WORK PYRO SPECTACULARS, INC. ("PYRO") and City of Santa Ana("CLIENT") Pyro shall provide the following goods and services to CLIENT: • One Pyro Spectaculars, Inc., Production on October 27, 2019 at approximately 9:00 p.m. at Centennial Regional Park Athletic Field, East end of nark 3062 W. Edinger Ave„ Santa Ana, CA. • All pyrotechnic equipment, trained pyrotechnicians, shipping, and pyrotechnic product. • Application for specific pyrotechnic permits relating to the Production. . Musical soundtrack for the Production supplied in agreed upon format. Include only when necessary. . Insurance covering the Production as set forth in the Agreement with the following limits: Insurance Reynirementy Mrniis Cmtunereial General Liability $5,000,000.00 Combined Single Limit- Each Occurrence (Bodily Injury & Property Damage) Business Auto Liability- $5,000,000.00 Combined Single Limit- Each Occurrence Owned. Non -Owned and Hired Autos (Bodily Injury & Property Damage) Workers' Conmensation Statutory fynloverLiability $1,000,000 Per Occurrence CLIENT shall provide to PYRO the following goods and services: • All on -site labor costs, if any, not provided or performed by PYRO personnel including, but not limited to, local union requirements, all Site security, Police and Fire Dept. standby personnel, stagehands, electricians, audio and fire control monitors, carpenters, plumbers, clean-up crew, All these additional personnel and services shall be fully insured and the sole responsibility of CLIENT. . Coordination and any applicable non -pyrotechnic permitting with the local, state or federal government that may hold authority within the Production. • Costs of all permits required for the presentation of the Production and the event as a whole. • Provision of a Safety `Lone in accordance with applicable standards and all requirements of the authorities having jurisdiction throughout the entire tirne that the pyrotechnics are at the Site or the load site (if different) on the date of the Production and all set-up and load -out dates, including water security to keep unauthorized people, boats, etc, from entering the Safety Zone. . A professional grade Audio System including all necessary equipment, installation of such equipment and trained audio engineers for operation based on audio and communications requirements provided by PYRO. General Services including, but not limited to, Site and audience security, fencing, adequate work light, dumpster accessibility, a secure office for PYRO personnel within the venue, secure parking for PYRO vehicles, access to washrooms, tents, equipment storage, hazmat storage, electrical power, fire suppression equipment, access to worksites, necessary credentialing, etc., will be required as necessary. PS V 1�2r CERTIFICATE OF LIABILITY INSURANCE ie.4'IZMI4nMYril THIS CERTIFICATE I5 ISSUED AS A MATTER OP INFORMATION ONLY AND CONFERS NO RIGHTS UPON TVIE CERTIFICATE!•IOLDER, T ilS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER, 'IMPORTANT:1lt'FI'e ce'rtli`uala mtleYsan ADDITION LINSURED,thepollcy(eanua�6o entlersed. iP SUeROQATION IS WAIVED,saci tom the terms and aandltionn of the policy, certain polloles may require an ondarsemant, A statement an this certificate does not confer rights to the certlflcute holdor In Ilea of such andorsoment a ODUCER iiYariGallagher to Cleveland Center, Floor 30 , N!'nkxtN71J3,➢,iE.,J�,4RI.S-�>1--„ 75 East 9th Street eveland OH 44114 UIOORER !IL, FFoOF OwO COVERAGE •,� NAICp INSUREy".IITI,.�S1S)D.R1D�W+.'N[iJRally........_,_ COVERAGES CERTIFICATE NUMBER: 0915663-12 TH I 'O R'I ''TKAtTHE OLIV'iFS OOF -INSURANCE L16TEDBELOW HAVE BEEN t5suPD TO THE INSU INDICATED. NOTWITHSTANDINO ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHEI CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIE EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, LIMITS SHOWN MAY HAVE SEEN REDUCED BY PAID CLAI7 -,..__-_-«,..-.,:..,.,.,� ..».._....®...... In N .»».--»,.d_....,.,..,.,�..: 3iSCfc"�"'E' '" e 17u— TYPOOFINSURANCE POLIOYNV a ]Dvmmw L O y OENEflAL LWBILITY ��� Ga Io4snoyv, aaNERAL UANILI Y J ..�OLA1K18,MAOE L JOCCUR CON!, ACGRF.OATC LIMIT MPLIee PER: .., POLICY.I��...O,«,.,...«,..... gym.....„.,..« © AUTOMosILa LIAeI4TY 618CA09031-101 V1312019 1/13(20Z9 % ANY AUTO " ALL OWKI) SGHEDULEO «w AVTo, u NONA31NNE0 X HIRED AUTOS X AVTDS A UMeRMLA LIAO X OCCUR EXCfi017965 w 1173/201a 17312020 XM EXCE59 LIAa CI.AIMaMAOE Certificate Holder Is Named as an additiarlal insured, City or Santa Ana 20 Civio Center Plaza Santa Ana CA 92701 ACORD 25 (2010105) mom span i4 rueWrudl 'ECT TO WHICH THIS TO ALL THE TERMS, 9HO1/Lo ANY OF THR ABOVE vescie", POLICIES BB CANCELLED BEFORE THE EXPIRATION BATE THEREOF, NOTICE WILL BE bELIVER€q IN ACCOROANCe WITH THE POLICY PROVISIONS. The ACORD name and logo are reglstered marks of ACORD CERTHOLDER COPY SP PA. BOX 8192, PLEASANTON, CA 94588 CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 01-24-2018 GROUP: POLICY NUMBER: 0803749-2018 CERTIFICATE ID: 1833 CERTIFICATE EXPIRES: 10-14-2019 10-14-2018/10-14-2019 CITY OF SANTA ANA SIP 20 CIVIC CENTER PLE SANTA ANA CA 92701-4058 This is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the California Insurance Commissioner to the employer named below for the policy period Indicated. This policy is not subject to cancellation by the Fund except upon 80 days advance written notice to the employer., We will also give you 3D days advance notice should this policy be cancelled prior to its normal expiration, This certificate of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded by the policy listed herein. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate of insurance may be issued or to which it may pertain, the insurance afforded dbby_.the policy described herein is subject to all the terms, exclusions, pJr9�and conditions, of such policy. Authorized Representative President and CEO EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE. ENDORSEMENT #0015 ENTITLED ADDITIONAL INSURED EMPLOYER EFFECTIVE 2019-01-24 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. NAME OF ADDITIONAL INSURED: CITY OF SANTA ANA ENDORSEMENT #2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 10-14-2002 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. I•i 1 CONTRACT No -,2-0 I. - DS.W— n 2 c' Curyf1"aC} �11t`� i�{} i10 bt"40t,1" -�•� I uccilASth of Q4 iO EMPLOYER i ,h PYRO SPECTACULARS, INC. SP PO BOX 2329 RIALTO CA 92377 M0408 (Rev.7.2014) PRINTED : 01-25-2019