HomeMy WebLinkAbout3/25/2009 - STAFF REPORTS - 2.M. ;O pALM sp4
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X µF CITY COUNCIL STAFF REPORT
C4L I F 0 R��P
DATE: March 25, 2009 CONSENT
SUBJECT: FOURTH OF JULY CELEBRATION FIREWORKS
FROM: David H. Ready, City Manager
BY: Department of Parks and Recreation
SUMMARY
This action will approve an Agreement with Pyro Spectacular, Inc. in an amount not to
exceed $35,000 forthe production of the July 4, 2009 fireworks display at Palm Springs
Stadium.
RECOMMENDATION-
1. Approve an Agreement with Pyro Spectacular, Inc. to provide the fireworks
display for the 2009 Fourth of July Celebration at Palm Springs Stadium in an
amount not to exceed $35,000; and
2. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
This is the fifth year that City staff will be producing the Fourth of July Celebration at
Palm Springs Stadium. In previous years, the event was produced by Palm Springs 4th
of July Fireworks, Inc., a nonprofit organization which disbanded prior to the 2005 event.
In 2005, $25,000 worth of fireworks had been purchased prior to the organization
disbanding and the event was subsequently produced in-house by the Department of
Parks and Recreation.
From 2006 - 2008, City Council allocated funds for the department to produce the
annual show at Palm Springs Stadium, and staff, along with the Palm Springs Power
Baseball Club, has produced an "All-American 4th of July" event.
ITEM NO. Z M .
City Council Staff Report
March 25, 2009
Fourth of July Celebration Fireworks
This year, staff is continuing to work with the Palm Springs Power Baseball Club by
having a baseball game precede the fireworks display. The Palm Springs Power will
play in a conference game that will begin at approximately 6:05 p.m. There will be a
regular admission charge for the ball game and pre-fireworks display festivities in the
stadium. At 8:00 p.m., all gates will open to the general public free of charge and the
Fireworks display will follow at approximately 9.15 p.m.
Staff is working with the Palm Springs Power to create a true community event for the
Fourth of July at the stadium to broaden the community appeal of celebrating our
nation's 233'd birthday. The Palm Springs Power will be providing food and refreshments
through the concession stands and KDEZ Radio will be providing the simulcast program
for the fireworks show, with Danny Fox as emcee.
Normally, professional services such as those being performed by Pyro Spectaculars,
Inc. should be competed to make sure the City is getting the best value for services
being performed. Section 7,040,030 of the Municipal Code provides that the City
Council may authorize the acquisition of supplies, equipment or services without
competition when it is determined that an unusual or unique situations exist, in that, due
to experience and expertise demonstrated in prior contacts with the City ,a particular
contractor is uniquely qualified for a particular task that makes the application of all
requirements of competitive sealed bidding or competitive sealed proposals contrary to
the public interest. Since Pyro Spectaculars, Inc. has been performing 4ih of July
fireworks shows in and for the City of Palm Springs for over fifty (50) years, it has been
determined, pursuant to the requirements of Section 7.040.030, that the prior contract
performance and special expertise of Pyro Spectaculars, Inc. for pyrotechnics is
acceptable and will adequately protect the public interest in that the total cost of the
services to be provided will likely be equal to or less than what could be obtained
through an independent City competitive process at this time.
FISCAL IMPACT:
Funds are available in Account Number 112-2018-45610 to produce this event.
C _
Sharon Heider, Director Thomas Wilson
Department of Parks and Recreation Assistant City Manager
ate-
David H, Ready, Cam} anager
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Product Synopsis
Pyro technic Proposal
City of Palm Springs
Program A
$J21C 000,00
Main Body Aerial Shells
Description Quantity
♦ 3" Sky Concert Selections 175
♦ � ♦ 4" Sky Concert Selections 175
♦ 5" Sky Concert Selections 170
Total of Main Body - Aerial Shells 520
Pyrotechnic Devices
Description, Quantity
♦ Sousa Gold Line Custom Multishot Device 800 Shots
♦ Sousa Platinum Line Custom Multishot Device 500 Shots
♦ Sousa Diamond Line Custom Multishot Device 1200 Shots
Total of Pyrotechnic Devices 2,500
Grand Finale
Description Quanti
♦ 2-5" Sky Concert Bombardment Shells 108
♦ 2.5" Sky Concert Finale Shells 180
( ♦ 3" Sky Concert Bombardment Shells 75
♦ 4" Sky Concert Finale Shells 60
Total of Grand Finale 423
Grand Total 3,443
— 4� Page 4
Pyra Spectaculars,Inc. City of Palm Springs
P.O. Box 2329 July 4, 2009
Rialto, CA 92377
Tel: 909-355-8120:::: Fax: 909-355-9813 Page 1 of4
PRODUCTION AGREEMENT
This agreement("Agreement")is made this _day of ,2009 by and between Pyra Spectaculars,Inc-,a California
corporation,hereinafter referred to as("PYRO"),and City of Palm Springs,hereinafter referred to as("CLIENT'). PYRO and CLIENT arc sometimes referred
to as"Party-or collectively as"Parties-hcrcin
I. Eneagement-CLIENT hereby engages PYRO to provide to CLIENT one fireworks production("Pioduetion"),and PYRO accepts such engagement
upon all of the promises,terms and conditions hereinafter set forth.The Production shall be substantially as outlined in Program"A",attached hereto and
incorporated herein by this reference
I I PYRO Duties—TYRO shall provide all pyrotechnic equipment,trained pyrowchniwans,shipping,pyrotechnic products,application for
specific pyrotechnic permits(the cost of which,including standby fees,shall be paid by CLIENT)relating to the Production,insurance covering the
Production and the other things oil its part to be performed as moie specifically set forth below in this Agreement and in the Scope of Work("Scope of
Work"),attached hereto,incorporated herein by this refcmnce.mid made a part of this Agreement m though set forth fully herein.
1.2 CLIENT Duties—CLIENT shall provide to PYRO a suitable site("Site")for the Production,security for the Site as set forth in Paragraph
6 hereof,access to the Site,any permission necessary to utilize the Site for the Production,and the other things on its part to be performed as more
specifically sa forth below in this Agreement and in The Scope of Work. All Site arfangements 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 nor limited ro,access,
use,control,parking and general safety with respect to the public,CLIENT personnel and other contractors.
2. Time and Place-The Production shall take place on .full 4.2609,at approximately 9:0UJ m,at Paim Springs Sladium Baseball Field.Site.
3. Fees,Interest,and Expenses-
3.1 Fee-CLIENT agrees to pay PYRO a fee of$35 000-00 USD(THIRTY FIVE TIiOIfSAN1))("Fee")for the Production.CLIENT shall
pay to PYRO$17 500.OIIUS➢(SN.VI.N-rF l;N'm0t7SAND FIVF RUNDREDI of Ore Fee plus estimated permit and standby fees,specified production costs,
and other regulatory costs approximated at 100M,for a total of$17,500.00 as a deposit("Dcposif)upon the execution of this Agreement by bath parties but no
later than Anrii 3,2009. The balance of the Fee shall be paid no later than duly 6,2009 CLIENT authorizes PYRO to receive mid verify credit and financial
information concerning 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
32 Interest-In the event that 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 balmice. If litigation arises out of this Agreement,the prevailing parry shall be entitled to reasonable costs incurred in connection
with the litigation,including,but not limited to a mincys'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 set up and discharge the pyrotechnics and those additional items as outlined as PYRO's
responsibility in the Scope of Work. CLIENT shall pay all tests related to the Production not supplied by PYRO including,but not limited to,those items
outlined as CLIENT's responsibility in this Agreement and Scope of Work
4. Proprietary Rights-PYRO represents and warrants that it owns all copyrights,including performance rights,to this Production,except that PYRO
does not own CLIENT-owned material or third-party-owned material(hat has been included in the Production,and as to such CLIENT-owned and third-parry-
owned material,CLIENT assumes full responsibility therefore. CLIENT agrees that PYRO shall retain ownership of,and all copyrights and other rights to,the
Production,except that PYRO shall not acquire or retain any ownership or other rights in or to CLIENT-owned material and third-party-owned material and shall
not be responsible in anyway for such material If applicable,CLIENT consents to the use of CLIENT-awned material and represents that it has or will obtain
any permission from appropriate third parties sufficient to authorize public exhibition of any such material in connection with this Production.PYRO reserves the
ownership rights in its trade names that are used in or are a product of the Production. Any reproduction by sound,video or other duplication or recording process
without the express written permission of PYRO is proli bired.
5. Safe -PYRO and CLIENT shall each comply with applicable federal,state and local laws and regulations and employ safety programs and measures
consistent with recognized applicable industry standards and practices At all times before and during the Production,it shall be within PYRO's sole discretion to
determine whether or not the Production may be safely discharged or continued. It shall not constitute a breach of this Agreement by PYRO for fireworks to fail
or malfunction,or for PYRO to determine that the Production cannot be discharged or continued as a result of any conditions or circumstances affecting safety
beyond the reasonable control of PYRO.
6. Security-CLIENT shall provide adequate security personnel,barricades,and Police Department services as may be necessary to preclude individuals
other than Uhasc authorized by PYRO from entering an area to be designated by PYRO as the area for the set-up and discharge of the Production,including a
fallout area satisfactory to PYRO where the pyrotechnics may safely rise and any debris may safely fall. PYRO shall have no responsibility,for monitoring or
controlling CLIENC's other contractors,providers or volunteers;the public;areas to which the public fir contractors have access;or any other public or contractor
facilities associated with the Production.
7. Cleanup-PYRO shall be responsible for the removal of all equipment provided by PYRO and clean up of any live pyrotechnic debris made necessary
by PYRO. CLIENT shall be responsible for any other clean up which may be required of the Production or set-up,discharge and fallout areas including any
environmental clean-up
PS V 1-2a 4r�%
Pyro Spectaculars, Inc. City of Palm Springs
P.O. Box 2329 duly 4,2009
Rialto, CA 92377
Tel:909-355-8120 :::: Pax: 909-355-9813 Poe 2 off
8. Permits-PYRO agrees to apply for permits required for the discharge ofpyrotechnies from die Palm Springs Fire Department(or odier authority
having Jurisdiction),FAA,USCG,and The Slate of California,as required. CLIENT shall be responsible for any fees associated with these permits including
standby fees. CLIFN'shall be responsible for obtaining any otter necessary permits,paying associated fees,and malting other appropriate arrangements for
Police Departments,other Fire Departments,road closures,event/activity or land use permits or any permission or permit required by any Local,Regional,State
or Federal Government.
9. Insurance-PYRO shall at all times during Tile performance of services herein ensure that the following insurance is maintamcd in connection with
PYRO's performance of this Agreement(I)commercial general liability insurance,including products,completed operations,and contractual liability under This
Agreement;(2)automobile liability insurance,(3)workers'compensation insurance and enhpluyer liability insurance Such insurance is to protect CLIENT from
claims for bodily injury,including death,personal injury,and from claims of piopetty damage,which may wise from PYRO's performance of this Agreement,
only "Fhe types and amounts of coverage shall be as set forth in the Scope of Work. Such insurance shall not include claims which arise from CLIENT's
negligence ur willful conduct or from failure of CLIENT to perform its obligations under this Agreement,covet age for which shall be provided by CLIENT
The coverage of these policies shall be subject to reasonable inspection by CLIENT Certificates of Insurance evidencing the required general liability coverage
shall be fumishcd to CLIENT prior to the rendering of services hereunder and shall include the following:(I)dial it may not be canceled or modified without the
insurance carrier providing at least thirty(30)days prior written notice to CLIENT,and(2)that the following are named as additionally insured CLIENT;
Sponsors,Landowners,Barge Owners,if any:and Permitting Authorities,with respect to the operations of PYRO at the production Pyrotechnic subcontractors
or providers,if any,not covered under policies of insurance required hereby,shall secule,maintain and provide their own insurance coverage with respect to Their
respective operations and services. Fvidencc of other insurance shall be provided upon CLIENTT's written request to PYRO.
10. Indemnification-PYRO represents and warrants that it is capable of furnishing the necessary experience,personnel,equipment,materials,providers,
and expertise to produce the Production in a safe and professional manner, Notwithstanding anything in this Agreement to the contrary.PYRO shall Indemnify,
hold harmless,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 the loss of life,personal injury,and/or damage to property,arising from Grout
of the Production and the presentation thereof to the extent such are occasioned by any act or omission ofPYRO,their officers,agents,contractors,providers,or
employees CLIENT shall indemnify,hold hamhless,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 court costs in connection with the loss of life,personal injury,and/or damage to property,arising from
or out of the Production and the presentation thereof to the extent such are occasioned by any act or omission of CLIENT,its officers,agents,contractors,
providers,or employees In no event shall either party be liable for the consequential damages of the other party
11 Limitation of Damages for Ordinary Breach-Except in the case of bodily injury and property damage as provided in the insurance and
indcmmfication provisions of Paragraphs 9 and 10,above,in the event CLIENT claims That PYRO has breached this Agreement or was omerwise negligent in
performing the Production provided for herein,CLIENT shall not be entitled to claim or recover monetary damages from FYRO beyond the amount CLIENT has
paid to PYRO under this Agreement,and shall not be entitled to claim or recover any consequential damages from PYRO including,without limitation,damages
for loss of income,business or profits
12 Force Maieur_c-CLIENT agrees to assume the nskq of weather,strike,civil unrest,terrorism,military action,governmental action,and any other
causes bcyand 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,for any such reason,PYRO is not reasonably able to safely discharge the Production on the scheduled date,or at the
scheduled time,or should any event for which CLIENT-has purchased the Production be canceled as a result of such causes,CLIENT may(i)reschedule the
Production and pay PYRO such sums as provided in Paragraph 13,or(ii)cancel The Production and pay PYRO such sums as provided in Paragraph 14,based
upon when the Production is canceled.
13. Rescheduline Of Event-IfCLIENT ciccs to reschedule the Production,PYRO shall be paid Tile original Fee plus all additional expenses made
necessary by rescheduling plus a 15%service fee on such additional expenses. Said expenses will be invoiced separately and payment will be due in full within 5
days of roccipt. CLIENT and PYRO shall agree upon the rescheduled date taking into consideration availability of permits,materials,equipment transportation
and labor The Production shall be rescheduled for a date not mart than 90 Days subsequent to the date first set for the Production. The Production shall not be
rescheduled to a date,or for an event,that historically has involved a fireworks production. The Production shall not be rescheduled between June 15th and July
15th unless the original date was July 4dh of that same year,or between December ISTh and January ISth unless the original date was December 31st ofthe earlier
year unless PYRO agrees that such rescheduling will not adversely affect normal business operations during those periods
14. Right To Cancel—CLIENT shall have the option to unilaterally cancel the Production pnor to the scheduled date. If CLIENT exercises this option,
CLIENT agrees to pay to PYRO,as liquidated damages,the following percentages of the Fee as set forth in Paragraph 3 1, 1)50%if cancellation occurs 30 to 90
days prior to the scheduled date,2)75%if cancellation occurs 15 to 29 days prior to the scheduled date,3) 100%thereafter. In the event CLIENT cancels The
Production,it will be impractical or extremely difficult to fix actual amount of PYRO's damages The foregoing mpresens a reasonable estimate ofine damages
PYRO will suffer if CLIENT caneels the Production
15 No Joint Venture-It is agreed,nothing in this Agreement or in PYRO's performance of the Production shall be construed as foaming a partnership or
joint venture between CLIENT and PYRO. The Parties hereto shall be severally responsible for their own separate debts and obligations and neither Party shall
be held responsible for any agreements or obligations nor expressly provided for herein.
16. Annlieable taw-This Agreement acid the rights and obligations ofthe Parties hereunder shall be construed in accordance with the laws of California.
It is further agreed that the Central Judicial District of San Bernardino County,California,shall be proper venue for any such action In the event that the scope of
the Production is reduced by authorities havuhgjurisdietion or by either Party for safety eaneems,the full dollar amounts outlined in this Agreement arc
enforceable.
17 Notices- .Any Notice to the Parties permitted or required under this Agreement may be given by mailing such Notice in the United States Mall,
postage prepaid,first class,addressed as follows: PYRO—Pyro Spectaculars,Inc.,P.O.Box 2329,Rialto,California,92377,or for overnight delivery to 3196 N.
Locust Avenue,Rialto,California 92377. CLIENT C of Pwlm S17IjJhes PO Eox 2743.Palm Snrines.CA 92263.
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PS 1.2a (" �'
Pyro Spectaculars, Inc. City of Palm Springs
P.O. Box 2329 July 4,2009
Rialto, CA 92377
Tel: 909-355-8120 :::: Fax; 909-355-9813 Page 3 of,l
18 Modification of Terms-All terms of the Agreement are in writing and may only be modified by written agreement of both Parties hereto. Both
Parties acknowledge they have received a copy of said written Agreement and agice to be bound by said terms of written Agreement only.
19. Severahility-If there is more than one CLIENT,they shall be jointly and severally responsible to perform CLIEN9's obligations under this
Agrcemene This Agreement shall become effective after it is executed and accepted by CLIENT and after it is executed and accepted by PYRO at PYRO's
offices in Rialto,California, This Agreement may be executed in several counterparts,including faxed and cmaiked copies,each one of which shall be deemed an
original against the Party executing same This Agreement shall be binding upon The Parves 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 ifthis Agreement is not executed by CLIENT and delivered to
PYRO on or before the PRICE FIRM date shown below,then the price,date,acid scope of the Production are subject to review and acceptance by PYRO for a
period of 15 days following dcltvery 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 April 3,2009
EXECUTED AGREEMENT MUST BE DELIVCRED 1-0 PYRO BY THIS DATE.
Sec PRICE FIRM conditions,paragraph 20,above,
,EXECUTED as of the date first written above:
PYRO SPECTACULARS,INC. City of Palm Springs
B By.
Its: President Its:
Print Name
SHOW PRODUCER Jeff Martin
RfiBVED AS - R
t-'�•:r13t3:'-v
rr.ow,tr.rmocls �aw.ee
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PS V 1-2a
Pyro Spectaculars,Inc. City of Palm Springs
P.O. Box 2329 July 4,2009
Rialto, CA 92377
Tel: 909-355-8120 :::: Pax: 909-355-9813 aee a of 4
SCOPE OF WORK.
PYRO SPECTACULARS,INC. ("PYRO")
and
City of Palm Springs("CLIENT")
Pyro shall provide the following goods and services to CLIENT:
• One Pyro Spectaculars, Inc., Production on .July 4,_2009, at approximately 9:00omat Palm Springs Stadium Baseball
Field.
• All pyrotechnic equipment, trained pyrotecluticians, shipping, and pyrotechnic product.
• Application for specific pyrotechnic permits relating to the Production.
• Musical soundtrack for the Production supplied in agreed upon format.
• Insurance covering the Production as set forth in the Agreement with the following limits:
Insurance Re uiremenrs Limits
Commercial General Liability $1,000,000.00 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' Compensation Statutory
Employer Liability $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 Zone in accordance with applicable standards and all requirements of the authorities having jurisdiction
throughout the entire time 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.
t'S V 1-Za
Pyro Spectaculars, Inc, City of Palm Springs
P.O. Box 2329 July 4,2009
Rialto, CA 92377
Tel; 909-355-8120 c:: Fax: 909-355-9813 FaRC 1 of a
PRODUCTION AGREEMENT
This agreement("Agreement')is made this day of_—,2009 by and between Pyre Spectaculars,Inc.,a California
corporation,hereinafter referred to as("PYRO"),and City of Palm Springs,hereinafter referred to as("CLIENT"). PYRO and CLIENT are sometimes referred
to as"Party'or collectively as"P,artics-herein.
I Engagement-CLIENT hereby engages PYRO to provide to CLIENT one fireworks production("Production"),and PYRO accepts such engagement
upon all of die promises,terms and conditions hereinafter set forth.The Production shall be substantially as outlined in Program"A",atuiched hereto and
incorporated herein by this reference.
I I PYRO!hates-PYRO shall provide all pyrotechnic equipment,trained pyrotechnicians,shipping,pyrotechnic products,application for
specific pyrotechnic permits(the cost of which,including standby fees,shall be paid by CLIENT)relating to the Production,insurance covering the
Production and the other things on its pan to be perfomied as more specifically set forih below in this Agreement and in the Scope of Work("Scope of
Work"),attached hereto,incorporated herein by this reference,and made a par[of this Agreement as though set forth fully hcicin.
12 CLIFNT Duties-CLIENT shall provide to PYRO a suitable silo('[Site")for the Production,security for the Site as set forth in Paragraph
6 hereof,access to the Site,any permission necessary to utilize the Site for the Production,and die other things on its part to be performed as more
specifically set forth below in this Agrccmcnt and in die Scope of Work All Site arrangements are subject to PYRO's reasonable approval as to
pyrotechnic safely,suitability,and security.All other conditions of the Site shall be the iesponsibiliry,of CLIENT,including,but net limited to,access,
use,control,parking and general safety with respect to the public,CLIENT"personnel mud other contractors
2, Time and Place-The Production shall take place on July 4.2009,at approximately 9:00pin,at Palm Sprints Stadium Baseball Field,Site.
3. Fees,interest,and Expenses-
3.1 Fee-CLIENT agrees to pay PYRO a fee ofS35.000.00 USD(111IR I Y FIVE THOUSAND)("Fee")for the Production CLIENT shall
pay to PYRO$115(10,011USD(SEVENTEVEN THOhSAND FIVE IIIINDRFI) of the Fee plus estimated permit and standby fees,specified production costs,
and other regulatory costs approximated at.( 1-00,for a total of$17,500.00,as a deposit("Deposit")upon the execution of this Agreement by both parties but no
later than April 3.2009. The balance of the Pre shall be paid no later than Julv 6,2009 CLIENT authorizes PYRO to receive and verify credit and financial
information concerning CLIENT from any agency,person or entity including but not limited to credit reporting agencies.The"PRICE FIRM"date,the date by
which the executed Agreement must be delivered to Pyre,is set forth in paragraph 20,
32 Interest-In the event that the Fee is not paid in a timely manner.CLIENT will be responsible for the payment of 1.5%interest per month
or I$%annually on the unpaid balance. If litigation arises out of this Agreement,the prevailing party shall be entitled to reasonable costs incurred in connection
with the litigation,including,but not limited to attorneys'fees
3.3 Expenses-PYRO shall pay all normal expenses directly related to die Production including freight,insurance as outlined,pyrotechnic
products,pyrotechnic equipment,experienced pyrotechnic personnel to set up and discharge die pyrotechnics and those additional items as outlined as PYRO's
responsibility in the Scope of Work CLIENT shall pay all costs related to the Production not supplied by PYRO Including,but not limited to,those items
outlined as CLIENT's responsibility in this Agreement and Scope of Work.
4. Proprietary Riehh-PYRO represents and warrants that it owns all copyrights,including performance rights,to this Production,except that PYRO
does not own CLIENT-owned material or turd-party-owned material that has been included in the Production,and as to such CLIENT-owned and third-party-
owned material,CLIENT assumes full responsibility therefore CLIENT agrees that PYRO shall retain ownership ot;and all copyrights and other rights to,the
Production,except that PYRO shall not acquire or retain any ownership or other rights in or to CLIENT-owned material and third-party-owned material and shall
not be responsible in any way for such material. If applicable,CLIENT consents to the use of CLIENT-owned material and represents that it has or will obtain
any permission from appropriate third parties sufficient to authorize public exhibition of any such material in connection with this Production.PYRO reserves the
ownership rights in its trade names that are used in or are a product of the Production. Any reproduction by sound,video or other duplication or recording process
without the express written permission of PYRO is prohibited
5. Safety-PYRO and CLIENT shall each comply with applicable federal,state and Incal laws and regulations and employ safety programs and measures
consistent with recognized applicable industry standards and practices. At all times before and during the Production,it shall be within PYRO's sole discretion to
determine whether or not the Production may be safely dischargcd or continued. It shall not constitute a breach of this Agreement by PYRO for fireworks to fail
or malfunction,or for PYRO to determine that the Production cannot be discharged or continued as a result of any conditions or circumstances affecting safety
beyond the rcasonabic control of PYRO.
6. Srxnri -CLIENT shall provide adequate security personnel,barricades,and Police Department services as may be necessary to preclude individuals
other than those authorized by PYRO from entering an area to be designated by PYRO as the area for the set-up and discharge of the Production,including a
fallout area satisfactory to PYRO where the pyrotechnics may safely rise and any debris may safely fall PYRO shall have no responsibility for monitorma or
controlling CLIENT's other contractors,provldus or volunteers,the public,areas to which the public or contractors have access;or any other public or contractor
Facilities associated with the Production.
7 Cleanup-PYRO shall be responsible for the removal of all equipment provided by PYRO and clean up of any live pyrotechnic debris made necessary
by PYRO CLIENT shall be responsible for any other clean up which may be required of the Production or set-up,discharge and fallout areas including any
environmental clean-up.
PS V 1.2a
Pyro Spectaculars, Inc. City of Palln Springs
P.O. Box 2329 duly 4, 2009
Rialto,CA 92377
Tel: 909-355-8I20 :::: Fax: 909-355-9813 Page 2 of
8, Pcrmils-PYRO agrees to apply for permits requited For Ole discharge of pyrotechnics from the Patin Springs Fire Department(or other authority
having jurisdiction),FAA,USCG,and the State of California.as rcquued. CLIENT shall be responsible for any fees associated with these pcmuts including
standby fees. CLIENT shall be responsible for obtaining any other necessary permits,paying associated fees,and making other appropriate m mgcmcnts for
Police Depeaments,other Fire Departments,road closures,evenUacliviry or land use permits or any permission of petmtt required by any Local,Regional,State
or federal Oovemment
9. Insurance-PYRO shall at all limes during the performance of services herein ensure that the following insurance is maintained in connection with
PYRO's performance of this Agreement (I)commercial general liability insurance,including products,completed operations,and contractual liability under this
Agreement,(2)automobile lability insurance,(3)workers'compensation insurance and employer liability insurance Such insurance is to protect CLIENT from
claims for bodily injury,including death,personal injury,and from claims of property damage,which may arise from PYRO's performance of this Agreement,
only The types and amounts of coverage shall be as set forth in the Scope of Work Such insurance shall not include claims which arise from CLIENT's
negligence or willful conduct or from failure of CLIENT to perform its obligations under this Agreement,coverage for which shall he provided by CLIENT.
The coverage of these policies shall be subject to reasonable inspection by CLIENT Certificates of Insurance evidencing the required general liability coverage
shall be furnished to CLIENT prior to the rcodering of services hereunder and shall include the following(1)that it may not be canceled or modified without the
insurance carrier providing at least thirty(30)days prior written notice to CLIENT,and(2)that the following are named as additionally insured:CLIENT;
Sponsers,Landowners,Barge Owners,if any:and Pcrrnitting Authorities,with respect to the operations of PYRO at the Production Pyrotechnic subeonvacmrs
or providers,if any,not covered under policies of insurance required hereby,shall secure,maintain and provide their own insurance coverage with respect to their
respective operations and services. Evidence of other insurance shall be provided upon CLIENT's written request to PYRO
10. Indemnifiearion-PYRO represents and warrants that it is capable of furnishing the necessary experience,personnel,equipment,materials,providers,
and expertise to produce the Production in a safe and professional manner. Notwithstanding anything in this Agreement to the contrary,PYRO shall indemnify,
hold harmless,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 otter professional fees and court costs,in connection with the loss of life,personal injury,and/or damage to property,arising from or out
of the Production and the presentation thereof to the extent such we occasioned by any act or omission of PYRO,their officers,agents,contractors,providers,or
employees. CLIENT shall indemnify,hold harmless,and defend PYRO from and against any and all claims,actions,damages,lability and expcnses,including
but not limited to,altomcy and other professional tees and court costs in connection with the loss of life,personal injury,and/or damage to property,arising from
or out of the Production and the presentation thereof to the extent such are occasioned by any act or omission of CLIENT,its officers,agents,contractors,
providers,or employees. In no event shall either parry be liable for the consequential damages of die other parry.
11 Limitalian or Damages for Ordinary Breach-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 to
performing the Production provided for herein,CLIENT shall not be entitled to claim or recover monetary damages 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 from PYRO including,without limitation,damages
for loss of income,business or profits.
12, Force Maicurc-CLIENT agrees to assume the risks of weather,strike,civil unrest,terrorism,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 dare,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,for any such reason,PYRO is not reasonably able to safely discharge the Production on the scheduled date,or at the
scheduled time,or should any event for which CLIENT has purchased the Production be canceled as a result of such causes,CLIENT may(i)reschedule the
Production and pay PYRO such sums as provided in Paragraph 0,or(n)cancel the Production and pay PYRO such sums as provided in Paragraph 14,based
upon when the Production is canceled.
13. Rescheduling Of Event-If CLIENT elects to reschedule the Production.PYRO shall be paid the original Fee plus all additional expenses made
necessary by rescheduling plus a 15%service fee on such additional expenses. Said expenses will be invoiced separately and payment will be due in full within 5
days of receipt, CLIENT and PYRO shall agree upon the rescheduled date taking into consideration availability of permits,materials,equipment,transportation
and labor.The Production shall be rescheduled for a date not more than 90 Days subsequent to the date first set for the Production the Production shall not be
rescheduled to a date,or for an event,that historically has involved a fireworks production. The Production shall not be rescheduled between June 151 h and July
15th unless the original date was July 4th of that scone year,or between December I5th mid January I5th unless the original date was December 31st of the earlier
year unless PYRO agrees that such rescheduling will not adversely affect normal business operations during those periods
14. Right Ti�.Cancel—CLIENT shall have the option to unilaterally cancel the Production prior to the scheduled date. if CLIENT exercises this option,
CLIENT agrees to pay to PYRO,as liquidated damages,the following percentages of the Fee as set forth in Paragraph 3 1, 1)50%if cancellation occurs 30 to 90
days prior to die scheduled date,2)75%if cancellation occurs 15 to 29 days prior to the scheduled date,3) 100%thereafter. In the event CLIENT cancels the
Production,it will be impractical or extremely difficult to fix actual amount of PYRO's damages. The foregoing represents a reasonable estimate of the damages
PYRO will suffer If CLIENT cancels the Production.
15, No Joint Vcnture-It is agreed,nothing in this Agreement or in PYRO's performance of the Production shall be construed as forming a partnership or
joint venture between CLIENT and PYRO. The Parties hereto shall be severally responsible for their own separate debts and obligations and neither Party shall
be held msponsible for any agreements or obligations not expressly provided for herein
16 Applicable Law-This Agroemerlt and the rights and obligations of the Parties hereunder shall be construed in accordance with the laws of California
It is further agreed that die Central Judicial District of San Bemardtno County,California,shall be proper venue for any such action In the event that the scope of
the Production is reduced by authorities having jurisdiction or by either Party for safety concerns,the full dollar amounts outlined in this Agreement are
enforceable,
17. Notices- Any Notice to die Parties permitted or required under this Agreement may be given by mailing such Notice in the United States Mail,
postage prepaid,first class,addressed as follows PYRO—Pyro Spectaculars,Inc.P 0 Box 2329,Rialto,California,92377,or for overnight delivery to 3196 N,
Locust Avenue,Rialto,California 92377. CLIENT—City of Palm Springs,PO Box 2743,Palm Springs,CA 92263.
PS V I-2a
Pyro Spectaculars, Inc. Cit} of Palm Springs
P-O. Box 2329 July 4, 2009
Rialto, CA 92377
Tel: 909-355-8120 :::: Fax: 909-355-9813 Pace 3 of
IS Modification of Terms—All terms of the Agreement are in writing and may only be modified by written agreement of both Parties hereto. Both
Parties acknowledge they have received a copy of said written Agreement and agree to be bound by said terms of written Agreement only.
19 SeverablliN—If there is more than one CLIENT,they shall be jointly and severally responsible to perform CLIENT'S obligations under this
Agreement This Agreement shall become effective after it is executed and accepted by CLIENT and after it is executed and accepted by PYRO at PYRO's
offices to F ialto,California This Agreement maybe executed in several counterparts,including fared and emailcd copies,each one of which shall be deemed an
original against the Party executing same This Agreement shall be binding upon the Parties hereto and upon their heirs,successors,executors,administrators and
assigns
20 Price Firm—If any changes or alterations are made by CLIENT to(his 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 ofthe Production are subject to review and acceptance by PYRO for a
period of 15 days following 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 April 3,2009
EXECUTFp AGREEMENT MUST BE DELIVERED TO PYRO BY T141S DATE.
See PRICE FIRM conditions,paragraph 20,above.
EXECUTED as of the date first wrinen above'
PYRO SPECTACULARS,INC. Ciry of Palm Springs
By. By.
Its: President Its:
Print Name
SHOW PRODUCF,R'Jeff Martin
PPWVEEr-AS IO FUI M
- P
.3•i6 d9
4Y
PS V 1-2a ----- --
Pyro Spectaculars,Inc. City of Palm Springs
P.O. Box 2329 Jul} 4, 2009
Rialto, CA 92377
Tcl: 909-355-8120 :.:: Fax: 909-355-9813 Page 4 of a
SCOPE OF WORK
PYRO SPECTACULARS,INC. ("PYRO")
and
City of Palm Springs("CLIENT")
Pyro shall provide the following goods and services to CLIENT.
• One Pyro Spectaculars, Inc., Production on Jules 4. 2009, at approximately 9:OO�at Palm S rin s Stadium Baseball
Field.
• 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.
• Insurance covering the Production as set forth in the Agreement with the following limits:
Insurance Requirements Limits
Commercial General Liability S1,000,000.00 Combined Single Limit-Each Occurrence
(Bodily Injury&c Property Damage)
Business Auto Liability- S5,000,000.00 Combined Single Limit-Each Occurrence
Owned Non-Owned and Hired Autos (Bodily Injury& Property Damage)
Workers' Compensation Statutory
Emnlover Liability S1,000,000 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-pyroteclmic 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 Zone in accordance with applicable standards and all requirements of the authorities having jurisdiction
throughout the entire time 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.
l
PS V 1-2a