HomeMy WebLinkAboutItem No. 04 Pyro Spectaculars, Inc. Agreement 4th of July Firework ShowText File
City of Lake Elsinore 130 South Main Street
Lake Elsinore, CA 92530
www.lake-elsinore.org
File Number: ID# 17-170
Agenda Date: 5/9/2017 Status: Consent AgendaVersion: 1
File Type: ReportIn Control: City Council
Agenda Number: 4)
Page 1 City of Lake Elsinore Printed on 5/4/2017
Page 1 of 2
REPORT TO CITY COUNCIL
To:Honorable Mayor and Members of the City Council
From:Grant Yates, City Manager
Prepared by: Melissa Houtz, Special Events Coordinator
Date:May 9, 2017
Subject:Pryo Spectaculars, Inc. Professional Services Agreement (PSA) for the 4th
of July Firework Show
Recommendation
Waive Lake Elsinore Municipal Code 3.08.070F, Exception to Bid Procedures; and, authorize
the City Manager to execute the PSA in an amount not to exceed $52,000.
Background
On July 4, 2016, the City held a Fireworks Spectacular on Lake Elsinore, which included a
“View by Boat” fireworks show over the lake with services provided by Pyro Spectaculars, Inc.
from Rialto, California. Pyro Spectaculars also performs the same service for many surrounding
communities including Diamond Stadium. As part of the festivities, staff offered pre-
entertainment at Lakepoint Park including music, vendors and a great viewing area to
experience the fireworks show.
Each year, more and more residents and guests enjoy the production and KOLA Radio 99.9
broadcast a radio simulcast for the Fireworks show, which lasted approximately 20 minutes. In
addition to those enjoying the show on the shore, limited boaters have the opportunity to
experience the Fireworks on the Lake, launching from La Laguna and other docks around the
Lake. The Lake Elsinore Storm will not be playing a home game at Diamond Stadium that
evening so there will not be conflicting firework shows.
Discussion
Staff recommends continuing the annual Fireworks services for the community and boaters to
enjoy.
Given the purchase of fireworks services is unique, staff bypassed the normal bid procedures
and chose Pyro Spectaculars, Inc. for the City’s 2017 fireworks show. Their quote, for $37,000,
will include a radio simulcast promoting the event and a show in approximately 20 minutes
duration. In the past, the City been approached by outside organizations donating funds to the
extension of the fireworks show by 10 minutes. To prepare for the possibility, the request of
$15,000 for the extension will only be used if those funds are received.
Page 2 of 2
Fiscal Impact
Approval of this item will result in an expenditure of $37,000 that will be appropriated from the
City’s FY 2017-18 Budget. Upon approval, the agreement will be signed and a 50 percent
deposit of $18,500 will be required. The additional $15,000 will only be utilized if matching
funds are received by a sponsor organization.
Exhibits
A – Pyro Spectaculars, Inc. Agreement
Pyro Spectaculars, Inc. City of Lake Elsinore
P.O. Box 2329 Program A, Rev. # 1
Rialto, CA 92377 July 04, 2017
Tel: 909-355-8120 :::: Fax: 909-355-9813 Nwe I ; iI 4
PRODUCTION AGREEMENT
(Special)
This agreement ("Agreement") is made this day of . 2017 by and between Pyro Spectaculars, Inc., a California
corporation, hereinafter referred to as ("PYRO"), and CITY OF LAKE ELSINORE, hereinafter referred to as ("CLIENT"). PYRO and CLIENT are sometimes
referred to as "Party" or collectively as "Parties" herein.
1. Enpaaement CLIENT hereby engages PYRO to provide to CLIENT one fireworks production ("Production"), and PYRO accepts such engagement
upon all of One promises, terms and conditions hereinafter set forth. The Production shall be substantially as outlined in PYRO's March 6, 2017, proposal, Scope
of Work, and 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 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 part to be performed as more specifically set forth below in this Agreement and in the PYRO's March 6, 2017
proposal, and Scope of Work ("Scope of Work"), attached hereto, incorporated herein by this reference, and made a part of this Agreement as though
set forth fully herein.
1.2-'LIENT 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 set forth below in this Agreement and in the Scope of Work. All Site arrangements 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 other contractors.
2. Time and Place - The Production shall take place on Limy 4.2017; at approximately MGM, at Lake Elsinore levee, lake Elsinore, CA, Site. The
Production shall be approximately 20 minutes in duration.
3. Fees, interest, and Expenses -
3.1 Fee - CLIENT agrees to pay PYRO a fee of$37,O00.00 USD (TIIiRTViS VEN THOUSAND DOLLARS) ("Fee") for tlne Production.
CLIENT shall pay to PYRO $E8SO4.00 USD (F.lG11TF.EN THOUSAND i_iV[. 11HINDRED DOLLARS) of the Fee plus estimated permit and standby fees,
specified production costs, and other regulatory costs approximated at 00.110 , for a total of S18,500.00, as a deposit ("Deposit") upon the execution ofthis
Agreement by both parties but no later than April 4, 2017. The balance of the Fee shall be paid no later than July 5, 2017. CLIENT authorizes PYRO to receive
and verity credit acid 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.
3.2 interest - in the eventthat the Fee is not paid in a timely manner, CLIENT will be responsible for thepayment 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
with the litigation, including, but not limited to attorneys' fees.
3.3 ;x ense -- 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 costs related tothe 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. Proprielary 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 that has been included in the Production, if any, requested by CLIENT, and as to such
CLIENT -owned and third -party -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 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. Safetv - 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 notthe 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 precludeindividuals
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 monitoring or
controlling CLIENT's other contractors, providers or volunteers; fie 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 1-2e
Pyro Spectaculars, Inc.
P.O. Box 2329
City of Lake Elsinore
Program A, Rev. # 1
Rialto, CA 92377 July 04, 2017
Tel: 909-355-8120 :::: Fax: 909-355-9813 Page 2 of 4
8. Permits - PYRO agrees to apply for permits for the firing of pyrotechnics only from the LAKE ELSINORE FIRE PROTECTION PLANNING,
FAA, and USCG, if required. CLIENT shall be responsible for any fees associated with these permits including standby fees. CLIENT shall be responsible for
obtaining any other necessary permits, paying associated fees, and making 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 the performance of services herein ensure that the following insurance is maintained in connection with
PYRO's performance of this Agreement: (1) commercial general liability insurance, including products, completed operations, and contractual liability under this
Agreement; (2) automobile liability 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 be provided by CLIENT.
Tire 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 rendering of services hereunder and shall include 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 secure, maintain and provide their own insurance coverage with respect to their
respective operations and services.
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 or out
of the Production and the presentation thereof to the extent such are 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, 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 Dantstees 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 in
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. PYRO shall not be entitled to claim or recover monetary damages from CLIENT beyond the amount CLIENT has paid to
PYRO under this Agreement, and in accordance with the percentages set forth in Section 14 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 flu}Curr - 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 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. Rescliedniinj,, 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 15th and July
15th unless the original date was July 4th of that same year, or between December 15th and January 15th 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 T Can.,d — 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 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 represents a reasonable estimate of the damages
PYRO will suffer if CLIENT cancels 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 forming a partnership or
joint venture between CLIENT and PYRO. PYRO shall be and is an independent contractor with CLIENT and not an employee of CLIENT. 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 not
expressly provided for herein.
16. Applicable Law - This Agreement and the rights and obligations of the Parties hereunder shall be construed in accordance with the laws of California.
It is further agreed that the Central Judicial District of Riverside 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 the 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.O. Box 2329, Rialto, California, 92377, or for overnight delivery to 3196 N.
Locust Avenue, Rialto, California 92377. CLIENT --dty of Lake Elsinore, 130 South Main St. Lake Elsinore CA 92330.
PS V 1-2e
Pyro Spectaculars, Inc.
P.O. Box 2329
City of Lake Elsinore
Program A, Rev. # 1
Rialto, CA 92377 July 04, 2017
Tel: 909-355-8120 :::: Fax: 909-355-9813 Page _i of 4
18. Modificalinn of"Fermti —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. Severability —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 ht PYRO's
offices in Rialto, California. This Agreement may be executed in several counterparts, including faxed and emailed 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 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 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 4, 2017
EXECUTED AGREEMENT MUST BE DELIVERED TO PYRO BY THIS DATE,
See PRICE FIRM conditions, paragraph 20, above.
EXECUTED as of the date first written above:
PYRO SPECTACULARS, INC.
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Its: President
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PS V 1-2e
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By:
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Print Name
Pyro Spectaculars, Inc.
P.O. Box 2329
Rialto, CA 92377
Tel: 909-355-8120 :::: Fax: 909-355-9813
SCOPE OF WORK
PYRO SPECTACULARS, INC. ("PYRO")
and
CITY OF LAKE ELSINORE ("CLIENT")
Pyro shall provide the following goods and services to CLIENT:
City of Lake Elsinore
Program A, Rev. # 1
July 04, 2017
Page -1 of 4
One Pyro Spectaculars, Inc., Production on July 4, 2017, at approximately 9:OOPM at Lake Elsinore Levee, Lake Elsinore,
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.
• Insurance covering the Production as set forth in the Agreement with the following limits:
Insurance Rear►irements Limits
Commercial 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' 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.
• 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 1-2e