HomeMy WebLinkAboutAgenda Report - March 17, 2010 D-08AGENDA ITEM
ja CITY OF LODI
OUNCIL COMMUNICATION
im
AGENDA TITLE: Adopt a Resolution Approving Contract with Pyro Spectaculars, Inc. for 2010
Fourth of July Fireworks Show ($16,000)
MEETING DATE: March 17, 2010
PREPARED BY: Parks and Recreation Director
RECOMMENDED ACTION: Adopt a resolution approving contract with Pyro Spectaculars, Inc.
for the 2010 Fourth of July fireworks show ($16,000).
BACKGROUND INFORMATION: City -sponsored fireworks shows have been a tradition of the Fourth
of July in Lodi. Pyro Spectaculars, Inc., has provided safe and
entertaining shows in Lodi since 2007.
Although fireworks shows are a Fourth of July tradition in Lodi, current economic conditions may be a
factor in the City Council's decision this year. The proposed 2010 show will cost the same ($16,000) as
the 2009 show. Because the holiday is at the beginning of the City's fiscal year, half of this fiscal year's
appropriation ($8,000) was spent on final costs associated with the July 4, 2009 show, leaving $8,000
unencumberedfor 2010.
If the City Council desires to spend more than the remaining $8,000 on this year's show, it can
appropriate additional funds in the 2010/11 budget.
FISCAL IMPACT: $16,000 from the General Fund.
FUNDING AVAILABLE: $8,000 available in the Economic DevelopmentAccount (100431.8021.5)
with additional appropriation required in FY 2010/11.
JMs
Jordan Ayers, Deputy City ager
-Tames M. Rodems
Interim Parks and Recreation Director
APPROVED: /``7 ^
Blair King, City anager
Pyro Spectaculars North, Inc. City of Lodi Parks & Recreation Department
5301 Lang Avenue Program A
Sacramento, CA 95652 July 4,2010
Tei: 909-355-8120:::: Fax: 909-355-9813 Page I o f4
PRODUCTION AGREEMENT
Special
This agreement("Agreement") is made this qday of 1 .2010 by and between Pyro Spectaculars North, Inc., a California
corporation, hereinafterreferred to as ("PYRO"), and City of Lodi Parks & Recreation Department, hereinafter referred to as ("CLIENT). PYRO and CLIENT
are sometimes referred to as "Party" or collectively as "Parties" herein.
I. Eneaeement - CLIENT hereby engages PYRO to provide to CLIENT one fireworks production ("Production"), 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
incorporatedherein 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 coveringthe
Production and the other things on its part to be performed as more specificallyset forth below in this Agreement and in the Scope of Work ("Scope of
Work"), attached hereto, incorporated herein by this reference, and made a part of this Agreement as though set ford'► fully herein.
1.2 CLIENT Duties —CLIENT shall provide to PYRO a suitable site ("Site") for the Production, security for the Site asset 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
specificallyset 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 July 4.2010, at approximately9:30pm, atiLodi Lake Levee on the west end of the lake, Lodi,
CA, Site.
3. Fees, Interest, and Expenses -
3.1 Ree -CLIENT agrees to pay PYRO a fee of 516,000.00 USD (SIXTEEN THOUSAND Dollars) ("Fee") for the Production. CLIENT
shall pay to PYR038,000.00 USD (EIGHT THOUSAND Dollars) of the Fee plus estimated permit and standby fees, specified production costs, and other
regulatory costs approximated at 00.00, for a total of $8,000,00 as a deposit ("Deposit") upon the execution of this Agreement by both parties but no later than
Auril 2, 20104' The balance of the Fee shall be paid no later than July 5.2010. 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 Pyro, is set forth in paragraph 20.
3.2 Interest - In the event that the Fee is not paid in a timely manner, CLIENT will be responsible for the payment of 1.5 % interestper 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 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 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. P ro orieta ry 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, 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-ownedmaterial and shall
not be responsible in anyway 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. S fe tv - 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 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 satisfactoryto PYRO where the pyrotechnics may safely rise and any debris may safely fall PYRO shall have no responsibility for monitoring or
controllingCLIENT's other contractors, providers 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. Clea n uy - 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 However, PYRO shall not be responsible for environmentalclean-up caused by fall -out from the display.
City of Lodi Park & Recreation Dept.
PSNI — Special - Program "A"
PN V 1-2
Pyro Spectaculars North, Inc.
5301 Lang Avenue
Sacramento, CA 95652
Tel: 909-355-8120:::: Fax: 909-355-9813
City of Lodi Parks & Recreation Department
Program A
July 4,2010
Page 2 of 4
& Permits -PYRO agrees to apply for permits required for the discharge of pyrotechnics from the -Lodi Fire Department (or other authority having
jurisdiction), FAA, USCG, and the State of California, as required. CLIENT shall be responsible for any fees associatedwith these perm its 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 connectionwith
PYRO's performance of this Agreement: (1) commercial general liability insurance, includingproducts, 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 CLIENTfrom
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 amountsof coverageshall be as set forth in the Scopeof Work. Such insuranceshall not include claims which arise from CLIENT's
negligence or will fu( conduct or from failure of CLIENT to perform its obligations under this Agreement, coverage for which shall be provided by CLIENT.
The coverage of these policies shall be subject to reasonable inspection by CLIENT. Certificates of Insurance evidencingthe required general liability coverage
shall be furnished to CLIENT prior to the rendering of services hereunder and shall include the following: (1) that it may not be canceled or modified withoutthe
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 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. Indemnification - PYRO represents and warrants that it is capable of furnishingthe 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 connectionwith 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 actor 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 thereofto 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 Dam ages for Ordinary Breach -Except in the case of bodily injury and property damage as provided in the insurance and
indemnification provisions of Paragraphs 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 consequentialdamages from PYRO including, without limitation, damages
for loss of income, business or profits.
12. Force Maieure -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 Prodi6pon from being safely dischargedon 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. Res cheduIf n Of Event -If CLIENT elects to reschedule the Production, PYRO shall be paid the original Fee plus all additional expenses made
necessary by reschedulingplus a 15% service fee on such additional expenses. Said expenseswill 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 considerationavailabilityof 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 31 st of the 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 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 asset forth in Paragraph 3.1. 1) 50% if cancellation occurs 30 to 90
days prior to the scheduled date, 2) 7596 if cancellationoccurs 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 bes 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 responsible for any agreements or obligations not expressly provided for herein.
16. A boli ca ble 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 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 havingjurisdiction or by either Party for safety concerns, the full dollar amounts outlined in this Agreement are
enforceable.
City of Lodi Park & Recreation Dept.
PSNI —Special - Program "A"
PNV 1-2
Pyro Spectaculars North, Inc.
5301 I,ang Avenue
Sacramento, CA 95652
Tel: 909-355-8120:::: Fax: 909-355-9813
XALy Vt 1,VU1 1 41 tnD CX LXUllcn uVu L. 1P11a �u....a.
Program A
July 4, 2010
11acoe of =1.
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 North, Inc., P.O. Box 2329, Rialto, California, 92377, or for overnight delivery to
3 196N.1-ocust Avenuc, Rialto, California 92377. CLIENT— City of Lodi Parks & Recreation Department.
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 agree to be bound by said terms of written Agreement only.
19. Severability —If there is more than one CLIENT, they shall bejointly and severally responsible to perform CLIE:NT'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 TYRO at PYRO's
offices in Rialto, California. This Agreement maybe 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 Firtn — If any changes or alterations are made by CLIENT to this Agreement or if this Agreement is not executed by CLIENT and delivered to
PYRC) 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 1.5 days following delivery to PYKO of the executed Agreement. In the event it is not accepted by PYRO, PYRO shall give CLIENT written notice, and
this A-rccment shall be void.
PRICE FIRM through April 2,2010
EXECUTED AGREEMENT MUST BE DELIVERED TO PYRO BY TI11S DATE
See PRICE FIRM conditions, paragraph 20, above.
I:XECI1'I'ED as ofthe date first written above:
I'YRO SPIiC'l'ACUI,ARS NORTI 1, INC.
I3y --- - 11k./
Its: President
SHOW PRODUCER: Steve Souza
City of Lodi Park & Kccreation Dept,
PSNI -Special - Program "A"
PNVI-2
City of Lodi Parks & Recreation Department
ATTEST:
Print Name
RANDI J01 [L, CITY CLERK
APPROVED AS TO FORM:
U'. ST -Pl IEN .S Wn13.1IIlift,Cl'i'Y ATTORNEY
Pyro Spectaculars North, Inc. City of Lodi Parks & Recreation Department i
5301 Lang Avenue Program A
Sacramento, CA 95652 July 4,2010
Tel: 909-355-8120:::: Fax 909-355-9813 Pagel of
SCOPE OF WORK
PYRO SPECTACULARSNORTH,INC. ("PYRO")
and
City of Lodi Parks & Recreation Department ("CLIM")
Pyro shall provide the following goods and services to CLIENT:
o ;One Pyro Spectaculars North, Inc., Productionion Julv 4,2010, at approximately 9:300m at Lodi Lake Levee on the west
end of the lake. Lodi. CA.
• All pyrotechnic equipment, trained pyrotechnicians, shipping, and pyrotechnic product.
o Application for specific pyrotechnic permits relating to the Production.
o Insurance covering the Production as set forth in the Agreement with the following limits:
Insurance Requirements Limits
Commercial General Liabilitv $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.
o 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, includingwater securityto keep unauthorizedpeople, boats, etc. from enteringthe Safety Zone.
,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.
City of Lodi Park & Recreation Dept.
PSNI —Special - Program "N'
PN V 1-2
RESOLUTION NO. 2010-28
A RESOLUTION OF THE LODI CITY
COUNCILAPPROVING CONTRACTWITH
PYRO SPECTACULARS, INC. FOR 2010
FOURTH OF JULY FIREWORKS SHOW
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby
approve a contract with Pyro Spectaculars, Inc., for the 2010 Fourth of July fireworks
show; and
BE a RESOLVED that the term of the contract shall be for one show, performed
on July 4, 2010, in the amount of $16,000; and
BE IT FURTHER RESOLVED that the City Council authorizes the City Manager
to execute the contract on behalf of the City of Lodi.
Dated: March 17, 2010
hereby certify that Resolution No. 2010-28 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held March 17, 2010, by the following
vote:
AYES: COUNCIL MEMBERS — Hansen, Hitchcock, Johnson, Mounce,
and Mayor Katzakian
NOES: COUNCIL MEMBERS— None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS —Now
RANDIJOHL
City Clerk
91SI11K:3