HomeMy WebLinkAboutC-7415-1 - Production Agreement for Fireworks DisplayPRODUCTION AGREEMENT WITH
FIREWORKS & STAGE FX AMERICA, INC.
FOR FIREWORKS DISPLAY
This PRODUCTION AGREEMENT ("Agreement") is made and entered into this 15f
day of January, 2019 ("Effective Date") by and between CITY OF NEWPORT BEACH, a
California municipal corporation and charter city ("City'), and FIREWORKS & STAGE FX
AMERICA, INC., a California corporation, ("Contractor"), whose address is 12485
Highway 67 Pad 5, Lakeside, California 92040, and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Contractor to provide fireworks displays at City's 2019,
2020, 2021, 2022 and 2023 Holiday Boat Parade (individually "Production";
collectively "Productions").
C. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the work described in this Agreement.
D. City has solicited and received a proposal from Contractor, has reviewed the
previous experience and evaluated the expertise of Contractor, and desires to
retain Contractor to render services under the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
Parties as follows:
TERM
The term of this Agreement shall commence on the Effective Date and shall
terminate on December 31, 2023, unless terminated earlier as set forth herein.
2. WORK TO BE PERFORMED
Contractor shall diligently perform all the work described in the Scope of Work
attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work").
As a material inducement to City entering into this Agreement, Contractor represents and
warrants that it is a provider of first class work and is experienced in performing the Work
contemplated herein.
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3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Contractor shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Contractor to strictly adhere to
the schedule set forth in Exhibit A or perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Contractor shall not be responsible for
delays due to causes beyond Contractor's reasonable control. However, in the case of
any such delay in the Services to be provided for the Productions, each party hereby
agrees to provide notice within two (2) calendar days of the occurrence causing the delay
to the other party so that all delays can be addressed.
4. COMPENSATION
4.1 Contractor's compensation for all Services performed in accordance with
this Agreement, including all reimbursable items, if any, shall not exceed Sixty One
Thousand Dollars and 00/100 ($61,000.00) without prior written amendment to the
Agreement.
4.2 City shall pay Contractor for each Production as outlined in Exhibit B
attached hereto.
5. LIQUIDATED DAMAGES
5.1 In the event City terminates this Agreement or an individual fireworks
display for any reason other than for cause, City shall pay to Contractor liquidate damages
as follows:
5.1.1 Ninety-one or more (91+) calendar days prior to the City -scheduled
fireworks display date: no liquidated damages.
5.1.2 From thirty to ninety (30-90) calendar days prior to the City -
scheduled fireworks display date: fifty percent (50%) of the fee for that fireworks display.
5.1.3 From fifteen to twenty-nine (15-29) calendar days prior to the City -
scheduled fireworks display date: seventy-five percent (75%) of the fee for that fireworks
display.
5.1.4 Fewer than fifteen calendar days (<15) prior to the City -scheduled
fireworks display date: one hundred percent (100%) of the fee for that fireworks display.
6. PRODUCTION MANAGER
6.1 Contractor shall designate a Production Manager, who shall coordinate all
phases of the Productions. This Production Manager shall be available to City at all
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reasonable times during the Agreement term. Contractor has designated Matthew
Biolchino to be its Production Manager. Contractor shall not remove or reassign the
Production Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Productions without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of non -key
personnel.
6.2 Contractor, at the sole discretion of City, shall remove from the Productions
any of its personnel assigned to the performance of Services upon written request of City.
Contractor warrants that it will continuously furnish the necessary personnel to complete
the Productions on a timely basis as contemplated by this Agreement.
7. ADMINISTRATION
This Agreement will be administered by the Recreation & Senior Services
Department. City's Recreation Supervisor or designee shall be the Production
Administrator and shall have the authority to act for City under this Agreement. The
Production Administrator shall represent City in all matters pertaining to the Services to
be rendered pursuant to this Agreement.
8. PROPRIETARY RIGHTS
Contractor represents and warrants that it owns all copyrights, including
performance rights, to the Production, except for City -owned or third -party -owned
material that has been included in the Production. As to such City -owned and third -party -
owned material, City assumes full responsibility therefor. If applicable, City consents to
the use of City -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 the Production. Contractor 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
Contractor is prohibited; however, Contractor agrees that City may record and photograph
and broadcast the Production on the City website and/or any non-commercial broadcast
medium.
9. STANDARD OF CARE
9.1 All of the Services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the personnel required to perform
the Services required by this Agreement, and that it will perform all Services in a manner
commensurate with community professional standards and with the ordinary degree of
skill and care that would be used by other reasonably competent practitioners of the same
discipline under similar circumstances.
9.2 All Services shall be performed by qualified and experienced personnel who
are not employed by City. By delivery of completed Work, Contractor certifies that the
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Work conforms to the requirements of this Agreement, all applicable federal, state and
local laws and legally recognized professional standards.
9.3 Contractor represents and warrants to City that it has, shall obtain and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Contractor to practice its profession. Contractor shall maintain a City
of Newport Beach business license during the term of this Agreement.
9.4 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Contractor's Work promptly, or delay or faulty performance by City,
City's contractors, or governmental agencies.
10. HOLD HARMLESS
10.1 To the fullest extent permitted by law, Contractor shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties), from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Contractor's presence or activities conducted on
the Productions, including the negligent, reckless, and/or willful acts, errors and/or
omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers,
consultants, subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable, or any or all of them.
10.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Contractor.
11. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Contractor, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. No civil service
Fireworks & Stage FX America, Inc. Page 4
status or other right of employment shall accrue to Contractor or its employees. Nothing
in this Agreement shall be deemed to constitute approval for Contractor or any of
Contractor's employees or agents, to be the agents or employees of City. Contractor
shall have the responsibility for and control over the means of performing the Work,
provided that Contractor is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Contractor as to the details
of the performance of the Work or to exercise a measure of control over Contractor shall
mean only that Contractor shall follow the desires of City with respect to the results of the
Services.
12. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of Work, Contractor shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
13. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: the sale, assignment, transfer or other disposition of any of
the issued and outstanding capital stock of Contractor, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Contractor. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
14. SUBCONTRACTING
Contractor shall be fully responsible to City for all acts and omissions of any
subcontractor. Nothing in this Agreement shall create any contractual relationship
between City and any subcontractor nor shall it create any obligation on the part of City
to pay or to see to the payment of any monies due to any such subcontractor other than
as otherwise required by law. City is an intended beneficiary of any Work performed by
the subcontractor for purposes of establishing a duty of care between the subcontractor
and City. Except as specifically authorized herein, the Services to be provided under this
Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out
without the prior written approval of City.
15. CONFLICTS OF INTEREST
15.1 Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
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performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
15.2 If subject to the Act, Contractor shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate termination
of this Agreement by City. Contractor shall indemnify and hold harmless City for any and
all claims for damages resulting from Contractor's violation of this Section.
16. NOTICES
16.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first
class mail, addressed as hereinafter provided.
16.2 All notices, demands, requests or approvals from XXX to City shall be
addressed to City at:
Attn: Recreation Supervisor
Recreation & Senior Services Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
16.3 All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Attn: Matthew Biolchino
Fireworks & Stage FX America, Inc.
12485 Highway 67 Pad 5
Lakeside, CA 92040
17. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Contractor shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Contractor's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Contractor in writing as unsettled at the time of its final request for payment.
Contractor and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Contractor shall be required to file any claim Contractor may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
Fireworks & Stage FX America, Inc. Page 6
18. TERMINATION
18.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
18.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, to terminate this Agreement at any time by
giving written notice to Contractor. In the event of termination under this Section, City
shall pay for Services satisfactorily performed as of the effective date of termination as
provided in Section 4 and any required liquidated damages as provided in Section 5,
above.
19. STANDARD PROVISIONS
19.1 Recitals. City and Contractor acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
19.2 Compliance with all Laws. Contractor shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Contractor shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Production Administrator and City.
19.3 Waiver. A waiver by either party of any breach, or of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or of any other term, covenant or condition contained herein, whether of the
same or a different character.
19.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
19.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
19.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
Fireworks & Stage FX America, Inc. Page 7
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
19.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Contractor and City and approved as to form by the
City Attorney.
19.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
19.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
19.10 Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
19.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
19.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Fireworks & Stage FX America, Inc. Page 8
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 4111_/ 19
0
city
M-9
ATTEST -
Date:
Date: "J l b- i I9
4'u•%♦
By: 6IVVV
il 6 OIAI---
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 5 • I y - 1 �25
n & SWiior Services Director
CONTRACTOR: Fireworks & Stage FX
America, Inc., a California corporation
Date:
By:
Kevi . Br er
Chief Executive Officer
Date:ra
By:T-&R- F. t J
Robert F. Wozniak
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Billing Rates
Exhibit C - Insurance Requirements
Fireworks & Stage FX America, Inc. Page 9
EXHIBIT A
SCOPE OF SERVICES
Contractor shall provide to City fireworks displays as follows:
Holiday Boat Parade (exact dates to be provided by City.)
December 2019
December 2020
December 2021
December 2022
December 2023
One fireworks display beginning at approximately 6:00 p.m. and lasting for
between ten to fifteen (10-15) minutes with at least 828 aerial shells.
Location shall be at Newport Pier, or as otherwise specified by City.
General Responsibilities of Contractor
1. Provide all pyrotechnic product, equipment and trained pyrotechnicians.
2. Ensure that the fireworks perform within the industry standard of 97% success.
3. Apply for all required pyrotechnic permits relating to the Work.
4. Provide insurance covering the Work as set forth in Exhibit C.
5. Pay all expenses directly related to the Work, without reimbursement from City,
including freight, shipping, insurance, pyrotechnic products, pyrotechnic
equipment, pyrotechnic personnel and all required permits for the Productions.
6. Notify City immediately of any condition precluding the safe discharge of fireworks.
7. Remove all equipment after the fireworks display and clean up live pyrotechnic
debris.
General Responsibilities of City
1. Provide Contractor a suitable site ("Site") for the Work. All Site arrangements are
subject to Contractor's reasonable approval as to pyrotechnic safety, suitability and
security.
2. Provide security, barricades and necessary Police Department services to
preclude persons other than those authorized by Contractor from entering the
designated set-up and discharge area.
3. Clean up all debris other than live pyrotechnic debris.
4. Provide sand and sand removal as required.
5. Ensure the adequacy all other conditions of the Site including access, use, control,
parking and general safety with respect to the public, City personnel and other
contractors.
Fireworks & Stage FX America, Inc. Page A-1
EXHIBIT B
SCHEDULE OF BILLING RATES
For years 2019, 2020 and 2021: 50% deposit ($6,000) due no later than
November 13t
Final payment ($6000) due no later than January
10th of the following year.
For years 2022 and 2023: 50% deposit ($6,250) due no later than November
1 St
Final payment ($6,250) due no later than January
10th of the following year.
Pce9caui.A P'.�'xn 0
2019,2020,2021 2022,2023
Aerial Titanium Flash Salutes
2.5" 10 10
Color and Multi -Color Finale Shells
2.5" 10 10
P umn, A
Emuxn B
2019.2020,2021
2022. 2023
Color and Multi -Color
Finale Shells
2.5" 220
220
3" 60
60
4" 16
16
Aerial Flash Salutes
2.5" 120 120
Aerial Titanium Flash Salutes
50
Grand Totals
3" 5 5
30
30
5"
8
Aerial Shells
Color and Multi -Color Aerial Shells
2
2.5" 360 360
3" 95 95
3" 280 280
4" 50 50
4" 132 132
5" 18 18
5" 44 44
6" 5 5
6" 12 12
Flitter, Glitter, Electric Color and
Total Aerial Shells
Color Changing Shells
828 828
3" 60 60
4" 36 36
5" 18 18
Prograrn Price
6" 5 5
Distinctive and Unique Aerial Shells
3"
50
50
4"
30
30
5"
8
8
6"
2
2
Streaking Comets 8 Tiger Tails
3" 10 10
Total Program Price Inclusive of
Insurance, Operator and
Transportation
Per Year $12,000 1 $12,500
202112022.2023
F�kS
tags F
America
FIREWORKS AND STAGE FX AMERICA, INC. Page B-1
EXHIBIT C
INSURANCE REQUIREMENTS
1. Provision of Insurance. Without limiting Contractor's indemnification of City, and
prior to commencement of Work, Contractor shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Contractor
agrees to provide insurance in accordance with requirements set forth here. If
Contractor uses existing coverage to comply and that coverage does not meet
these requirements, Contractor agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements
A. Workers' Compensation Insurance. Contractor shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Contractor shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council,
boards and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Contractor shall maintain commercial general
liability insurance and, if necessary, umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, products -completed
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a business
contract).
C. Automobile Liability Insurance. Contractor shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Contractor
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
Fireworks & Stage FX America, Inc. Page C-1
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
D. Umbrella or Excess Liability Insurance. Contractor shall obtain and
maintain an umbrella or excess liability insurance policy with limits of not
less than one million dollars ($1,000,000) that will provide bodily injury,
personal injury and property damage liability coverage at least as broad as
the primary coverages set forth above. Such policy or policies shall include
the following terms and conditions:
• A drop down feature requiring the policy to respond in the event that
any primary insurance limits are exhausted by paid claims;
• Pay on behalf of wording as opposed to reimbursement;
• Concurrency of effective dates with primary policies;
• Policies shall "follow form" to the underlying primary policies; and
• Insureds under primary policies shall also be insureds under the
umbrella or excess policies.
E. Pollution Liability Insurance. If required, Contractor shall maintain a policy
providing contractor's pollution liability ("CPL") coverage with a total limit of
liability of no less than one million dollars ($1,000,000) per loss and two
million dollars ($2,000,000) in the aggregate per policy period. Claims -
made policies require a 5 -year extended reporting period. The CPL policy
shall include coverage for cleanup costs, third -party bodily injury and
property damage, including loss of use of damaged property or of property
that has not been physically injured or destroyed, resulting from pollution
conditions caused by contracting operations. Coverage as required in this
paragraph shall apply to sudden and non -sudden pollution conditions
resulting from the escape or release of smoke, vapors, fumes, acids, alkalis,
toxic chemicals, liquids, or gases, waste materials, or other irritants,
contaminants, or pollutants. The CPL shall also provide coverage for
transportation and off -Site disposal of materials. The policy shall not
contain any provision or exclusion (including any so-called "insured versus
insured" exclusion or "cross -liability" exclusion) the effect of which would be
to prevent, bar, or otherwise preclude any insured or additional insured
under the policy from making a claim which would otherwise be covered by
such policy on the grounds that the claim is brought by an insured or
additional insured against an insured or additional insured under the policy.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
Fireworks & Stage FX America, Inc. Page C-2
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Contractor or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Contractor hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
products and completed operations, excess liability, pollution liability, and
automobile liability, if required, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties The parties hereby agree to the
following:
A. Evidence of Insurance. Contractor shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Contractor sixty (60) calendar days advance
written notice of such change. If such change results in substantial
additional cost to Contractor, City and Contractor may renegotiate
Contractor's compensation.
C. Right to Review Subcontracts. Contractor agrees that upon request, all
agreements with subcontractors or others with whom Contractor enters into
contracts with on behalf of City will be submitted to City for review. Failure
Fireworks & Stage FX America, Inc. Page C-3
of City to request copies of such agreements will not impose any liability on
City, or its employees. Contractor shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Contractor shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20380413.
D. Enforcement of Agreement Provisions. Contractor acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Contractor of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Contractor maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Contractor. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Contractor or any subcontractor fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Contractor's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Contractor or reimbursed
by Contractor upon demand.
H. Timely Notice of Claims. Contractor shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Contractor's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
Fireworks & Stage FX America, Inc. Page C-4
Contractor's Insurance. Contractor shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
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