HomeMy WebLinkAboutC-7713-1 - Grant Agreement - Council Grant FY 2019-20 - 2019 Fourth of July Fireworks Event1
M
(� GRANT AGREEMENT
r BETWEEN THE CITY OF NEWPORT BEACH AND
DUNES RESORT, LLC
V
This Grant Agreement ("Agreement") is entered into this 1 st day of July, 2019
("Effective Date"), by and between the City of Newport Beach, a California municipal
corporation and Charter City ("City"), and DUNES RESORT, LLC, a California limited
liability company located at 1131 Back Bay Drive, Newport Beach, California 92660
("Grantee"). City and Grantee are at times individually referred to as "Party" and
collectively as "Parties" herein.
RECITALS
A. It is the policy of the City Council that the City's budget specifically allows the City
Council to direct revenue towards non-profit agencies, community groups,
community events, or enhancement projects with worthy projects or programs
which the City Council deems beneficial to the residents' quality of life.
B. Grantee requested a grant from the City for co-sponsorship of the annual 2019
Fourth of July fireworks event ("Grant Proposal").
C. On March 9, 1998, the City Council adopted Council Policy B-12, finding that the
fireworks display is enjoyed by the citizens as a community and a family event.
D. Consistent with Council Policy B-12, the City Council's approved budget for Fiscal
Year 2019-20 includes funds in an amount between $20,000 and $40,000 which
are sufficient to cover the "Grant Funds," as defined herein, for the City's 2019
annual fireworks event.
E. The City Manager has approved a grant in the amount of Thirty Thousand Dollars
and 00/100 ($30,000.00) ("Grant Funds") to Grantee pursuant to certain conditions
regarding expenditure, reporting, and accounting requirements.
NOW, THEREFORE, the Parties agree as follows:
1. GRANT
1.1. City awards to Grantee Grant Funds in the amount of Thirty Thousand Dollars
and 00/100 ($30,000.00) as requested by Grantee in the Grant Proposal attached hereto
as Exhibit A and incorporated herein by reference, or such other amount as authorized
by the City Council. Exhibit A, including the "Production Agreement" therein, is attached
solely for reference purposes and in no way does its attachment hereto signify City's
approval of its terms or create a partnership or other joint venture between City and either
or both of the parties to such Exhibit A.
1.2. Grant Funds shall be disbursed by City to Grantee as follows (select one):
[X] At the time of execution of this Agreement.
DUNES RESORT, LLC Page 1
2. TERM
The term of this Agreement shall commence on the Effective Date and shall
continue in full force and effect until December 31, 2019, unless terminated earlier as
provided herein.
3. RESTRICTIONS ON USE OF FUNDS
3.1. The Grant Funds are subject to the following expenditure conditions ("Approved
Uses"):
3.1.2. Pursuant to Council Policy B-12, Grantee shall ensure that City residents shall
have free access to the event at which the Grant Funds are expended, with the exception
of parking fees;
3.1.3. Pursuant to Council Policy B-12, Grantee shall ensure that the City is
recognized as a co-sponsor of the event in all publicity and promotional materials for the
fireworks display; and
3.1.4. The Grant Funds shall not be used for any activity that would violate City, state
or federal statutory or decisional law such as regulations affecting non-profit or tax exempt
organizations exempt from taxation pursuant to Section 501 (c)(3) of the Internal Revenue
Code.
3.2. Grantee further warrants to City that the Grant Funds will be spent solely for
the Approved Uses and the Grant Funds shall be used by Grantee during this
Agreement's term otherwise the Grant Funds shall be returned to City, as provided in
Section 5 below.
4. REPORTING AND ACCOUNTING REQUIREMENTS
4.1. At all times during the term of this Agreement, Grantee shall maintain true,
proper, and complete books, records, and accounts (collectively, "Books and Records")
in which shall be entered fully and accurately all transactions taken with respect to the
operations of Grantee under the Grant Proposal and the expenditure of the Grant Funds.
Grantee shall maintain the Books and Records in accordance with Generally Accepted
Accounting Principles. Grantee shall make available to City such Books and Records
upon City's request.
4.2. If the Grantee has been audited by an independent auditor or has been the
subject of a compliance audit/examination by a grantee or regulatory agency during the
past three years, audit reports and management letters indicating compliance violations,
fraud, illegal acts, material weaknesses in internal control structure or reportable
conditions, in connection with such audits shall be delivered to the City thirty (30) days
prior to the effective date of this agreement. If no audits or events as described above
have occurred during this period, the Grantee shall provide City a written assertion that
no audits or similar examinations have occurred during the three (3) year period and an
assertion that the Grantee is not aware of any events or conditions, described above, or
DUNES RESORT, LLC Page 2
other information that might reasonable impact City's decision to fund the grant as
requested.
4.3. City reserves the right to designate its own employee representative(s) or its
contracted representative(s) with a Certified Public Accounting firm who shall have the
right to audit Grantee's accounting procedures and internal controls of Grantee's financial
systems as they relate to the Grant Proposal and to examine any cost, revenue, payment,
claim, other records or supporting documentation resulting from any items set forth in this
Agreement. Any such audit(s) shall be undertaken by City or its representative(s) at
mutually agreed upon reasonable times and in conformance with generally accepted
auditing standards. Grantee agrees to fully cooperate with any such audit(s).
4.4. This right to audit shall extend during the length of this Agreement and for a
period of three (3) years or longer, if required by law, following the date of any Grant
Funds tendered under this Agreement. Grantee agrees to retain all necessary
records/documentation for the entire length of this audit period.
4.5. Grantee shall, upon conclusion of the event, furnish the City with a Balance
Sheet and Income Statement describing the receipt and disbursement activities of
Grantee with respect to the Grant Funds. In its sole and absolute discretion, the City may
also require Grantee to submit: (i) quarterly check registers and descriptions of each
disbursement; (ii) budget -to -actual -results; and (iii) a statement of position describing the
assets and liabilities associated with the Grant event. All reports, including a post -event
evaluation, shall be due to the City no later than forty-five (45) days following the
conclusion of the event. In the event that an independent audit is conducted, Grantee
shall forward a copy of the audited report to the City for review, including any Management
Letter, Report on Internal Controls, or Reportable Conditions letter generated during the
course of the audit.
4.6. Grantee agrees to exercise prudent financial management processes including
proper oversight of all assets, budget preparation, and timely reporting including budget -
to -actual -comparisons.
4.7. All Approved Uses shall be performed by Grantee or under Grantee's
supervision. Grantee represents that it possesses the professional and technical skills
required to perform the services required by this Agreement, and that it will perform all
services with a standard of care and in a manner commensurate with the 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.
4.8. If Grantee has supported Political Action Committees(s) (PACs) during the past
three (3) years, the Grantee shall hire an independent auditor to perform limited, agreed-
upon testwork procedures to provide City assurance that City sponsored event profits did
not subsidize the funding of Political Action Committees (PACs) and event proceeds were
adequately segregated from funds used to support PACs. Agreed upon procedures may
include a review of a detail list of the past three (3) years of PAC contributions and
expenditures, including:
DUNES RESORT, LLC Page 3
a. An identifying donor number, date and amount of each reported
contribution; and
b. A detail of expenditures sufficient enough to determine that the
expenditures were solely for PAC -related expenses; and
c. Any retained earnings or fund balance at the end of each fiscal year.
Substantive documentation for the contribution and expenditure should be available upon
request. City shall approve the agreed-upon testwork procedures prior to the
commencement of fieldwork.
5. USE OF GRANT FUNDS
5.1. The Grant Funds shall be used solely by Grantee for the Approved Uses and
for no other use. In the event that the Grant Funds are not used for the Approved Uses
or are not expended by or before December 31, 2019, Grantee shall notify the City in
writing, and shall be obligated to return the Grant Funds to City within thirty (30) days.
5.2. The City's grant contribution shall only be used for non -secular purposes.
Grantees shall not use the City's grant contribution, or any portion thereof, for any purpose
that violates local, state, or federal law, including, but not limited to, the Establishment
Clause.
6. INDEMNIFICATION
6.1. To the fullest extent permitted by law, Grantee 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, attorney's
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 this Agreement (including the negligent and/or willful acts, errors and/or
omissions of Grantee, 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).
6.2. Notwithstanding the foregoing, nothing herein shall be construed to require
Grantee 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 attorney's 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 Grantee.
DUNES RESORT, LLC Page 4
7. INSURANCE
Without limiting Grantee's indemnification of City, and prior to commencement of the
Approved Uses of the Grant Funds, Grantee 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 B, and incorporated herein by
reference.
8. GRANTEE INDEPENDENCE
In the performance of this Agreement, the Grantee, and the agents and employees of
Grantee, shall act in an independent capacity and are not officers, employees or agents
of the City. The manner and means of performing the Approved Uses are under the
control of Grantee, except to the extent they are limited by statute, rule or regulation and
the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to
constitute approval for Grantee or any of Grantee's employees or agents, to be the agents
or employees of City. Grantee shall have the responsibility for and control over the means
of performing the Approved Uses, provided that Grantee is in compliance with the terms
of this Agreement. Anything in this Agreement that may appear to give City the right to
direct Grantee as to the details of the performance or to exercise a measure of control
over Grantee shall mean only that Grantee shall follow the desires of City with respect to
the results of the Approved Uses.
9. PROHIBITION AGAINST TRANSFERS
Grantee shall not assign, sublease, hypothecate or transfer this Agreement or any of the
services to be performed under this Agreement, directly or indirectly, by operation of law
or otherwise without prior written consent of City. Any attempt to do so without written
consent of City shall be null and void.
10. NOTICES
10.1. All notices, demands, requests or approvals to be given under 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.
10.2. All notices, demands, requests or approvals from Grantee to City shall be
addressed to the City at:
Attn: Management Analyst
City Manager's Office
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658-8915
DUNES RESORT, LLC Page 5
10.3. All notices, demands, requests or approvals from City to Grantee shall be
addressed to Grantee at:
Attn: Michael Gelfand
DUNES RESORT, LLC
1131 Back Bay Drive
Newport Beach, California 92660
11.TERMINATION
11.1. Termination for Cause. Grantee shall be in default if Grantee fails or refuses
to perform any duty required by the Agreement or performs in a manner inconsistent with
the terms, conditions and restrictions in this Agreement. In such event, City shall give
Grantee, thirty (30) days written notice to cure, if the default can be cured and City shall
be entitled to terminate this Agreement if Grantee has not cured the default within the
thirty (30) day cure period. City shall be entitled to immediately terminate this Agreement
if the default cannot be cured through corrective action. If terminated for cause, Grant
Funds shall be returned to the City pursuant to Section 5. This Agreement is made on an
annual basis, and as such is subject to non -renewal at its termination.
11.2. Termination without Cause. City may terminate this Agreement at any time
with or without cause upon seven (7) days written notice to Grantee, any remaining Grant
Funds in Grantee's possession at the time of termination shall be returned to City
pursuant to Section 5.
11.3. Specific Performance. Grantee agrees that the City has the legal right, and all
necessary conditions have been satisfied, to specifically enforce Grantee's obligations
pursuant to this Agreement.
12. STANDARD PROVISIONS
12.1. Recitals. City and Grantee acknowledge that the above Recitals are true and
correct and are hereby incorporated by reference into this Agreement.
12.2. Compliance With all Laws. Grantee 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.
12.3. Waiver. A waiver by either Party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
12.4. 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.
DUNES RESORT, LLC Page 6
12.5. Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Grant Proposal or any other
attachments attached hereto, the terms of this Agreement shall govern.
12.6. 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 against either
party by reason of the authorship of the Agreement or any other rule of construction which
might otherwise apply.
12.7. Amendments. This Agreement may be modified or amended only by a written
document executed by both Grantee and City and approved as to form by the City
Attorney.
12.8. 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.
12.9. 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.
12.10. Equal Opportunity Employment. Grantee represents that it is an equal
opportunity employer and it shall not discriminate against any contractor, employee or
applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age or any other impermissible basis under law.
12.11. No Attorney's Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorney's fees.
12.12. 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 and the same instrument.
[SIGNATURES ON NEXT PAGE]
DUNES RESORT, LLC Page 7
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: 6/z 6j 0
By: 04q, JwG�
�f• Aaron C. Harp
City Attorney
ATTEST -
Date:
By: V
Leilani I. Brown
City Clerk
Attachment: Exhibit A: Grant Proposal
CITY OF NEWPORT BEACH,
A California municipal corporal
Date: CiA : i /Z J019
GraLeung
City anager
GRANTEE: DUNES RESORT, LLC, a
California limited liability company
Date:
By: Vl�
Michael Gel n
Manager
Date:
Signed in Counterpart
Michael Silverman
Manager
[END OF SIGNATURES]
DUNES RESORT, LLC Page 8
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATT R EY'S OFFICE
Date:6 0
By: 1)�� 7A,Li�
Aaron C. Harp 5-6,11 In)
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
Attachment: Exhibit A: Grant Proposal
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:
Grace K. Leung
City Manager
GRANTEE: DUNES RESORT, LLC, a
California limited liability company
By:
Michael Gelfand
Manager
Date: D D
Michael Silverman
Manager
[END OF SIGNATURES]
DUNES RESORT, LLC Page 8
Exhibit A
DUNES RESORT, LLC Page A-1
2019 Pyrotechnic Proposal
SPECTACUIARS
Newport Dunes
July 4, 2019
tr
Yr .
r —
Al
i
February 6, 2019
(Newport Dunes
Helene Rochman
1131 Back Bay Drive
Newport Beach, CA 92660
Dear Ms. Rochman,
Pyro Spectaculars, Inc. is happy to provide our pyrotechnic proposal for your
July 4, 2019 event. The following proposal outlines your custom designed Sky
Concert*" Program "A" for the amount of $32,500.00. The various fireworks
elements provided are prepared to shoot from (Newport Dunes Waterfront Resort
for approximately 18-20 minutes.
Our full service program includes music production and choreography, the services
of a licensed pyrotechnic operator, specialized crew, an electronic firing system,
and safety equipment used for support and protection. The price also includes
insurance coverage, sales tax and delivery. To help ensure public safety, we work
directly with the local fire authority while we apply for all the necessary fire
department and other fireworks related permits. Our winning combination of
products, people and production capabilities help produce the safest fireworks
entertainment package possible.
Your organization will be responsible for payment of all Fire Department permit
fees and/or standby firemen fees, if any, The Fire Department may bill you directly
for any additional standby fees for inspections. Your organization will also be
responsible for providing the display location and all necessary security for the
display site.
Enclosed you will find a Product Synopsis, Production Agreement for signature and
Scope of Work. Please have one copy of this fully executed agreement returned to
our office by April 2, 2019 along with your deposit and applicable fire department
fees.
Please take the time to review this proposal in detail. If you wish to discuss any
changes in your program or need more information, please call either myself or
your Customer Service Representative Maria Barajas at (909) 355-8120 ext. 231.
Sincerely,
PYRO SPECTACULARS, INC.
Jef<FM.��'Tin
Sales Manager
JM/mb
Enclosures Pyro Spectaculars, Inc,
P.O. Box 2329 • Rialto, CA 92377 • Phone: (909) 355-8120 or (888) 477-PYRO o Fax: (909) 355-9813
Product Synopsis • Pyrotechnic Proposal
Li t' O'dNes
$32,503,00
Main Body - Aerial Shells
Description Quantity
♦ 3" Sky Concert Selections 150
♦ 4" Sky Concert Selections 100
♦ 5' Sky Concert Selections 75
Total oF illain Body-.leria! Shells 325
Pyrotechnic Devices
Description Quand hr
i Sousa Platinum Line Custom Multishot Device 500 Shots
i Sousa Diamond Line Custom Multishot Device 1500 Shots
♦ Sousa Emerald Line Custom MuRishot Device 600 Shots
♦ Sousa Pearl Line Custom Multishot Device 800 Shots
Grand � ina?e
Descriotion
♦ 2.5" Sky Concert Bombardment Shells 72
3" Sky Concert Bombardment Shells 180
♦ 4" Sky Concert Bombardment Shells 60
5" Sky Concert Bombardment Shells 15
oial of ';�I'a.n. •:i il"1 ]le ', C7
Pyro Spectaculars, Inc.
P.O. Box 2329
Rialto, CA 92377
Tel: 909-355-8120:::: Fax: 909-355-9813
PRODUCTION AGREEMENT
Newport Dunes
Program .A
July 4, 2019
Page I of 4
This agreement ("Agreement") is made this __day of __-
collectively ac "Parries" herein. ,_--_:019by and between Pyro Spectaculars, Ire., a CalifMin corporation,
hereinafter refcned to as ("PYRO") and Navporl Duocs, hemioo0er referred to as ("CLIENT'). PYRO and CLIENT mm
e soctimes referred to as "Pavy" nr
1. Feneaaemem - CLIENT hereby engages PYRO to provide in CLIENT one fitewnrks production ("Pmduclion"), and PYRO accepts mich engagement
upon all o(the promises, tarns and conditions hereiw0cr set forth. no Production shall be substam!mlly as uutined in Pmgmm -A".attached hereto and
incorporated herein by this reference.
1.1 PYRO Duties PYRO shall provide all pyrotechnic equipment, [mined Pyrnttehniciams, shipping, pyrotechnic products, application for
specific pyrot«hniu peonies (the cost of which, including standby fees, shall be paid by CLIENT) relating to [Ile Production, insurance covering the
Production and the Calm" things on its pin to be performed as more specifically set forth below in this Agitations and in the Scope of Wait( ("Scope of
Work"), attached herein, incnrpomlcd heroin by this reference, and made a Pon of this Agreement as dough set forth fully herein.
1.2 CLIENT Duties- CLIENT shall provide to PYRO a suitable site (,,Site,,) for tiro Production, security for the Site as set forth in Paragraph
6 hereof, aces to the Site, any permission necessary to utilize die Site for tie Production, and the other things on its pan to be performed as more
specifically set forth below in this Agreement and in the Scope of Work. All Site armngemems arc subject to PYRO's reasonable approval as to
Pymteclmic salary, suitability, and security. All other conditions of the Site shall be the responsibilily of CLIENT, including, but not limited to, access,
use, control, parking and general safety with respect to the public, CLIENT personnel and other cuwactora.
2. Time and Place - The Prodw:tion shall take place on July 4, 20t9, at approximately 9:00 V.m•, at Newport Dunes. lVaterfrorl Resort 1131 Back
Bnv Drive, Newport Ocnch, CA, Site.
3. Fees. Interest. and Expenses -
3.1 Fec-CLIENFagrnstopay PYROafeeofSc"OSD(THIRTYTIVOTIIDUSAND FIVE HUNDRED DOLLARS)("Fee")for
the standby
es, spe ifed p l pay to PYRO S16.sso.doUSD (Nix I KEN THOUSAND TWO HUNDRED FIFTY DOLLARS of—the Fee plus tatim0[ai permit
and sit ("D Pecs, specified production costs- and other mgulamry oasis approximated at 92 00 OR an amount to be determined, (ora [mal ofS17.042.00, as a
deposit ("Depruir') upon the execution of this Agreement by both parties but no lata than April 2.2019. The balance of dee FCC shall be paid nu lam than July
Sy20i9. CLIENT au1110112eY PYRO to receive and verify credit and financial infunnation Concerning CLIENT from may agency, person or emily including but
not limited to credit along agencies. The "PRICE FIRM" date, lite date by which file executed Agnu neal must be delivered m Pym, is set forth in paragraph
20.
3.2 Interest - In die event Nat lite Fee is not paid in a timely manner, CLIENT will be responsible for the payrnenl of !..1% interest permonth
or 18%annually on the unpaid bolonee If litigation arses mut of this Agreement, the prevailing pony shall be entilled to reasonable costs incurred in connection
with the litigation, including, but not limited to annoys' Ices.
3.3 Expouses- PYRO sholl pav all normal expenses directly retired to the Prodintion including freight, insunmce as outlined, pymleclutic
products, pyrumbnie equipment, experienced pyrotechnic personnel to set up and dischargelhe pyroleehnies and those additional itens ns adlined as PYRO's
responsibility in the Scope of Wnrk. CLIENT shall pay all costs related to the Production not supplied by PYRO including, but nor limited to- dnose items
mourned as CLIENT's responsibility in this Agreement and Scope of Work.
4, Proprietary Rim - PYRO represnns and warrants that it owns all copyrights, including performance rights, to this Production, except that PYRO
does not awn CLIENT -owned material or thirdyarty-owned material that has been included in the Production, and as to such CLIENT -owned and [ilial-pirty-
Pwned material, CLI at PYRO
u hr fun responsibilityacqior
inanytherefore. CLIENT agrees that PYRO shall retain ownership of, and all copyrights and other tights to, the
Production, except that PYRO sludl nrol acquire or retain any Owners ENT
uruther rights in or to CLIENT -owned material and Ihind-parry-owned material oral shall
tar be responsible in any way for such material. If applicable, CLIENT consents to the use o(CI.IENT-owned material and represents that it hot or will Chain
any patnission ham oppmpaiate third Parties sulficicnl to authorize public exhibition orally such material in connection with this Production. PYRO reserves the
awneshiP rights in its wade names lital ore usW in or arc a pmducl of the Pmductmm Any reproduction by sound, video or other duplication nr recording procers
without the express whilmn permission or PYRO is prohibited.
5. Safety - PYRO and CLIENT shall each comply with applicable federal, gale and local laws and regulations and =Ploy safely Programs and mctsmes
consistent with mcognized applicable industry slondants and Practices. At all times before and during the Production, it shall be within PYRO's sok dixrv/ion In
detemdue whether or not the Prodncholl may be solely discharged or continued. It shall not constitute a breach Of this Agreement by PYRO for fireworks to fail
a' malfunction, or for PYRO to determine that the Pmduction cannnl be llWrmged or cuntinuW as a result of any conditions orcimumslances affecting safety
beyond the onssemable control of PYRO
6. Soeurl[v - CLIENT shall provide adequate security personnel, barricades, and Prdicc Ilepamnen services as maybe necew ty to preclude ind;vidua!s
Mile than those authorized by PYRO from entering an area to he designated by PYRO as the rate for he sin -up and disclarge of the Production, including a
fallout arta smi.sfactary• m PYRO where the pyrotechnics rimy safely rise and any debris nay soh"dy tall. PYRO shall have no rapnrtsibiliiy for monitoring oI
contralling CLIENT's other connactum. providers or volunteers; the public, jars to which the public or cummilors have access; m' any ether public or coulracior
facilities associated with the Proiluclion.
7. Clearing - PYRO shall be responsible Ibr tile mnof all ibyPYRO. CLIENTshallberespousintelbrtnyodraclanupwhich equpment provided by PYRO and clean try Cf any live Pymlc:nnic debris nurde nec-.miy
may he required of the Production orsa-up, discharge and I'alloui areas including nary
ewirmmtannl clean-up.
PS V 1-2c
Pyro Spectaculars, Inc.
P.O. Box 2329
Rialto, CA 92377
Tel: 909-355-8120 :::: Fax: 909-355-9813
Newport Dunes
Program A
July 4, 2019
Page 2 of 4
9. Peru s - PYRO agars to apply for permits for the firing of pymscchnim only from lite Newport Beach Fre Depanmenl, FAA, and USCG, if
required. CLIENT shall be rcspmmble for any Tea associated with these permits including standby fees. CLIENT slail be responsible for obtaining any other
necessary permits, paying associated fees- and making other appropriate arrangements for Police Departments, other Fitz Detunmen s. mad closures,
evcnVactivny Orland use permits or any permission or punnil required by any Local, Regional, State or Faleml Government,
9. Inmrance - PYRO shall at all times during the pMonnance of se"icm herein ensure tile( die following inturance is maintained in connection with
PYRO's performance of this Agreement (1) cumniacial general liability insurance, including products, completed operations, and contractual liability umkr this
Agreement, (2) uutmtwbile liability insurance, (3) walkers' companwtion insurance and employer liability insurance. Such insurstu:u is to protect CLIENT from
claims for bodily injury, including death, personal injury, and form claims of property dmnage- which may arise firm PYRO's pelionnance of this Agreement.
only. 'file types and amounts of coverage shall be as set fort( in the Scope of Work. Such insurance shall not include claims which arise fiotn CLIENT's
negligence or willful conduct w from failure of CLIENT to perform its obligations under this Agreement, coverage for which scall he provided by CLIENT.
The coverage of these politics shall be subject to reasonable inspection by CLIENT. Cenificaim of Insurance evidencing the required general liability coverage
shall be furnished to CLIENT prior to the rrmdering ofstervicee heheunder and shall include tiro( the following am tamed us additionally insured: CIJEPfr;
Sponsors, Landowners, Barge Owners, if any; and Pertaining Authorities, with respect to the accretions of PYRO at die Production. Pyrotechnic subcontractors
or providers, if any, not covered under puhicis 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 dial it is capable of furnishing the necessary experience, personnel, equipment, milledills, providers,
and expertise to produce the Production in a sofa and professional manner. Notwithstanding anything in this Agreement to tilt contrary, PYRO shall indemnity,
hold harmleas, and defend CLIENT and the additional insureds from and against any and all claims, actions, damages, liabilities and expenses, including but not
limited to, arrorney and other professional fees and court costs, in connection with the loss ofHic, personal injury, and/or damage to property, arising fain or out
of the Production and are proactuation thereof to the extent such aro occasioned by any act or omission or PYRO, their officers, agents, com ichors, providers, or
employees. CLIENT shall indemnify, hold harmless, and defend PYRO form and against any and all claims, actions, damages, liability and expenses, including
but art limited to, anomey and adserprofessional fes and court costs in cunnectinn with the loss of lite, personal injury, and/or damage to properly, arising from
or Out of the Production and the presentation thereof to the extent such are occasioned by any act or omission of CLIENT, is affects, agents, contractors,
providers, or employees. In no event shall either party be liable for dee consequential dmtagm of the other party.
1 L Limitation of Darraaem for OrrBnar Breach - Except in the case of bodily injury and property damage as provided in the insurance and
indcmnifirohon Provmnne of Paragraphs 9 and 10, above, in the event CLIENT claims that PYRO has breached this Agreement or was otherwise negligent in
perfuming die Production provided for herein, CLIENT sMII not be emifled to claim or mcova• monetary damages from PYRO beyond the moonlit CLIENT has
paid to PYRO undo this Agmenent, and shall not be entitled to csiin or recover any consequential dnl mils form PYRO including, wilbour limitation, damages
for loss of intone. bumps or profits.
12. Force flWiture -CLIENT agrees to assume the risks of weather, strike, civil unral, farm lin, military action, guwmmrmal action, and any other
causes beyond the control of PYRO which may prevent the Production from being safely discharged nn the scheduled dale, which may cause the concellatiun of
any evrnt for which CLIENT las purchased the Production, or which may affect at damage such portion of the exhibits as must be pieced and exposed a
necessary time bufore the Production. if, for any such reason, PYRO is not masotably able to safely discharge the Production an the scheduled date, or at rhe
scheduled time, or should any event for which CLIENT las pumbasei dre Production be maccled m a suit nfmch causes, CLIENT may (i) reschedule the
Production and pay PYRO such sums as provided in Paragraph 13, or(it) correct the Production and Pay PY RO such suns as provided in Pa mgadh 14, based
upon when the Production is canceled.
13. ResehedWino Of Event -If CLIENT elects to reschedule the Production, PYRO shell be paid the original Fee plus all additional expcosm made
necessary by rescheduling plus a 15%3ervice fee on such additional expenses. Said expenses will be invoiced sepumtely 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 pemiu, materials, equrpalcm, transportation
and labor. The Production shall be rescheduled for a date not mare than 90 Days subsequent to the Arae firsts" for the Production. The Production shall not be
rescheduled to a date, or furan event, tat historically has involved a fireworks production. The Production shall not be rescheduled between June 15th and July
15th unless the original date was July 41h of that tame year, or bclw= Dezember 15th and January 15111 unless the original date was December 31st of the earlier
year unless PYRO agrees that such rescheduling will not admwly affect normal business opemtio s during those periods.
14. Rielt To Cancel - CLIENT shall lava tire option to unilaterally cancel the Preductinn prim to the scheduled date. If CLIENT exercises this option.
CLIENT agrees to Pay to PYRO, as liquidated damages, the following percentage, of the Fre is set forth in Pamgnaph J.I. O 500. ifcanccllatiun occurs30 m 90
days p+iorte, lite scheduled date. 2) 75% if cancellation occurs 15 to 29 days prior to the scheduled date, 31100% thcriricr. In Lite event CLIENT cancels the
Production, it will he impmettcal orextmmely difficult to fix actual amount of PYRO's damages. The foregoing represents a reasonable estimate of the damages
PYRO will suffer if CLIENT cancels doe Production,
15. No Joint Venture - h is agreed, nothing in [itis Agmernent or in PYRO's pcil'onnancc at the I'mdt¢lion shall be construed as forming a partnership or
joint venture between CLIENT and PYRO. PYRO shall be and is an indep edea contractor with CLIENT and not an employee of CLIENT'. The Penia hereto
shall be severally responsible for t eirmvn aepmste dells nal obligations and neither Party shall be held nsponsiblc fm any agreements at obligations not
expressly provided for herein
16. Aaolicuble Law - Thie Agreehnent and the rights and obligations of the Parties hereunder shall be construed m accordance with the laws of Calitmou.
It is further agreed IMM the Central Judicial Disu ice of San Bermudian County, Califnmia, shall he prong vnure for any such action. In the event that dm scope of
the Production is reduced by authorities having jurisdiction or by either Party for safely concerns. lite full dollarnmouuts outlined in this .Agreement are
enfoucuablc.
17. Notices - Any Notice to the Pallia p rillilled or squired under this Agreement envy he given by ,railing such `otice in the United Stales Mail,
Postage prepaid. first class• addressed as follows: PYRO - Pym Spectaculars, Inc., P.O. Box 2329, Ri;dlo. California. 92377. m' foruvemighr delivery to 3196 N.
Lochs; Avenue, Rialto, Califamin 92377. CLIENT-Newnorl Duces. 1131 Back Bay D 'i,e N rl thrich,CA 926611
PS V 1-2e
Pyro Spectaculars, Inc.
P.O. Box 2329
Rialto, CA 92377
Tel: 909-355-8120 :::: Fax: 909-355-9813
Newport Dunes
Program A
July 4, 2019
Page 3 of 4
1 g. btnrlffieallan of Termter
s All ms of the Agreement arc in writing and may only be modified by written agrmmnni of both Panics hereto. Doll,
Parties acknowiedga they Tuve received a copy of said written Agrecinrnt and agree to be bound by said terms of written Agreenent only.
19. Smarabilli — If there is snare than cure CLIENT, they shall bejuintly and severally raponsible to ped'onn CLIENT's obligations under this
Agreement. This Agreement shall become effective after it is executed and accepts! by CLIENT and after it is executed and accepted by PYRO at PYRO's
offices in Rialto, California. This Agreement may be executed in scve it cour mparts, including faced and entailed topics, each one of wine[' shall be decined an
original against the Patty exmuling sine. This.Agrcement shall he binding upon the Panics hereto and upon their heirs, succ sots, executors, administrators and
assigns.
20. Price Firnn — 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, than the Price, date, and mope of the Production are subject to review and acceptance by PYRO fora
period of 15 days following delivery to PYRO of the executes Agreement. In the event it is not neccptod by PYRO, PYRO 511.111 give CLIENT written notice and
this Agmnnent shall be void.
PRICE FIRM through April 2, 2019
EXECUTED AGREEMENT MUST BE DELIVERED TO PYRO BY TI IIS DATE.
See PRICE FIRM conditiums, paragraph 20, above.
EXECUTED as of the date first written above:
PYRO SPECTACULARS, INC.
I
Its: Resident
SHOW PRODUCER: Jeff Martin
PS V I -2c
Newport Dunn , r
By:
Its: -
I Jf 9 r Gl Ji�i2 n
Y_
�Print Name
Pyro Spectaculars, Inc. Newport Dunes
P.O. Box 2329 Program es
Rialto, CA 92377 July 4, 2019
Tcl: 909-355-8120:::: Fax: 909-355-9813 Page 4 of 4
SCOPE OF WORK
PYRO SPECTACULARS, INC. ("PYRO")
and
Newport Dunes("CLIENT")
Pyro shall provide the following goods and services to CLIENT:
• One Pyro Spectaculars, Inc., Production on July 4. 2019, at approximately 9:00 p.m., at Newport Dunes, lVaterfrout
ResorL 1131 Back Bay Drive Newport Beach CA.
• All pyrotechnic equipment, trained pyroteclmicians, 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 Renniremenrc
Limits
Commercial General Liabilitv
$5,000,000.00
Combined Single Limit- Each Occurrence
Business Auto Liability-
$5,000,000.00
(Bodily Injury & Property Damage)
Combined Single Limit- Each Occurrence
Owned Nott -Owned and Hired Autos
(Bodily Injury & Property Damage)
Workers' Comuensation
Statutory
Employer Liabilit
$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, dumpsier
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