Loading...
HomeMy WebLinkAboutC-8107-2 - Grant Agreement - Pyrotechnics Display 2017NO O GRANT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND OCj DUNES RESORT, LLC 1 V This Grant Agreement ("Agreement") is entered into this 4th day of August, 2017 ("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 allow 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 resident's quality of life. B. Grantee requested a grant from the City for co-sponsorship of the annual 2017 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 family event. D. Consistent with Council Policy B-12, the City Council's approved budget for Fiscal Year 2017-18 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 2017 annual fireworks event. E. The City Manager has approved a grant in the amount of Thirty Thousand Dollars and 001100 ($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 001100 ($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): ® At the time of execution of this Agreement. 2. TERM The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect until December 31, 2017 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"): 3.1.1. The Grant Funds shall be expended solely for the purposes provided in Exhibit A; 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. 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 Dunes Resort, LLC Page 2 assertion that the Grantee is not aware of any events or conditions, described above, or 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. udget- to-actuaI-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 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, 2017, Grantee shall notify the City in writing, and shall be obligated to return the Grant Funds to City within thirty (30) days. 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, employees and any person or entity owning or otherwise in legal control of the property upon which Grantee performs the Approved Uses contemplated by this Agreement (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. 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 Dunes Resort, LLC Page 4 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 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 Dunes Resort, LLC Page 5 Newport Beach, CA 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. 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. Dunes Resort, LLC Page 6 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 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 ATTORN Y' OFFICE Date: 3 Z PI -1 7 Aaron•City Attorney •: ATTEST: Date: 4?// 's i -�/: . . y Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: �'7 By: Dave Kiff City Manager GRANTEE: DUNES RESORT, LLC a limited liability company Date: j l By: Michael Gelfan Manager Date: %I 'X-1-1 i By: Mic 'ael Silverman Manager Attachments: Exhibit A: Grant Proposal Exhibit B: Insurance Requirements [END OF SIGNATURES] Dunes Resort, LLC Page 8 EXHIBIT A GRANT PROPOSAL Dunes Resort, LLC Page A-1 2017 Pyrotechnic Proposal ON/I �: \ \�� �� � ^ ^ \ �� /\' \ � �\\��\�� y .\ /� �y \ / / : \�dx July 04, 2017 April 27, 2017 Newport Dunes Andrew Theodorou 1131 Back Bay Drive Newport Beach, CA 92660 Dear Mr. Theodorou, Pyro Spectaculars, Inc. is happy to provide our pyrotechnic proposal for your July 04, 2017 event. The following proposal outlines your custom designed Sky Concert' Program "B" for the amount of $30,000.00. The various fireworks elements provided are prepared to shoot from Newport Dunes Waterfront Resort for 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 May 12, 2017. Your deposit and applicable fire department fees are due May 25, 2017. 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, PYRU SPECTACULARS, INC. 1� rtin Sales Manager JM/dr Enclosures Pyro Spectaculars, Inc. P.O. Box 2329 • Rialto, CA 92377 • Phone: (909) 355-8120 or (888) 477-PYRO • Fax: (909) 355-9813 Product Synopsis a Pyrotechnic Proposal Newport Dunes PROGRAM 8 — July 04y 2017 $308000"00 Main Body - Aerial Shells Description ♦ 3" Sky Concert Selections ♦ 4" Sky Concert Selections ♦ 5" Sky Concert Selections Total of Main Body - Aerial Shells Pyrotechnic Devices Description ♦ Sousa Platinum Line Custom Multishot Device ♦ Sousa Diamond Line Custom Multishot Device ♦ Sousa Emerald Line Custom Multishot Device ♦ Sousa Pearl Line Custom Multishot Device Total of Pyrotechnic Devices Grand Finale Description ♦ 3" Sky Concert Bombardment Shells ♦ 4" Sky Concert Bombardment Shells ♦ 5" Sky Concert Bombardment Shells Total of Grand Finale Grand Total Quantity 150 75 65 �I] Quanti 500 Shots 1500 Shots 600 Shots 800 Shots 3,400 Quanti 240 60 15 315 4,005 Pyro Spectaculars, Inc. Newport Dunes P.O. Box 2329 Program B Rialto, CA 92377 July 04, 2017 Tel: 909-355-8120::;: Fax: 909-355-9813 Page 1 of 191111] 11MO 0 [�TQ1y,� � 11��Ji111 This agreement ("Agreanent') is made this day of __ 2`17 by and between PyroSpectaculars, Inc., a California corpomtim, hereinafter referred to as ("PYRO"), mhd Newport Dunes, hereinafter nefahed to as ("CLIENT"). PYRO and CLIENT• are sometimes refereed tow "forty" or collectively m "Panics" Imerxin, 1. Eneaeenmal - CLIENT hereby engages PYRO to provide to CLIENT one fireworks production ("Production'), and PYRO accepts such engagement upon all of the promises, terns and conditions hereinafter set Forth, The Production shall be substantially as outlined in Program "B", attached hereto and incorporated herein by this reference. Lt PYRO Duties —PYRO shall provide all pyrotechnic equipment, trained pyromalmicians, shipping, pyrotechnic products, application for specific pyrotechnic permits (the cost of wbic i, including standby fees, shall be paid by CLIENT) relating to the Production, insurance covering the Production and the other things on its pail to be petfmmed as more specifically set forth below in this Agreement and in the Scope of Work ("Scope of Work"), attached hereto, incorporated hewn by this reference, and made a part of this Agreement as though set froth fully heroin. 12 CLIENTDutkr—CUENI' shalt provide to PYRO a suitable site ("Site")fb"tic Production, security farthe Site as set forth in Paragraph 6 hereof, access to the Site, any permission necessary to utilize the Site for the Production, and the other things on its part to be performed as mom specifically act forth below Inglis Agreanent and in the Scope of Work. All She arrongemeuns am subject to PYRO's reasonable approval m to pyrotechnic safely, 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 04 201T. at approximately 9:00 as at Newoorl Durres: Wnty!rfeoat Resuat. 1131 Back Bay Art ie• Newppst Reach CA, Site. v 1 4 3.1 Fee -CLIENT agrees go pay PYRO a fee of $30.000.00 USD f77111RTY THOUSAND DOLLAR SI ("17ee'7 fm the Pmdtuclion• CLIENT shall pay to PYRO $I5.890Ag USD (FI VrEEN THOUSAND DOLLARSI of the Fee plus estimated permit cod standby fees, specified production coats, and other regulatory costs approximated at $791110,OR an amount to be determined, for a total of 315,70M as a deposit ("Deposit'l upon the execution of this Agreement by both paries but no later than May 25. 2017 The balance of the Fu shall be paid an later than ,ImtvQ& 201T. CLIENT authorl= PYRO m receive and verify credit and financial information camoeming CLIENT from any agency, pawn m entity including but not limited to credit reporting agencies. The "PRICE FIRM" dace, the date by which the executed Agreement must be delivered to Pyro, is set forth in paragraph 20. 32 Interest- In the event that the Fee is not paid in a timely manner. CLIENT' will be responsible for the payment of 1.$% interest per month or 18% annually on the unpaid balancm if litigation arises out of this Agreement, the prevailing party shall be entitled to masmmble costs incurred in connection with the litigation, including, but not limited to attomeys' fees. 3.3 YgMjMMg PYRO shall pay all normal expenses directly minted to the Production including height, insurance as outlined, pyrotechnic products, pyrotechnic equipment, experienced pyrotwhnic personnel to set up and discharge the pyrotechnics and three additional items as outlined as PYRO'a 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. Proarietary Rights - PYRO represents and warrants that it owns all eopriights, including performance rights, to this Production, except that PYRO does not own CLIENT -owned material or third -parry -owned material that has been included in the Production, and as to such CLIENT -owned and third -party - owned material, CLIENT assumes full responsibility therefom CLIENT agrees that PYRO shall retain ownership of, and all copyrights and other rights to, the Production, except that PYRO shall not acquireor wain any ownership or other rights in or to CLIE I`owtlad material end Ihisd-partyowned material and shall mt be mpomibie in any coy for such imperial. 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 connectim with this Production. PYRO reserves the ownership rights in its trade names that are used in or are a product of the Production. Any reproduction by sound, video or other duplication or recording process without the express written permission of PYRO is prohibited. 5. Safetv - PYRO and CLIENT shall each comply with applicable federal, state and local laws and regulations and employ safety progmua and ane umes consistent with recognized applicable industry standards and practices. Atoll times before and during the Production, it shall be within PYRtys sole discretion to determine whether or not the Production maybe safely discharged or continued. It shall not constitutes breach of this Agreement by PYRO for fuaworks to fail or malfunction, or for PYRO to detennine glint 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 slag provide adequate security personnel, barricades, and Police Department services as may be necessary to preclude individuals other than those authorized by PYRO Tann entering an mea to be designated by PYRO as the anon for the sec -up and discharge of ilia Production, including a fallout area satisfactory to PYRO where the pyrotechnics may safely rise and any debris may safely fall- PYRO shall have no responsibility for monitoring or controllingCUENT"s otherconlraclors, provider or volunteers; the public; areas to which the public or contractors have access; or my other public ormatractor facilities associated witm the Production. 7. Clasen - PYRO shall be responsible for the removal of all equipment provided by PYRO and clean up of nay live pyrotechnic debris made necessary by PYRO. CLIENT shall be responsible for any other clean up which may be required of the Production or set-up, discharge mrd follow areas including any environmental clean-up. P$ Y 1-2e Pyro Spectaculars, Inc. P.O. Box 2329 Rialto, CA 92377 Tel: 909-355-8120 :::: Fax: 909-355-9813 Newport Dunes Program B July 04, 2017 Page 2 of 4 8. Pend - PYRO agrees to apply for permits fm the firing of pyrotechnics only from the Newport Beach Fire Department, FAA, and USCG, if requbsd. CLIENT shall be responsible fm any fees associated with these permits including standby fees. CLIENT shall be responsible for obtaining any other necessary permits, paying associated fees, and making other appropriate arrangements for Police Departments, other Fin Departments, mad closure, event/activity or land use permits cra y permission or permit required by any Local, Reginal, State or Federal Government. 9, Insurer=- PYRO shall at all times during the performance of services herein ensure that the following insurance is maintained in connection with PYRO's performance of this Agreement: (1) commercial general liability insurance, including products, completed operations, and contractual liability under this Agmement; (2)auromob0e liability insumnee, (3) workers' compennuon insurance and employer liability insurance. Such insurance is to protect CLIENT from claims fm bodily injury, including death, personal injury, and from claims of property damage, which nary arise from PYRO's perfmaimce of Oris Agreement, only. The types and amounts of coverage shall be as set forth in the Scope of work. Such insurance shall not include claims which arise from CLIENT's negligence or willful conduct or fmm failure of CLIENT to perform its obligations under this Agreement, coverage fm which shall he provided by CLIENT. The eoverageof these policies shall be subjectto reasonable inspection by CLIENT. Certificates of Insurance evidencing the required general liability eovemge shall be furnished to CLIENT prior to the rendering of services heretmnder and shall include that the following are named as additionally insured: CLIENT; Sponsor:, Landowners, Barge Owners, if any; and Permitting Audiorities, with respect to the operalions of PYRO at the Production- Pyrotechnic subcontractors or providers, if any, not covered under politics of insurance required hereby, shall secure, maintain and provide their own insurance coverage with respect to their respective operations and services. 10. IndemniBeeBan - PYRO represents and warrants that it is capable of furnishing the necessary experience, personnel, equipment, materials, pmvidere, and expertise to produce the Production in a safe and professional mamma. Notwithstanding anything in this Agreement to the contrary, PYRO shag indemnify, hold harmless, and defend CLIENT and the additional insureds from and against any and all claims, action, damages, liabilities and expenses, including but not limited to, attorney and other professional fees and eoun coals, in connection with the loss of life, personal injury, and/or damage to properly, arising from or out of the Production and the presentation thereof to the extent web are occasioned by any act or omission of PYRO, their officers, agents, cootractos, providers, or employees. CLIENT slag f sdannady, hold tartness, and defend PYRO from and against my and all claims, actions, darrege, liability and expenaes, including but not limited to, attorney and otherprofessional foes and count costs in connection with the loss of life, persemml injury, and/or damage to property, arising from or out of dee Production and the presentation thereof to the extent such are occasioned by any act or omission of CLJ ENT, its officers, agents, conuactora, providers, m employees. In no event shall eitherparty be liable for the consequential damages of the other party, 11. Unhallos of Damoea,s for Ordianry Breach -Except in the case of bodily injury and property damage as provided in the insurance and indemnification provisions of Paragraphs 9 and 10, above, in the event CLIENT claims that PYRO has breached this Agreamem ce was otherwise negligent in performing the Production provided for herein, CLIENT shall not be entitled to claim or remover monetary damages from PYRO beyond the amount CLIENT has paid to PYRO under this Agreement, and shall not be entitled to claim or recover any consequential damages from PYRO including, without limitation, damages fm loss of income, business or profits. 12. Force Maleure - CLIENT agrees to assume the dsks of weather, strike, civil uses, tennaism, miliary action, governmental adipo, and any other cause beyond die control of PYRO which may prevent the Production from being safely discharged on the scheduled date, which may cause the cancellation of any event for which CLIENT has purchased the Production, or which may affect or damage such portion of the exhibits as must be placed and exposed a necessary time before the Production If, for any such reason, PYRO is not reasonably able to safely discharge the Production on the scheduled date, or at the scheduled time, or should any event for which CLIENT has purchased the Production be canceled as a result ofsuch causes, CLIENT tansy (i) reschedule the Production and pay PYRO such sums as provided in Paragraph 13, or (ii) cancel the Production and pay PYRO web aims as provided in Pamgmph 14, based upon when the Production is cancded. 13. Ra ckduant Of Event -If CLIENT elects to reschedule the Production, PYRO shall be paid the original Fee plus all additional expenses irade necessary by rescheduling plus a 15% service fee on such additional expenses. Said expenses will be invoiced separately and payment will be due in full within 5 days of receipt. CLIENT and PYRO shawl agree upon the rescheduled date taking into consideration availability of permits, materials, equipment, transportation and labor. The Production shall be rescheduled for a date not more than 90 Days sulaNquen 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 Juno 15th and July 15th unless the original date was July 4th of that sameyear, or between December 15th and January 15th unless die original date was Decenber3lst of the earlier year unless PYROagreis that such rescheduling will ret adversely affect normal business operations during tlasepe rods. 14. Rimhl To Caned—CLIENT shall have the option to unilaterally "well the Production prior tothe scheduled date. If CLIENT exercises this option, CLIENT agrees to pay to PYRO, as liquidated damages, the following percentages of the Fee as act forth in Paragraph 3.1. 1) 50% if cancellation recon 30 to 90 drys priorto the scheduled date, 2) 75% if cancellation occurs 15 to 29 days prior to the schoduled date, 3) 100% thereafter. In the event CLIENT cancels the Production, it will be impractical arextremely difficult to fix actual amount of PYRO's daarages. The foregoing represents a reasonable estimate of the damages PYRO will suffer if CLIENT cancels the Production. 15. Na Jofui Venture - Is is egeed, nothing in 01is Agrce t or in PYRO's ped'ommnec of the Production slmll be comtmed m fomdng a pndnmliip m joint venture between CLIENT and PYRO. PYRO shall be and ism independent contractor with CLIENT and not an employee of CLIENT. The Parties hereto shall be severally responsible for their own separate debts and obligations and neither Party shall be held responsible for any agreements or obligations net expressly provided for herein. 16. Applicable Law -This Agreement and the rights and obligations of the Parties hereunder shall be construed in accordance with the laws orCalifomia. It is fudher agreed that the Central Judicial District of San Bernardino Corny, 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 safely concerts. the full dollar amounts outlined in this Agreement are enforceable. 17. Notices - Any Notice to the Paries 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 — Pyno Specaculan, Inc., P.O. Box 2329, Rialto, California, 92377, or for overnight delivery to 3196 N. Locust Avcnue, Rialto, California 92377. CLIENT—Newvart Dunn: 1131 Back Bay Drive. Newport Bosch. CA926kg. 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 B July 04, 2017 Page 3 of 4 18. Morllaralian oPTarnrs —All terns of the Agronacm are in writing and may only be modified by written agreement of both Ponies 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. 14. Smverabllity—If them is morethan one CLIENT, they shall bejointly and severally responsible to perform CLIENT's obligations under this Agreement. This Agreement shall become efibctive after it is executed and accepted by CLIENT and after it is executed and accepted by PYRO at PYRO's offices in Rialto, California. This Agreement may be executed in several counterparts, including faxed and smiled copies, each one of which shall be deemed an original against the Party executing same. This Agreement shall be binding upon the Parties bereto and upon their heirs, successors, =motors, administmmrs and assigns. 20. RIM Firm —If any changes or alterations are made by CLIENT to this Agreement or if this Agreement is not executed by CLIENT and delivered to PYRO on orbefore the PRICE FIRM date shown below, then the price, date, and scope of the Production are subject to review and acceptance by PYRO for a period of 15 days following delivery to PYRO of the c;mcuted Agreement. In the event it is not accepted by MO. PYRO shall give CLIENT written notice, and this Agreement shall be void. PRICE FIRM through May 12, 2017 EXECUTED AGREEMENT MUST BE DELIVERED TO PYRO BY THIS DATE, See PRICE FIRM conditions, paragraph 20, above EXECUTED as of the date first written above: PYRO SPECTACULARS, INC. By:' ffi: Presider SHOW PRODUCER:.leff Martin PS V 1-2e Newport Daum By: Its: Print Name Pyro Spectaculars, Inc. Newport Dunes P.O. Box 2329 Program B Rialto, CA 92377 July 04, 2017 Tel: 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 Pym Spectaculars, Inc., Production on July 04, 1017, at approximately 9:00 nm at Newport Dunes, Waterfront Resort, 1131 Back Bay Drive, Newport Beach, CA. • All pyrotechnic equipment, trained pyrotechnicians, shipping, and pyrotechnic product. • Application for specific pyrotechnic permits relating to the Production. • Musical, soundtrack for the Production supplied in agreed upon format. • Insurance covering the Production as set forth in the Agreement with the following limits: InsurunceReydi ements Limits Commercial General Liability $5,000,000.00 Combined Single Limit- Each Occurrence (Bodily Injury & Property Damage) Business Auto Liability- $5,000,000.00 Combined Single Limit- Each Occurrence Owned. Non -Owned and ]fired Autos (Bodily Injury & Property Damage) Workers' Compensation Statutory Emolowr Liability $1,000,000 Per Occurrence CLIENT shall provide to PYRO the following goods and services: • All on-site labor costs, if any, not provided or performed by PYRO personnel including, but not limited to, local union requirements, all Site security, Police and Fire Dept. standby personnel, stagehands, electricians, audio and fire control monitors, carpenters, plumbers, clean-up crew. All these additional personnel and services shall be fully insured and the sole responsibility of CLIENT. • Coordination and any applicable non -pyrotechnic permitting with the local, state or federal government that may hold authority within the Production. • Costs of all permits required for the presentation of the Production and the event as a whole. • Provision of a Safety Zone in accordance with applicable standards and all requirements of the authorities having jurisdiction throughout the entire time that the pyrotechnics are at the Site or the load site (if different) on the date of the Production and all set-up and Ioad-out dates, including water security to keep unauthorized people, boats, etc. from entering the Safety Zone. • A professional grade Audio System including all necessary equipment, installation of such equipment and trained audio engineers for operation based on audio and communications requirements provided by PYRO. General Services including, but not limited to, Site and audience security, fencing, adequate work light, dumpster accessibility, a secure office for PYRO personnel within the venue, secure parking for PYRO vehicles, access to washrooms, tents, equipment storage, hazmat storage, electrical power, fire suppression equipment, access to worksites, necessary credentialing, etc., will be required as necessary. PS y 1-2c EXHIBIT B INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting Grantee's indemnification of City, and prior to commencement of the Approved Uses for Grant Funds, Grantee 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. Grantee agrees to provide insurance in accordance with requirements set forth here. If Grantee uses existing coverage to comply and that coverage does not meet these requirements, Grantee 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. General Liability Insurance. Grantee 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) combined single limit — each occurrence (bodily injury and property damage). The policy shall cover liability arising from premises, property, operations, personal, bodily, and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: 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, employees and any person or entity owning or otherwise in legal control of the property upon which Grantee performs the Approved Uses contemplated by this Agreement or shall specifically allow Grantee orothers providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Grantee hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers, Dunes Resort, LLC Page B-1 employees and any person or entity owning or otherwise in legal control of the property upon which Grantee performs the Approved Uses contemplated by this Agreement shall be included as insureds under such policies. The City of Newport Beach and Newport Beach Fire Department shall be named additional insureds on the required insurance policies of Pyro Spectaculars, per the requirements in the Newport Dunes agreement with Pyro Spectaculars. Commercial General Liability of not less than $5,000,000 (five million dollars) per occurrence and $10,000,000 (ten million dollars) general aggregate; Business Auto Liability — Owned, Non - Owned and Hired Autos of not less than $5,000,000 (five million dollars) Combined Single Limit — Each Occurrence (Bodily Injury & Property Damage); and Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) per occurrence. 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. Grantee 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 the Approved Uses. 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 anytime. 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 Grantee sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Grantee, City and Grantee may renegotiate Grantee's compensation. C. Enforcement of Agreement Provisions. Grantee acknowledges and agrees that any actual or alleged failure on the part of City to inform Grantee of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. Dunes Resort, LLC Page B-2 D. 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 Grantee maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Grantee. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. 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. F. City Remedies for Non -Compliance. If Grantee or any subconsultant 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 Grantee'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 Grantee or reimbursed by Grantee upon demand. G. Timely Notice of Claims. Grantee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Grantee's Approved Uses 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. H. Grantee's Insurance. Grantee 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 Approved Uses. Dunes Resort, LLC Page B-3 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 8/22/16 Dept./Contact Received From: Melissa Date Completed: 8/22/16 Sent to: Company/Person required to have certificate: Type of contract: Melissa By: Alicia Newport Dunes Marina LLC All Others GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 8/18/16-8/18/17 A. INSURANCE COMPANY: Travelers Indemnity Company of CT B. AM BEST RATING (A-: VII or greater): A++:XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? E Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? 1M/5M E. ADDITIONAL INSURED ENDORSEMENT — please attach E Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must INSURANCE COMPANY: Travelers Property Casualty Co of America include): Is it included? (completed Operations status does B. not apply to Waste Haulers or Recreation) ❑ Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND ADMITTED COMPANY (Must be California Admitted): COMPLETED OPERATIONS ENDORSEMENT (completed Operations status does not apply to Waste Haulers) ❑ Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City LIMITS - If Employees (Must be $11M min. BI & PD and $500,000 its officers, officials, employees and volunteers): Is it included? ❑ Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? ❑ Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured F. is not limited solely by their negligence) Does endorsement include "solely by negligence' wording? ❑ Yes E No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): E N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A E Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 8/18/16-8/18/17 A. INSURANCE COMPANY: Travelers Property Casualty Co of America B. AM BEST RATING (A-: VII or greater) A++:XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? E Yes ❑ No D. LIMITS - If Employees (Must be $11M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? iM+4M Excess E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): E N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes E No H. NOTICE OF CANCELLATION: ❑ N/A 0 Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: Not Required by Contract A. INSURANCE COMPANY: B. AM BEST RATING (A-: VII or greater): C. ADMITTED Company (Must be California Admitted): D. WORKERS' COMPENSATION LIMIT: Statutory E. EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater) F. WAIVER OF SUBROGATION (To include): Is it included? G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: H. NOTICE OF CANCELLATION: ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Approved: Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 8/22/16 Date ❑ Yes ❑ No ❑ Yes ❑ No ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ❑ N/A ® Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® NIA ❑ Yes ❑ No ® Yes ❑ No RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑Yes ❑ No Reason for Risk Management approval/exception/waiver: Approved: Risk Management Date * Subject to the terms of the contract.