HomeMy WebLinkAboutC-7713-2 - Grant Agreement - Council Grant FY 2021-22 - 2021 Fourth of July Fireworks Eventa
GRANT AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
DUNES RESORT, LLC
V
This Grant Agreement ("Agreement") is entered into this 21st day of May, 2021
("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 2021
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 2021-2022 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 2021
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):
® 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, 2021, 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. 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;
3.1.2. 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
3.1.3. The Grant Funds shall not be used for any activity that would violate City,
state, 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
other information that might reasonable impact City's decision to fund the grant as
requested.
DUNES RESORT, LLC Page 2
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:
a. An identifying donor number, date and amount of each reported
contribution; and
DUNES RESORT, LLC Page 3
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, 2021, 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-sectarian 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.
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: Executive Assistant to the City Manager
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
Newport Beach, California 92660
DUNES RESORT, LLC Page 5
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.
[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:61/1/00ZA
By: �_9'_t
Aaron C. Harp +�� ou►a►���i
City Attorney
ATTEST:
Date -.—b -30 --Za Z
CITY OF NEWPORT BEACH,
A California municial corporation
Date: JUN 2 q 2021
By: A--- L:2�
G17F6c 4-11
K. Leung
Manager
GRANTEE: DUNES RESORT, LLC, a
California limited liability company
Date:
By: By:
Signed in Counterpart
�,�
,201z Leilani I. Brown Michael Gelfand
City Clerk
Managing Partner
Date:
is
Signed in Counterpart
Michael Silverman
Managing Partner
Attachment: Exhibit A – Grant Proposal
Exhibit B – Insurance Requirements
[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 ATTORNEY'S OFFICE
Date:_ 6/1/001�
By: elc
Aaron C. Harp OVA OW04171
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:
Grace K. Leung
City Manager
GRANTEE: DUNES RESORT, LLC, a
California I' ite liability company
Date: t
By: it 0 SID
Mi hael Gelfand
Managing Partner
Date:
By:
Mictfael Silverman
Managing Partner
Attachment: Exhibit A — Grant Proposal
Exhibit B — Insurance Requirements
[END OF SIGNATURES]
DUNES RESORT, LLC
Page
g 8 -f9�
Exhibit A
GRANT PROPOSAL
DUNES RESORT, LLC Page A-1
2.021
Pyrotechnic Proposal
1 "0
Newport Dunes
July 4, 2021
March 30, 2021
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, 2021 event. The following proposal outlines your custom designed Program
"A" for the amount of $35,000.00. The various fireworks elements provided are
prepared to shoot from Newport Dunes Waterfront Resort On the beach at
Newport Dunes for approximately 18-20 minutes.
Our full service program includes necessary preproduction services, the services of
a licensed pyrotechnic operator, specialized crew, an electronic firing system, and
pyrotechnic 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 the fully executed agreement returned to
our office by April 26, 2021 along with your initial payment and permit 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 me or your
Customer Service Representative Maria Barajas at (909) 3SS-8120 ext. 228.
Sincerely,
PYRO SPECTACULARS, INC.
Yvt 0
J TMartin
Sales Manager
JM/mb
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 • Pyrotechnic Proposal
Newport Dunes
PROGRAM A— July 4, 2021
$35,000.00
Opening
Grand Total 4,284
Product descriptions are for specification of product quality, classification, and value. Final product
selections will be based on availability, suitability, and overall artistic style.
Description
Quantit
♦
3" Souza Designer Opening Salutes
25
Total of Opening
25
Main Body - Aerial Shells
Description
Quantity
♦
3" Souza Designer Selections
150
♦
4" Souza Designer Selections
90
♦
5" Souza Designer Selections
72
Total of Main Body - Aerial Shells
312
Pyrotechnic Devices
Description
Quantity
♦
Sousa Platinum Line Custom Multishot Device
600 Shots
♦
Sousa Diamond Line Custom Multishot Device
1500 Shots
♦
Sousa Emerald Line Custom Multishot Device
720 Shots
♦
Sousa Pearl Line Custom Multishot Device
800 Shots
Total of Pyrotechnic Devices
3,620
Grand
Finale
Description
Quantity
♦
2.5" Souza Designer Bombardment Shells
72
♦
3" Souza Designer Bombardment Shells
180
♦
4" Souza Designer Bombardment Shells
60
♦
5" Souza Designer Bombardment Shells
15
Total of Grand Finale
327
Grand Total 4,284
Product descriptions are for specification of product quality, classification, and value. Final product
selections will be based on availability, suitability, and overall artistic style.
Pyro Spectaculars, Inc.
Newport Dunes
P.O. Box 2329 Program A
Rialto, CA 92377 July 4, 2021
Tel: 909-355-8120 :::: Fax: 909-355-9813 Page] of 4
PRODUCTION AGREEMENT
This agreement ("Agreement") is made this day of _ 2021by and between Pyro Spectaculars, Inc., a California corporation
hereinafter referred to as ("PYRO"), and Newport Dunes, hereinafter referred to as ("CLIENT"). PYRO and CLIENT are sometimes referred to as "Party" or
collectively as "Patties" herein.
I . Engagement -CLIENT hereby engages PYRO to provide to CLIENT one fireworks production ("Production"), and PYRO accepts such engagement
upon all of the promises, tents and conditions hereinafter set fourth. The Production shall be substantially as outlined in Program "A", attached hereto and
incorporated herein by this reference.
1.1 PYRO Dutles — PYRO shall provide all pyrotechnic equipment, trained pyrotechnicians, shipping, pyrotechnic products, application for
specific pyrotechnic permits (the cost of which, including standby fees, shall be paid by CLIENT) relating to the Production, insurance covering the
Production and the other things on its pail to be performed, including preproduction services, all as more specifically set forth below in this Agreement
and in the Scope of Work ("Scope of Wok"), attached hereto, incorporated herein by this reference, and made a part of this Agreement as though set
forth fully herein.
1.2 CLIENT Duties — CLIENT shall provide to PYRO a suitable site ("Site") for the Production, security for the Site as set 1101111 in Paragraph
6 hereof, access to the Site, any permission necessary to utilize the Site for• the Production, and the other things on its part to be performed as more
specifically set forth below in this Agreement and in the Scope of Work. All Site arrangements are subject to PYRO's reasonable approval as to
pyrotechnic safety, suitability, and security. All other conditions of the Site shall be the responsibility of CLIENT, including, but not limited to, access,
use, control, parking and general safety with respect to the public, CLIENT personnel and other contractors.
2. Time and Place - The Production shall take place on July 4, 2021, at approximately 9:00„1►. m, at Newuarl Dlures waterfront resort on the beach at
Netypnrl Dunes, 1131 Back [idly Drive, Newuorl Beach, CA, Site.
(secs, lnfcrest.and Expense s-
3.1 Fee - CLIENT agrees to pay PYRO it tee of $35,000J)OUSD (TIIIR9'Y FMC T110USAND DOLLARS) ("Fee") for the Production.
CLIENT shall pay to PYRO an initial payment ("initial Payment") equal to 50 % of the Production Fee $ I 500.0 USD (SEVLNTKEN'i'IIOLISAND FIVL
IlUDRED DOLLARS) plus estimated permit and standby fees, and other regulatory costs approximated at 5920.00 OR an amount to be determined, fora total
of S 18.420.1111, upon the execution of this Agreement by both parties but no later than Agri) 26, 2021. The Initial Payment is a partial payment toward the
preproduction services and costs set forth in the Scope of Work ("Preproduction Services and Costs".) The balance orthe Fee shall be paid no later than July 5•
2021. CLIENT authorizes PYRO to receive and verify credit and financial information concerning CLIENT fron any agency, person or entity including but not
limited to credit reporting agencies. The "PRICE FIRM" date, the date by which the executed Agreement must be delivered to Pyro, is set forth in paragraph 20.
3.2 Interest - In the event that the Fee is not paid in a timely manner, CLIENT will be responsible for (lie payment of 1.5% interest per month
or 18% annually on the unpaid balance. If litigation arises out of this Agreement, the prevailing party shall be entitled to reasonable costs inculTed in connection
with the litigation, including, but not limited to attorneys' fees.
3.3 Lxnenses — PYRO shall pay all nonnal expenses directly related to the Production including freight, insurance as outlined, pyrotechnic
products, pyrotechnic equipment, experienced pyrotechnic personnel to set up and discharge the pyrotechnics and those additional items as outlined as PYRO's
responsibility in the Scope of Work. CLIENT shall pay all costs related to the Production not supplied by PYRO including, but not linnited to, those items
outlined as CLIENT's responsibility in this Agreement and Scope of Work.
4. Proprietary (Rights - PYRO represents and warrants that it owns all copyrights, including perfonnance rights, to this Production, except that PYRO
does not own CLIENT -owned material or third -party -owned material that has been included in the Production, and as to such CLIENT -owned and third-pmly-
owned material, CLIENT assumes full responsibility therefore CLIENT agrees that PYRO shall retain ownership of, and all copyrights and other rights to, the
Production, except that PYRO shall not acquire or retain any ownership or other rights in at- to CLIENT -owned material and third -pally -owned material and shall
not be responsible in any way for such material. If applicable, CLIENT consents to the use of CLIENT -owned material and represents that it has or will obtain
any permission from appropriate third parties sufficient to authorize public exhibition of any such material in connection with this Production, PYRO reserves tine
ownership rights in its trade names that are used in or area product of the Production. Any reproduction by sound, video or other duplication or recoding process
without the express written permission of PYRO is prohibited.
5. Safety - PYRO and CLIENT shall each comply with applicable federal, state and local laws and regulations and employ safety programs and measures
consistent with recognized applicable industry standards and practices. At all notes before and during the Production, it shall be within PYRO's sole disoetion to
detennine whether or not the Production may be safely discharged or continued. It shall not consliWte a breach of this Agreement by PYRO I'o fireworks to f<nil
or malfunction, or for PYRO to determine that the Production cannot be discharged or continued as a result of any conditions or circumstances affecting safety
beyond the reasonable control of PYRO.
6. Seen'ily - CLIEN-f shall provide adequate security personnel, bai icades, and Police Department services as may be necessary Io preclude individuals
other than those authorized by PYRO front entering an arca to be designated by PYRO as the area for the set-up and discharge of the Production, including a
fallout area satisfactory to PYRO where the pyrotechnics nnay safely rise and any debris nay safely tall. PYRO shall have no responsibility Ion monitoring or
controlling CLIE NT's other connectors, providers o volunteers; the public; areas to which the public or cont aclois have access; or any other public or contractor
facilities associated with the Production.
7 Cleanup - PYRO shall be responsible for the removal ol'all equipment provided by PYRO and clean up ofany live pyrotechnic debris made necessary
by PYRO. CLIENT shall be responsible for any other clean up which may be required ol'the Production or set-up, discharge and fallout areas including any
environmental clean-up.
PSI V-2021-2
Pyro Spectaculars, Inc. Newport Dunes
P.O. Box 2329 Program A
Rialto, CA 92377 July 4, 2021
Tel: 909-355-8120 :::: Pax: 909-355-9813 Page 2 of 4
8. Permits - PYRO agrees to apply for permits for the firing of pyrotechnics only from the Newport Beach Fire Department, FAA, and USCG, if
required. CLIENT shall be responsible for any fees associated with these permits including standby fees. CLIENT shall be responsible for obtaining any other
necessary permits, paying associated fees, and making oilier appropriate arrungemnents for Police Departments, other Fire Departments, road closures,
event/activity or land use pennits or any permission or permit required by any Local, Regional, State or Federal Govemnent.
9. Insurance - PYRO shall at all tunes during the performance of services herein ensure that flue following insurance is maintained in connection with
PYRO's performance of this Agreement: (1) commercial general liability insurance, including products, completed operations, and contractual liability under this
Agreement; (2) automobile liability insurance, (3) workers' compensation insurance and employer liability insurance. Such insurance is to protect CLIENT fionr
claims for bodily injury, including death, personal injury, and from claims of property damage, which may arise from PYRO's performance of this Agreement,
only. The types and amounts of coverage shall be as set forth in the Scope of Work. Such insurance shall not include claims which arise from CLIENT's
negligence or willful conduct or from failure of CLIENT to perforn its obligations under this Agreement, coverage for which shall be provided by CLIENT.
The coverage of these policies shall be subject to reasonable inspection by CLIENT. Certificates of Insurance evidencing the required general liability coverage
shall be furnished to CLIENT prior to the rendering of services hereunder and shall include that the following are named as additionally insured: CLIENT;
Sponsors, Landowners, Barge Owners, if any; and Permitting Authorities, with respect to the operations of PYRO at the Production. Pyrotechnic subcontractors
or providers, if any, not covered under policies of insurance required hereby, shall secure, maintain and provide their own insurance coverage with respect to their
respective operations and services.
10. Indemnification - PYRO represents and warrants that it is capable of hi nishing the necessary experience, personnel, equipment, materials, providers,
and expertise to produce the Production in a safe and professional manner. Notwithstanding anything in this Agreement to the contrary, PYRO shall indemnify,
hold harmless, and defend CLIENT and the additional insureds from and against any and all claims, actions, damages, liabilities and expenses, including but not
limited to, attorney and other professional fees and court costs, in connection with the loss of life, personal injury, and/or damage to property, arising from or out
of the Production and the presentation thereof to the extent such are occasioned by any act or omission of PYRO, their officers, agents, contractors, providers, or
employees. CLIENT shall indemnify, hold harmless, and defend PYRO from and against any and all claims, actions, damages, liability and expenses, including
but not limited to, attorney and other professional fees and court costs in connection with (lie loss of life, personal injury, and/r damage to property, arising from
or out of the Production and the presentation thereof to the extent such are occasioned by any act or omission of CLIENT, its officers, agents, contractors,
providers, or employees. in no event shall either party be liable for the consequential damages of the other party.
H. Limitation of Danumes for Ordinary Breach - Except in the case of bodily injury and property damage as provided in the insurance and
indemnification provisions of Paragraphs 9 and 10, above, in the event CLIENT claims that PYRO has breached this Agreement or was otherwise negligent in
petfonning the Production provided for herein, CLIENT shall not be entitled to claim or recover monetary damages fiom PYRO beyond the amount CLIENT has
paid to PYRO under this Agreement, and shall not be entitled to claim or recover any consequential damages from PYRO including, without limitation, damages
for loss of income, business or profits.
12. Force Rlitieure - CLIENT agrees to assume Ore risks of weather, strike, civil unrest, terrorism, military action, governmental action, and any other
causes beyond the control of PYRO which may prevent the Production from being safely discharged on the scheduled date, which may cause the cancellation of
any event for which CLIENT has purchased the Production, m• which may affect or damage such portion of the exhibits as must be placed and exposed a
necessary time before the Production. If, for any such reason, PYRO is not reasonably able to safely discharge the Production on the scheduled date, or at the
scheduled time, or should any event for which CLIENT has purchased the Production be canceled as a result of such causes, CLIENT may (i) reschedule the
Production and pay PYRO such sums as provided in Paragraph 13, or (ii) cancel the Production and pay PYRO such suns as provided in Paragraph 14, based
upon when the Production is canceled.
13. ReschedtdLrg Ol' Lvent - If CLIENT elects to reschedule the Production, PYRO shall be paid the original Fee plus all additional expenses made
necessary by rescheduling plus it 15% service fee on such additional expenses. Said expenses will be invoiced separately and payment will be due in full within 5
days of receipt. CLIENT and PYRO shall agree upon the rescheduled date taking into consideration availability of permits, materials, equipment, transportation
and labor, The Production shall be rescheduled for a date not more than 90 Days subsequent to the date first set for the Production. The Production shall not be
rescheduled to a date, or for all event, that historically has involved a fireworks production. The Production shall not be rescheduled between June 15th and July
15t1r unless the original date was July 4th ofthat same year, or between December 15th and January 151h unless the original date was December 31st of the earlier
Y01' unless PYRO agrees that such rescheduling will not adversely affect nonoral business operations during those periods.
14. Right To Cancel — CLIENT shall have the option to unilaterally cancel the Production prior to the scheduled date. If CLIENT exercises this option,
CLIENT agrees to pay to PYRO, as liquidated damages, the following percentages of the Fee as set forth in Paragraph 3.1 I ) 50% il-cancellation occurs 30 or
more days prior to the scheduled date, 2) 75% ifcancellation occurs 15 to 29 days prior to the scheduled (late, 3) 100% thereafter. In the event CLIENT cancels
the Production, it will be impractical or extremely difficult to fix actual amount of PYRO's damages. The foregoing represents a reasonable estimate of the
damages PYRO will suffer if CLIENT cancels the Production.
15. No ,loin Venture - It is agreed, nothing in this Agreement or in PYRO's perfornance of the Production shall be consumed as forming a partnership or
joint venture between CLIENT and PYRO, PYRO shall be and is an independent contactor with CLIENT and not an employee of CLIENT, The Parties hereto
shall be severally responsible for their own separate debts and obligations and neither Party shall be held responsible for any agreements or obligations not
expressly provided for herein.
16. Applienbie Law - This Agreement and the rights and obligations of the Parties hereunder shall be construed in accordance with the laws of Califomia.
It is Further agreed that the Cental Judicial District of San Bernardino County, California, shall be proper venue for any such action. In the event that the scope of
the Production is reduced by authorities having,jmisdiction or by either Party for safety concems, the lull dollar annountS outlined in this Agreement are
enforceable
17. Notices - Any Notice to the Paries pennitted 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 — Tyro Spectaculars, Inc., P.O. Box 2329, Rialto, California, 92377, or forovemight delivery to 3196 N.
Locust Avenue, Rialto, Calilomia 92377. CLIENT -- Nemmi-t Dunes. 1131 Back Bar Drive. Newport Bench, CA 92660,
PSI V-2021-2
Pyro Spectaculars, Inc.
P.U. Box 2329
Rialto, CA 92377
Tel: 909-355-8120 :::: rax: 909-355-9813
Newport Dunes
Program A
July 4, 2021
Page 3 of 4
18. Modification of Terms —A] I tenns of the Agreement are in writing and may only be modified by written agreement of both Parties hereto. Both
Parties acknowledge they have received a copy of said written Agreement and agree to be bound by said terms of wtitten Agreement only.
19. Several)lilty — If there is more than one CLIENT, they shall be jointly and severally responsible to perform CLI ENT's obligations under this
Agreement. This Agreement shall become effective after it is executed and accepted by CLIENT and after it is executed and accepted by PYRO at PYRO's
offices in Rialto, California. This Agreement may be executed in several counterparts, including faxed and emailed copies, each one of which shall be deemed an
original against the Party executing same. This Agreement shall be binding upon the Parties hereto and upon their heirs, successors, executots, administrators and
assigns.
20. Price Fh•nt -- ]f any changes or alterations are made by CLIENT to this Agreement or if this Agreement is not executed by CLIENT and delivered to
TYRO on or before the PRICE FIRM date shown below, or if the Initial Payment is not paid on or before the due date, then the price, date, and scope of the
Production are subject to review and acceptance by PYRO for a period of 15 days following delivery to PYRO of the executed Agreement. in the event it is not
accepted by PYRO, PYRO shall give CLIENT written notice, and this Agreement shall be void.
PRICE FIRM through April 26, 2021
EXECUTED AGREEMENT MUST BE DELIVERED TO PYRO BY THIS DA'Z'E.
See PRICE FiRM conditions, paragraph 20, above.
EXECUTED as of the date first mitten above:
PYRO SPECTACULARS, INC.
Its: President
SHOW PRODUCER: Jeff Martin
PSI V-2021-2
Newport Dunes
By:
Its:
Print Name
Pyro Spectaculars, Inc. Newport Dunes
P.O. Box 2329 Program A
Rialto, CA 92377 July 4, 2021
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 Pyro Spectaculars, Inc., Production on .luly 4 2021, at approximately 9:00 p.m., at Newport Dunes waterfront resort
on the beach at Newport 1)uues, 1131 Back Bay Drive, Newport Beach, CA.
• All pyrotechnic equipment, trained pyrotechnicians, shipping, and pyrotechnic product.
• Preproduction Services and Costs for the Production, including advance acquisition of materials and products; design,
engineering, programming, handling, staging, storage, and maintenance of products, props, and systems; preparation of drawings,
diagrams, listings, schedules, inventory controls, choreography, and computer code; picking, packing, labeling, staging, and
loading of equipment, materials, and systems; transportation, and logistics and crew scheduling and support; explosive storage
magazines with legally mandated distances, surfaces, security, housekeeping, and access controls; and necessary and appropriate
vehicles, including legally mandated insurance, including MCS90 explosives transportation coverage, parking, security, and
maintenance.
• Application for specific pyrotechnic permits relating to the Production.
• Insurance covering the preproduction and Production as set forth in the Agreement with the following limits:
Inxurfinee Requirements Limits
Commercial General Liability $5,000,000.00 Combined Single Limit- Each Occurrence
(Bodily Injury & Property Damage)
Business Auto [Jabililv- $5,000,000.00 Combined Single Limit- Each Occurrence
OwnedNon-Owned and Hired Autos (Bodily Injury & Property Damage)
Workei_s' Compensation Statutory
Employer Liability $1,000,000 Per Occurrence
CLIENT shall provide to PYRO the following goods and services:
• All on-site labor costs, if any, not provided or performed by PYRO personnel including, but not limited to, local union
requirements, all Site security, Police and Fire Dept. standby personnel, stagehands, electricians, audio and fire control monitors,
carpenters, plumbers, clean-up crew. All these additional personnel and services shall be fully insured and the sole responsibility
of CLIENT.
• Coordination and any applicable non -pyrotechnic permitting with the local, state or federal government that may hold
authority within the Production.
• Costs of all permits required for the presentation of the Production and the event as a whole.
• Provision of a Safety Zone in accordance with applicable standards and all requirements of the authorities having jurisdiction
throughout the entire time that the pyrotechnics are at the Site or the load site (if different) on the date of the Production and all
set-up and load -out dates, including water security to keep unauthorized people, boats, etc. from entering the Safety Zone.
• 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.
PSI v-2021 __>
4�A�MWAM�4M AMM& WN AN
=rjW&&► /At. �I iMg _ _ Invoice
P.0. Bax 2329 d Naito. CA 92377 . t9O9) 355--8120
BIL TO SNIP TO
Newport Dunes
Helene Rochman
1131 Back Bay Drive
Newport Beach, CA 92660
- DATE - INVOICE # ~
3/30/2021 100
P.O. NO. I TEAMS
DUE: 4/26/2021
DESCRPTION AMOUNT -
INITIAL PRODUCTION FEE FOR SPECIAL FIREWORKS DISPLAY $17,500.00
ON July 4, 2021
PERMIT FEE:
PAYMENT DUE: April 26, 2021
FINAL PAYMENT DUE WILL BE INVOICED AT A LATER DATE
$920.00
.- -1- - ---
Total $18,420.00
Exhibit B
INSURANCE REQUIREMENTS
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) per
occurrence, two million dollars ($2,000,000) general aggregate. 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 or others
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 performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Grantee sixty (60) calendar days advance
DUNES RESORT, LLC Page B-2
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 Aqreement 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.
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
Franceschini, Melanie
From:
Customer Service <customerservice@ebix.com>
Sent:
Tuesday, June 29, 20216:15 PM
To:
Franceschini, Melanie; Insurance
Cc:
sagar@ebix.com
Subject:
Compliance Alert -Vendor Number FV00000555
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe.
This Account has moved from non-compliant to COMPLIANT status and is currently in compliance for certificate of
insurance requirements. FV00000555 Pyro Spectaculars, Inc.
Sent by Ebix, designated insurance certificate reviewer for the City of Newport Beach.