HomeMy WebLinkAboutC-7713-3 - Grant Agreement - Council Grant FY 2022-23 - 2022 Fourth of July Fireworks EventGRANT AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
DUNES RESORT, LLC
This Grant Agreement ("Agreement") is entered into this 21 st day of June, 2023
("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 whose address on file with the California Secretary of State is 6310 San
Vicente Boulevard, Unit 560, Los Angeles, California 90048, with a local address of 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.
RFCITAI R
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 Fourth
of July fireworks event ("Grant Proposal").
C. On March 9, 1998, the City Council adopted a policy, Co -Sponsorship of Annual
Fireworks Events, currently identified as Council Policy B-12, recognizing that an
annual Independence Day fireworks event provided by the private resort operated
within the lower Back Bay is a worthwhile event benefiting many residents, is
enjoyed by the citizens as a community and as a family event, and providing that
the City Council may annually budget an amount between $20,000 and $40,000
to support the event.
D. Consistent with Council Policy B-12, the City Council's approved budget for Fiscal
Year 2022-23 included grant funding in an amount between $20,000 and $40,000,
to support the 2023 annual fireworks event in the lower Back Bay.
E. The City Manager has authorized appropriation of the approved grant funding in
the amount of Thirty -Five Thousand Dollars and 00/100 ($35,000.00) ("Grant
Funds") to Grantee, subject 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 -Five Thousand
Dollars and 00/100 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
DUNES RESORT, LLC Page 1
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 at the time of execution of
this Agreement.
TERM
The term of this Agreement shall commence on the Effective Date and shall
continue in full force and effect until December 31, 2023, 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 or federal statutory or decisional law such as regulations affecting non-
profit or tax exempt organizations exempt from taxation pursuant to Section
501(c)(3) of the Internal Revenue Code.
3.2. Grantee further warrants to City that the Grant Funds will be spent solely for
the Approved Uses and the Grant Funds shall be used by Grantee during this
Agreement's term otherwise the Grant Funds shall be returned to City, as provided in
Section 5 below.
4. REPORTING AND ACCOUNTING REQUIREMENTS
4.1. At all times during the term of this Agreement, Grantee shall maintain true,
proper, and complete books, records, and accounts (collectively, "Books and Records")
in which shall be entered fully and accurately all transactions taken with respect to the
operations of Grantee under the Grant Proposal and the expenditure of the Grant Funds.
Grantee shall maintain the Books and Records in accordance with Generally Accepted
Accounting Principles. Grantee shall make available to City such Books and Records
upon City's request.
4.2. If the Grantee has been audited by an independent auditor or has been the
subject of a compliance audit/examination by a grantee or regulatory agency during the
past three years, audit reports and management letters indicating compliance violations,
fraud, illegal acts, material weaknesses in internal control structure or reportable
conditions, in connection with such audits shall be delivered to the City thirty (30) days
DUNES RESORT, LLC Page 2
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.
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
DUNES RESORT, LLC Page 3
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
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, 2023, 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
DUNES RESORT, LLC Page 4
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
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: City Manager
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658-8915
DUNES RESORT, LLC Page 5
10.3. All notices, demands, requests or approvals from City to Grantee shall be
addressed to Grantee at:
Attn: Michael Gelfund
DUNES RESORT, LLC
1131 Back Bay Drive
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.
DUNES RESORT, LLC Page 6
12.5. Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Grant Proposal or any other
attachments attached hereto, the terms of this Agreement shall govern.
12.6. Interpretation. The terms of this Agreement shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either
party by reason of the authorship of the Agreement or any other rule of construction which
might otherwise apply.
12.7. Amendments. This Agreement may be modified or amended only by a written
document executed by both Grantee and City and approved as to form by the City
Attorney.
12.8. Severability. If any term or portion of this Agreement is held to be invalid, illegal,
or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
of this Agreement shall continue in full force and effect.
12.9. Controlling Law And Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
12.10. Equal Opportunity Employment. Grantee represents that it is an equal
opportunity employer and it shall not discriminate against any contractor, employee or
applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age or any other impermissible basis under law.
12.11. No Attorneys 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: fI`rIa3
By:
A n C. Harp ►y • 23 wr
City Attorney
ATTEST:
Date: 112.
By: 06�m- 4-4m-e—�
Leilani I. Brown
City Clerk
L,I-aF:o�%
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: 26 �3
By:
Gr ce . Leung
C• anager
GRANTEE: DUNES RESORT, LLC, a
California limited liability company
Date:
Signed in Counterpart
By:
Michael D. Gelfand
Managing Partner
Date:
Signed in Counterpart
Bv:
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:
By. I rj�(Q,
A on4C,Harp Lo-iy-xs wc.
Ci y Attorney
ATTEST:
Date:
Bv:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: ----__—
By:
Grace K. Leung
City Manager
GRANTEE: DUNES RESORT, LLC, za
California limited liability company
Date:
By: LL
Michael D. Gelfan
Managing Partner
Date: 1 �3
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: I iy/23
By: C<<
A. C. Harp (0-14 - zs wc.
Ci y 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
Califorrsi a limited liability company
Date:
Bv:
Michael D. Gelfand
Managing Partner
Date:
Bv�.
/V
Michael Silverman
Managing Partner
Attachment: 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
2023
YRPO SPECTACULARS
mmmmmmmmm_-
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Pyrotechnic Proposal
Newport Dunes
July 4, 2023
February 6, 2023
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, 2023 event. The following proposal outlines your custom designed Sky
Concerti' Program "A" for the amount of $40,000.00. The various fireworks
elements provided are prepared to shoot from Newport Dunes Waterfront Resort
on the beach for approximately 18-20 minutes.
Our full service program includes necessary preproduction services, music
production and choreography, 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, and we apply for the necessary fireworks related permits. Our winning
combination of products, people, and production capabilities help produce the best
fireworks entertainment package for your event.
Your organization will be responsible for payment of 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, necessary security for the display site, and other
event permits.
Please review the enclosed Proposal, Product Synopsis, Production Agreement, and
Scope of Work in detail. In order to reserve your program, it is imperative that you
return the fully executed agreement, your initial payment, and permit fees to our
office by April 3, 2023, the price firm date in your production agreement. The
program, pricing, and show date may not be available beyond the price firm date.
If you wish to discuss your program or need more information, please call either
me or your Customer Service Representative Maria Barajas at (909) 355-8120 ext.
228.
Sincerely,
PYRO SPECTACULARS, INC.
Jeff Martin
Sales Manager
JM/mb
Enclosures
Pyro Spectaculars, Inc.
P.O. Box 2329 9 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, 2023
$40,00-0.00-
Main Body - Aerial Shells
Description
Quantity
♦
3" Sky Concert Selections
150
♦
4" Sky Concert Selections
90
♦
5" Sky Concert Selections
72
Total of Main Body - Aerial Shells
312
Pyrotechnic Devices
Description
Quantity
♦
Sousa Platinum Line Custom Multishot Device
300 Shots
♦
Sousa Diamond Line Custom Multishot Device
990 Shots
♦
Sousa Emerald Line Custom Multishot Device
600 Shots
♦
Sousa Sapphire Line Custom Multishot Device
1438 Shots
♦
Sousa Pearl Line Custom Multishot Device
100 Shots
♦
Sousa Pro-formance Mulitshot
844 Shots
Total of Pyrotechnic Devices
4,272
Grand
Finale
Description
Quantity
♦
2" Sky Concert Bombardment Shells
100
♦
2.5" Sky Concert Bombardment Shells
72
♦
3" Sky Concert Bombardment Shells
180
♦
4" Sky Concert Bombardment Shells
60
♦
5" Sky Concert Bombardment Shells
15
Total of Grand Finale
427
Grand Total 5,011
*Display duration approximately 18-20 minutes*
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, 2023
Tel: 909-355-8120 :::: Fax: 909-355-9813 Paac I of 4
PRODUCTION AGREEMENT
This agreement ("Agreement") is made this day of �v,2023 by 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 "Parties" herein.
1. Eneaeement - CLIENT hereby engages PYRO to provide to CLIENT one fireworks production ("Production"), and PYRO accepts such engagement
upon all of the promises, terms and conditions hereinafter set forth. The Production shall be substantially as outlined in Program "A", attached hereto and
incorporated herein by this reference.
1.1 PYRO Duties — PYRO shall provide all pyrotechnic equipment, trained pyrotechnicians, shipping, pyrotechnic products, application for
specific pyrotechnic permits (the cost of which, including standby fees, shall be paid by CLIENT) relating to the Production, insurance covering the
Production and the other things on its part to be performed, including preproduction services, all as more specifically set forth below in this Agreement
and in the Scope of Work ("Scope of Work"), attached hereto, incorporated herein by this reference, and made a part of this Agreement as though set
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 forth in Paragraph
6 hereof, access to the Site, any permission necessary to utilize the Site for the Production, and the other things on its part to be performed as more
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. 2023, at approximately 9:00 n.m., at Newport Dunes Waterfront Rosort on the beach
at Newport Doom 1131 Hark Bay Drive, Newportbeach, CA, Site.
3. Fees, interest. and Expenses -
3.1 Fee - CLIENT agrees to pay PYRO a fee of $40.000.00USD (FORTY THOUSAND DOLLARS) ("Fee") for the Production. CLIENT
shall pay to PYRO an initial payment ("Initial Payment") equal to 50 % of the Production Fee S20.000.00USD (TWENTY THOUSAND DOLLARS) plus
estimated permit and standby fees, and other regulatory costs approximated at S979.00 OR an amount to be determined, for a total of S20,975.00, upon the
execution of this Agreement by both parties but no later than April 3. 2023. 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 of the Fee shall be paid no later than July 5, 2023. CLIENT authorizes PYRO
to receive and verify credit and financial information concerting CLIENT from any agency, person or entity including but not limited to credit reporting agencies.
The "PRICE FIRM" date, the date by which the executed Agreement must be delivered to Pyro, is set forth in paragraph 20.
3.2 Interest - In the event that the Fee is not paid in a timely manner, CLIENT will be responsible for the payment of 1.5% 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 incurred in connection
with the litigation, including, but not limited to attorneys' fees.
3.3 Fxgenses PYRO shall pay all normal expenses directly related to the Production including freight, insurance as outlined, pyrotechnic
products, pyrotechnic equipment, experienced pyrotechnic personnel to set up and discharge the pyrotechnics and those additional items as outlined as PYRO's
responsibility in the Scope of Work. CLIENT shall pay all costs related to the Production not supplied by PYRO including, but not limited to, those items
outlined as CLIENT's responsibility in this Agreement and Scope of Work.
4. Proprietary Rights - PYRO represents and warrants that it owns all copyrights, including performance rights, to this Production, except that PYRO
does not own CLIENT -owned material or third -party -owned material that has been included in the Production, and as to such CLIENT -owned and third -party -
owned material, CLIENT assumes full responsibility therefore. CLIENT agrees that PYRO shall retain ownership of, and all copyrights and other rights to, the
Production, except that PYRO shall not acquire or retain any ownership or other rights in or to CLIENT -owned material and third -party -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 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. Safe - PYRO and CLIENT shall each comply with applicable federal, state and local laws and regulations and employ safety programs and measures
consistent with recognized applicable industry standards and practices. At all times before and during the Production, it shall be within PYRO's sole discretion to
determine whether or not the Production may be safely discharged or continued. It shall not constitute a breach of this Agreement by PYRO for fireworks to fail
or malfunction, or for PYRO to determine that the Production cannot be discharged or continued as a result of any conditions or circumstances affecting safety
beyond the reasonable control of PYRO.
6. Security - CLIENT shall provide adequate security personnel, barricades, and Police Department services as may be necessary to preclude individuals
other than those authorized by PYRO from entering an area to be designated by PYRO as the area for the set-up and discharge of the Production, including a
fallout area satisfactory to PYRO where the pyrotechnics may safely rise and any debris may safely fall. PYRO shall have no responsibility for monitoring or
controlling CLIENT's other contractors, providers or volunteers; the public; areas to which the public or contractors have access; or any other public or contractor
facilities associated with the Production.
7. Cleanup - PYRO shall be responsible for the removal of all equipment provided by PYRO and clean up of any live pyrotechnic debris made necessary
by PYRO. CLIENT shall be responsible for any other clean up which may be required of 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, 2023
Tel: 909-355-8120 :::: Fax: 909-355-9813 Page ? cif 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 other appropriate arrangements for Police Departments, other Fire Departments, road closures,
eventlactivity or land use permits or any permission or permit required by any Local, Regional, State or Federal Goverment.
9. Insurance - 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
Agreement; (2) automobile liability insurance, 0) workers' compensation insurance and employer liability insurance. Such insurance is to protect CLIENT from
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 asset forth in the Scope of Work. Such insurance shall not include claims which arise from CLIENT's
negligence or willful conductor from failure of CLIENT to perform its obligations under this Agreement, coverage for which shall be provided by CLIENT.
The coverage of these policies shall be subject to reasonable inspection by CLIENT. Certificates of Insurance 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 furnishing the necessary experience, personnel, equipment, materials, provider;,
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 insured, 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 Ate 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 casts 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 CLIENT, its officers, agents, contractors,
providers, or employees. In no event shall either party be liable for the consequential damages of the other party.
11. Limitation of Damages 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
performing the Production provided for herein, CLIENT shall not be entitled to claim or recover monetary damages from PYRO beyond the amount CLIENT has
paid to PYRO under this Agreement, and shall not be entitled to claim or recover any consequential damages from PYRO including, without limitation, damages
for loss of income, business or profits.
12. Force Ma ienrc -CLIENT agrees to assume the risks of weather, strike, civil unrest, terrorism, military action, governmental action, and any other
causes beyond the control of PYRO which may prevent the Production from being safely discharged an 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 Productiom if, for any such reason, PYRO is not reasonably able to safely discharge the Production on the scheduled date, or at Ate
scheduled time, or should any event for which CLIENT has purchased the Pmduction be canceled as a result of such causes, CLIENT may (i) reschedule the
Production and pay PYRO such sums as provided in Paragraph 13, or (ii) cancel the Production and pay PYRO such sums as provided in Paragraph 14, based
upon when the Production is canceled.
13. Rescheduling Of Event - If CLIENT elects to reschedule the Production, PYRO shall be paid the original Fee plus all additional expenses made
necessary by rescheduling plus a i S% 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 rot the Production. The Production shall not be
rescheduled to a date, or for an event, that historically has involved a fireworks production. The Production shall not be rescheduled between June t5th and July
15th unless the original date was July 4th of that same year, or between December 15th and January 15th unless the original date was December 31st of the earlier
year unless PYRO agrees that such rescheduling will not adversely affect normal business operations during those periods.
14. Riplit 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. L 1) 50% if cancellation occurs 30 or
more days prior to the scheduled date, 2) 75% if cancellation occurs 15 to 29 days prior to the scheduled date, 3) 100% thereafter. In the event CLIENT cancels
the Production, it will be impractical or extremely difficult to fix actual amount of PYRO's damages. The foregoing represents a reasonable estimate of the
damages PYRO will suffer if CLIENT cancels the Production.
15. No Joint Venture -It is agreed, nothing in this Agreement or in PYRO's performance of the Production shall be construed as forming a partnership or
joint venture between CLIENT and PYRO. PYRO shall be and is an 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 not
expressly provided for herein
16. .Applicable Low -This Agreement and the rights and obligations of the Parties hereunder shall be construed in accordance with the laws of California.
it is further agreed that the Central Judicial District of San Bernardino County, California, shall be proper venue for any such action. In the event that the scope of
the Production is reduced by authorities having jurisdiction or by either Party for safety concerns, the full dollar amounts outlined in this Agreement are
enforceable,
17. Notices - Any Notice to the Parties permitted or required under this Agreement may he given by mailing such Notice in the United States Mail,
postage prepaid, first class, addressed as follows: PYRO — Pyro Spectaculars, inc„ P.O. Box 2329, Rialto, California, 92377, or for overnight delivery to 3196 N.
Locust Avenue, Rialto, California 92377 CLIENT — Newport Dunes, 1131 Back Bay Drive, Newport Beach, CA 92660.
PSI V-2021-2
Pyro Spectaculars, Inc.
P.O. Box 2329
Rialto, CA 92377
Tel: 909-355-8120 :::: Fax: 909-355-9813
Newport Dunes
Program A
July 4, 2023
Pagc ; of 4
18, Modifreation of Terms -All terms of the Agreement are in writing and may only be modified by written agreement of both Parties hereto. Both
Parties acknowledge they have received a copy of said written Agreement and agree to be bound by said terms of written Agreement only.
19. Severabilit- If there is more than one CLIENT, they shall be jointly and severally responsible to perform CLIENT's obligations under this
Agreement. This Agreement shall become effective after it is executed and accepted by CLIENT and after it is exeeutcd and accepted by PYRO at PYRO's
offices in Rialto, California. This Agreement may be executed in scvvral counterparts, including faxed and emailcd copies, each one of which shall be deemed an
original against the Party executing same. This Agreement shall be binding upon the Parties hereto and upon their heirs, successors, executors, administrators and
assigns.
20. Price Firnt -if any changes or alterations are made by CLIENT to this Agreement or if this Agreement is not executed by CLIENT and delivered to
PYRO on or before the PRICE FIRM date shown below, 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 3, 2023
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.
1 f.
Its: President
Date:
SHOW PRODUCER: Jeff Martin
Newport Dunes
By. - - —
Its: fLrr/!i/G /C�/j�%✓ ---
Print Name
Date: Z Z/_z 3
PSI V-2021-2
Pyro Spectaculars, Inc. Newport Dunes
P.O. Box 2329 Program A
Rialto, CA 92377 July 4, 2023
Tel: 909-355-8120 :::: Fax: 909-355-9813 Pa,-c a of 4
SCOPE OF WORK
PYRO SPECTACULARS, INC. ("PYRO")
and
Newport Dunes ("CLIENT")
Pyro shall provide the following goods and services to CLIENT:
• One Pyro Spectaculars, Inc., Production on July 4, 2023, at approximately 9:00 p,m. at Newport Dunes Waterfront Resort
on the beach at Newport Dunes, 1131 Back Bav 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.
Musical soundtrack for the Production supplied in agreed upon format.
Insurance covering the preproduction and Production as set forth in the Agreement with the following limits:
Insurance Reuuirentents Limits
Commercial General Liability $5,000,000.00 Combined Single Limit- Each Occurrence
(Bodily Injury & Property Damage)
Business Auto Liabilitv- $5,000,000.00 Combined Single Limit- Each Occurrence
Owned. Non -Owned and Hired Autos (Bodily Injury & Property Damage)
Workers' Compensation Statutory
Employer Liability $1,000,000 Per Occurrence
CLIENT shall provide to PYRO the following goods and services:
• All on -site labor costs, if any, not provided or performed by PYRO personnel including, but not limited to, local union
requirements, all Site security, Police and Fire Dept. standby personnel, stagehands, electricians, audio and fire control monitors,
carpenters, plumbers, clean-up crew. All these additional personnel and services shall be fully insured and the sole responsibility
of CLIENT.
• Coordination and any applicable non -pyrotechnic permitting with the local, state or federal government that may hold
authority within the Production.
• Costs of all permits required for the presentation of the Production and the event as a whole.
• Provision of a Safety Zone in accordance with applicable standards and all requirements of the authorities having jurisdiction
throughout the entire time that the pyrotechnics are at the Site or the load site (if different) on the date of the Production and all
set-up and load -out dates, including water security to keep unauthorized people, boats, etc. from entering the Safety Zone.
• A professional grade Audio System including all necessary equipment, installation of such equipment and trained audio
engineers for operation based on audio and communications requirements provided by PYRO.
• General Services including, but not limited to, Site and audience security, fencing, adequate work light, 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-2021-2
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 10
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 11
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.
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 12
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