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HomeMy WebLinkAboutC-5173 - Production Agreement for Fireworks ProductionPRODUCTION AGREEMENT v WITH EXPOSHOWS, INC. FOR FIREWORKS PRODUCTION —� This Production Agreement ( "Agreement ") is made this �� day of �1 UVLQ i 2012 ( "Effective Date') by and between ExpoShows, Inc., a California corporation, hereinafter referred to as ( "EXPO "), and City of Newport Beach, hereinafter referred to as ( "CLIENT "), EXPO and CLIENT are sometimes referred to as "Party" or collectively as "Parties" herein. 1. TERM The term of this Agreement shall commence on the ( "Effective Date "), and shall terminate on October 1, 2012 unless terminated earlier as set forth herein. 2. ENGAGEMENT 2.1. CLIENT hereby engages EXPO to provide to CLIENT one (1) fireworks production ( "Production "), and EXPO accepts such engagement upon all of the promises, terms and conditions hereinafter set forth. The Production shall be substantially as outlined in Exhibit A, attached hereto and incorporated herein by this reference. 2.2. EXPO Duties — EXPO 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, insurance covering 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 ( "Scope of Work "), attached hereto, incorporated herein by this reference, and made a part of this Agreement as though set forth fully herein. 2.3. CLIENT Duties — CLIENT shall provide to EXPO a suitable site ( "Site ") for the Production, security for the Site as set forth in Paragraph 9 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 EXPO'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. 3. TIME AND PLACE The Production shall take place on July 4, 2012, at approximately 9:00 PM, at Newport Dunes, west side of the lagoon, 1131 Back Bay Drive, Newport Beach, CA ( "Site "). 4. COMPENSATION 4.1. Fee — CLIENT agrees to pay EXPO a fee of $24,500.00 USD (TWENTY FOUR THOUSAND FIVE HUNDRED DOLLARS) ( "FEE ") for the Production. CLIENT shall pay to EXPO $12,250.00 USD (TWELVE THOUSAND TWO HUNDRED FIFTY DOLLARS) of the Fee plus estimated permit and standby fees, specified production costs, and other regulatory costs approximated at $0.00, for a total of $12,250.00 as a deposit ( "Deposit ") upon the execution of this Agreement by both parties but no later than June 30, 2012. The balance of the Fee shall be paid no later than July 5, 2012. 4.1.1. CLIENT authorizes EXPO to receive and verify credit and financial information concerning CLIENT from any agency, person or entity including but not limited to credit reporting agencies. 4.2. Expenses — EXPO 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 EXPO'S responsibility in the Scope of Work. CLIENT shall pay all costs related to the Production not supplied by EXPO including, but not limited to, those items outlined as CLIENT's responsibility in this Agreement and Scope of Work. 5. PROJECT MANAGER EXPO shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. EXPO has designated David MacCormick to be its Project Manager. EXPO shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office. The City Manager or his /her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her designee shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. PROPRIETARY RIGHTS EXPO represents and warrants that it owns all copyrights, including performance rights, to this Production, except that EXPO 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 EXPO shall retain ownership of, and all copyrights and other rights to, the Production, except that EXPO shall not acquire or retain any ExpoShows, Inc. Page 2 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. EXPO 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 EXPO is prohibited. 8. STANDARD OF CARE 8.1. EXPO 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 EXPO'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 EXPO for fireworks to fail or malfunction, or for EXPO 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 EXPO. 8.2. The Production shall be performed by EXPO or under EXPO's supervision. EXPO represents that it possesses the professional and technical personnel required to provide the Production required by this Agreement, and that it will perform in a manner commensurate with the highest industry standards. For purposes of this Agreement, the phrase "highest industry standards" shall mean those standards of practice recognized by one (1) or more first -class firms performing similar work under similar circumstances. 8.3. The Production shall be performed by qualified and experienced personnel who are not employed by CLIENT, nor have any contractual relationship with CLIENT. 8.4. EXPO represents and warrants to CLIENT that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of any nature that is legally required of EXPO to practice its profession. EXPO shall maintain a City of Newport Beach business license during the term of this Agreement. 8.5. EXPO shall not be responsible for delay, nor shall EXPO be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove EXPO's work promptly, or delay or faulty performance by CLIENT, EXPOs, or governmental agencies. ExpoShows, Inc. Page 3 9. SECURITY CLIENT shall provide adequate security personnel, barricades, and Police Department services as may be necessary to preclude individuals other than those authorized by EXPO from entering an area to be designated by EXPO as the area for the set -up and discharge of the Production, including a fallout area satisfactory to EXPO where the pyrotechnics may safely rise and any debris may safely fail. EXPO shall have no responsibility for monitoring or controlling CLIENT's other EXPOs, providers or volunteers; the public, areas to which the public or EXPOs have access; or any other public or EXPO facilities associated with the Production. 10.CLEANUP EXPO shall be responsible for the removal of all equipment provided by EXPO and clean up of any live pyrotechnic debris made necessary by EXPO. 11. PERMITS EXPO agrees to apply for and obtain all necessary licenses and /or permits required for the discharge of pyrotechnics at the Site including, but not limited to, the Newport Beach Fire Department, FAA, USCG, and the State of California, as may be required. CLIENT shall be responsible for any fees associated with these permits including standby fees. CLIENT shall be responsible for making other appropriate arrangements for Police Departments, other Fire Departments, and road closures, if necessary. 12.INSURANCE 12.1. EXPO shall at all times during the performance of services herein ensure that the following insurance is maintained in connection with EXPO's performance of the 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. 12.2. 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 EXPO'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 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. 12.3. Certificates of Insurance evidencing the required general liability coverage shall be furnished to CLIENT prior to the rendering of services hereunder and shall include the following: (1) that it may not be canceled or modified without the insurance carrier providing at least thirty (30) days prior written notice to CLIENT; and (2) that the ExpoShows, Inc. Page 4 following are named as additionally insured: CLIENT; Sponsors, Landowners, Barge Owners, if any; and Permitting Authorities, with respect to the operations of EXPO 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. Evidence of other insurance shall be provided upon CLIENT's written request to EXPO. 13. INDEMNIFICATION 13.1. EXPO represents and warrants that it is capable of furnishing 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, EXPO 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 the presentation thereof to the extent such are occasioned by any act or omission of EXPO, their officers, agents, contractors, providers, or employees. 13.2. CLIENT shall indemnify, hold harmless, and defend EXPO 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 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 the sole negligence or willful misconduct 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. 14. FORCE MAJURE CLIENT agrees to assume the risks of weather, strike, civil unrest, terrorism, military action, governmental action, and any other causes beyond the control of EXPO which may prevent the Production from being safely discharged on the scheduled date, which may cause the cancellation of any event for which CLIENT has purchased the Production, or which may affect or damage such portion of the exhibits as must be placed and exposed a necessary time before the Production. If, for any such reasons, EXPO 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 EXPO such sums as provided in Paragraph 13 or (ii) cancel the Production and pay EXPO such sums as provided in Paragraph 14, based upon when the Production is canceled. 15.RESCHEDULING OF EVENT If CLIENT elects to reschedule the Production, EXPO shall be paid the original Fee plus all additional expenses made necessary by rescheduling plus a 15% service ExpoShows, Inc. Page 5 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 EXPO 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 an event, that historically has involved a fireworks production. The Production shall not be rescheduled between June 15th 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 EXPO agrees that such rescheduling will not adversely affect normal business operations during those periods. 16. 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 EXPO, as liquidated damages, the following percentages of the Fee as set forth in Paragraph 4.1: 1) 50% if cancellation occurs 30 to 90 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 EXPO's damages. The foregoing represents a reasonable estimate of the damages EXPO will suffer if CLIENT cancels the Production 17. NO JOINT VENTURE It is agreed, nothing in this Agreement or in EXPO's performance of the Production shall be construed as forming a partnership or joint venture between CLIENT and EXPO. EXPO 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. 18. NOTICES 18.1. All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first - class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from CLIENT to EXPO shall be addressed to EXPO at: ExpoShows, Inc. PO Box 5590 Santa Monica, CA 90409 18.2. All notices, demands, requests or approvals from EXPO to CLIENT shall be addressed to CLIENT at: ExpoShows, Inc. Page 6 City Manager City of Newport Beach PO Box 1768 Newport Beach, CA 92658 19.PRICE FIRM If any changes or alterations are made by CLIENT to this Agreement or if this Agreement is not executed by CLIENT and delivered to EXPO on or before the PRICE FIRM date shown below, then the price, date and scope of the Production are subject to review and acceptance by EXPO for a period of 15 days following delivery to EXPO of the executed Agreement. In the event it is not accepted by EXPO, EXPO shall give CLIENT written notice, and this Agreement shall be void. PRICE FIRM through June 1, 2012 EXECUTED AGREEMENT MUST BE DELIVERED TO EXPO BY THIS DATE. 20. STANDARD PROVISIONS 20.1. Compliance with all Laws. EXPO shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, the Production prepared by EXPO shall conform to applicable local, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and CLIENT. 20.2. 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. 20.3. 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. 20.4. Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Work or any other attachments attached hereto, the terms of this Agreement shall govern. 20.5. 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. 20.6. Amendments. This Agreement may be modified or amended only by a written document executed by both EXPO and CLIENT and approved as to form by the CLIENT'S City Attorney. ExpoShows, Inc. Page 7 20.7. 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. 20.8. 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. 20.9. Equal Opportunity Employment. EXPO represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 20.10. 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. 20.11. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. 20.12. Claims. EXPO and the CLIENT expressly agree that in addition to any claims filing requirements set forth in the Agreement, EXPO shall be required to file any claim EXPO may have against the CLIENT in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). [SIGNATURES ON NEXT PAGE] ExpoShows, Inc. Page 8 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTO EY'S OFFICE Date: S %� By: Aaron grp City Attorney ATTEST: Date: Z By: ✓��� Wn i rown City Clerk •u �� C9��xORtn�h ATTACHMENTS: Exhibit A A 12-00354 CITY OF NEWPORT BEACH, A California municipal corporation Date: S A �Z By:� lt✓1 Dave Kiff City Manager EXPOSHOWS, INC., a California corporation Date: �► Name: 1,1z f Date: By: Name: Title: [END OF SIGNATURES] Scope of Work SCOPE OF WORT( EXPO shall provide the following goods and services to CLIENT: 1. One (1) ExpoShows, Inc. Fireworks display ( "Production ") on July 4, 2012 at approximately 9:00 PM for twenty minutes at Newport Dunes, west side of the lagoon, 1131 Back Bay Drive, Newport Beach, CA. 2. All pyrotechnic equipment, trained and licensed pyro technicians, shipping, set up, operate, strike, all Pyrotechnic products Application for specific pyrotechnic permits relating to the production. 3. Musical soundtrack for the production supplied in the agreed upon format. 4. A professional grade Sound System including all necessary equipment, installation of such equipment and trained audio engineers for operation based on audio and communications requirements provided by EXPOSHOWS. 5. Insurance covering the Production as set forth in the Agreement with the following limits: Insurance Requirements Limits o Commercial General Liability $2,000,000.00 Combined Single Limit- Each Occurrence (Bodily Injury & Property Damage) a Business Auto Liability- $5,000,000.00 Combined Single Limit- Each Occurrence Owned, Non -Owned and Hired Autos (Bodily Injury & Property Damage) C Workers' Compensation Statutory © Employer Liability $1,000,000.00 Per Occurrence CLIENT shall provide to EXPO the following goods and services: 1. All on -site labor cost, if any, not provided or performed by EXPO personnel including, but not limited to, local union requirements, all Site security, Police and Fire Department standby personnel, stagehands, Electricians, audio and fire control monitors, carpenters, and plumbers. All these additional personnel and services shall be fully insured and the sole responsibility of CLIENT. 2. Coordination and any applicable non - pyrotechnic permitting with the local, state or federal government that may hold authority within the Production. 3. Cost of all permits required for the presentation of the Production and the event as a whole. ExpoShows, Inc. Page 10 4. Provision of 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 sight (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. 5. General Services including, but not limited to, Site and audience security, fencing, adequate work light, dumpster accessibility, a secure office for EXPO personnel within the venue, secure parking for EXPO 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. ExpoShows, Inc. Page 11