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HomeMy WebLinkAboutC-5673 - Production Agreement for Fireworks Productionro r U) AMENDMENT NO. ONE TO U PRODUCTION AGREEMENT WITH FIREWORKS AND STAGE FX AMERICA, INC. FOR FIREWORKS DISPLAY THIS AMENDMENT NO. ONE TO PRODUCTION AGREEMENT ("Amendment No. One") is made and entered into as of this 9th day of November, 2016 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City'), and FIREWORKS AND STAGE FX AMERICA, INC., a California corporation ("Contractor"), whose address is P.O. Box: 488, Lakeside, California 92040, and is made with reference to the following: RECITALS A. On June 13, 2014, City and Contractor entered into a Production Agreement ("Agreement") to engage Contractor to provide fireworks displays at City's 2014, 2015, and 2016 Independence Day celebration and Christmas Boat Parade ("Productions"). B. The parties desire to enter into this Amendment No. One to reflect additional Work not included in the Agreement, to extend the term of the Agreement to December 31, 2018, to amend the Fee for each fireworks display, to amend the City's administrative department, to update insurance requirements, and to amend City's notice provisions. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on the Effective Date, and shall terminate on December 31, 2018, unless terminated earlier as set forth herein." 2. WORK TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Work, attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Exhibit A to the Agreement and Exhibit A to this Amendment No. One shall collectively be known as "Exhibit A." The City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. COMPENSATION TO CONTRACTOR Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "4.1 City shall pay Contractor the following fee for each fireworks display ("Fee"): 4.1.1 Twenty Nine Thousand Five Hundred Dollars and 00/100 ($29,500.00) for each Independence Day Celebration fireworks display; 4.1.2 Ten Thousand Dollars and 00/100 ($10,000.00) for each Christmas Boat Parade fireworks display produced in the years 2014, 2015, and 2016; and 4.1.3 Eleven Thousand Dollars and 00/100 ($11,000.00) for each Christmas Boat Parade fireworks display produced in the years 2017 and 2018." 4. ADMINISTRATION Section 7 of the Agreement is amended in its entirety and replaced with the following: `This Agreement will be administered by the Recreation and Senior Services Department. City's Recreation Supervisor or designee shall be the Production Administrator and shall have the authority to act for City under this Agreement. The Production Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement." 5. INSURANCE Section 3(B) of Exhibit B to the Agreement is amended in its entirety and replaced with the following: "General Liability Insurance. Contractor 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 five million dollars ($5,000,000) per occurrence, ten million dollars ($10,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract." 6. NOTICES Section 16.2 of the Agreement is amended in its entirety and replaced with the following: "All notices, demands, requests, or approvals from Contractor to City shall be addressed to City at: Attn: Matt Dingwall, Recreation Supervisor Recreation & Senior Services Department City of Newport Beach 100 Civic Center Drive P.O. Box: 1768 Fireworks and Stage FX America, Inc. Page 2 Newport Beach, CA 92658 7. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Fireworks and Stage FX America, Inc. Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY' OFFICE Date: 114116 By: zg &-44�� Aaron C. Harp a+,•is�i City Attorney ATTEST: ASA I/ By: a� Am,— Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: i� • z`i 'v By: Cz La Detweiler J Recreation and Senior Services Director CONTRACTOR: Fireworks and Stage FX America, Inc., a California corporation By: Kevin l .Brueckner Chief Executive Officer Dc' Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Work Fireworks and Stage FX America, Inc. Page 4 EXHIBIT A SCOPE OF WORK Contractor shall provide to City fireworks displays as follows: Christmas Boat Parade (exact dates are to be determined): December 2017 December 2018 • One fireworks display beginning at approximately 6:00 p.m. and lasting for at least twenty (20) minutes with at least 828 aerial shells. • Location shall be at Newport Pier, or as otherwise specified by City. Fireworks and Stage FX America, Inc. Page A-1 col 17 +I, PRODUCTION AGREEMENT WITH FIREWORKS AND STAGE FX AMERICA, INC. U FOR FIREWORKS DISPLAY This PRODUCTION AGREEMENT ("Agreement") is made and entered into this 13th day of June, 2014 ("Effective Date") by and between CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and FIREWORKS AND STAGE FX AMERICA, INC., a California corporation, ("Contractor'), whose address is P.O. Box 488, Lakeside, California 92040, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Contractor to provide fireworks displays at City's 2014, 2015 and 2016 Independence Day celebration and Christmas Boat Parade ("Productions"). C. Contractor possesses the skill, experience, ability, background, certification and knowledge to provide the work described in this Agreement. D. City has solicited and received a proposal from Contractor, has reviewed the previous experience and evaluated the expertise of Contractor, and desires to retain Contractor to render services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date and shall terminate on December 31, 2016, unless terminated earlier as set forth herein. 2. WORK TO BE PERFORMED Contractor shall diligently perform all the work described in the Scope of Work attached hereto as Exhibit A and incorporated herein by reference ("Services' or 'Work"). As a material inducement to City entering into this Agreement, Contractor represents and warrants that it is a provider of first class work and is experienced in performing the Work contemplated herein. Fireworks & Stage FX America, Inc. Page 1 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Contractor shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Contractor to strictly adhere to the schedule set forth in Exhibit A or perform the services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor's reasonable control. However, in the case of any such delay in the Services to be provided for the Productions, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 4. COMPENSATION 4.1 City shall pay Contractor the following fee for each fireworks display ("Fee'): 4.1.1 Twenty Nine Thousand Five Hundred Dollars and 00/100 ($29,500.00) for each Independence Day Celebration fireworks display; and 4.1.2 Ten Thousand Dollars and 00/100 ($10,000.00) for each Christmas Boat Parade fireworks display. 4.2 Contractor's compensation for all Services performed in accordance with this Agreement, including all reimbursable items, if any, shall not exceed One Hundred Eighteen Thousand Five Hundred Dollars and 00/100 ($118,500.00) without prior written amendment to the Agreement. 4.3 Payment of the Fee for each fireworks display shall be made by City as follows: 4.3.1 Fifty percent (50%) of the Fee for the fireworks display shall be paid no later than forty-five (45) calendar days prior to the scheduled fireworks display date. 4.3.2 The remaining fifty percent (50%) of the Fee for the fireworks display shall be paid no later than thirty (30) calendar days after successful completion of the fireworks display. 5. LIQUIDATED DAMAGES 5.1 In the event City terminates this Agreement or an individual fireworks display for any reason other than for cause, City shall pay to Contractor liquidate damages as follows: Fireworks & Stage FX America, Inc. Page 2 5.1.1 Ninety-one or more (91+) calendar days prior to the scheduled fireworks display date: no liquidated damages. 5.1.2 From thirty to ninety (30-90) calendar days prior to the scheduled fireworks display date: fifty percent (50%) of the Fee for that fireworks display. 5.1.3 From fifteen to twenty-nine (15-29) calendar days prior to the scheduled fireworks display date: seventy-five percent (75%) of the Fee for that fireworks display. 5.1.4 Fewer than fifteen calendar days (<15) prior to the scheduled fireworks display date: one hundred percent (100%) of the stated Fee for that fireworks display. 6. PRODUCTION MANAGER 6.1 Contractor shall designate a Production Manager, who shall coordinate all phases of the Productions. This Production Manager shall be available to City at all reasonable times during the Agreement term. Contractor has designated Matthew Biolchino to be its Production Manager. Contractor shall not remove or reassign the Production Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Productions 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. 6.2 Contractor, at the sole discretion of City, shall remove from the Productions any of its personnel assigned to the performance of Services upon written request of City. Contractor warrants that it will continuously furnish the necessary personnel to complete the Productions on a timely basis as contemplated by this Agreement. 7. ADMINISTRATION This Agreement will be administered by the Finance Department. City's Purchasing Agent or designee shall be the Production Administrator and shall have the authority to act for City under this Agreement. The Production Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 8. PROPRIETARY RIGHTS Contractor represents and warrants that it owns all copyrights, including performance rights, to the Productions, except for City -owned or third -party -owned material that has been included in the Productions. As to such City -owned and third - party -owned material, City assumes full responsibility therefor. If applicable, City consents to the use of City -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 the Productions. Contractor reserves the ownership Fireworks & Stage FX America, Inc. Page 3 rights in its trade names that are used in or are a product of the Productions. Any reproduction by sound, video or other duplication or recording process without the express written permission of Contractor is prohibited; however, Contractor agrees that City may record and photograph and broadcast the Production on the City website and/or any non-commercial broadcast medium. 9. STANDARD OF CARE 9.1 All of the Services shall be performed by Contractor or under Contractor's supervision. Contractor represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first class firms performing similar work under similar circumstances. 9.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Contractor certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standards. 9.3 Contractor represents and warrants to City 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 whatsoever nature that are legally required of Contractor to practice its profession and perform Services under this Contract, including but not limited to Coastal Development Permit, if required. Contractor shall maintain a City of Newport Beach business license during the term of this Agreement. 9.4 Contractor shall not be responsible for delay, nor shall Contractor be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Contractor's Work promptly, or delay or faulty performance by City, City's contractors, or governmental agencies. 10. HOLD HARMLESS 10.1 To the fullest extent permitted by law, Contractor 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, attorneys' 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 any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, Fireworks & Stage FX America, Inc. Page 4 without limitation, defects in workmanship or materials or Contractor's presence or activities conducted on the Productions, including the negligent, reckless, and/or willful acts, errors and/or omissions of Contractor, 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. 10.2 Notwithstanding the foregoing, nothing herein shall be construed to require Contractor 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 attorneys' 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 Contractor. iiillIL4la]=I»L1I6]�'k9101010 �:7�C 617 It is understood that City retains Contractor on an independent contractor basis and Contractor is not an agent or employee of City. The manner and means of conducting the Work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. Nothing in this Agreement shall be deemed to constitute approval for Contractor or any of Contractor's employees or agents, to be the agents or employees of City. Contractor shall have the responsibility for and control over the means of performing the Work, provided that Contractors in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance of the Work or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Services. 12. INSURANCE Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor 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. 13. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: the sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Contractor is a Fireworks & Stage FX America, Inc. Page 5 partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Contractor. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 14. SUBCONTRACTING Contractor shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 15. CONFLICTS OF INTEREST 15.1 Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 15.2 If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 16. NOTICES 16.1 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. 16.2 All notices, demands, requests or approvals from XXX to City shall be addressed to City at: Attn: Anthony Nguyen, Purchasing Agent Finance Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Fireworks & Stage FX America, Inc. Page 6 Newport Beach, CA 92658 16.3 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Matthew Biolchino Fireworks & Stage FX America, Inc. P.O. Box 488 Lakeside, CA 92040 iF1��3A_\L'i6? Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. Contractor and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Contractor shall be required to file any claim Contractor may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 18. TERMINATION 18.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 18.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, to terminate this Agreement at any time by giving written notice to Contractor. In the event of termination under this Section, City shall pay for Services satisfactorily performed as of the effective date of termination as provided in Section 4 and any required liquidated damages as provided in Section 5, above. 19. STANDARD PROVISIONS 19.1 Recitals. City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. Fireworks & Stage FX America, Inc. Page 7 19.2 Compliance with all Laws. Contractor 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, all Work prepared by Contractor shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Production Administrator and City. 19.3 Waiver. A waiver by either party of any breach, or of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or of any other term, covenant or condition contained herein, whether of the same or a different character. 19.4 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. 19.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 19.6 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. 19.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 19.8 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. 19.9 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. 19.10 Equal Opportunity Employment. Contractor 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. Fireworks & Stage FX America, Inc. Page 8 19.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 19.12 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 (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Fireworks & Stage FX America, Inc. Page 9 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: A Aaron C. Harp City Attorney ATTEST: /,, Date: 6- CITY OF NEWPORT BEACH, a California municipal corporation Date: W 1-) I Dave Ki City Manager CONTRACTOR: Fireworks and Stage FX America, Inc., a California corporation Date: By: 0�&uBy: Leilani I. Brown Robert Wozniak City Clerk President Date: By: Kevin Brueckner General Manager [END OF SIGNATURES] Attachments: Exhibit A - Scope of Services Exhibit B - Insurance Requirements Fireworks & Stage FX America, Inc. Page 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'$ OFFICE 0 Aaron C. Harp City Attorney ATTEST: CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Dave Kiff City Manager CONTRACTOR: Fireworks and Stage FX America, Inc., a California corporation Date: By: By: Leilani I. Brown Robert Wozniak City Clerk President Date: fo-L- ►� >t { By: - - --- KaviVIIHeelmraK General Manager [END OF SIGNATURES] Attachments: Exhibit A - Scope of Services Exhibit B - Insurance Requirements Fireworks & Stage FX America, Inc. Page 10 EXHIBIT A SCOPE OF WORK Contractor shall provide to City fireworks displays as follows: Independence Day Celebration July 4, 2014 July 4, 2015 July 4, 2016 One fireworks display beginning at approximately 9:00 p.m. and lasting for at least twenty (20) minutes with at least 1000 aerial shells. Location shall be at Newport Dunes, 1131 Back Bay Drive, Newport Beach, on the west side of the lagoon, or as otherwise specified by City. Christmas Boat Parade (exact dates TBD) December 2014 December 2015 December 2016 One fireworks display beginning at approximately 6:00 p.m. and lasting for at least twenty (20) minutes with at least 828 aerial shells. Location shall be at Newport Pier, or as otherwise specified by City. General Responsibilities of Contractor 1. Provide all pyrotechnic product, equipment and trained pyrotechnicians. 2. Ensure that the fireworks perform within the industry standard of 97% success. 3. Apply for all required pyrotechnic permits relating to the Work. 4. Provide insurance covering the Work as set forth in Exhibit B. 5. Pay all expenses directly related to the Work, without reimbursement from City, including freight, shipping, insurance, pyrotechnic products, pyrotechnic equipment, pyrotechnic personnel and all required permits for the Productions. 6. Notify City immediately of any condition precluding the safe discharge of fireworks. 7. Remove all equipment after the fireworks display and clean up live pyrotechnic debris. Fireworks & Stage FX America, Inc. Page A-1 General Responsibilities of Citv 1. Provide Contractor a suitable site ("Site") for the Work. All Site arrangements are subject to Contractor's reasonable approval as to pyrotechnic safety, suitability and security. 2. Provide security, barricades and necessary Police Department services to preclude persons other than those authorized by Contractor from entering the designated set-up and discharge area. 3. Clean up all debris other than live pyrotechnic debris. 4. Ensure the adequacy all other conditions of the Site including access, use, control, parking and general safety with respect to the public, City personnel and other contractors. Fireworks & Stage FX America, Inc. Page A-2 The City of Newport Beach This is My Country July 4, 2014 Aerial Titanium Flash Salutes 3" 20 Color and Multi -Color Finale Shells 3" 20 Aerial Titanium Flash Salutes 3" 20 Color and Multi -Color Aerial Shells 4" 100 5" 50 Flitter, Glitter, Electric Color and Color Changing Shells 4" 80 5" 40 Distinctive and Unique Aerial Shells 4" 40 5" 20 Streaking Comets & Tiger Tails 3" 40 Multiple Shot Barrages provide fabric and texture to your display keeping an excellent and exciting pace. 25 Shot 8 200 Units of Fire 49 Shot 8 392 Units of Fire 100 Shot 6 600 Units of Fire 150 Shot 4 600 Units of Fire 300 Shot 2 600 Units of Fire Color and Multi -Color Finale Shells 2" 100 3" 200 4" 32 5" 8 Aerial Flash Salutes 3" 200 Aerial Shells 2" 100 3" 500 4 272 5" 128 Total Aerial Shells 1000 Total Units of Fire 2392 Total Program Price Inclusive of Insurance, Operator and Transportation Cost $29,500 Running Time: 20 - 22 Minutes The City of Newport Beach Boat Parade of Lights December, 2014 Proaram A Aerial Titanium Flash Salutes 2.5" 10 Color and Multi -Color Finale Shells 2.5" 10 W Aerial Titanium Flash Salutes 3" 5 Color and Multi -Color Aerial Shells 3" 70 4" 50 5" 18 6" 5 Flitter, Glitter, Electric Color and Color Changing Shells 3" 60 4" 36 5" 18 6" 5 Distinctive and Unique Aerial Shells 3" 50 4" 30 5" 8 6" 2 Streaking Comets & Tiger Tails 3" 30 Proaram A Color and Multi -Color Finale Shells 2.5" 165 3" 60 4" 16 Aerial Flash Salutes 2.5" 180 Aerial Shells Program A 2.5" 365 3" 275 4" 132 5" 44 6" 12 Total Aerial Shells 828 Total Program Price Inclusive of Insurance, Operator and Transportation Program A Cost $10,000 EXHIBIT B INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor 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. Contractor agrees to provide insurance in accordance with requirements set forth here. If Contractor uses existing coverage to comply and that coverage does not meet these requirements, Contractor 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. Workers' Compensation Insurance. Contractor shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Contractor 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 five million dollars ($5,000,000) per occurrence, five million dollars ($5,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Contractor arising out of or in connection with Work to be performed under this Fireworks & Stage FX America, Inc. Page B-1 Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than five million dollars ($5,000,000) combined single limit each accident. 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 elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. 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 and its officers, officials, employees, and agents shall be included as insureds under such policies. 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. Contractor 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. 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 Contractor sixty (60) calendar days advance written notice of such change. If such change results in substantial Fireworks & Stage FX America, Inc. Page B-2 additional cost to Contractor, City and Contractor may renegotiate Contractor's compensation. C. Enforcement of Agreement Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor 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. 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 Contractor or any subcontractor 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 Contractor'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 Contractor or reimbursed by Contractor upon demand. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance 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. Contractor's Insurance. Contractor 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 Work. Fireworks & Stage FX America, Inc. Page B-3 ACORO® CERTIFICATE OF LIABILITY INSURANCE DATE(MM`c 6/6/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsements . PRODUCER Britton Gallagher One Cleveland Center, Floor 30 1375 East 9th Street NAME: PHONE FAX E.ti-216-658-71 00 AIC No: EiAAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC9 Cleveland OH 44114 INSURERA:FVereSt Nat Onal Insurance Company 10120 /11/2015 INSURED INSURER S:Axis Surplus XAMAGE COMMERCIAL GENERAL LIABILITY INSURER C:Everest Fireworks & Stage FIX America, Inc. INSURER D P. 0. BOX 488 12650 Highway 67S Ste FA Lakeside CA 92040 INSURER E INSURER F COVERAGES CERTIFICATE NUMBER: 1676112639 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSR SUM WVD POLICYNUMBER POLICY EFF MMIDDIYYYY POLICY EXP MM/DDIYYYY LIMITS C GENERAL LIABILITY 18ML00059-141 11112014 /11/2015 EACH OCCURRENCE $1,000.000 XAMAGE COMMERCIAL GENERAL LIABILITY TO RENTED PREMISES Eacaumence 1 $300,000 MED EXP (Any one person) $ CLAIMS -MADE O OCCUR PERSONAL &ADV INJURY $1,000,000 GENERALAGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $2,000,000 1$ POUCV X PRO- LOC1 A AUTOMOBILE LIABILITY S18CA00032-141 111112014 111/2015 Ea accident ILE LIMIT 1000000 BODILY INJURY (Per person) $ X AINY AUTO BODILY INJURY (Par accident) $ ALL OWNED SCHEDULED AUTOS AUTOS NON -OWNED X HIRED AUTOS 'X AUTOS PROPERTY DAMAGE Per accident)$ BXUMBRELLA LIAR X OCCUR EAU771447 1/11/2014 /11/2015 EACH OCCURRENCE $4,000.000 AGGREGATE $4,000,000 EXCESS LIAB CLAIMS -MADE DED RETENTION $ WORK ERS COMPENSATION WCSTATU- OTH- AND EMPLOYERS' LIABILITY ANY PROPRIETORIPARTNERIEXECUTIVE YIN E.L. EACH ACCIDENT $ OFFICEBMEMBER EXCLUDED? (Mandatory in NH) NIA E.L. DISEASE - EA EMPLOYE $ E.L. DISEASE -POLICY LIMIT I $ If yes, describe under DESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space is required) Show Date: 7-04-14 City of Newport Beach; it's officers, agents, & employees when acting in their official capacity as such are named additional insured. The duly licensed pyrotechnic operator required by law to supervise and discharge the public display, acting either as an employee of the insured or as an independent contractor and the State of California, its officers, agents, employees, and servants are included as additional insurers. Coverage is primary and non-contributory. r FRTIPWATP MOI nFR CANCFL LATION ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Newport Beach ACCORDANCE WITH THE POLICY PROVISIONS. 3300 Newport Blvd. Newport Beach CA 92663 AUTHORIZED REPRESENTATIVE ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: SI8ML00059-141 COMMERCIAL GENERAL LIABILITY ECG 20 592 05 09 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Persons Or Organization(s) ANY PERSON OR LEGAL ENTITY IN WHICH YOU HAVE A WRITTEN CONTRACT, AGREEMENT, OR PERMIT WHICH REQUIRES THAT YOU NAME THE CONTRACTING PARTY AS AN ADDITIONAL INSURED. The City of Newport Beach, its officers, officials, employees and volunteers Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury', "property damage' or "personal and advertising injury" but only to the extent caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: 1. In the performance of your ongoing operations; or 2. In connection with your premises owned by or rented to you. B. The insurance afforded to an additional insured shall only include the insurance required by the terms of the written agreement and shall not be broader than the coverage provided within the terms of the Coverage Part. C. The Limits of Insurance afforded to an additional insured shall be the lesser of the following: 1. The Limits of Insurance required by the written agreement between the parties; or 2. The Limits of Insurance provided by this Cov- erage Part. D. With respect to the insurance afforded to an addi- tional insured, the following additional exclusion applies: This insurance does not apply to "bodily injury", "property damage" or "personal and advertising in- jury" arising out of any act or omission of an addi- tional insured or any of its employees. ECG 20 592 05 09 Copyright, Everest Reinsurance Company 2009 Page 1 of 1 O Includes copyrighted material of Insurance Services Office, Inc., used with its permission. POLICY NUMBER: SI8ML00059-141 COMMERCIAL GENERAL LIABILITY CG 29 88 10 93 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: OWNERS AND CONTRACTORS PROTECTIVE LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: The City of Newport Beach, its officers, officials, employees and volunteers (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV) is amended by the addition of the following: We waive any rights of recovery we may have against the person or organization shown in the Schedule above because of payments we make for "bodily injury" or "property damage" arising out of your ongoing operations. This waiver applies only to the person or organization shown in the Schedule above. CG 29 88 10 93 Copyright, Insurance Services Office, Inc., 1992 Page 1 of 1 0 Policy# SI8ML00059-141 COMMERCIAL GENERAL LIABILITY CG 20 0104 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PRIMARY AND NONCONTRIBUTORY - OTHER INSURANCE CONDITION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART The following is added to the Other Insurance Condition and supersedes any provision to the contrary: Primary And Noncontributory Insurance This insurance is primary to and will not seek contribution from any other insurance available to an additional insured under your policy provided that: (1) The additional insured is a Named Insured under such other insurance; and (2) You have agreed in writing in a contract or agreement that this insurance would be primary and would not seek contribution from any other insurance available to the additional insured. CG 20 01 04 13 © Insurance Services Office, Inc., 2012 Page 1 of 1 POLICYHOLDER COPY SP P.O. BOX 8192, PLEASANTON, CA 94588 CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 06-06-2014 CITY OF NEWPORT BEACH PO BOX 1768 NEWPORT BEACH CA 92658-8915 SP GROUP: POLICY NUMBER: 9080254-2014 CERTIFICATE ID: 14 CERTIFICATE EXPIRES: 07-14-2014 09-01-2014/07-14-2014 This is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the California Insurance Commissioner to the employer named below for the policy period that will expire or did expire as indicated above. This certificate of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded by the policy listed herein. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate of insurance may be issued or to which it may pertain, the insurance afforded by the policy described herein is subject to all the terms, exclusions, and conditions, of such policy. Authorized Representative President and CEO EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE. ENDORSEMENT X0015 ENTITLED ADDITIONAL INSURED EMPLOYER EFFECTIVE 2014-08-06 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. NAME OF ADDITIONAL INSURED: CITY OF NEWPORT BEACH ENDORSEMENT X2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 06-01-2014 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. ENDORSEMENT X2570 ENTITLED WAIVER OF SUBROGATION EFFECTIVE 2014-06-06 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. THIRD PARTY NAME: CITY OF NEWPORT BEACH EMPLOYER FIREWORKS & STAGE FX AMERICA, INC PO BOX 488 LAKESIDE CA 92040 SP [P11,SP] (REV.1-20121 PRINTED : 06-08-2014 WAIVER OF SUBROGATION NOTICE Enclosed is your copy of a certificate of insurance on which the certificate holder required a waiver of subrogation: 1. Please be advised that a waiver of subrogation requires that a 3% surcharge will be applied by State Fund ONLY to the premium assessed on the payroll of your employees earned while engaged in work for that certificate holder who requested the waiver. (Note: if you have no employee payroll on that job, then there is no charge.) 2. To apply the 3% surcharge, you must also agree to maintain accurately segregated payroll records for employees engaged in work on job/s for the certificate holder who has the waiver. The payroll records are subject to verification by an auditor. Example: Payroll for job: Sample Rate: Regular Premium equals: Surcharge: Additional Waiver charge: Total premium equals $5,000.00 13.300 $ 665.00 3.00% $ 19.95 $ 684.95 (665.00 + 19.95) t� PRODUCTION AGREEMENT WITH FIREWORKS & STAGE FX AMERICA, INC., FOR FIREWORKS U PRODUCTION This Production Agreement ("Agreement") is made this 151 day of December, 2013 ("Effective Date') by and between City of Newport Beach, a California municipal corporation and charter city, hereinafter referred to as "CITY", and Fireworks & Stage FX America, Inc., a California corporation, hereinafter referred to as "FIREWORKS AMERICA", whose address is P.O. Box 488, Lakeside, CA 92040. CITY and FIREWORKS AMERICA 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 December 31, 2013 unless terminated earlier as set forth herein. 2. ENGAGEMENT 2.1. CITY hereby engages FIREWORKS AMERICA to provide to CITY one (1) fireworks production ("Production"), and FIREWORKS AMERICA 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. FIREWORKS AMERICA Duties: FIREWORKS AMERICA shall provide all pyrotechnic equipment, trained pyrotechnicians, shipping, application for specific pyrotechnic permits relating to the Production (the cost of which, including standby Fees, shall be paid by CITY), 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. CITY Duties: CITY shall provide to FIREWORKS AMERICA 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 FIREWORKS AMERICA's reasonable approval as to pyrotechnic safety, suitability, and security. All other conditions of the Site shall be the responsibility of CITY, including, but not limited to, access, use, control, parking and general safety with respect to the public, CITY personnel and other contractors. 3. TIME AND SITE The Production shall take place on December 18, 2013, at approximately 6:00 m., and the Site shall be at Newport Pier, Newport Beach, CA. 4. 1. Fee: CITY agrees to pay FIREWORKS AMERICA a fee of Ten Thousand Dollars and 001100 ($10,000.00) ("Fee') for the Production. CITY shall pay to FIREWORKS AMERICA a deposit of fifty percent (50%) of the Fee upon execution of thee Agreement and the remaining fifty percent (50%) of the Fee no later than December 31, 2013. 4.2. Expenses: FIREWORKS AMERICA 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 FIREWORKS AMERICA's responsibility in the Scope of Work. CITY shall pay all costs related to the Production not supplied by FIREWORKS AMERICA including, but not limited to, those items outlined as CITY's responsibility in this Agreement and Scope of Work. 5. PROJECT MANAGER FIREWORKS AMERICA 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. FIREWORKS AMERICA has designated Matthew Biolchino to be its Project Manager. FIREWORKS AMERICA 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. N�11111M. :; ! This Agreement will be administered by the Recreation and Senior Services Department. The Recreation and Senior Services Director or designee, shall be the Project Administrator and shall have the authority to act for CITY under this Agreement. The Project Administrator or designee shall represent CITY in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. PROPRIETARY RIGHTS FIREWORKS AMERICA represents and warrants that it owns all copyrights, including performance rights, to this Production, except that FIREWORKS AMERICA does not own CITY -owned material or third -party -owned material that has been included in the Production, and as to such CITY -owned and third -party -owned material, CITY assumes full responsibility therefore. CITY agrees that FIREWORKS AMERICA shall retain ownership of, and all copyrights and other rights to, the Production, except that FIREWORKS AMERICA shall not acquire or retain any ownership or other rights in or to CITY -owned material and third -party -owned material and shall not be responsible in any way for such material. If applicable, CITY consents to the use of CITY 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 Fireworks & Stage FX America, Inc. Page 2 this Production. FIREWORKS AMERICA 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 FIREWORKS AMERICA is prohibited; however, FIREWORKS AMERICA agrees that CITY may record and broadcast the display on the City website and/or any non- commercial broadcast medium. _ •_-• • �: 8.1. FIREWORKS AMERICA and CITY 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 FIREWORKS AMERICA'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 FIREWORKS AMERICA for fireworks to fail or malfunction as set forth herein, or for FIREWORKS AMERICA 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 FIREWORKS AMERICA. CITY recognizes that because of the nature of fireworks, an industry accepted level of three percent (3%) of the product used in any display may not function as designed and this level of nonperformance is acceptable as a full performance. 8.2. The Production shall be performed by FIREWORKS AMERICA or under FIREWORKS AMERICA's supervision. FIREWORKS AMERICA 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 carried out by qualified and experienced personnel who are neither employed by CITY, nor have any contractual relationship with CITY. 8.4. FIREWORKS AMERICA represents and warrants to CITY 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 are legally required of FIREWORKS AMERICA to practice its profession. FIREWORKS AMERICA shall maintain a City of Newport Beach business license during the term of this Agreement. 8.5. FIREWORKS AMERICA shall not be responsible for delay, nor shall FIREWORKS AMERICA 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 FIREWORKS AMERICA's work promptly, or delay or faulty performance by CITY or governmental agencies. Fireworks & Stage FX America, Inc. Page 3 9. SECURITY CITY shall provide adequate security personnel, barricades, and Police Department services as may be necessary to prevent individuals other than those authorized by FIREWORKS AMERICA from entering an area to be designated by FIREWORKS AMERICA as the area for the set-up and discharge of the Production, including a fallout area satisfactory to FIREWORKS AMERICA where the pyrotechnics may safely rise and any debris may safely fall. FIREWORKS AMERICA shall have no responsibility for monitoring or controlling CITY's other providers, vendors or volunteers; the public, areas to which the public or vendors have access; or any other public or private facilities associated with the Production. 10. CLEANUP FIREWORKS AMERICA shall be responsible for the removal of all equipment provided by FIREWORKS AMERICA and clean up of any live pyrotechnic debris associated with the Production. 11. PERMITS FIREWORKS AMERICA 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, those required by the Newport Beach Fire Department, FAA, USCG, and the State of California, as may be required. CITY shall be responsible for any fees associated with these permits including standby fees. 12. INSURANCE 12.1. FIREWORKS AMERICA shall at all times during the performance of services herein ensure that the following insurance, as set forth in Exhibit A, is maintained in connection with FIREWORKS AMERICA'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 CITY from claims for bodily injury, including death, personal injury, and from claims of property damage, which may arise from FIREWORKS AMERICA's performance of this Agreement, only. The types and amounts of coverage shall be as set forth in Exhibit A. Such insurance shall not include claims which arise from CITY's negligence or willful conduct or from failure of CITY to perform its obligations under this Agreement, coverage for which shall be provided by CITY. The coverage of these policies shall be subject to reasonable inspection by CITY. Fireworks & Stage FX America, Inc. Page 4 13.1. FIREWORKS AMERICA 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, FIREWORKS AMERICA shall indemnify, hold harmless, and defend CITY 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 FIREWORKS AMERICA, its officers, agents, contractors, providers, or employees. 13.2. CITY shall indemnify, hold harmless, and defend FIREWORKS AMERICA 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 CITY, 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 CITY agrees to assume the risks of weather, strike, civil unrest, terrorism, military action, governmental action, and any other causes beyond the control of FIREWORKS AMERICA which may prevent the Production from being safely discharged on the scheduled date, which may cause the cancellation of any event for which CITY has purchased the Production, or which may affect or damage such portion of the pyrotechnics as must be placed and exposed a necessary time before the Production. If, for any such reasons, FIREWORKS AMERICA is not reasonably able to safely discharge the Production on the scheduled date, or at the scheduled time, or should any event for which CITY has purchased the Production be canceled as a result of such causes, CITY may cancel the Production and pay FIREWORKS AMERICA such sums as provided in Paragraph 15, based upon when the Production is canceled. 15. RIGHT TO CANCEL CITY shall have the option to unilaterally cancel the Production prior to the scheduled date. If CITY exercises this option, CITY agrees to pay to FIREWORKS AMERICA, as liquidated damages, the following percentages of the Fee as set forth in Paragraph 4.1: (1) Fifty percent (50%) if cancellation occurs 30 to 90 days prior to the scheduled date; (2) Seventy-five percent (75%) if cancellation occurs 15 to 29 days prior to the scheduled date; (3) One hundred percent (100%) thereafter. In the event CITY cancels the Production, it will be impractical or extremely difficult to fix actual amount of FIREWORKS AMERICA's damages. The foregoing represents a reasonable Fireworks & Stage FX America, Inc. Page 5 estimate of the damages FIREWORKS AMERICA will suffer if CITY cancels the Production 16. NO JOINT VENTURE It is agreed, nothing in this Agreement or in FIREWORKS AMERICA's performance of the Production shall be construed as forming a partnership or joint venture between CITY and FIREWORKS AMERICA. FIREWORKS AMERICA shall be and is an independent contractor with CITY and not an employee of CITY. 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. 17. NOTICES 17.1. 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 CITY to FIREWORKS AMERICA shall be addressed to FIREWORKS AMERICA at: Fireworks & Stage FX America, Inc. PO Box 488 Lakeside, CA 92040 17.2. All notices, demands, requests or approvals from FIREWORKS AMERICA to CITY shall be addressed to CITY at: Attn: Recreation and Senior Services Director City of Newport Beach PO Box 1768 Newport Beach, CA 92658 18. STANDARD PROVISIONS 18.1. Compliance with all Laws. FIREWORKS AMERICA 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 FIREWORKS AMERICA 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 CITY. 18.2. 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 Fireworks & Stage FX America, Inc. Page 6 breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 18.3. 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. 18.4. 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. 18.5. 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. 18.6. Amendments. This Agreement may be modified or amended only by a written document executed by both FIREWORKS AMERICA and CITY and approved as to form by the CITY's City Attorney. 18.7. 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. 18.8. 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. 18.9. Equal Opportunity Employment. FIREWORKS AMERICA 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. 18.10. 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. 18.11. 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. 18.12. Claims. FIREWORKS AMERICA and the CITY expressly agree that in addition to any claims filing requirements set forth in the Agreement, FIREWORKS AMERICA shall be required to file any claim FIREWORKS AMERICA may have against Fireworks.g- FX America, Inc. '.R' the CITY in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). [SIGNATURES ON NEXT PAGE] Fireworks & Stage FX America, 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 ATTORNEY'S OFFICE Date:J2- By:OC Aaron C. Har City Attorney ATTEST: Date: — ab 3 By: Dc Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: la -5- t 3 By: La ra Detweile Re tion and Senior Services Director FIREWORKS & STAGE FX AMERICA, INC., a California corporation Date: By: Kevin Brueckner General Manager Date: Bv: Robert Wozniak President [END OF SIGNATURES] Attachments : Exhibit A - Scope of Work 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: U-3-13 By: t Aaron C. Ha City Attorney ATTEST: Date.- By: ate: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Laura Detweiler Recreation and Senior Services Director FIREWORKS & STAGE FX AMERICA, INC., a Ca orrtia corporation Date: By: Kevin Brueckner General Manager Date: r By; F. Robert Wozniak President [END OF SIGNATURES] Attachments : Exhibit A - Scope of Work EXHIBIT A SCOPE OF WORK FIREWORKS AMERICA shall provide the following goods and services to CITY: 1. One (1) Fireworks America pyrotechnics display ("Production") on December 18, 2013 at approximately 6:00 PM for at least twenty minutes at Newport Pier, Newport Beach, CA. 2. All pyrotechnic equipment, trained and licensed pyrotechnicians, shipping, set up, operation, strike, all pyrotechnic products applications for specific pyrotechnic permits relating to the production. 3. Musical soundtrack for the Production supplied a format to be agreed upon by the Parties. 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 FIREWORKS AMERICA. 5. Insurance covering the Production as set forth in the Agreement with the following limits: Insurance Requirements Limits • Commercial General Liability $5,000,000 Combined Single Limit- Each Occurrence (Bodily Injury & Property Damage) • Business Auto Liability- $5,000,000 Combined Single Limit- Each Occurrence Owned, Non -Owned and Hired Autos (Bodily Injury & Property Damage) • Workers' Compensation Statutory limits • Employer Liability $1,000,000 Per Occurrence CITY shall provide to FIREWORKS AMERICA the following goods and services: All on-site labor cost, if any, not provided or performed by FIREWORKS AMERICA 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 CITY. 2. Coordination of any applicable non -pyrotechnic permitting with the local, state or federal government relating to the Production. Fireworks & Stage FX America, Inc. Page 10 3. Cost of all permits required for the presentation of the Production and the event as a whole. 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 FIREWORKS AMERICA personnel within the venue, secure parking for FIREWORKS AMERICA vehicles, access to washrooms, tents, equipment storage, hazmat storage, electrical power, fire suppression equipment, access to worksites, necessary credentialing, etc., as required and as necessary. Fireworks & Stage FX America, Inc. Page 11 acoR10 CERTIFICATE OF LIABILITY INSURANCE DATE MM@° 1112512 13 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsements . PRODUCER Britton Gallagher One Cleveland Canter, Floor 30 1375 East 9th Street CONTCT NAME: PHONE F -65P-71 00 C, Ng1216"(" AID,E-MAIL ADDRESS INSURER(S)AFFORDINGCOVERAGE NAILIF Cleveland OH 44114 WSURERA Rhira in Tran v r0. 111@013 11172014 INSURED INSURER aAxiS26620 f-exinclon Ins Co Fireworks & Stage FIX America, Inc. __19437 NSURER ° P. 0. Box 488 12650 Highway 67S Ste FA Lakeside CA 92040 INSURER E $50,600 MED EXP (Ary one person) $ INSURER F: COVERAGES CERTIFICATE NUMBER: 1911 RA07R REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR L TYPE OF INSURANCEADOLSUBR IN POLICY NUMBER POLICY EFF I POLICY E%P MM@D)YEA LIMITS C GENERAL LIABILITY 1619322AB 111@013 11172014 EACHOCCURRENCE $1,000,000 X COMMERGU,L GENERA!lIABIITY AMA ET RENTED PREMISES $50,600 MED EXP (Ary one person) $ CLAIMS -MADE KI OCCUR PERSONAL B ADV INJURY $1 1000;000 GENERAL AGGREGATE $2000000 GENL AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMPIOPAGG $2000000 $ POLICY %( PRO- LOC JECT A AUTOMOBILE LIABILITYCA626568612 1/1112010 /11/2014 Eaaaideot 1000000 BODILY INJURY (Per person) $ X ANY AUTO BODILY INJURY (Par accidem) Perrac idenOPERTY j AMAGE $ $ ALL OWNED SCHEDULED AUTOS AUTOS— X X NON -OWNED HIRED AUTOS AUTOS B UMBRELLA LIAR X OCCUR EAU771447 1/1112019 /11!2014 EACH OCCURRENCE 54,000,000 AGGREGATE $4,000,000 X EXCESS UAB CLAIMS -MADE DED RETENTIONS s WORKERS COMPENSATION Vic STATU- j4rH- AND EMPLOYERS` LIABILITY ANY PROPRIETORtPARTNERIEXECLITIVE � OFFICERIMEMBER EXCLUDED? (Mandatory In NIN NIA Et. EACH ACCIDENT E.L. DISEASE - EA EMPLOYE $ S E. L. DISEASE -POLICY LIMB $ Me, Describe under pESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORO 101. Additional Remarks Schedule, if more space is required) Show Date: 12-15-13 City of Newport Beach; its officers, agents, & employees when acting in their official capacity as such are named additional Insured. Coverage is primary and non-contributory. The duly licensedpyrotechnic operator required by law to supervise and discharge the public display, acting either as an employee of the insured or as an independent contractor and the State of California, its officers, agents, employees, and servants are included as additional insurers. CFRTIFICATF Hint nFR CANCFI I ATICN 01988.2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Newport Beach ACCORDANCE WITH THE POLICY PROVISIONS. 3300 Newport Blvd. Newport Beach CA 92663 AUTHORIZED REPRESENTATIVE �Adra'"`JAM, 01988.2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 16193 22-05 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART, SCHEDULE Name of Person or organization: The City of Newport Beach, its officers, officials, employees and volunteers (If no an" appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement,) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you. CG 20 26 1185 Copyright, Insurance Services Office, Inc., 1984 Page I of 1 11 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement, effective 12:01 A.M. 1/11/13 forms part of Policy No. 1619322-05 issued to The City of Newport Beach, its oRcers, officials, employees and volunteer; by Fireworks & Stage F/X America, Inc. PRIMARY COVERAGE FOR SPECIFIED PERSONS OR ORGANIZATIONS NAMED AS ADDITIONAL INSUREDS — ONGOING AND COMPLETED OPERATIONS This endorsement modifies insurance provided under the fo/%wing.• COMMERCIAL GENERAL LIABILITY COVERAGE FORM The following paragraph is added to SECTION 11— WHO IS AN INSURED and applies only to persons or organizations we have added to your policy as additional insureds by endorsement to comply with insurance requirements of written contracts relative to: a) the performance of your ongoing operations for the additional insures; or b) "your work" performed for the additional insureds and included in the "products -completed operations hazard: This insurance is primary over any similar insurance available to any person or organization we have added to this policy as an additional insured. However, this insurance is primary over any other similar insurance only if the additional insured is designated as a named insured in the Declarations of the other similar insurance. We will not require contribution of limits from the other similar insurance if the insurance afforded by this endorsement is primary. This insurance is excess over any other valid and collectible insurance, whether primary, excess, contingent or on any other basis, if it is not primary as defined in the paragraph above. All other terms and conditions of the policy are the same accaR& CERTIFICATE OF LIABILITY INSURANCE 1zr5rzo awl THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the poiicy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsemen s . PRODUCER Britton Gallagher One Cleveland Canter, Floor 30 1375 East 9th Street NAME: ,�......... PHONE A No1:216 65 EMIL ADOREss: AFFORDING COVERAGE .............._ NAM # Cleveland OH 44114 .....INSURER(n INSURER A:NeW Hanupshir_e Insurance Co- 3841 PREMISES Ea occarrerce $50,000 _ INSURED dbiweERB:Axis---plus Insurance Company INSURERS: QL*a_] iC CO INSURER D: Fireworks & Stage FIX America, Inc. P. O. Box 488 12650 Highway 67S Ste FA Lakeside CA 92040 INSURER E CLAIMS -MAGE � OCCUR INSURER F COVERAGES CERTIFICATE NUMBER: 1750884863 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ILSR TYPE OF INSURANCE INS POLICY NUMBER POLICY ERF POLIDYEXP LIMITS C GENERAL LIABILITY 1619322-D5 111112013 111112014 EACHOCCURRENCE $1,ODQ,000 PREMISES Ea occarrerce $50,000 X COMMERCIAL GENERAL LIABILITY CLAIMS -MAGE � OCCUR MED EXP (Any one person $ PERSONAL &ADV INJURY $1�00004Q GENERAL AGGREGATE $2000000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMPIOPAGG $2,000000 $_.... POLICY X PRO- LOC A AUTOMOBILE LIABILITY CA626668612 /11/2013 11112014 $1,,000000 BODILY INJURY (Per person) $ X ANYAUTO BODILY INJURY (Per accitlen0 $ ALL OWNED F7 SCHEDULEDAUTOS AUTOS PROPERTY DAMAGE Per accitlent S NON -OWNED X HIRED AUTO$ X AUTOS $ B UMBREL(.A LIAe X OCCUR EAU771447 111112013 /IV2014 EACH OCCURRENCE $4,000,000 AGGREGATE $_4,000,ODO X E%CESS UAB CLAMAS-MADE ( $ DED REiENTkJN$ WORKERS COMPENSATION I STAT) GTN• WC LIM / FR AND EMPLOYERS' LIABILITY ANYPROPRIETOPRARTNER ECUTNE YIN --- E.L.EACHACCIDENT $ OFFICERIMEMBER EXCLUDED? NIA (Mandatory in NH) E.L. DISEASE -EA EMPLOYE $ E.L. DISEASE - POLICY LIMIT $ ms. deacribe under CRIPTION OF OPERATIONS bebw DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) Show Date: 12-18-13 & 12-22-13 Show Location: Newport Beach Pier, Newport Beach CA & Balboa Pier, Newport Beach CA ADDITIONAL INSUREDS: Newport Beach Chamber of Commerce, Ruby Restuarant Group, City of Newport Beach, Newport Beach Fire Department; its officers, agents, & employees when acting in their official capacities as such. The duly licensed pyrotechnic operator required by law to supervise and discharge the public display, acting either as an employee of the insured or as an independent contractor and the State of California, its officers, agents, employees, and servants are included as additional insurers. f:FRTIPUrATP RICH nFR rAMrF1 1 ATInN O 1988.2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Newport Beach Chamber of Commerce ACCORDANCE WITH THE POLICY PROVISIONS. 1470 Jamboree Road _ Newport Beach CA 92660 AUTHORIZED REPRESENTATIVE O 1988.2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 1619422:05 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART, SCHEDULE Name of Person or Organization: The City of Newport Beach, its officers, officials, employees and volunteers (if no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement ) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown In the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you CG 20 26 11 S5 Copyright, Insurance Services Office, Inc., 1984 Page I of 1 0 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement, effective 12:01 A.M. 1/11113 forms part of Policy No. 1619322-05 Issued to The City of Newport Beach, its officers, officials, employees and volunteers by Fireworks & Stage F/X America, Inc. PRIMARY COVERAGE FOR SPECIFIED PERSONS OR ORGANIZATIONS NAMED AS ADDITIONAL INSUREDS — ONGOING AND COMPLETED OPERATIONS This endorsement modifies insurance provided underfhe fol/owing.• COMMERCIAL GENERAL LIABILITY COVERAGE FORM The following paragraph is added to SECTION II — WHO IS AN INSURED and applies only to persons or organizations we have added to your policy as additional insureds by endorsement to comply with insurance requirements of written contracts relative to: a) the performance of your ongoing operations for the additional insures; or b) "your work" performed for the additional insureds and included in the "products -completed operations hazard: This insurance is primary over any similar insurance available to any person or organization we have added to this policy as an additional insured. However, this insurance is primary over any other similar insurance only if the additional insured is designated as a named insured in the Declarations of the other similar insurance. We will not require contribution of limits from the other similar insurance if the insurance afforded by this endorsement is primary. This insurance is excess over any other valid and collectible insurance, whether primary, excess, contingent or on any other basis, if it is not primary as defined in the paragraph above. All other terms and conditions of the policy are the same