CONTRACT 3484 CLOSEDAgreement No. 4 8 4 • ,
CONTRACT FOR SERVICES
BETWEEN
THE CITY OF EL SEGUNDO AND
FIREWORKS & STAGE FX AMERICA, INC.
This AGREEMENT is entered into this 3,( day of May, 2005, by and between the
CITY OF EL SEGUNDO, a general law city and municipal corporation ( "CITY ") and
FIREWORKS & STAGE FX AMERICA, INC. dba FIREWORKS AMERICA, a California
Corporation (Corp. No. C1870512; "CONTRACTOR ").
1. CONSIDERATION.
A. As partial consideration, CONTRACTOR agrees to perform the work listed in the
SCOPE OF SERVICES, below;
B. As additional consideration, CONTRACTOR and CITY agree to abide by the
terms and conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay CONTRACTOR as set forth in
attached Exhibit "A," which is incorporated by reference.
2. NON - APPROPRIATION OF FUNDS. Payments due and payable to CONTRACTOR for
current services are within the current budget and within an available, unexhausted and
unencumbered appropriation of the CITY. In the event the CITY has not appropriated sufficient
funds for payment of CONTRACTOR services beyond the current fiscal year, this Agreement
will cover only those costs incurred up to the conclusion of the current fiscal year.
3. SCOPE OF SERVICES.
A. CONTRACTOR will perform services listed in the attached Exhibit `B," which is
incorporated by reference.
B. CONTRACTOR must comply with all applicable federal, state, and local
regulations for staging and storing fire works;
C. At least two (2) weeks before July 4, 2005, CONTRACTOR must meet with
CITY's Fire Marshal to review staging and firing layouts;
D. CITY may require CONTRACTOR to alter staging or firing layouts to comply
with FAA and Los Angeles Air Force Base requirements.
4. LICENSE. Beginning July 3, 2005, CITY grants CONTRACTOR a license to enter and use
the baseball field located at 400 Eucalyptus Drive, El Segundo, CA for the purposes set forth in
this Agreement. This license will terminate on July 5, 2005. CONTRACTOR may secure the
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staging area to prevent public entry for the duration of this license. This license will be renewed
upon the same terms for Services performed in 2006 and 2007.
5. TERM. The term of this Agreement is from April 1, 2005 through July 5, 2007. Unless
otherwise determined by written amendment between the parties, this Agreement will terminate
in the following instances:
A. Completion of the work specified in Exhibit `B ";
B. Termination as stated in Section 12.
6. OPTIONS. Subject to the pricing adjustment set forth below, CITY and CONTRACTOR
agree that CONTRACTOR will perform the same Services as set forth in this Agreement for
July 4, 2006 and July 4, 2007. The terms and conditions set forth in this Agreement will apply
to performances on this date except that CONTRACTOR may increase the cost of its services by
not more than ten percent (10 %) for each subsequent performance, unless otherwise agreed by
the parties through written amendment to this Agreement.
7. TIME FOR PERFORMANCE. CONTRACTOR will not perform any work under this
Agreement until it furnishes proof of insurance as required by this Agreement. Should
CONTRACTOR begin work on any phase in advance of receiving written authorization to
proceed, any such professional services are at CONTRACTOR's own risk.
8. TAXPAYER IDENTIFICATION NUMBER. CONTRACTOR will provide CITY with a
Taxpayer Identification Number.
9. PERMITS AND LICENSES.
A. CONTRACTOR, at its sole expense, will obtain and maintain during the term of
this Agreement, all necessary permits, licenses, and certificates that may be
required in connection with the performance of services under this Agreement.
B. CONTRACTOR has a Pyrotechnic Operator License,
number _ that expires on i 30
10. PROJECT COORDINATION AND SUPERVISION.
A. Bill Elias will be assigned as Project Manager and will be
responsible for j ob performance, negotiations, contractual matters, and
coordination with CITY's Project Manager.
B. Judy Andoe will be assigned as CITY's Project Managers and will be personally
in charge of and personally supervise the execution of the Project on a day -to -day
basis on behalf of CITY and will maintain direct communication with
CONTRACTOR's Project Manager.
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11. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by
PYRO under this Agreement will not be construed to operate as a waiver of any rights CITY
may have under this Agreement or of any cause of action arising from CONTRACTOR's
performance. A waiver by CITY of any breach of any term, covenant, or condition contained in
this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant, or condition contained in this Agreement, whether of the same or different
character.
12. TERMINATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any time
with or without cause, orally or in writing. CONTRACTOR may terminate this
Agreement upon thirty (30) days written notice to CITY.
B. Should the Agreement be terminated pursuant to this Section, CITY may procure
on its own terms services similar to those terminated.
13. INDEMNIFICATION.
A. CONTRACTOR indemnifies and holds CITY harmless from and against any
claim, action, damages, costs (including, without limitation, attorney's fees),
injuries, or liability, arising from CONTRACTOR's performance of this
Agreement. Should CITY be named in any suit, or should any claim be brought
against it by suit or otherwise, whether the same be groundless or not, arising out
of this Agreement, or its performance, CONTRACTOR will defend CITY (at
CITY's request and with counsel satisfactory to CITY) and will indemnify CITY
for any judgment rendered against it or any sums paid out in settlement or
otherwise.
A. For purposes of this section "CITY" includes CITY's officers, officials,
employees, agents, representatives, and volunteers.
B. It is expressly understood and agreed that the foregoing provisions will survive
termination of this Agreement.
C. The requirements as to the types and limits of insurance coverage to be
maintained by CONTRACTOR as required by Section 16, and any approval of
said insurance by CITY, are not intended to and will not in any manner limit or
qualify the liabilities and obligations otherwise assumed by CONTRACTOR
pursuant to this Agreement, including, without limitation, to the provisions
concerning indemnification.
14. ASSIGNABILITY. This Agreement is for CONTRACTOR's unique services.
CONTRACTOR's attempts to assign the benefits or burdens of this Agreement without CITY's
written approval are prohibited and will be null and void.
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15. INDEPENDENT CONTRACTOR. CITY and CONTRACTOR agree that
CONTRACTOR will act as an independent contractor and will have control of all work and the
manner in which is it performed. CONTRACTOR is free to contract for similar service to be
performed for other employers while under contract with CITY. CONTRACTOR is not an agent
or employee of CITY and is not entitled to participate in any pension plan, insurance, bonus or
similar benefits CITY provides for its employees. Any provision in this Agreement that may
appear to give CITY the right to direct CONTRACTOR as to the details of doing the work or to
exercise a measure of control over the work means that PYRO will follow the direction of the
CITY as to end results of the work only.
16. INSURANCE.
A. Before commencing performance under this Agreement, and at all other times this
Agreement is effective, CONTRACTOR must procure and maintain the following
types of insurance with coverage limits complying, at a minimum, with the limits
set forth below:
Type of Insurance Limits (combined single)
Commercial general liability: $5,000,000
Business automobile liability $1,000,000
Workers compensation Statutory requirement.
B. Commercial general liability insurance will meet or exceed the requirements of
the most current ISO -CGL Form. The amount of insurance set forth above will
be a combined single limit per occurrence for bodily injury, personal injury, and
property damage for the policy coverage. Liability policies will be endorsed to
name City, its officials, and employees as "additional insureds" under said
insurance coverage and to state that such insurance will be deemed "primary"
such that any other insurance that may be carried by City will be excess thereto.
Such insurance will be on an "occurrence," not a "claims made," basis and will
not be cancelable or subject to reduction except upon thirty (3 0) days prior written
notice to City.
C. Automobile coverage will be written on ISO Business Auto Coverage Form CA
00 0106 92, including symbol 1 (Any Auto).
D. CONTRACTOR must furnish to City duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement,
endorsements as required herein, and such other evidence of insurance or copies
of policies as may be reasonably required by City from time to time. Insurance
must be placed with insurers with a current A.M. Best Company Rating
equivalent to at least a Rating of "A:VII."
E. Should CONTRACTOR, for any reason, fail to obtain and maintain the insurance
required by this Agreement, CITY may obtain such coverage at
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CONTRACTOR's expense and deduct the cost of such insurance from payments
due to CONTRACTOR under this Agreement or terminate.
17. NOTICES. All communications to either party by the other party will be deemed made
when received by such party at its respective name and address as follows:
CITY
Judy Andoe
City of El Segundo
350 Main Street
El Segundo, CA 90245
Fax: (310) 647 -4223
CONTRACTOR
Fireworks America
PO Box 488
Lakeside, CA 92040
Fax:
Any such written communications by mail will be conclusively deemed to have been received by
the addressee upon deposit thereof in the United States Mail, postage prepaid and properly
addressed as noted above. In all other instances, notices will be deemed given at the time of
actual delivery. Changes may be made in the names or addresses of persons to whom notices are
to be given by giving notice in the manner prescribed in this paragraph.
18. SOLICITATION. CONTRACTOR maintains and warrants that it has not employed nor
retained any company or person, other than CONTRACTOR's bona fide employee, to solicit or
secure this Agreement. Further, CONTRACTOR warrants that it has not paid nor has it agreed
to pay any company or person, other than CONTRACTOR's bona fide employee, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting
from the award or making of this Agreement. Should CONTRACTOR breach or violate this
warranty, CITY may rescind this Agreement without liability.
19. INTERPRETATION. This Agreement was drafted in, and will be construed in accordance
with the laws of the State of California, and exclusive venue for any action involving this
agreement will be in Los Angeles County.
20. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the entire
understanding of the parties. There are no other understandings, terms or other agreements
expressed or implied, oral or written. There are two (2) Attachments to this Agreement. This
Agreement will bind and inure to the benefit of the parties to this Agreement and any subsequent
successors and assigns.
21. EFFECT OF CONFLICT. In the event of any conflict, inconsistency, or incongruity
between any provision of this Agreement, its attachments, the purchase order, or notice to
proceed, the provisions of this Agreement will govern and control.
22. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review
this Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a
whole, and in accordance with its fair meaning; it will not be interpreted strictly for or against
either Party.
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23. SEVERABILITY. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the
extent necessary in the opinion of the court to render such portion enforceable and, as so
modified, such portion and the balance of this Agreement will continue in full force and effect.
24. AUTHORITY /MODIFICATION. The Parties represent and warrant that all necessary
action has been taken by the Parties to authorize the undersigned to execute this Agreement and to
engage in the actions described herein. This Agreement may be modified by written amendment.
CITY's city manager, or designee, may execute any such amendment on behalf of CITY.
25. ACCEPTANCE OF FACSIMILE SIGNATURES. The Parties agree that this Agreement,
agreements ancillary to this Agreement, and related documents to be entered into in connection
with this Agreement will be considered signed when the signature of a party is delivered by
facsimile transmission. Such facsimile signature will be treated in all respects as having the
same effect as an original signature.
26. COVENANTS AND CONDITIONS. The parties agree that all of the provisions hereof
will be construed as both covenants and conditions, the same as if the words importing such
covenants and conditions had been used in each separate paragraph.
27. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
28. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
29. STATEMENT OF EXPERIENCE. By executing this Agreement, CONTRACTOR
represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity
to perform the Agreement in a manner satisfactory to CITY. CONTRACTOR represents that its
financial resources, surety and insurance experience, service experience, completion ability,
personnel, current workload, experience in dealing with private parties and experience in dealing
with public agencies all suggest that CONTRACTOR is capable of performing the proposed
contract and has a demonstrated capacity to deal fairly and effectively with and to satisfy a
public agency.
IN WITNESS WHEREOF the parties hereto have executed this contract the day and year
first hereinabove written.
CITY OF EL SEGUNDO,
general law city.
tr y Manager
FIREWORKS & STAGE FX AMERICA, INC.
a California Corporation.
f-
G�F�
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ATTEST:
Secretary
Cindy Mort n,
City Clerk
APPROVED AS TO FORM:
MARK D. HENSLE CITY ATTORNE
By:
Karl H. Berger, Assistant City Attorney
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City of E/ Segundo
Liberty For All
July 4, 2005
Announcement Barrage Aerial Grand Finale
Program A Program A
Aerial Titanium Flash Salutes
3" 10
Color and Multi -Color Finale Shells
2.5" 10
Aerial Show Presentation
Aerial Titanium Flash Salutes
3" 10
Color and Multi -Color Aerial Shells
3" 80
4" 40
Flitter, Glitter, Electric Color and
Color Changing Shells
3" 60
4" 30
Distinctive and Unique Aerial Shells
3" 30
4" 20
Streaking Comets & Tiger Tails
3" 30
Premium Aerial Shells
3" 10
4" 10
Assorted Colorful Mines
3" 0
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EXHIBIT B
SCOPE OF SERVICE!
Color and Multi -Color Finale Shells
2.5" 100
3" 100
4" 24
Aerial Flash Salutes
3" 60
Bore Exhibition Candles
24 Assorted Exhibition Candles
Grand Totals
Aerial Shells
2.5" 110
3" 390
4" 124
Total Aerial Shells
624
Plus Exhibition Candles
Price
Total Program Price Inclusive of
Insurance, Operator and
Transportation
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Cost $15,000
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City of E/ Segundo
Show Concept, Services List,
and Miscellaneous Details
Services List:
Fireworks America to Provide: City of El Segundo to Provide:
1) Permit Filings as Required
2) Storage and Delivery of fireworks
3) All Equipment to produce the display
4) Insurance Aggregate amount of
$2,000,000 (Sample attached)
5) Worker's Compensation Insurance
(Statute)
6) Permit and Fire Fees as needed
and Assistants:
1) A Suitable Firing Site
2) Adequate Security for Firing Site
3) Sand & Sand Removal, if req'd
Fireworks America will provide the services of a State Licensed Pyrotechnic
Operator and experienced crew to fire your display. The entire crew will be
covered under Fireworks America's Worker's Compensation Insurance.
Pavment Terms:
50% Deposit on Contract Execution, Balance Net 10 Days
Method of Discha
The show will be fired electrically. Each fireworks event will have its own
ignitor for precise timing. Fireworks America will provide the firing panel,
cable, distribution system and power for the show.
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Agreement No.3 4 8 4
EXHIBIT B
SCOPE OF SERVICES
1. CONTRACTOR agrees to furnish CITY a fireworks display as follows:
2. Method of Discharge: The show will be fired electrically. Each fireworks event will have its
own igniter for precise timing. CONTRACTOR to provide the firing panel, cable, distribution
system and power for the show.
3. Program will be performed on July 4, 2005 at El Segundo Recreation Park, El Segundo,
California. The display is to be all electrically fired, without music, and run a minimum of thirty
(30) minutes in length without "breaks" (no more than three (3) second intervals per fireworks).
4. CITY, at its own expense, agrees to provide CONTRACTOR with:
A. A suitable DISPLAY SITE in which to stage the fireworks display, including a
firing and fallout zone reasonable acceptable to CONTRACTOR in which the
fireworks and firework debris may be exhibited, rise and fall safely;
B. Adequate policing , guard protection, roping, fencing and /or other crowd control
measures to prevent the access of the public or its property or any other people or
property not authorized by CONTRACTOR into the DISPLAY SITE;
C. The services and cost of standby firefighters and/or any applicable permit fees as
required by state and local statutes, ordinances or regulations;
D. Access by CONTRACTOR, at all reasonable times, to the DISPLAY SITE to set
up the display. If CITY does not comply with requirements A, B, C and/or D,
CONTRACTOR need not perform the Agreement and CITY agrees to pay
CONTRACTOR the entire contract price.
E. If, in its sole discretion, CITY, designates an area for members of the public to
view the display ( "Spectator Area ") and /or an area for parking vehicles ( "Parking
Area "), the CITY will ensure that the Spectator Area does not infringe on the
Display Area; be solely responsible for ensuring that the terrain of the Spectator
Area and any structures thereon, including, without limitation, grandstands and
bleachers, are safe for use by spectators; be solely responsible for ensuring that
the Parking Area is safe for use; be solely responsible for policing, monitoring
and controlling spectator access to the Spectator Area and the Parking Area and
police, monitor and appropriately control the behavior of persons in these areas.
F. It is expressly agreed that CONTRACTOR (including its operators and helpers)
will not inspect, police, monitor or otherwise supervise any area of the site other
than the Display Area, except to ensure: that any Spectator or Parking Areas are
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outside the Display Area; and after completion of the Display, that the Display
Area is cleared of any live firework debris originating from the program.
G. CITY agrees to assume the risk of weather, or other causes beyond
CONTRACTOR's control, which may prevent that display from being safely
discharged on the scheduled date, which may cause the cancellation of any event
for which CITY has purchased the display, or which may affect or damage such
portion of the exhibits as must be placed and exposed a necessary time before the
display.
H. It is within CONTRACTOR's reasonable discretion to determine whether or not
the display may be safely discharged on the scheduled date and at the scheduled
time. If, for any reason beyond CONTRACTOR's control, including, without
limitation, inclement weather, CONTRACTOR is unable to safely discharge the
display on the scheduled date or should any event for which CITY has purchased
the display be cancelled, the parties will attempt to negotiate a new display date,
which must be within sixty (60) days of the original display date.
CONTRACTOR reserves the ownership rights and trade names that are used in or
are a product of the pyrotechnic display to be performed herein. Any
reproduction by sound, video or other duplication or recording process without
the express written permission of CONTRACTOR is prohibited.
CITY recognizes that because of the nature of fireworks, an industry accepted
level of 3% of the product used in any display may not function as designed and
this level of non - performance is acceptable as full performance.
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