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CITY OF DANA POINT

AGENDA REPORT DATE: FEBRUARY 19, 2019 TO: CITY MANAGER/CITY COUNCIL FROM: MIKE KILLEBREW, ASSISTANT CITY MANAGER

BRIAN MCCLURE, DEPUTY DIRECTOR OF COMMUNITY SERVICES

SUBJECT: AWARD OF CONTRACT FOR THE 4TH OF JULY AERIAL

FIREWORKS DISPLAY RECOMMENDED ACTION: That the City Council authorize the City Manager to execute a contract with Garden State Fireworks, Inc., in an amount not to exceed $98,900 for 4th of July fireworks and barge services. BACKGROUND: On December 19, 2018, a Request For Proposals was distributed to seven qualified firms to submit proposals for the annual Fourth of July fireworks display. The City requested RFPs from Volt Live, Garden State Fireworks, Pyro Spectacular, Exposhows Inc., Zambelli Fireworks, Fireworks America and Devastating Pyro. The 2019 RFP requested 2,055 total shells and will last approximately 20 minutes. The following proposals were received: Garden State Fireworks $ 93,780 Volt Live $100,000 Devastating Pyro $108,773 – Proposal submitted after deadline Expo Shows, Inc. Declined to Submit Bid Fireworks America Declined to Submit Bid Pyro Spectaculars, Inc. Did Not Repsond Zambelli Fireworks Did Not Respond

Reviewed By: DH X CM X CA

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DISCUSSION: Garden State Fireworks, Inc. submitted the lowest, most responsive proposal in the amount of $93,780. Last year’s display cost $98,495, and had 2,150 total shells. Given that the City’s current FY2018-19 budget was $100,000 for the July 4, 2018 display, staff intends to include in the upcoming proposed FY2019-20 budget the same $100,000 amount. Given that Garden State Fireworks, Inc. submitted the lowest proposal at $93,780, ant the annual budget is typically $100,000, subsequent to the bid submittals Staff negotiated and Garden State Fireworks, Inc. agreed to provide another 97 greater-than 3” shells (increasing the total large shell count to 2,152) along with adding another 2,000 2-1/2” or smaller, special effect shells for $5,120, bringing the revised amount to $98,900. Garden State Fireworks, Inc. is a family owned and operated corporation that has been in business since 1890. They produced the City’s very successful fireworks display in 2016 and 2018, and will be using the same pyrotechnic team again this year. Some of their recent productions include the 4th of July display at the National Mall in Washington D.C., the 2014 Super Bowl XVLIII at Met Life Stadium, nightly productions at Walt Disney World, and multiple annual events for the Mandalay Bay Casino in Las Vegas. FISCAL IMPACT: This proposal is to contract in an amount not to exceed $98,900 (current fiscal year budget in account 81-2410 is $100,000). ALTERNATIVE ACTIONS: Other Council-directed action. ACTION DOCUMENTS: Page No. A. Agreement with Garden State Fireworks, Inc……………………… ................... 3 SUPPORTING DOCUMENTS: B. Garden State Fireworks Bid (with Revised Schedule A………………….…….10

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ACTION DOCUMENT A:

FIREWORKS DISPLAY AGREEMENT THIS AGREEMENT is entered into _February 29, 2019, (“Effective Date”) by and between the CITY OF DANA POINT (“City”) and __Garden State Fireworks, Inc. (“Vendor”). RECITALS

A. City desires to retain Vendor to provide a fireworks display on

Wednesday, July 4, 2019 in Capistrano Bay. The Vendor will provide all services and products necessary for the subject display.

B. Vendor has represented to the City that the Vendor is capable of performing such services.

NOW, THEREFORE, in consideration of the promises hereinafter contained, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Vendor hereby agree as follows:

AGREEMENT

1. Product and Services. The Vendor agrees to furnish City, in accordance with the terms and conditions hereinafter set forth, all products and services necessary for one electronically fired, synchronized to music, fireworks display (“Display”) as per PRODUCT SELECTION, SYNOPSIS OF AERIAL PERFORMERS, and PRODUCT ELEMENTS submitted, accepted, and attached hereto as Exhibit “A” and incorporated into this Agreement by this reference. Vendor will provide the services of one State of California licensed operator and sufficient assistants to operate and electronically fire the Display.

2. Time of Performance. The Display is scheduled to be given on the

evening of July 4, 2019 (the “Display Date”) at Dana Point Harbor. The Display will be fired at 9:00 p.m. Vendor shall make every reasonable effort to anticipate and avoid circumstances that could result in a delay of the Display consistent with the standards of the industry.

3. Price. City shall pay Vendor a base amount of $93,780 for the 2,055

shells per the bid submittal, plus $5,120 for the additional shells per the attached subsequent submittal, for a total not to exceed $98,900 (the “Contract Sum”) for the performance of the Vendor’s obligations under this agreement. The City will pay twenty percent (20%) of the Contract Sum to the Vendor at the time of the approval of this contract. The City will pay the Vendor thirty percent (30%) of the Contract Sum sixty (60) days prior to the Display. The City will pay the balance of the Contract

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Sum ten (10) days after the Vendor performs the Display, minus any credit due the City for a delay in performance of the Display as provided in section 4 below.

4. Delay. A delay in the performance of the Display occurs when the

Display is fired more than five (5) minutes after the Time of Performance stated in section 2 or, during the course of performing the Display, more than five (5) minutes pass between firework devices being fired. If said delay is caused by the negligence of Vendor, a credit shall be due to the City in the amount of five hundred dollars ($500.00) for each full minute of delay following said five (5) minute period, up to a maximum penalty of Ten Thousand Dollars ($ 10,000.00). In the event of a catastrophic failure due to negligence on the part of the Vendor which prevents more than 90% of the display from being exhibited on July 4, 2019, the Vendor shall refund to City any of the Contract Sum previously remitted by City to Vendor, less any third party fees. It shall not constitute a delay pursuant to the terms of this Agreement for fireworks to fail or malfunction or for Garden State Fireworks, Inc. to determine that the Display cannot be discharged or continued as a result of any conditions or circumstances affecting safety beyond the reasonable control of Garden State Fireworks, Inc.

5. Display Area. The Display will be fired from a barge reasonably

acceptable to Vendor, located in Capistrano Bay. See map included as Exhibit “B”. Vendor, at its own expense will contract with an approved barge company to provide the firing platform for the Display, make it accessible to Vendor for loading, unloading and staffing, and transport it to and from the site of the Display. Vendor will be required to transport product and staff for the loading and unloading of the barge at a location and time to be agreed upon by City and Vendor.

6. Law Enforcement and Fire Protection. The City will contract with the

local law enforcement agency to provide surveillance and security prior to; during and after the Display to insure the fallout radius is maintained free from the presence of unauthorized persons and property. The Vendor will comply with all requirements of the Orange County Fire Authority, state and local statutes, ordinances or regulations. The cost of any requirements in excess of those mandated by state law or regulation shall be paid by City in addition to the contract price. The City shall provide the services of standby personnel and any and all emergency and security personnel and equipment required by any authority having competent jurisdiction before, during and after the Display. Vendor shall have no duty to provide security personnel or equipment at the display site or at any spectator, vehicle or vessel areas. Vendor shall have no duty to monitor or control the actions or behavior of persons or the movement of spectators, vehicles or vessels, other than to designate the fallout area.

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7. Weather. City agrees to assume the risk of weather, or other causes

beyond the Vendor's control, which may prevent the Display from being safely discharged on the Display 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 or exposed a necessary time before the Display. It shall be within the Vendors reasonable discretion to determine whether or not the Display may be safely discharged on the Display Date and at the scheduled time. If, for any reason beyond the Vendor's control, including, without limitation, inclement weather, Vendor is unable to safely discharge the Display on the Display Date or should any event for which City has purchased the Display be cancelled, the parties shall attempt to negotiate a new Display date (New Display Date), which shall be within 60 days of the original display Date. Vendor may not unnecessarily withhold its consent for a New Display Date. City further agrees to pay Vendor for additional reasonably related expenses made necessary by this postponement. The additional expenses, exclusive of damaged product and equipment, shall be limited to forty percent (40%) of the Contract Sum for a single postponement. If the parties are unable to agree on a New Display Date, Vendor shall be entitled to liquidated damages from City in accordance with Paragraph 8 below.

8. Termination. City shall have the option to unilaterally cancel this

Display prior to the date of the Display. If City exercises this option, City agrees to pay Vendor, as liquidated damages, 100% of the contract price. If cancellation occurs prior to the Display Date, City agrees to pay Vendor in addition to the above percentages, the reasonable value associated with any custom work performed by Vendor or its agents created specifically for this Display including but not limited to music/narration tape production. In the event Vendor anticipatorily breaches the Agreement, Vendor agrees to pay as liquidated damages fifty percent (50%) of the Contract Sum forthwith upon cancellation resulting from such anticipatory breach. City and Vendor agree that liquidated damage provisions above are fair estimation of the actual damages which would be suffered and that actual damage would be difficult to ascertain.

9. Prohibition Against Subcontracting or Assignment. The

experience, knowledge, capability, and reputation of the Vendor, and its principals and employees, were a substantial inducement for the City to enter into the Agreement. Therefore, except with respect to the pyrotechnic operator and crew, Vendor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City.

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10. Indemnity. Vendor agrees, within the limits of Vendors Commercial General Liability Insurance Policy, to defend, indemnify, protect and hold harmless the City, its officers, agents, and employees from and against any and all claims, demands, losses, defense costs or expenses which City, its officers, agents, and employees may sustain or incur for injury to or death of persons or damage to property to the extent such arise out of the Vendor’s negligent or wrongful acts or omissions in performing or failing to perform under the terms of the Agreement, except to the extent such claims, demands, losses, defense costs or expenses arise out of the negligent or wrongful acts or omissions of City, City's breach of this Agreement, or the actions of any person or entity other than Vendor or its officers, agents or employees. Nothing in this paragraph shall be construed as a modification or limitation of the insurance coverage afforded to section 11 below. Furthermore, nothing in this Agreement shall be construed as a limitation on the City’s right to recover from Vendor under any applicable theory in law or equity, including but not limited to implied indemnity and equitable apportionment.

11. Insurance. Vendor agrees to furnish Commercial General Liability

insurance coverage arising out of the operations of Vendor in connection with the Display only for the following risks and amounts: bodily injury and property damage, including products liability, Two Million Dollars ($2,000,000) combined single limits. Such insurance shall include City and its officers, employees, and agents as additionally insured. All such insurance shall be primary insurance and shall not be secondary to any other insurance, which City may have. All such insurance shall be “date of occurrence” and not “claim made” insurance. Furthermore, each such insurance policy shall provide that the policy will not be cancelled or modified by the insurer or insured unless there is a minimum of thirty (30) days written notice to City. None of the above-described policies shall require Vendor to meet a deductible or self-insured retention amount of more than Ten Thousand Dollars ($10,000) per claim unless approved in writing by the City Manager. Prior to the effective date of this Agreement, Vendor shall furnish or cause to be furnished to City appropriate certificates evidencing its insurance coverage. Vendor shall also furnish or cause to be furnished to the City Manager evidence reasonably satisfactory to the City Manager that Vendor carries workers’ compensation insurance as required by Law.

12. Familiarity with Work. By executing the Agreement, Vendor warrants

that Vendor (a) has thoroughly investigated and considered services to be performed, (b) has carefully considered how the services should be performed, and (c) fully understands the facilities, difficulties, and restrictions attending performance of the services under the Agreement under normal, reasonably foreseeable conditions. Vendor warrants that Vendor has or will investigate the Display Area and is or will be fully

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acquainted with the physical conditions that exist prior to commencement of services hereunder. It is agreed that Vendor makes no warranty as to the conditions which may exist with respect to facilities, equipment and services provided by City or with conditions which may affect the operations of Vendor over which Vendor has no control, including, without limitation weather, sea conditions, vessel traffic, civil disturbance, military hostilities, terrorist activities, threats of the foregoing, governmental orders and governmental restrictions and requirements.

13. Non-liability of City Officials and Employees. No officer, official,

employee, agent, representative or volunteer of the City, acting within the course and scope of their duties with the City, shall be personally liable to the Vendor, or any successor in interest, in the event of any default or breach by the City, or for any amount which may become due to the Vendor or its successor, or for breach of any obligation of the terms of this Agreement.

14. Bound by This Agreement Only. Vendor shall perform all services

required herein as an independent contractor of City. Vendor shall not in any way or for any purpose be deemed an agent, employee or representative of the City regarding the subject matter of this Agreement. This Agreement shall not be construed as forming a partnership between the parties. The parties hereto are responsible for their own debts and obligations.

15. Integration. The parties do mutually and severally guarantee the terms,

conditions and payment of this Agreement and this Agreement shall be binding on the parties themselves and on their heirs, executors, administrators, successors and assigns. All the terms of this Agreement are in writing and may only be modified by a written agreement of the parties hereto. Both parties acknowledge that they have received a copy of said Agreement and agree to be bound by said terms of the Agreement only. This Agreement may be executed in several counter parts, including faxed copies, each one of which shall be deemed an original against the party executing same. 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 nonperformance is acceptable as full performance.

16. Attorney’s Fees. In the event of any litigation between the parties

hereto involving the terms or conditions of this Agreement, the prevailing party shall be entitled to recover reasonable expenses of litigation, including but not limited to attorney’s fees and court costs.

17. Governing Law. This Agreement shall be governed and interpreted

under the laws of the State of California. It is further agreed that the

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courts of the State of California shall have exclusive jurisdiction to adjudicate any disputes arising out of this Agreement.

18. Notices. Any notice to the parties permitted or required under this

Agreement may be given by mailing such notice in the United States Mail, postage prepaid, first class, addressed City of Dana Point, 33282 Street of Golden Lantern, Dana Point, CA. 92629.

19. Corporate Authority. The individual(s) executing this Agreement on

behalf of the Vendor warrants that he/she is duly authorized to execute this Agreement on behalf of the Vendor and that by executing this Agreement, the Vendor is formally bound to the Agreement.

20. Independent Vendor. Vendor is and shall at all times remain as to the

City a wholly independent Vendor. The personnel performing the services under this Agreement on behalf of Vendor shall at all times be under Vendor’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Vendor or any of Vendor’s officers, employees, or agents, except as set forth in this Agreement. Vendor shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City. Vendor shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. No employee benefits shall be available to Vendor in connection with the performance of this Agreement. Except for the fees paid to Vendor as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Vendor for performing services hereunder for City.

21. Performance. Vendor shall at all times faithfully, competently and to

the best of its ability, experience, and talent, performs all tasks described herein. Contractor shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Vendor hereunder in meeting its obligations under this Agreement.

22. Counterparts. This Agreement may be signed in counterparts, and

once so executed facsimile or electronic copies of the executed agreement may be used as an original for all purposes.

[SIGNATURES ON FOLLOWING PAGE]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.

CITY OF DANA POINT By:_____________________________ Mark Denny, City Manager Attest: ________________________________ Kathy Ward, City Clerk Approved As to Form: ________________________________ Patrick Munoz, City Attorney

VENDOR By: ___________________________ (Signature) ______________________________ (Typed/Printed Name) Its:____________________________ (Title) By:____________________________ (Signature) _______________________________ (Typed/Printed name) Its:____________________________ (Title)

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SUPPORTING DOCUMENT B

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See Revised Schedule A attached at End of Bid

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REVISED BID SCHEDULE A SIZE QUANTITY COST Body and Opening to have 1200 shells with Finale having 855. All costs to include working with radio station to produce the music necessary for simulcasting the aerial display. 10” 17 ct. $ 5,100.00 8” 100 ct. $15,290.00 6” 260 ct. $14,120.00 5” 275 ct. $ 9,537.00 4” 400 ct. $ 8,818.00 3” 1100 ct. $ 9,240.00 1.5”+ 2000 ct. $ 1,445.00 (1.5’ to 2.5” Special Effects) Shell Cost $63,550.00 Barge/Tugboat $35,350.00 TOTAL COST $98,900.00