HomeMy WebLinkAboutC31750A and B 2012 Independence Day CelebrationCITY OF PALM DESERT
SPECIAL PROGRAMS DEPARTMENT
STAFF REPORT
REQUEST: Approval of the Performing Arts Contract and Pyro Spectaculars
Fireworks Display Contract in conjunction with Palm Desert's 2012
Independence Day Celebration
SUBMITTED BY: Frankie Riddle, Director of Special Programs
DATE: April 12, 2012
CONTENTS: Pyro Spectaculars Agreement
Swing Cats Big Band Agreement
Recommendation
By Minute Motion:
1. Approve Contract No. c31750A with Pyro Spectaculars by Souza in the
amount of $36,000, for professional staff, and pyrotechnic supplies and
services for Palm Desert's 2012 Independence Day Celebration;
2. Approve Contract No. c31750B with Swing Cats Big Band in the
amount of $3,650, to provide instrumental and vocal entertainment for Palm
Desert's 2012 Independence Day Celebration;
3. Approve expenditure with Studio Instrument Rentals (SIR) of Palm Springs for
concert professional staff, instrumental equipment, sound, and/or lighting in
conjunction with the concerts;
4. Approve five percent fee with Gigmasters (online website) for booking
service of selected band in the amount of $182.50; and
5. Authorize the Mayor to sign subject contracts.
Funds are available in Account No. 110-4416-414-3061.
Discussion
Each year the City of Pam Desert produces an Independence Day Celebration and
invites the community to celebrate our Country's freedom. As part of the festivities for
this event, "Swing Cats Big Band" will provide live instrumental and vocal entertainment.
In addition, a 20-minute pyrotechnic display by Pyro Spectaculars will be held at the
conclusion of the concert. In anticipation of this event, funds were set aside as part of
the FY 2011 /2012 Budget.
Staff recommends that City Council approve contracts with Pyro Spectaculars by Souza
and Swing Cats Big Band, and authorize the Mayor to execute subject contracts.
STAFF REPORT
2012 INDEPENDENCE DAY CELEBRATION
APRIL 12, 2012
PAGE 2
Fiscal Analysis
Funding for this event was included as part of the FY 2011/2012 Budget; therefore,
there will be no additional impact to the General Fund, as funds are available in Account
No. 110-4416-414-3061.
Submitted By:
Fran 'e Rid le
Director of Special Programs
Paul S. Gibson
Director of Finance
Approval:
f C)
'John M. Wohlmuth
City Manager
CITY COUNCIL ACTION
APPROVED DENTED
RECEIVED OTHER
Nil:i?TING^ DATF
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Original on File with City leek's Office
Pyro Spectaculars, Inc. City of Palm Desert;
Contract No. C31750A
P.O. Box 2329 Program A ,
Rialto, CA 92377 July 4, 2012
Tel: 909-355-8120 :::: Fax: 909-355-9813 Page I of 4
PRODUCTION AGREEMENT
This agreement ("Agreement") is made this : day of i 012 ey artd between Pyro Spectaculars, Inc., a California
corporation, hereinafter referred to as ("PYRO"), and City of Palm Desert, hereinafter referred to as ("CLIENT"). PYRO and CLIENT are sometimes referred to
as "Party" or collectively as "Parties" herein.
I. Engagement - CLIENT hereby engages PYRO to provide to CLIENT one CRYO JET production ("Production"), and PYRO accepts such
engagement upon all of the promises, terms and conditions hereinafter set forth. The Production shall be substantially as outlined in Program `W", attached hereto
and incorporated herein by this reference.
1.1 PYRO Duties — PYRO shall provide all CRYO JET equipment, trained technicians, shipping, CRYO JET products, application for specific
CRYO JET permits (the cost of which, including standby fees, shall be paid by CLIENT) relating to the Production, insurance covering the Production
and the other things on its part to be performed as more specifically set forth below in this Agreement and in the Scope of Work ("Scope of Work"),
attached hereto, incorporated herein by this reference, and made a part of this Agreement as though set forth fully herein.
1.2 CLIENT Duties — CLIENT shall provide to PYRO a suitable site ("Site") for the Production, security for the Site as set forth in Paragraph
6 hereof, access to the Site, any permission necessary to utilize the Site for the Production, and the other things on its part to be performed as more
specifically set forth below in this Agreement and in the Scope of Work. All Site arrangements are subject to PYRO's reasonable approval as to
CRYO JET safety, suitability, and security. All other conditions of the Site shall be the responsibility of CLIENT, including, but not limited to, access,
use, control, parking and general safety with respect to the public, CLIENT personnel and other contractors.
2. Time and Place - The Production shall take place on July 4, 2012, at approximately :09 0 P.M., at `.College of the Desert Baseball Field, atrn
Desert, CA Site,
3, Fees, Interest, and Expenses -
3,1 Fee - CLIENT agrees to pay PYRO a fee of.$36d000.000SD (THIRTY SIX THOUSAND DOLLARS) ("Fee") for the Production,
CLIENT shall pay to PYRO $18.000.00 f USD (EIGHTEEN THOUSAND DOLLARS) of the Fee plus estimated permit and standby fees, specified production
costs, and other regulatory costs approximated at S 00.00 OR an amount to be determined, for a total of ll# OOO.ttO as a deposit ("Deposit") upon the execution
of this Agreement by both parties but no later than April 20, 201the balance of the Fee shall be paid no later titan ;lulu 5, 2012 CLIENT authorizes PYRO to
receive and verify credit and financial information concerning CLIENT from any agency, person or entity including but not limited to credit reporting agencies.
The "PRICE FIRM" date, the date by which the executed Agreement must be delivered to Pyro, is set forth in paragraph 20.
3.2 Interest - In the event that the Fee is not paid in a timely manner, CLIENT will be responsible for the payment of 1.5% interest per month
or 18% annually on the unpaid balance. If litigation arises out of this Agreement, the prevailing party shall be entitled to reasonable costs incurred in connection
with the litigation, including, but not limited to attorneys' fees.
3.3 Expenses — PYRO shall pay all normal expenses directly related to the Production including freight, insurance as outlined, CRYO JET
products, CRYO JET equipment, experienced CRYO JET personnel to set up and discharge the CRYO JETS and those additional items as outlined as PYRO's
responsibility in the Scope of Work. CLIENT shall pay all costs related to the Production not supplied by PYRO including, but not limited to, those items
outlined as CLIENT's responsibility in this Agreement and Scope of Work.
4. Proprietary Rights - PYRO represents and warrants that it owns all copyrights, including performance rights, to this Production, except that PYRO
does not own CLIENT -owned material or third -party -owned material that has been included in the Production, and as to such CLIENT -owned and third -party -
owned material, CLIENT assumes full responsibility therefore. CLIENT agrees that PYRO shall retain ownership of, and all copyrights and other rights to, the
Production, except that PYRO shall not acquire or retain any ownership or other rights in or to CLIENT -owned material and third -party -owned material and shall
not be responsible in any way for such material. If applicable, CLIENT consents to the use of CLIENT -owned material and represents that it has or will obtain
any permission from appropriate third parties sufficient to authorize public exhibition of any such material in connection with this Production. PYRO reserves the
ownership rights in its trade names that are used in or are a product of the Production. Any reproduction by sound, video or other duplication or recording process
without the express written permission of PYRO is prohibited,
5. Safe - PYRO and CLIENT shall each comply with applicable federal, state and local laws and regulations and employ safety programs and measures
consistent with recognized applicable industry standards and practices. At all times before and during the Production, it shall be within PYRO's sole discretion to
determine whether or not the Production may be safely discharged or continued. It shall not constitute a breach of this Agreement by PYRO for CRYO JETS to
fail or malfunction, or for PYRO to determine that the Production cannot be discharged or continued as a result of any conditions or circumstances affecting safety
beyond the reasonable control of PYRO.
6. Security - CLIENT shall provide adequate security personnel, barricades, and Police Department services as may be necessary to preclude individuals
other than those authorized by PYRO from entering an area to be designated by PYRO as the area for the set-up and discharge of the Production, including a
fallout area satisfactory to PYRO where the CRYO JETS may safely rise and any debris may safely fall. PYRO shall have no responsibility for monitoring or
controlling CLIENT's other contractors, providers or volunteers; the public; areas to which the public or contractors have access; or any other public or contractor
facilities associated with the Production.
7. Cleanup - PYRO shall be responsible for the removal of all equipment provided by PYRO. CLIENT shall be responsible for any other clean up which
may be required of the Production or set-up, discharge and fallout areas including any environmental clean-up.
8. Permits - PYRO agrees to apply for permits for the firing of CRYO JETS only from the Palm Desert Fire Departmcnt� FAA, and USCG, if required.
CLIENT shall be responsible for any fees associated with these permits including standby fees. CLIENT shall be responsible for obtaining any other necessary
permits, paying associated fees, and making other appropriate arrangements for Police Departments, other Fire Departments, road closures, event/activity or land
use permits or any permission or permit required by any Local, Regional, State or Federal Government.
PS V l-2e
Pyro Spectaculars, Inc. Contract No. C31750A ;City of Palm Desert
P.O. Box 2329 Program A
Rialto, CA 92377 July 4, 2012
Tel: 909-355-8120 :::: Fax: 909-355-9813 Page 2 of 4
9, 1nsuranee - PYRO shall at all times during the performance ofserviccs herein ensure that the following insurance is maintained in connection with
PYRO's pet formative of this Agreement: (1) commercial general liability insurance, including products, completed operations, and contractual liability under this
Agreement; (2) auturnobile liability insurance, (3) workers' compensation insurance and employer liability insurance. Such insurance is to protect CLIENT from
claims for bodily injury, including death, personal injury, and front claims of property dantagc, which may arise from PYRO's performance of this Agreement,
only. The types audamounts of coverage shall be as set forth in the scope of Work. Stich insurance shall not include claims which arise. from CLiENT's
nes;ligence or willful conduct or front failure of CLIENT to perform its obligations under this Agreement, coverage for which shall be provided by CLIENT.
The coverage of these policies shall be subject to reasonable inspection by CLIENT, Certificates of Insurance evidencing the required general liability coverage
shall be furnished to CLIENT prior to the rendering of services hereunder and shall include that the following are named as additionally insured: CLIENT;
Sponsors, Landowners, Barge Owners, if any; and Pennitting Authorities, with respect to the operations of PYRO at the Production. CRYO JET subcontractors
or providers, it any, not covered milder policies of insurance required hereby, shall Secure, maintain and provide their own insurance coverage with respect to their
respective operations and services.
10, Indemnification - PYRO represents and warrants that it is capable of furnishing the necessary experience, personnel, equipment, materials, providers,
and expertise to produce tine Production in a safe and professional manner. Notwithstanding anything in this Agreement to the contrary, PYRO shall indemnify,
hold harmless, and defend CLIENT and the additional insureds from and against any and all claims, actions, damages, liabilities and expenses, including but not
limited to, attorney and other prolessional fees and court costs, in connection with the loss of life, personal injury, and/or dantagc 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 PYRO, their officers, agents, contractors, providers, or
employces. CLITzNT shalt indemnify, hold harmless, and defend PYRO from and against any and all claims, actions, damages, liability and expenses, including
but not limited to, attorney and other professional fees and court 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 CLIENT, its officers, agents, contractors,
providers, or employees. In no event shall either party be liable for the consequential damages of the other party.
11, Limitation of Damages for Ordinary Breach - Except in the case of bodily injury and property damage as provided in the insurance and
indemnification provisions orParagraphs 9 and 10, above, in the event CId1's91'claims that PYRO has breached this Agreement or was otherwise negligent in
performing lite Production provided lint herein, CLIENT shall not be entitled to claim or recover monetary damages from PYRO beyond the amount CLIENT has
paid to PYRO under this Agreement, and shall not be entitled to claim or recover any consequential damages front PYRO including, without limitation, damages
for loss of income, business or profits.
12, Force ce }Maieure - CLIENT agrees to assume the risks of weather, strike, civil unrest, terrorism, military action, governmental action, and any other
causes beyond the control of PYRO which may prevent cite Production from being safely discharged on die scheduled date, which may cause the cancellation of
any event for which CLIENT has purchased the Production, or which may atTect or damage such portion of the exhibits as must be placed and exposed a
neeassary, time before the Production. If, for any such reason, PYRO is not reasonably able to safely discharge the Production on the scheduled date, or at the
scheduled time,, or should any event for which CLIENT has purchased the Production be canceled as a result of such causes, CLIENT may (i) reschedule the
Production and pay PYRO such sums as provided in Paragraph 13, or (ii) cancel the Production and pay PYRO such sums as provided in Paragraph 14, based
upon when the Production is canceled.
13. itcccheduling Of /:vent - If CLIENT elects to reschedule the Production, PYRO shall be paid the original Fete plus all additional expenses made
necessary by rescheduling plus a 15%service fee on such additional expenses. Said expenses will be invoiced separately and payment will be due in full within 5
days of receipt. CLIENT and PYRO shall agree upon the rescheduled date taking into consideration availability of permits, materials, equipment, transportation
and labor, The Production shall be rescheduled fora date not more than 90 Days subsequent to the date first set for the Production. The Production shall not be
rescheduled to a date, or for an event, that historically has involved a CRYO JET production. The Production shall not be rescheduled between June 1 S(h and
July 15th unless the original date was July 4th of that same year, or between December I3th and January i Sth unless the original date was December 31 st of the
earlier year unless PYRO agrees that such rescheduling will not adversely affect normal business operations during those periods.
14. Right'ro Cancel — CLIENT shall have the option to unilaterally cancel the Production prior to the scheduled date. If CLIENT exercises this option,
CLIENT agrecs to pay to PYRO, as liquidated damages, the following percentages of the Fee as set forth in Paragraph 3,1. 1) 50% if cancellation occurs 30 to 90
days prior to the scheduled date, 2) 75% if cancellation occurs 15 to 29 days prior to the scheduled date. 3) 100% thereafter. In the event CLIENT cancels the
Production, it will be impractical or extremely difficult to fix actual amount of PYRO's damages. The foregoing represents a reasonable estimate of the damages
PYRO will suffer if CLIENT cancels the Production.
15, No Joint Venture -It is agreed, nothing in this Agreement or in PYRO's performance of the Production shall be construed as forming a partnership or
joint venture between CLIENT and PYRO. PYRO shall be and is an independent contractor with CLIENT and not an employee of CLIENT. The Parties hereto
shall be severally responsible for their own separate debts and obligations and neither Party shall be held responsible for any agreements or obligations not
expressly provided for herein.
16. Applicable Lit - This Agreement and the rights and obligations of the Parties hereunder shall be construed in accordance with the laws of California.
It is farther agreed that the Central Judicial District of San Bernardino County, California, shall be proper venue for any such action. In the event that the scope of
the Production is reduced by authorities having jurisdiction or by either Party for safety concerns, the full dollar amounts outlined in this Agreement are
enforceable.
17. Notices- Any Notice to the Parties permitted or required under this Agreement maybe given by mailing such Notice in the United States Mail,
postage prepaid, first class, addressed as follows: PYRO— Pyro Spectaculars, inc., P.O. Box 2329, Rialto, California, 92377, or for overnight delivery to 3196 N.
Locust Avenue, Rialto, California 92377. CLIENT?— CiLy of Palm Desert73 510 Ercd Waring (fir, Palm l2o r , CAA 22200
18. Modification of Terms — All terms of the Agreement are in writing and may only be modified by written agreement of both Parties hereto. Both
Parties acknowledge they have received a copy of said written Agreement and agree to be bound by said terms of written Agreement only.
19. Severability— If there is more than one CLIENT, they shall be jointly and severally responsible to perform CLIENT's obligations under this
Agreement. This Agreement shall become effective after it is executed and accepted by CLIENT and after it is executed and accepted by PYRO at PYRO's
PS V l-2e
Pyro Spectaculars, Inc. Contract No. C31750A City or Palin De:(,-rt
P.O. Box 2329 !Program A
Rialto, CA 92377 duly 4, 2012
Tel: 909-355-8120:::: Fax: 909-355-9813 Page 3 of' 4
offices in Riallo, California, This Agreement may be executed in several counterparts, including;faxed and entailed copies, each one of which shall be deemed an
original against tile Party executing same, This Agreement shall be binding upon the Parties hereto and upon their heirs, successors, executors, administrators and
assigim.
20. Price Fj rm — if any changes or alterations are mode by CLIENT to this Agreement or if this Agreement is not executed by CLUINT and delivered to
PYW on or before the PRICE FIRM date shown below, then the price, date, mid scope of the Production are subject to review and acceptance by PYRO for a
Period or 15 days rollowiiigdelivery tol'YROoi'tlieexecuted AgreeMClit4. In the event it is not accepted byPYR0, PYRO shall give CLIENT written notice, and
this Aguctmicot shall be void.
PRICE FIRM through IA pril 20, 2012
EXLCUTED AGREEMENT MUST DE DELIVERED TO PYRO BY THIS DATE.
See PRICE FIRM conditions. paragraph 20, above.
I'MiCUTI'D as oEthc date first written above-
PYRO SPIt'CTACULARS, INC, City or Point Desert
By, 13y,
Its; President Its:
Print Name
ST low PRO DUCT: W Jeff martin
I'S V 1-2c
Pyro Spectaculars, Inc. Contract No. C31750A 'City of Palm Desert
P.O. Box 2329 Program A'
Rialto, CA 92377 July 4, 2012
Tel: 909-355-8120 :::: Fax: 909-355-9813 Page 4 of 4
SCOPE OF WORK
PYRO SPECTACULARS, INC. ("PYRO")
and
City of Palm Desert'("CLIENT")
Pyro shall provide the following goods and services to CLIENT:
• ;One Pyro Spectaculars, Inc., Production pn July 4. 2012, at approximately 9:00 P.M. at College of the Desert Baseball
Field, Palm Desert. CA.
• All CRYO JET equipment, trained technicians, shipping, and CRYO JET product.
• Application for specific CRYO JET permits relating to the Production.
• Musical soundtrack for the Production supplied in agreed upon format.
• Insurance covering the Production as set forth in the Agreement with the following limits:
Insurance Reauirements Limits
Commercial General Liability 9,1,000,000.00 Combined Single Limit- Each Occurrence
(Bodily Injury & Property Damage)
Business Auto Liability- $5,000,000.00 Combined Single Limit- Each Occurrence
Owned. Non -Owned and Hired Autos (Bodily Injury & Property Damage)
Workers' Compensation Statutory
Employer Liability $1,000,000 Per Occurrence
CLIENT shall provide to PYRO the following goods and services:;
• All on -site labor costs, if any, not provided or performed by PYRO personnel including, but not limited to, local union
requirements, all Site security, Police and Fire Dept. standby personnel, stagehands, electricians, audio and fire control monitors,
carpenters, plumbers, clean-up crew. All these additional personnel and services shall be fully insured and the sole responsibility
of CLIENT.
• Coordination and any applicable non-CRYO JET permitting with the local, state or federal government that may hold
authority within the Production.
• Costs of all permits required for the presentation of the Production and the event as a whole.
• Provision of a Safety Zone in accordance with applicable standards and all requirements of the authorities having jurisdiction
throughout the entire time that the CRYO JETS are at the Site or the load site (if different) on the date of the Production and all
set-up and load -out dates, including water security to keep unauthorized people, boats, etc. from entering the Safety Zone.
• A professional grade Audio System including all necessary equipment, installation of such equipment and trained audio
engineers for operation based on audio and communications requirements provided by PYRO.
General Services including, but not limited to, Site and audience security, fencing, adequate work light, dumpster
accessibility, a secure office for PYRO personnel within the venue, secure parking for PYRO vehicles, access to washrooms,
tents, equipment storage, hazmat storage, electrical power, fire suppression equipment, access to worksites, necessary
credentialing, etc., will be required as necessary.
PS V 1-2e
Contract No. C31750B
PERFORMING ARTS AGREEMENT
This Agreement is entered into this 12 day of April, 2012, by and
between the CITY OF PALM DESERT, a California municipal corporation, hereinafter
referred to as "CITY," and Swing Cats Big Band/Dan Methe, hereinafter referred
to as "ARTIST."
RECITALS:
1. The CITY owns and operates the Palm Desert Hahn Amphitheater, an
outdoor amphitheater located in the Palm Desert Civic Center (hereinafter
"THEATER").
2. The CITY desires to engage the ARTIST to render a live performance at
the THEATER of the nature set forth in Exhibit A attached hereto and incorporated
herein by this reference (hereinafter "PERFORMANCE").
3. The CITY desires the ARTIST to render PERFORMANCE on the dates
and times described in Exhibit B attached hereto and incorporated herein by this
reference.
4. The ARTIST is willing and able to render the PERFORMANCE on the
desired dates and times in exchange for compensation by the CITY in the amount
and on the paymentschedule set forth in Exhibit C attached hereto and incorporated
herein by this reference.
TERMS AND CONDITIONS:
In consideration of the foregoing recitals, the parties hereto agree as follows:
1. Performance
The ARTIST agrees to render the PERFORMANCE to the best of its abilities on
the dates and times prescribed by Exhibit B. The ARTIST shall not perform under
Contract No. C 31750B
the influence of alcohol or any unlawful narcotic, nor shall the ARTIST engage in
behavior during the PERFORMANCE that would be considered racist, sexist,
obscene, or otherwise offensive by reasonable audience members attending the
PERFORMANCE. ARTIST's failure to perform in accordance with this Section shall
be deemed material breach of this Agreement.
2. Lighting, Sound Amplification and Other Equipment
The THEATER's physical dimensions, built-in lighting and sound equipment,
electrical system, and other technical specifications are described on Exhibit D,
attached hereto and incorporated herein by this reference. ARTIST shall be
responsible for providing, erecting, operating and dismantling, at its own expense,
any additional equipment not described in Exhibit D that is necessary to properly
effectuate the PERFORMANCE, including any props and stage sets.
3. Make -Up and Costumes
The ARTIST shall be responsible for providing, at its own expense, any
costumes and make-up necessary to the PERFORMANCE.
4. Dressing and Storage Rooms
The ARTIST understands and acknowledges that no private dressing rooms or
other storage rooms will be available or provided by the CITY in connection with the
PERFORMANCE. However, the CITY shall provide ARTIST with non-exclusive
access or a public rest room at or in the vicinity of the THEATER.
5. Technical Personnel and Set -Up
In addition to any artistic personnel necessary to the PERFORMANCE, the
ARTIST shall provide, at its own expense, all backstage and technical personnel
necessary to effectuate the PERFORMANCE, including but not limited to stage
2
Contract No. C 31750B
hands, operators of sound and lighting equipment, and such personnel as may be
necessary to set up and test any equipment that will be used during the
PERFORMANCE. ARTIST's personnel shall use their best efforts to ensure that any
such advance set-up and testing is completed at least one hour prior to the time
scheduled for the PERFORMANCE.
6. Compensation
In exchange for the ARTIST's PERFORMANCE in accordance with this Agreement,
CITY agrees to compensate the ARTIST in the manner described in Exhibit C
attached hereto and incorporated herein by this reference. (Artistshall obtain a City
of Palm Desert Business License, which payment shall be included as part of the
compensation paid to Artist.)
7. Promotion
CITY is authorized to engage in any and all reasonable activities related to
promotion of the PERFORMANCE without payment of additional fee, royalty or
commission to ARTIST. Said promotional activities may include, but are not limited
to, use of newspaper, radio and television advertisements featuring the ARTIST's
photograph or likeness and brief examples of the ARTIST's work taken from video or
audio recordings. CITY shall refer all inquiries regarding personal appearances and
interviews of the ARTIST to the ARTIST's appointed agent.
8. Illness. Injury or Death of ARTIST
In the event the ARTIST's PERFORMANCE is rendered impractical or
infeasible due to serious injury, illness or death of the ARTIST, actual threats of
imminent bodily harm to ARTIST if PERFORMANCE is rendered, or unexpected
family emergency, then the ARTIST may cancel the PERFORMANCE without
3
Contract No. C 31750B
breaching this Agreement. However, no compensation shall be owing to the
ARTIST. The ARTIST shall make every effort to notify the CITY by telephone,
facsimile or telegram of such pending cancellation as soon as reasonably possible.
An injury or illness shall be considered serious if, in the opinion of a qualified
physician, the condition is immobilizing or in any way poses a significant threat to
the life and health of the ARTIST. A family emergency shall consist of a sudden and
unexpected hospitalization or death of any immediate family member or any
unanticipated occurrence beyond the ARTIST's control threatening the health or life
of an immediate family member that requires the ARTIST's personal presence on the
date and time of the PERFORMANCE.
9. Assignment by ARTIST
The parties hereto stipulate that the ARTIST's services are personal in nature
and/or unique, thus the ARTIST may not assign or substitute its PERFORMANCE of
this Agreement with any other artist or party absent the CITY's express consent in
writing. The CITY shall be under no obligation to consent to any proposed
assignment or other substitution by the ARTIST. However if the CITY does consent,
then the ARTIST's failure to personally perform the services required by the
Agreement shall not constitute a breach thereof.
10. Independent Contractor
All of the services required hereunder shall be performed by ARTIST
personally and/or by ARTIsrs agent and employees, who shall remain at all times
under ARTIST's direct control and supervision. It is the parties intent that the
ARTIST shall remain at all times an independent contractor of the CITY and not its
employee or agent.
4
Contract No. C 31750B
11. Termination
The CITY reserves the right to terminate this Agreement for any reason,
provided it gives ARTIST at least fourteen (14) days written notice of such
termination prior to the scheduled date of the PERFORMANCE. Said notices shall be
deemed to be given as of the date it is postmarked. The CITY shall also use its best
efforts to notify the ARTIST by telephone of any pending termination as soon as
reasonably possible. In the event of termination pursuant to this Section, the CITY
shall not be in breach and no compensation shall be owing to the ARTIST.
12. Legal Compliance
The ARTIST and its agents, officers, and employees shall comply with all
federal, state and local laws and regulations applicable to the services being
provided pursuant to this Agreement. Including, but not limited to, any requirements
under the American Society of Composers, Authors, and Publishers or under any
other copyright law and/or licensing agreements.
13. Indemnification: Hold Harmless
The ARTIST shall indemnify and hold the CITY, its officers and employees, free
and harmless from any liability, loss, cost or expense resulting from any injury or
damage to any persona caused by ARTIST, its agents or employees, while engaged
in the PERFORMANCE of this Agreement as described in Exhibit D.
14. Insurance
ARTIST fully assumes all of the following risks:
A. Injury to itself and to its agents or employees arising out of their
performance of this Agreement.
5
Contract No. C 31750B
B. Damage to or theft of any personal property or equipment owned
by or under the control of ARTIST, its agents, volunteers and
employees.
15. Liquidated Damages
The parties hereto state that it would be difficult, if not impossible, to calculate
with precision the amount of damages that the CITY would suffer in the event the
ARTIST were to breach this Agreement by nonperformance or late performance.
Thus, the parties hereto stipulate that in the event the ARTIST is not ready, willing
and able to perform on the date and time specified by Exhibit B, and the
PERFORMANCE has not otherwise been canceled pursuant to this Agreement, then
the CITY's damages shall be fixed as follows:
A. Late Performance: The CITY=s estimated damages for late
performance shall be $300 for every 15 minute delay in commencement
of the PERFORMANCE caused by the ARTIST. Such damages may be
deducted by the CITY from any compensation owing to the ARTIST.
Any delay in commencement of the PERFORMANCE caused by the
ARTIST exceeding one hour shall be deemed a nonperformance and
material breach of this Agreement, unless expressly waived by the
CITY.
B. Nonperformance: No compensation shall be due in the event of
any nonperformance by the ARTIST constituting a material breach of
this Agreement. In addition, the CITY's estimated damages for a
nonperformance shall be $5,000.
0
Contract No. C 31750B
This Section shall not prevent either party from recovering compensatory
damages for breaches of this Agreement due to causes other than the ARTIST's late
performance or nonperformance.
16. Attorney's Fees
Should any action or proceeding be brought to enforce the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney=s fees and
costs.
17. Modification
No modification of this Agreement shall be valid unless agreed to in writing by
both the CITY and ARTIST.
18. Prohibited Interests
The ARTIST represents that neither it nor any of its agents or employees is
currently an officer or employee of the CITY.
FA
Contract No. C 31750B
EXECUTION:
The undersigned represent that they are authorized to execute this Agreement
on behalf of the parties hereto on whose behalf they purport to sign. This
Agreement shall be deemed executed on the date first above written.
CITY OF PALM DESERT
ROBERT A. SPIEGEL, MAYOR
ATTEST:
RACHELLE KLASSEN, CITY CLERK
APPROVED AS TO FORM:
DAVID J. ERWIN
CITY ATTORNEY
[ARTIST]
(Signature; must be notarized)
(Printed Name)
0
Contract No. C 31750B
PERFORMING ARTS AGREEMENT
EXHIBIT A
NAME OF ARTIST: SWING CATS BIG BAND/DAN METHE
DESCRIPTION: 13 Piece Band to perform Swing, Jazz, Patriotic Music to
coincide with Independence Day Festivities
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Contract No. C 31750B
PERFORMING ARTS AGREEMENT
EXHIBIT B
DATE: WEDNESDAY, JULY 4, 2012
TIME: 7:30 P.M.
ARTIST must arrive one hour prior to PERFORMANCE for sound check and
coordination with sound technicians and be set up ready to perform no later than
7:30 p.m. The PERFORMANCE must conclude promptly at 9:00 p.m.
10
Contract No. C 31750B
PERFORMING ARTS AGREEMENT
EXHIBIT C
Compensation of $ 3,650.00 to be paid at conclusion of PERFORMANCE.
(Artist shall obtain a City of Palm Desert Business License, which payment shall be
included as part of the compensation paid to Artist.)
11
Contract No. C 31750B
EXHIBIT D
Lighting, sound amplification, and other equipment as necessary for the
performance will be provided by Studio Instrument Rentals of Palm Springs.
12
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March 30, 2012
City of Palm Desert
Frankie Riddle
73-510 Fred Waring Dr.
Palm Desert, CA 92260
Dear Ms. Riddle,
Pyro Spectaculars, Inc. is pleased to present to you our pyrotechnic proposal for your
July 4, 2012 event. We are proposing our special Sky ConcertTM Program "A" in the
amount of $36,000.00. Your display is scheduled for 9:00 p.m. and will be approximately
20 minutes in duration.
Our full service display includes the services of a licensed pyrotechnic operator, an
electronic firing system, show choreography and design, insurance coverage, sales tax
and delivery. We will process the necessary fire department permit applications. Our
winning combination of products, people and production capabilities help produce the
best fireworks entertainment package possible.
City of Palm Desert will be responsible for payment of the Palm Desert Fire Department
permit fee, and/or standby firemen fees, if any. The Fire Department may bill you
directly for any standby fees for inspections. City of Palm Desert will also be responsible
for providing the display location and all necessary security for the display site.
Enclosed you will find a Product Synopsis, Production Agreements for signature and
Scope of Work. Please have one copy of this fully executed agreement returned to our
office by April 20, 2012 along with your deposit and applicable fire department fees.
Please take the time to review this proposal in detail. If you wish to discuss any changes
in your program or need more information, please call either myself or your Customer
Service Representative Cindy Allie at (909) 355-8120 ext. 231.
Sincerely,
PYRO SPECTACULARS, INC.
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Jeff ;Martin, ,
Sales,,, Manager
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Enclosures
PYRO SPECTACULARS, INC.
P.O. Box 2329 • Rialto, CA 92377 - Phone: (909) 355-8120 or (888) 477-PYRO • Fax: (909) 355-9813
Proposal Outline for
City of Pa/m Desert
• Product Synopsis
• Conclusion and Commitment
• Production Agreement & Scope of Work
Pyrotechnic Proposvi"
City of Pa//07 Avesert
Opening
Description Quantity
♦ 3" Sky Concert Opening Salutes 50
Total of Opening s0
Main Body - Aerial Shells
Description Quantity
♦ 4" Sky Concert Selections 160
♦ 5" Sky Concert Selections 105
♦ 6" Sky Concert Selections 95
♦ 8" Sky Concert Selections 8
Total of Main Body - Aerial Shells 368
Grand Finale
Description Quantity
♦ 3" Sky Concert Finale Shells 180
♦ 4" Sky Concert Finale Shells 90
Total of Grand Finale 270
Grand Total 688
Nigh Definition fireworks®
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Conclusion a Commitment
KGB Sky Show 2008
We'd like to thank the City of Palm Desert for allowing us to
make this presentation.
Our sincere effort has gone into preparing this proposal. We are
eager to hear your comments and answer any questions you may
have.
We are confident that after your complete review of our ideas
and performance capabilities you will select Pyro Spectaculars by
Souza as your fireworks company.
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sales MRnager