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Home My WebLink AboutC32660A-B - 2013 Independence Day Celebration Contract No. C32660A Contraet No. C32660B � CITY 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 2013 Independence Day Celebration SUBMITTED BY: Frankie Riddle, Director of Special Programs DATE: March 14, 2013 CONTENTS: Pyro Spectaculars Agreement Swing Cats Big Band Agreement Recommendation By Minute�Motion: 1. Approve Contract No. c3266oa with Pyro Spectaculars by Souza in the amount of $36,000, for professional staff, and pyrotechnic supplies and services for Palm Desert's 2013 Independence Day Celebration; 2. Approve Contract No.c3266oB with Swing Cats Big Band in the amount of $3,650, to provide instrumental and vocal entertainment for Palm Desert's 2013 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. Preapproval of line item for FY 2013/14 budget for this event; 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 Palm 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 have been accounted for within the FY 2013/2014 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. Contract No. C32660A STAFF REPORT Contract No. C32660B 2013 INDEPENDENCE DAY CELEBRATION MARCH 14, 2013 PAG E 2 Fiscal Analvsis Funding for this event was included as part of the FY 2013/2014 Budget; therefore, there will be no additional impact to the General Fund, as funds are available in Account N o. 110-4416-414-3061. Submitted By: Approval: ,,. Franki iddle J hn M. Wohlmuth Director of Special Programs ity Manager COUNCII.A�ION APPROVED � DENrED RECEIVED OTHER ul S. Gibson MEET G DA �'' Director of Finance A�S r NOES: ABSENT: ABSTAIN: VERIFIED BY: � Qriginal on File with City C rk's Office � _ < .,g � �, , / _. � �i .+�"'. t �'.. \ f ^-„,..- a �� - g` '�., �� .��'y .... .� fi h �,� ��' �� '�� .. ; � � ` �V �� , � � � '� � � � __ i`r�j�� ,l'�� , � rr�; �. � , , , ; . � � � . _ , . . � , , � "�. y 7�C' * * �r �,Qe oF`,�,.,�t * •h� ��r�' i a� a� 71[' y\'�p� * ��f 7� *** Pyrotechnic Proposal for July4, 2013 March 7, 2013 City of Palm Desert Frankie Riddle 73-510 Fred Waring Drive Palm Desert, CA 92260 Dear Ms. Riddle, Pyro Spectaculars, Inc. is happy to provide your pyrotechnic proposal for your July 4, 2013 event. The follawing proposal outlines your custom designed Sky ConcertTM" Program "A"for the amount of$36,000.00. Your display is scheduled for 9:00 p.m. and will be approximately 20 minutes in duration. Our ful! service Sky ConcertTM program includes the services of a licensed � , � pyrotechnic operator, an electronic firing system, custom show choreography and � ►� design, insurance coverage, sales tax and delivery. We will apply for ali the � necessary fire department and other fireworks related permit applications. Our � winning combination of products, people and production capabilities help produce V § +� �.�� the best fireworks entertainment package possible. The 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. The City of Palm Desert will also be responsible for providing the disp(ay location and all necessary security for the dispfay site. Enclased 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 4, 2013 along with your deposit. 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 SPECTACUL4RS, INC. -4 ca.�� L.�. Marti Sales Manager JM/nc Enclosures Pyro Spectaculars, Inc. P.O.Box 2329 • Rialto,CA 92388 • Phone:(9t39)355-8120 or{8gg)477-PYRO • Fax:{909)355-9813 � f1.KL� Proposal outline for City of Palm Desert Product Synopsis The Souza TouchTM The World of Pyro Spectaculars, inc. at your Service Commitment from the President Production Agreement and Scope of Work ��, � . �� ,, �� Macy's New York Fourth of Juty Fireworks Product Synopsis � Pyrotechnic Proposal City of Palm Desert PROG RAM A — J u ly 4, 2013 Opening Description Quanti ♦3" Sky Concert Opening Salutes 50 Total of Opening 50 Main Body - Aerial Shells Description Quantitv ♦4" Sky Concert Selections 160 ♦5" Sky Concert Selections 105 ♦6" Sky Concert Selections 95 ♦8" Sky Concert Sele�tions 8 Total of Main Body -Aerial Shells 368 Grand Finale Descriation Quantitv ♦3" Sky Concert Finale Shells 180 ♦4" Sky Concert Finale Shells 90 Total of Grand Finale 270 Grand Total 688 m III . . . Golden Go[e Bridge 75`�Rnnivermry �I;{u' MncyY Xnrea GoWen Intematbnol Mi1e" Firewarks Festivol �, � Statue of Librrfy 125`"Anniverwry M'� � �......_ w................�.....,.._�_.�...._ ..,........._:... .� �.� �. �.�_��_.._...� _��.._-...,_..__.�... �;� i + Honq Kong Chinese New Yeor � � � ._ ..._...._�. , ......_.... _.__...:. ._____� KGS Sky Show Snn Diego � .F',4± �}�ny. g , �,_. ..-_. ..._a._, _ ,�_._,,..�. . .,,.._.. � Montreol Fireworks Festimt ! ...._-.__ _........ . . ._... ,.__...... . . -J� . _ . 'LfgbtS on!he , , Loke" � � Loke Tahae Americafest at the Rose 6ow!� ' ..'".." . .'.."""...,."""...""'....,''"",.'..... �'c. Korea MtemallonalFireworks Fesfival City of Palm Desert The World of Pyro Spectaculars at your Service! Training Permits/Licensing Transporafion �� Pyro�echnic Products ��`'`� OperatorlCrew yq.;,, � "'�n. I�� _ ' � � � � � . The Show Results Serv�ces �� Specialization/Insurance �� ; :�, i � , `,� ,. + � E,'� , Facilities/Storage � � Operafions �>�; The Deal (Sales) �.�_ �--__. �� Sponsor Our Commitment to City of Palm Desert FROM THE DESK OF J,��.0 S� PREStD�NT AND GEO I om so proud tha[my children and my grandchildren have decided to continue the Souza fireworks tradition and have joi�ed the family business thai now spans five generations...my father and my grandfather("Papagayo")would be so proud to see their vision of the American dreom come[rue for generations to tome. —eob Souza,Founder At the heart of every Pyro Spectaculars by Souza show there is the American heritage, and a California heritage as well. We are proud to be a California Fireworks Show Production company with resources that are rooted in the Golden State and reach literally around the world. For five generations the Souza Family, and the Pyra Spectaculars family have been committed to the highest standards of safety,showmnnship, and satisfaction for each of our customers. Your audience expects the best from you... and T am pleused to offer my personal commitment to ensure that they will be thrilled with your fireworks show... and that you will never hnve to "worry" about any aspect of our business, professional, pyrotechnic, or performance relationship. Along with the finest fireworks team in the industry, I pledge to you my personal support. Pyro Spectaculars is local, safe, cost-effective, creative, resourceful... the right choice for your fireworks show. I am personally committed to ensuring that our locnl experience of excellence for over one hundred yeQrs will give you the finest show possible at ctny price. You deserve the "Pyro Spec Experience!" Thank you. We look forwurd to serving you... with Pride! (�"`°. R. � Pyro Spectaculars,Inc. City of Palm Desert P.O. Box 2329 Arogram A Rialto,CA 92377 July 4,2013 Tel:909-355-8120:::: Fax:909-355-9813 Pa�e l c►F� PRODUCTION AGREEMENT This agreement("AgmemenN')is made this day of _20 by and between Pyro Speetaculars,tnc.,a Califomia 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"PaRies"herein. L Enea¢ement-CLIENT hereby engages PYRO to provide to CLIENT one fireworks production("Production"),and PYRO accepts such e�gagement upon all of the promises,terms and conditions hercinafter set forth.The Production shall be substanpaliy as outlined in Progam`;4",aktached hereto and incorporated herein by this refeCence. I.1 PYRO g,�ties—PYRO sha11 provide all pyrotechnie equipment,Uained pyrotechnicians,shipping,pyrotechnic products,application for specific pyrotechnic permits(the cost of which,including standby fees,shall be paid by CL1EN1�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 o£ Work"),attached hereto,incorporated herein by this reference,and made a part of this Agreement as�ough set forth futly herein. I.Z CLIENT Duties—CLIENT shall provide to PYRO a suitable site("Site")for thc 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 performeQ 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 pyrotechnic safaty,suitability,and security.All other conditions of the Site sha11 be the responsibi(ity of CLIENT,inciuding,but not limited to,access, use,controt,parking and general safety with respect to the public,CLIENT personnel and other contractors. 2. Tjme and Plaee-The Production shatl take place on 3ulv 4,2U13,at approximately 9:OU n.m.,at C:ollege of che Aesert,Palm Desert,CA,Site. 3. Fees,Interest,and Exoenses- 3.1 Fee-CLIENT agrees to pay PYRO a fee of S3b.UU0•00 USD f1'H[R7'1'SIX'CHUUSAND DOLI.ARS){"Fee")for the Produclion. CLIENT shall pay to PYRO$18.000.00 USD(EIGI-1'TF,EN THOUSAND DOLLARSI of the Fee plus estimated permit and standby fees,specified production costs,and other regutatory costs approximated at OO.OU OR an amount to be determined,for a total of 18 OOO.W as a deposit("DeposiY')upon the execution of this Agreement by both parties but no later than Anri14.2013. The balance of the Fee shalt be paid no later than Julv 5,2013.CLIENT authorizes PYRO to receive and verify credit and financial information concerning CLIENT from any agency,person or entity including but not timited to credit reporting agencies. The"PRICC FIRM"date,the date by which the executed Agreement must be delivered to Pyro,is set forth in paragraph 20. 3.2 In rest-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°/a annually on the unpaid balance. If litigation arises out ofthis Agreement,tlie prevailing party shall be entitled to reasonable costs incurred in connection with the litigation,including,but no[limited to attorneys'fees. 3.3 Exnenses—PYRO shall pay all normal expenses directly related to the Production including freight,insurance as outlined,pyrotechnie products,pyrotecbnic equipment,experienced pyrotechnic personnel to set up and discharge the pyrotechnics and those additional items as outlined as PYRO's responsibility in the Scope of Work. CLIBNT 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. Proorietary Rights-PYRO represents and warrants that it owns all capyrights,including performance rights,to this Production,except that PYRO does not own CLIENT-owned materiai 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 shalt not acyuire or retain any ownership or other rights in or to CLIENI'-owned material and third-party-owned material and shalt 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 abtain any permission from appropriate third par[ies sufficient to authorize Public e�chibition 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. Safetv-PYRO and CLIENT shall each compty with applicable federal,state and local laws and regulations and employ safety programs and measures consistent wich recognized applicable industry standards and practices. At alf times before and during the Produdion,it shall be within PYRO's sole diseretion 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 fireworks to fail or malfunction,or for PYRO to determine that the Production cannot be discharged or contimied as a result of any conditions or circumstances affec[ing safety beyond the reasonable contro!of PYRO. 6. Securi -CLIENT shall provide adequate security personnel,batticades,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 uea for the set-up and discharge of ttie Production,including a fallout area satisfactory to PYRO where the pyrotechnics may safely rise and any debris may safely fall. PYRO shall have no responsibility for monitoring or cantroUing CLILNT's other contractors,providers or vo(unteers;the public;areas to which the public or conVactors have access;or any other public or contraclor facilities associated with the Production. 7. Cleanuv-PYRO shall be responsible for the removal of all equipment provided by PYRO and clean up of any live pyrotechnic debris made necessary by PYRO. CLIENT shall be responsible for any other clean up which may be required of the Production or set-up,dischazge and fallout areas including any environmental clean-up. PS V 1-2e Pyro Spectaculars,Inc. City of Palm Desert P.O.Box 2329 ProgrHm A Rialto,CA 92377 July 4,2013 Tel:909-355-8120 ::::Fau:909-355-9813 Page 3 of� 8. Permits-PYRO agrees to apply for permits for the firing of pyrotechnics only from the PAI.�I DESERT FI.RE DEPART:IIF�T,FAA,and USCG, if required. CLIENT shall be responsible for any fecs associated with these permits including sts�nndby fees. CLIENT shail be responsible for obtaining any other necessary permits,paying associated fees,and making other appropriate arrangements for Police Departments,other Fire Departments,road closures, evendactivity or land use permits or any permission or permit required by any Local,Regional,State or Federal Govemment. 9. Insurancc-PYRO shall at all times during the performance of services herein ensere that the following insurance is maintained in connection with PYRO's performance ofd�is Agreement:(1)commercial general liability insurance,including products,completed operations,and contractual liability under this Agrcement;(2)automobile liability insurance,(3)workers'compensation insurance and emplayer liability insurance. Such insutar�ce is to protect CLIENT from claims for bodily injury,including death,personal injury,and from claims of property damage,which may arise from PYRO's perfwmance of this Agreement, only. The types and amounts of coverage shall be as set forth in the Scope of Work. Such iasurance shall not include claims which arise from CLIENT's �iegligence or willful conduct or from failure of CLIEIV7'to perform its obligatlons under this Agreement,coverage for which shal!be provided by CLIENT. The coverage of these policies shall be subjeci to reasonable inspection by CLIENT. Certificates of Insurance evidencing the required general liability coverage shall be furnished to CLIENT prior to the rendering ofservices hereunder and shall include that the following are named as additionally insured:CLIENT; Sponsors,Landowners,Barge Owners,if any;and Aermitting Aufhorities,with respect to the operations of PYRO at the Production. Pyrotechnic subcontractors or providers,if any,not covered under policies of insurance tequired hereby,shall secure,maintain and provide their own insurance coverage with respect to their respective operations a�id services. !0. Indemnification-PYRO represents a��d warrants that it is capable of furnishing the necessary experience,personnel,equipment,materials,providers, and expertise to produce tlie Production in a safe and professional manner. Notwithstanding anything in this Agreement to the contrary,PYRO shall indemnify, hold harmless,and defend CLIEN"C and the additional insureds 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 Iife,persona[injury,and/or demage to property,arising from or out of the Production and the presentation thereof to tl�e extent sueh are oceasioned by any act or omission of PYRO,their officers,agents,contractars,providers,or employees. CLIENT shall indemnify,hold harmless,and defend PYRO from and against any and atl claims,actions,damages,liability and expenses,including but not limited to,attorney and other professionat fees and court costs in connection with flie loss of life,personal injury,and/or damage to properiy,arising from or out of the Production and d�e presentation thereof[o the extent such are occasioned by any act or omission of CLIENT,its officers,agents,contractors, providers,or employees. [n no event shall either party be tiabie for the consequentiat damages of the other party. 11. Limitation of Damaees for Ordinary Breach-Except in the case of bodily injury and properry damage as provided in the insurance and indemnification provisions of Paragraphs 9 and 10,above,in the event CLIENT claims that PYRO has breached this Agreement or was otherwise negligent in performing the Production provided for herein,CLIErCT shal!not be entiUed 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 ctaim or recover any consequential damages from PYRO including,without limitation,damages for loss of income,business or profits. 12. Farce Maieure-CLIENT agrees to assume the risks ofweather,strike,civil unrest,terrorism,military action,govemmental action,and any other causes beyond the control of PYRO which may prevent the Production from being safety discharged on the scheduled date,which may cause the eancellation of any event for which CLIENT has purchased the Production,or which may affect or damage such portion of the exhibits as must be placed and exposed a necessary time before the Production. If,for any such 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 sueh causes,CLIENT may(i)reschedule the Production end 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 Uie ProducGon is canceled. 13, Rescheduling Of Event-If CLIENT elects to reschedule the Production,PYRO shall be paid the original Fee plus all additional expenses made necessary by rescheduling plus a I S%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,uansportation and labor.The Production shall be rescheduled for a date not more than 90 Days subsequent to the date first set for the Production. The Production shal]not be rescheduled to a date,or for an event,that historically has involved a fireworks production. The Production shall not be mscheduled between June 15th and July ISth unless the original date was July 4ih ofthat same year,or between December ISth and January 15th unless the original date was December 31st of the earlier year unless PYRO agrees that such rescheduling will not adversely aft'ect normal business operations during those periods. 14. Rieht To Cancel—CLIENT shall have the option to unilaterally cancel the Production prior to the scheduled date. If CLIENT exercises this option, CLIENT agrees to pay to PYRO,as liquidated damages,the following percentages of the Fee as set forth in Paragraph 3.1. t)SO%if cancetlation 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 eslimate of the damages PYRU will suffer if CLIGNT 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 obligatians not expressly provided for herein, 16. A�alicnble Law-This Agreement and the rights and ob6gations ofthe Parties hereunder shall be construed in accordance with the laws ofCalifornia. It is further agreed that the Central Judicial District of San Bernardino County,Califomia,shall be proper veaue for any such action.In the event that the scope of the ProducGon is reduced by authorities having jurisdictian or by either Party for safety concerns,the full dollar amounts out[ined in this Agreement are enforceable. 17. Notices- My Notice to the Parties permitted or required under fhis Agreement may be given by mailing sucfi Notice in the United States Mail, postage prepaid,first class,addressed as follows: PYRO—Pyro Spectaculars,Inc.,AO.Box 2329,Rialto,Califomia,92377,or for overnight delivery to 3196 N. Locust Avenue,Rialto,Catifornia 42377. Cl.[ENT—City of Palm Desert.73-510 Fred Warine Drive.Palm Desert,CA 4�260. PS V 1-2e Pyro Spectaculars,Inc. City of Paim Desert P.O.Box 2329 Program A Rialto,CA 92377 July 4,2013 Tel: 909-355-8120 :::: Fax:909-355-9813 Page 3 af� 18. Modification of Terms—Ali terms of the Agrcement are in writing and may only be modified by written agreement of bath 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. Severabiliri—If there is morc than one C1.IENT,they shall be jointly and severally raesponsible 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 acapted by PYRO at PYRO's ofiices in Rialto,California This Agreement may be executed in several counterparts,including fa�ced and emailed copies,each one of which shall be deemed an original against the Party executing same. This Agreement shall be binding upon the Parties hereto and upon their heics,successors,executors,administrators and assigns. 20. Price Firm—[f any changes or alterations are made by CLIENT to this Agreemer►t or if this Agreement is not executed by CLIENT and delivered to PYRO on or before the PRICE FIRM date shown below,then the price,date,and scope of the Production are subject to review and acceptance by PYRO for a period of 15 days foltowing delivery to PYRO of the executed Agreement. In the event it is not accepted by PYRO,PYRO shaq give CLIENT written notice,and this Agraement shalt be void. PRICE FIRM through April 4,2U13 EXECUTED AGREEMENT MUST BE DELIVERED TO PYRO BY THIS DATE. See PRICE FIRM eonditions,paragraph 20,above. EXECUTED as of the date first written above: PYRO SPECTACULARS,INC. City of Pafn►Uesert By: i By; Its: President Its: Print Name SHOW PRODUCER:Jcff Martin PS V I-2e Pyro Spectaculars,Inc. City of Palm Desert P.O.Box 2329 Program A Rialto,CA 92377 July 4,2013 Tei: 909-355-8120::::Fax:909-355-9813 Page�F aF4 scorE oF wo� PYRO SPECTACULARS,INC.("PYRO") and City of Palm Desert("CLIENT") Pyro shall provide the following goods and services to CLIENT: • One Ayro Spectaculars,Inc.,Production on July�i.2013,at approximately 9:pQ a•m,at Co!)e�e of tbe Desert.Palm Uesert. �'.'A. • All pyrotechnic equipment,trained pyrotechnicians,shipping,and pyrotechnic product. • Application for specific pyrotechnic permits relating to the Praduction. • Musical soundtrack for the Production supplied in ageed upon format. • Insurance covering the Production as set forth in the Agreement with the following limits: Insurance Renuirements L�mits Commercial Generat Liabilitv $1,000,000.00 Combined Single Limit-Each Occurrence (Bodily Injury&Property Damage) Business Auto Liabilitv- $5,000,000.00 Combined Single Limit-Each Occurrence Owned,Non-Owned and Hired Autos (Bodily Injury&Property Damage} Workers' Compensation Statutory Emplo,yer Liabilit_y $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 incluc3ing, 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-pyrotechnie 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 pyrotechnics 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 af such equipment and trained audio engineers for operation based on audio and communications requirements provided by PYRO. • General Services inctuding,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. C PERFORMING ARTS AGREEMENT This Agreement is entered into this day of , , by and between the CITY OF PALM DESERT, a California municipal corporation, hereinafter referred to as "CITY," and , 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 payment schedule 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 1 Contract No. C 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. Liqhtinq, Sound Amplification and Other Equipment The THEATER�s physical dimensions, built-in lighting and sound equipment, electrical system, and other technical speci�cations 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. Dressinct and Storaqe 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 2 Contract No. C necessary to effectuate the PERFORMANCE, including but not limited to stage 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. Any and all booking fees charged by GigMasters are to be paid for by the ARTIST. In addition, ARTIST shall obtain a City of Palm Desert Daily Business License, which payment shall also 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. 3 Contract Na C 8. Illness, Iniury 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 kRTIST may cancel the PERFORMANCE without 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. Assiqnment bv 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, 4 Contract Na C 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 ARfiIST�s 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. 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. Leaal 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. 5 Contract No. C 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. 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 DamaQes The parties hereto state that itwould 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 6 Contract No. C 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 $5,000. This Section shall not prevent either party from recovering compensatory damages for breaches of this Agreement due to causes other than the ARTIST�s late performance or nonperformance. 16. Attornev's Fees Should any action or proceeding be brought to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney=s fees and costs. 17. Modification No modification of this Agreementshall be valid unless agreed to in writing by both the CITY and ARTIST. 18. Prohibited Interests The ARTIST represents that neither it nor any of its agents or employees is currently an officer or employee of the CITY. 7 Contract No. C EXECUTION: The undersigned represent that they are authorized to execute this Agreement on behalf of the parties hereto on whose behalf they purport to sign. This Agreement shall be deemed executed on the date first above written. CITY OF PALM DESERT [ARTIST] JAN C. HARNIK, MAYOR (Signature; must be notarized) ATTEST: (Printed Name) RACHELLE KLASSEN, CITY CLERK APPROVED AS TO FORM: DAVID J. ERWIN CITY ATTORNEY 8 � Contract No. C PERFORMING ARTS AGREEMENT EXHIBIT A NAME OF ARTIST: [ARTIST� S NAME] DESCRIPTION: [DESCRIPTION OF ARTIST] 9 Contract No. C PERFORMING ARTS AGREEMENT EXHIBIT B DATE: [DATE OF PERFORMANCE] TIME: 7:30 P.M. TO 9:00 P.M. ARTIST must arrive, at least, one hour prior to PERFORMANCE for sound check, coordination with sound and lighting technicians, and be set up and ready to perform no later than 7:30 p.m. The PERFORMANCE must conclude promptly at 9:00 p.m. ARTIST shall submit a song list four weeks prior to the PERFORMANCE. CITY shall review song list and submit changes at a minimum of one week prior to PERFORMANCE. ARTIST(S) is entitled to one five minute break between sets, if necessary. 10 Contract No. C PERFORMING ARTS AGREEMENT EXHIBIT C Compensation of$ to be paid at conclusion of PERFORMANCE. ARTIST is to submit an invoice to the CITY no later than 10 (ten) days prior to the PERFORMANCE. ARTIST shall obtain a City of Palm Desert Daily Business License in the amount of $25.00, which is included as part of the compensation paid to ARTIST. Payment to ARTIST shall occur at the end of PERFORMANCE on the night of the event. In addition, any payment due GigMasters shall be paid by the ARTIST. (Generally GigMasters' booking fee is 5% of the performance fee.) NOTE: (Not obtaining the Daily Business License in a timely manner will result in delay of payment) 11 Contract No. C EXHIBIT D Lighting, sound amplification, and other equipment as necessary for the complete performance provided by Studio Instrument Rentals of Palm Springs. 12