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AG 22-038 - PYRO SPECTACULARS NORTHF I I RETURN TO: EXT: I CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM j 1_ ORIGINATING DEPT./DIV: FWCC 2. ORIGINATING STAFF PERSON: Trisha Plucknett EXT: 6921 DATE REQ. BY: 4. TYPE OF DOCUMENT (CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT (E.G., RFB, RFP, RFQ) ❑ PUBLIC WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES / CDBG ❑ REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT (E.G. BOND RELATED DOCUMENTS) ❑ ORDINANCE ❑ RESOLUTION ❑ CONTRACT AMENDMENT (AG#): ❑ INTERLOCAL 9 OTHER Production Agreement 5. PROJECT NAME: Pyro Spectaculars bu Souza 6. NAME OF CONTRACTOR: Pyro Spectaculars North, Inc. ADDRESS: TELEPHONE E-MAIL: FAX: SIGNATURENAME: James Souza TITLE President 7. EXHIBITS AND ATTACHMENTS: A SCOPE, WORK OR SERVICES a COMPENSATION ❑ INSURANCE REQUIREMENTS/CERTIFICATE a ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT/AMENDMENTS 8. TERM: COMMENCEMENT DATE: upon execution COMPLETION DATE: July 4, 2022 9. TOTAL COMPENSATION $ 19,500.00 (INCLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: ❑ YES ❑ NO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED ®YES ONO IF YES, $_ _ PAID BY. ❑ CONTRACTOR ❑ CITY RETAINAGE: RETAINAGE AMOUNT: ❑ RETAINAGE AGREEMENT (SEE CONTRACT) OR ❑ RETAINAGE BOND PROVIDED ❑ PURCHASING: PLEASE CHARGE TO: 001-7200-352-573-92-410 10. DOCUMENT/CONTRACT REVIEW ❑ PROJECT MANAGER ❑ DIRECTOR K MANAGEMENT (IF APPLICABLE) Id"LAW 11. COUNCIL APPROVAL (IF APPLICABLE) 12 CONTRACT SIGNATURE ROUTING INITIAL/DATE REVIEWED INITIAL IDATE APPROVED CG 03/11/22 COMMITTEE APPROVAL DATE: COUNCIL APPROVAL DATE: ❑ SENT TO VENDOR/CONTRACTOR DATE SENT: DATE REC'D: ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS ❑ CREATE ELECTRONIC REMINDER/NOTIFICATION FOR 1 MONTH PRIOR TO EXPIRATION DATE (Include dept. support staff if necessary and feel free to set notification more than a month in advance if council approval is needed.) INITIAL / DATE SIGNED LAW DEPARTMENT SGNATOR (MAYOR OR DIRECTOR) O I2� CTY CLERK 13 0 ASSIGNED AG# AG# " COMMENTS: 2/2017 N Pyro Spectaculars North, Inc. 5301 Lang Avenue McClellan, CA 95652 Tel: 909-355-8120 :::: Fax: 909-355-9813 This agreement ("Agreement") is made this corporation, hereinafter referred to as ("PYRO"), and as "Party" or collectively as "Parties" herein. City of Federal Way Program A - Revised July 4, 2022 Page 1 of 4 PRODUCTION AGREEMENT day ofyNn , 2022 by and between Pyro Spectaculars North, Inc., a Caiilbrnia City of Federal Way, hereinafter referred to as ("CLIENT"). PYRO and CLIENT are sometimes referred to I . En_-nLcmrnl_- CLIENT hereby engages PYRO to provide to CLIENT one fireworks 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 `;A - Revised", attached hereto and incorporated herein by this reference. 1.1 P V RO iluti— PYRO shall provide all pyrotechnic equipment, trained pyrotechnicians, shipping, pyrotechnic products, application for specific pyrotechnic 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 perfonned, including preproduction services, all 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 pail of this Agreement as though set forth fully herein. 1.2 CLIENT Ditties — 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 pyrotechnic 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. 11rtlt_9ttrl Pharr - The Produclion shall take place on July 4, 2022. at approximately 1(1:00 PN , at C'elebraflou Park ceffler of flit haseball romale.►. IM Soufh 32414 SI., Federal Wri . CA, Site. 3. hers, lfrteres[, nttd [ixnensex - 3.1 Fee -CLIENT agrees to pay PYRO a fee of $12JO M.USD (NlNF'TFF N TII011&ANIl FiVE Nt1NOR F T) DOLLARS) ("Fee") for the Production. CLIENT shall pay to PYRO an initial payment ("Initial Payment") equal to 50 % of the Production Fee S9,750.00 USD (NINE T11O11r e SEVEN FIUNDRED FIFTY DOLLARS} plus estimated pennit and standby fees, and other regulatory costs approximated at SOtl.00 OR an amount to be determined, for a total of 9 7S0 00, upon the execution of this Agreement by both patties but no later than April 11.2022. The Initial Payment is a partial payment toward the preproduction services and costs set forth in the Scope of Work ("Preproduction Services and Costs".) The balance of the Fee shall be paid no later than July 5, 2022. CLIENT authorizes PYRO to receive and verily credit and financial information concerning CLIENT from any agency, person or enlity including but not limited to credit reporting agencies. The "PRICE FIRM" date, (lie date by which the executed Agreement must be delivered to Pyro, is set Forth in paragraph 20. 32 infCreil - In the event thal the Fee is not paid in a timely manner, CLIENT will be responsible for the payment of 1.5% interest per ntcrnth or 18% annually on the unpaid balance. If litigation arises out of this Agreement, (be prevailing party shall be entitled to reasonable costs ineuned in connection with the litigation, including, but not limited to attorneys' fees. 3.3 Expews — PYRO shall pay all nonnal expenses directly related to tile. Production including freight, insurance as outlined, pyroleclmic products, pyrotechnic 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. CLIENT shall pay all costs related to the Production not supplied by PYRO including, bill not limited to, those items outlined as CLIENT's responsibility in this Agreement and Scope of Work. 4. Pro rirlai-v Mullis - PYRO represents and warranls that it owns all copyrights, including perlornianec 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 -pally - owned material, CLIENT assumes full responsibility therefore. CLIENT agrees that PYRO shall retain ownership of', and al] 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 lhird-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 penmission of PYRO is prohibited. 5. Safety - PYRO and CLIENT shall each comply with applicable federal, slate 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 fireworks 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 nray be necessary to preclude individuals other than those authorized by PYRO ]'join entering in 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 pyrotechnics may safely rise and any debris may safely fall. PYRO shall have no responsibility for monitoring or controlling CLIENT's other conlactos, providers or volunteers; the public; areas Io which the public orcontractors have access, or any other public or contractor facilities associated with the Produclion, 7 C-leunul- 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 Ibrany other clean up which may be required of the Production or set-up, discharge and fallout areas including any environmental clean-up_ PSNI V-2021-2 Pyro Spectaculars North, Inc. 5301 Lang Avenue McClellan, CA 95652 Tel: 909-355-8120 :::: Fax: 909-355-9813 City of Federal Way Program A - Revised July 4, 2022 Page 2 of 4 K Permits - PYRO agrees to apply for pennits for the firing ofpyroteclinics only from the SOUTH ICING COUNTY FIRE DISTRICT, FAA, and tJSCG, 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 anangcments for Police Departments, other Fire Departments, road closures, event/activity or land use pennits or any permission or pennit required by any Local, Regional, State or Federal Government. 9. hf- PYRO shall at all times during the performance of services herein ensure that the following insurance is maintained in connection with PYRO's perfornancc of this Agreement: (1) contntercial general liability insurance, including products, completed operations, and contractual liability under this Agreement; (2) automobile liability insurance, (3) workers' compensation insurance and employer liability insurance. Such insurance 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 performance of this Agreement, only. The types and amounts of coverage shall be as set forth in the Scope of Work. Such insurance shall not include claims which arise from CLIENT's negligence or willful conduct or fiont 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 herermder and shall include that the following are named as additionally insured: CLIENT; Sponsors, Landowners, Barge Owners, if any; and Permitting Authorities, with respect to the operations of PYRO at the Production. Pyrotechnic subcontractors or providers, if any, not covered under policies of insurance required hereby, shall secure, maintain and provide their own insurance coverage with respect to their respective operations and services. 10 ludetnui6c4tiou - PYRO represents and warrants that it is capable of furnishing the necessary experience, personnel, equipment, materials, providers, and expertise to produce the Production in a safe and professional manner. Notwithstanding anything in this Agreement to the contrary, PYRO shall indemnify, hold hannless, 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 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 PYRO, their officers, agents, contractors, providers, or employees. CLIENT shall indemnify, hold hannless, 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 carriages of the other party, It. I.imltntion of Danwges rnr Ordinary Breach -Except in the case of bodily injury and property 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 1br herein, CLIENT shall not be entitled to claim or recover monetary damages from PYRO beyond the atnount CLIENT has paid to PYRO under this Agreement, and shall not be entitled to claim or recover any consequential damages from PYRO including, without limitation, damages for loss of income, business or profits. t2. Forre " uro -CLIENT agrees to assume the risks of weather, strike, civil unrest, terrorism, military action, governmental action, and any oilier causes beyond the control of PYRO which may prevent the Production fi-onr being safely discharged on the scheduled dale, which may cause the cancellation of any event for which CLIENT has purchased the Production, or which may affect or danttrge 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 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 R , r1miluline Of E:veal - If CLIENT elects to reschedule the Production, PYRO shall be paid the original Fee 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 rCSehedulCd date taking into consideration availability ofpermils, materials, equipment, transportation and labor The Production shall be rescheduled for a dale not more. than 90 Days subsequent to the date first set for the Production. The Production shall not be rescheduled to a date, or loran event, that historically has involved a fireworks production. The Production shall not be reschahled between June 151l and July 150 unless the original date was July 4th of that same year, or between December 151h and January 15th unless the original date was December 31 st of the earlier year unless PYRO agrees that such resebeduling will not adversely affect normal business operations dining those periods, 14 lti hl 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 ofthe Fee as set forth in Paragraph 3.1. 1) 50% it' cancellation occurs 30 or more days prior to the scheduled date, 2) 75% if cancellation occurs 15 to 29 days prim• 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 ifCLIENT cancels the Production, 15. No ,faint Vvillat's - It is agreed, nothing in this Agreement or in PYRO's performance of the Production shall be construed as fanning a partnership or joint venture between CLIENT and TYRO. TYRO shall be and is an independent contractor with CLIENT and not an employee ofCLiENT. 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 Aggliealrle l,uw - This Agreement and the rights and obligations ofthe Parties hereundershall be construed in accordance with the laws of California. It is further 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 safely concerns, the full dollar amounts outlined in this Agreement are cn lorceable, 17. Notfees - Any Notice to the Parties pennilted or required under this Agreement may be given by mailing. such Notice in the United States Mail, postage prepaid, first class, addressod as follows: PYRO — Pytn Spectaculars North, Inc., l .C7. Box 232e3, Rwfto, California, 92377, or for overnight delivery to 3196 N. Locust Avenue, Rialto, Califnrlia 92377. CLIENT— C'it. of Federnl Wayz31725 O'h Ave. S. Federat ►Yay. WA 99003. PSNI V-2021-2 Pyro Spectaculars North, Inc. 5301 Lang Avenue City of Federal Way Program A - Revised McClellan, CA 95652 July 4, 2022 Tel: 909-355-8120 :::: Fax: 909-355-9813 Page 3 of 4 18. Mimi frr:uian of "fermi —All terns 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 terns of written Agreement only. 19. Severabilily —If there is more than one CLIENT, they shall be jointly and severally responsible to perform CLI ENT'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 offices in Rialto, California. This Agreement may be executed in several counterparts, including faxed 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 heirs, successors, executors, administrators and assigns. 20. Price Firm —If any changes or alterations are made by CLIENT to this Agreement or if this Agreement is not executed by CLIENT and delivered to PYRO on or before the PRICE- FIRM date shown below, or if the Initial Payment is not paid on or before the due date, then the price, date, and scope of the Production are subject to review and acceptance by PYRO for a period of 15 days following delivery to PYRO of the executed Agreement. In the event it is not accepted by PYRO, PYRO shall give CLIENT written notice, and this Agreement shall be void. PRICE FIRM through April 11, 2022 EXECUTED AGREEMENT MUST BE DELIVERED TO PYRO BY THIS DATE. See PRICE FIRM conditions, paragraph 20, above. EXECUTED as of the date first written above: PYRO SPECTACULARS NORTH, INC. r LBY � ' Its: President Date: -5/��/�� SHOW PRODUCER: Rich Vaughan City of Federal Way Its: _it,�.l>—, i — 0--o-L 'e - 9- rrVA2--- - Print Name .�.y Date: --...I y.yv PSNI V-2021-2 Pyro Spectaculars North, Inc. City of Federal Way 5301 Lang Avenue Program A - Revised McClellan, CA 95652 July 4, 2022 Tel: 909-355-8120 :::: Fax: 909-355-9813 Page 4 of SCOPE OF WORK PYRO SPECTACULARS NORTH, INC. ("PYRO") and City of Federal Way("CLIENT") Pyro shall provide the following goods and services to CLIENT: • One Pyro Spectaculars North, Inc., Production on July 4. 2022, at approximately 10:00 PM at Celebration Park center of baseball complex l095 South 324"' St., Federal Way,WA. ■ All pyrotechnic equipment, trained pyro technicians, shipping, and pyrotechnic product. • Preproduction Services and Costs for the Production, including advance acquisition of materials and products; design, engineering, programming, handling, staging, storage, and maintenance of products, props, and systems; preparation of drawings, diagrams, listings, schedules, inventory controls, choreography, and computer code; picking, packing, labeling, staging, and loading of equipment, materials, and systems; transportation, and logistics and crew scheduling and support; explosive storage magazines with legally mandated distances, surfaces, security, housekeeping, and access controls; and necessary and appropriate vehicles, including legally mandated insurance, including MCS90 explosives transportation coverage, parking, security, and maintenance. ■ Application for specific pyrotechnic permits relating to the Production. • Insurance covering the preproduction and Production as set forth in the Agreement with the following limits: Insurance Rerltdre+► eni.P Limits Commercial General Uability $3,000,000.00 Combined Single Limit- Each Occurrence (Bodily Injury & Property Damage) Business Auto LiahiliLy. $5,000,000.00 Combined Single Limit- Each Occurrence 0%iied Non -Owned and H ircio A tas (Bodily Injury & Property Damage) Workers' ComlICnsatixrn 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 -pyrotechnic 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. • 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. PSNI v-2021-2