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HomeMy WebLinkAboutReso 1988-13739 RESOLUTION NO. 13739 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE MAYOR TO EXECUTE A CONTRACT FOR A SYMPHONY CONCERT, A FIREWORKS DISPLAY AND TO ENTER INTO AN INDEMNIFICATION AGREEMENT The City Council of the City of Chula Vista does hereby resolve as follows: WHEREAS, the City of Chula Vista, in conjunction with the San Diego Unified Port District, is planning to host the San Diego Symphony Pops Orchestra for a concert at Marina View Park on Sunday, August 28, 1988, and WHEREAS, San Diego Fireworks will provide a fireworks display to accompany the symphony's musical finale. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the agreement between the San Diego Symphony Orchestra Association and the City of Chula Vista to provide a concert at Marina View Park on August 28, 1988, a copy of which is attached hereto and incorporated herein by reference as if set forth in full. BE IT FURTHER RESOLVED that the City Council does hereby approve the agreement between San Diego Fireworks, Inc. and the City of Chula Vista for a fireworks display on August 28, 1988, a copy of which is attached hereto and incorporated herein by reference as if set forth in full. BE IT FURTHER RESOLVED that the City of Chula Vista is hereby authorized to enter into a Indemnification Agreement with Rohr Industries for the use of their parking facilities on August 28, 1988, a copy of which is attached hereto and incorporated herein by reference as if set forth in full. BE IT FURTHER RESOLVED that the Mayor is hereby authorized and directed to execute the above agreements for and on behalf of the City of Chula Vista. Presented by Approved as to form by Manuel A. Mollinedo, Director D. Richard Rudol s stant of Parks and Recreation City Attorn 4537a ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF b, ,JLA VISTA, CALIFORNIA, this 16th doy of. August 19 88 , by the following vote, to-wit: AYES: Councilmembers Moore, McCandliss, Nader, Malcolm, Cox NAYES: Counci ] members None ABSTAIN: Councilmembers None ABSENT: Counci 1 members None ~Visto ATTEST~ ~' City Clerk b .rE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) ~, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chulo Visto, Colifornio, DO HEREBY CERTIFY thor the obove ond foregoing is 0 full, true ond correct copy of RESOLUTION N0. 13739 ,ond thor the some hos not been omended or repeoled. DATED  City Clerk CilY OF (HUIA VISTA FIREWORKS DISPLAY CONTRACT THIS CONTRACT, entered into on this 16th day of August 1988, by and between SAN DIEGO FIREWORKS, INC., hereinStalled First Party or Seller and CITY OF CHULA VISTA, hereinafter called Second Party or Buyer; WITNESSETH: WHEREAS, the City of Chula Vista is interested in presenting a fireworks display for a Symphony Concert at Marina View Park, and WHEREAS, San Diego Fireworks, Inc. was chosen to conduct the fireworks di splay. NOW, THEREFORE, IN CONSIDERATION of the mutual obligations of the parties as herein expressed, the parties agree as follows: First Party agrees to furnish Second Party in accordance with the terms and conditions herein set forth the following: One fi reworks di splay as per The Symphony Pops Fi reworks Final e incorporated by reference herein, including the services of 1 licensed operator to take charge of and fire the display with sufficient helpers. The said display is scheduled to be given on the evening of August 28, 1988, at the east end of Marina View Park. After First Party is set up and ready to put on said display and if prevented from doing so through no fault of First party, Second Party agrees to pay the full contract price as previously agreed without the right of any offset. Should the weather prove unfavorable on the date set for said display, postponement may be arranged for display to be fired on the next following clear night by agreement of both parties, but such postponement shall be decided on and notice given First Party not later than 3:00 p.m. on the date on which the display should be held and Second Party agrees to pay First Party for any additional expenses made necessary by such postponement but in no instance shall such additional expenses exceed forty percent (40%) of the contract price of the display. Said postponement due to unfavorable weather must be arranged for a performance of display within sixty (60) days of the time and date set for the original display. In the event Second Party fails to so request another date within said sixty-day period, First Party shall have no further liability to perform and Second Party agrees to pay the entire agreed contract price to First Party per the terms of said contract. In the event Buyer cancels the contract unilaterally, Buyer agrees to pay as liquidated damages to Seller twenty-five percent (25%) of the total contract price forthwith upon cancellation. Second Party agrees to assume the risk of weather or other causes beyond the control of First Party which may affect or damage such portion of the exhibits as must be placed in position and exposed a necessary time for the scheduled commencement of the display. Second Party agrees to provide adequate Police protection to protect First Party from the public's getting i-nto and about the space wherein the mentioned fireworks may operate, rise or fall to furnish and place sufficient ropes or guards to prevent unauthorized persons or the public from gaining admission to the necessary space provided for the exhibition and hindering or delaying employees of First Party or damaging display materials and equipment and to provide and pay for services of a standby fireman and/or permit fees in required by local ordinance or regulation. Second Party agrees as requested by First Party to provide adequate access to First Party at all times to set up said display in the event adequate access to display area is not provided. First Party will have no obligation to perform and Second Party agrees to pay the entire contract price as agrees plus any additional expenses incurred because of non access to said display area. First Party agrees to furnish the Second Party with a Certificate of Insurance indicating insurance coverage in connection with the display of fireworks: Bodily Injury and Property Damage including Products Liability. .$1,000,000 Combined Single Limit Policy which shall name the City of Chuia Vista as Additional Insured. This policy shall provide the City of Chula Vista with a 30-day cancellation notice. In addition, the First Party shall provide the Second Party with a Certificate of Insurance indicating Workers Compensation coverage to the statutory limits for its employees and licensed sub-contractors. It is agreed Second Party will pay First Party the following: $2,500 for the fireworks display per The Symphony Pops Fireworks Finale. Payment shall be made according to the following terms and conditions: 50% prepayment/deposit and 50% due and payable ten days after date of display, 1-1/2% service charge on accounts over thirty days. Second Party Buyer agrees to pay attorney's fees and costs if First Party Seller initiates suit to enforce collection of this account. First Party shall remain as to the City a wholly independent contractor. No agency relationship shall exist between First Party and the City. The City, its agents, officers and employees shall not be held liable for any claims, liabilities, penalties, fines, or for damages to any goods, properties or effect or any person whatsoever nor for personal injuries to or deaths of any of them whether caused by or resulting from any act or omissions of the First party or its subcontractors, agents, employees or representatives. The First Party further agrees to indemnify and save free -2- and harmless the City and its authorized agents, officers and employees against any of the foregoing liabilities and any costs and expense incurred by the City on account of any claim therefor. Thereby the First Party agrees to indemnify and to save the Second Party harmless from all claims arising by reason of the services provided by the First Party. The parties hereto do mutually and severally guarantee the terms, conditions and payment of this contract and these articles shall be binding on the parties themselves and on their heirs, executors, administrators, successors and assigns. All terms of this contract are in writing and may only be modified by written agreement of the parties hereto. Both parties acknowledge they have witnessed a copy of said written contract and agree to be bound by said terms of written agreement only. IN WITNESS WHEREOF, the parties hereto by and through their duly authorized agents have set their hands and seals this/~-~Jay of August 1988. VISTA ~ . Mayo~C~ty' o a Vista r ~ '- - ! - ATTE L/~ ~~I , ~~y' C1 ~rk Approved as to form by Assistant City WPC 1024R -3- S~Tnphony Hall. 1245 Seventh Avenue. San Diego, CA 92101. (619)699-4200 THIS AGREEMENT between the San Diego Symphony Orchestra Association, a not-for-profit corporation incorporated under the laws of the State of California (herein called the "Symphony"), and: City of Chula Vista /herein called the "Presentor"), WITNESSETH: 1. ENGAGEMENT. In consideration of the mutual promises herein set forth, the Symphony agrees to furnish and the Presentor agrees to hire the services of the San Diego Symphony Orchestra for -one- concert(s) to be given on: Day of Week Date Hour Sunday August 28, 1988 7:00 P.M. at: Name of Facility Address Marina View Park Chula Vista Except as otherwise specifically agreed to in writing, the selection of the program, any soloist, and other artistic personnel for each concert shall be at the sole discretion of the Symphony, and the mere consent of the Symphony to furnish particular music or other matter of persons (including the conductor) shall not be deemed a waiver or relinquishment of this power. 2. PAYMENT. The Presentor shall pay to the Symphony the amount of: $ 17,500 (seventeen thousand five hundred dollars) A deposit of $ 1,750 (one thousand seven hundred fifty dollars) shall be requi~ed on execution of contract, leaving a balance due of: $ 15,750 (fifteen thousand seven hundred fifty dollars) Payment for each concert shall be in lawful money of the United States by certified check on or before the day of the concert. On failure to pay, the total amount for all concerts shall then become due and owing. Time is of the essence to the provisions of this paragraph. ! 303q · 3. THE SYMPHONY SHALL PROVIDE: SEE ADDENDUM B, PAGE 10 OF THIS CONTRACT 4. FACILITIES. The Presentor shall provide at its expense the above named facility(ies) at the time(s) indicated, properly heated, ventilated, lighted, clean and in good order, equipped with a stage or platform large enough to seat the Orchestra conveniently and comfortably, with a sufficient number of chairs and music stands, with adequate dressing rooms for the Orchestra, the Conductor, and the guest artists, if any, with accessible, adequate space for instrument cases and baggage, with sufficient personnel to handle equipment, set the stage, and operate its mechanical, electrical, and other equipment. When required by the Symphony, the Presentor shall furnish, at its expense, one or two properly tuned concert grand pianos, as requested. All of the above shall be to the satisfaction of the Symphony, and shall also be provided for any daytime rehearsals requested by the Symphony prior to and for each concert. The Presentor, at its expense, shall furnish for performances all ticket sellers and takers, ushers, special police, attaches and other like personnel, any licenses and permits required, tickets of admission and programs, postage or express charges or printed matter, all other advertising costs, and shall bear all other expenses in connection with the giving of the concert, to include: SEE ADDENDUM B, PAGE lO OF THIS CONTRACT The Presentor, at its expense, shall provide the Symphony for its library, Ten (10) copies of the program for each concert. 5. COURTESY TICKETS. For each concert, the Presentor shall provide, upon request, up to Ten (10) complimentary seats to the Symphony and at the dispasal of its management. 6. CREDITS, PROGRAM AND PUBLICITY. The Presentor agrees to display the name of the Orchestra, the conductor and any other principals in all advertising and printed programs in such form as may be prescribed by the Symphony, and to print and distribute house programs from copy furnished by the Symphony, said copy to be printed in its entirety as furnished. Advance proof of house -2- programs shall be furnished the Symphony,not less than two weeks before the concert date for the Symphony's approval of page format and credits. The Presentor agrees to promote and exploit the concerts and to make every effort to secure the largest possible attendance. 7. RESTRICTION. The Presentor agrees that no concert(s) is(are) to be recorded, broadcast, televised or otherwise extended beyond the hall without the prior written consent of the Symphony. In the event that the Symphony wishes to have the concertIs) recorded, broadcast, televised or otherwise extended beyond the facility, the Presentor agrees to make the facility available for the installation, operation and removal of all necessary equipment and facilities. All costs relative thereto shall be borne by the Symphony. The Presentor shall not receive any fee, remuneration or compensation for any such extension of the concert(s). 8. NO DISCRIMINATION. The Presentor agrees that admission to and seating in the hall shall be without regard to race, color, religion or national origin. 9. PROGRAM CHANGES. The Symphony shall have the right, exercisable solely at its discretion, as represented by the judgment and decision of its Music Director, Conductor or other authorized representative, to change the program of any concert at any time and for any reason, regardless of any advertisement, consent or promise of the Symphony, whether contained in Paragraph One hereof or otherwise by removing from the program any music or other matter to be presented and substituting therefor other music or matter, and by removing any person, including the Conductor of the concert, persons or group of persons, except the San Diego Symphony Orchestra itself, and either substituting therefor other person, persons or group of persons or none at all, and the Symphony's performance of the program as so changed shall be deemed full performance of its engagement and obligations, whether under Paragraph One hereof or otherwise, for the concert which would have otherwise been performed. lO. IMPOSSIBILITY OF PERFORMANCE. If the performance of any of the covenants and promises of this Agreement on the part of either the Symphony or the Presentor shall be prevented by an act of God, force majeure, fire, casualty, illness, physical disability, the acts or regulations of public authorities or labor unions, labor difficulties, lockout, strike, civil tumult, war, riot, power failure, blackout, air raid alarm, air raid, act of public enemy, epidemic, interruption or delay of transportation service, or any other cause of a similar or different nature, beyond its control, the parties shall respectively be relieved of their obligations hereunder with respect to the performance so prevented for the period during which such performance shall be so prevented. If the presentation of a concert at the time herein specified shall be prevented for any of the foregoing reasons, the Symphony shall be under no obligation to present the concert at a different time, or to compensate the Presentor for any expenses incurred in connection with such concert, except that all reasonable effort will be made to reschedule the concert. -3- ll. EXCUSE FROM PERFORMANCE. Unless the information required in the Addendum to this Agreement is properly supplied and fully filled out by the Presentor, the nonarrival of the Orchestra will not relieve the presentor from full responsibility hereunder. !2. NOTICE. Any notice which is provided to be given under the terms of this agreement must be in writing and may be given personally or by registered mail, directed to the Symphony at 1245 Seventh Avenue, San Diego, CA 92101, and to the Presentor at its address as set forth below. Either party may, by like notice, designate a different address for the serving of notices. 13. MODIFICATION. No modification or waiver of any of the terms of this Agreement shall be valid unless in writing and executed with the same formality as this Agreement. Failure of either party to insist in any one or more instances upon strict performance of any of the terms and provisions on the other party's part to be performed, shall not be considered as a waiver or relinquishment of any such term or provision for the future, and the same shall continue in full force and effect. 14. HOLD HARMLESS/INSURANCE HOLD HARMLESS: Symphony agrees to indemnify and hold harmless the City of Chula Vista against and from any and all damages to property or injuries to or death of any person or persons, including property and employees or agents of the City, from any and all claims, demands, suits, actions or proceedings of any kind or nature including worker's compensation claims, of or by anyone whomsoever, in any way resulting from or arising out of the negligent or intentional acts, errors or omissions of the Symphony or any of its officers, agents or employees. Presentor agrees to indemnify and hold harmless the Symphony against and from any and all damages to property or injuries to or death of any person or persons, including property and employees or agents of the Symphony, from any and all claims, demands, suits, actions or proceedings of any kind or nature including worker's compensation claims, of or by anyone whomsoever, in any way resulting from or arising out of the negligent or intentional acts, errors or omissions of the Presentor or any of its officers, agents or employees. INSURANCE: Symphony shall, throughout the duration of this Agreement maintain comprehensive general liability and property damage insurance covering all operations hereunder of Symphony, its agents and employees including but not limited to premises and automobile, with minimum coverage of Five Hundred Thousand Dollars ($500,000.00) combined single limits. Evidence of such coverage, in the form of a Certificate of Insurance shall be submitted to the City Clerk at 276 Fourth Avenue. Said policy or policies shall provide thirty (30) day written notice to the City Clerk of the City of Chula Vista of cancellation or material change. Presentor shall, throughout the duration of this Agreement maintain comprehensive general liability and property damage insurance covering all -4- operations hereunder of Presentor, its agents and employees including but not limited to premises and automobile, with minimum coverage of Five Hundred Thousand Dollars ($500,000.00) combined single limits. Evidence of such coverage, in the form of a Certificate of Insurance shall be submitted to the San Diego Symphony at 1245 Seventh Avenue, San Diego. Said policy or policies shall provide thirty (30) day written notice to the Symphony of cancellation or material change. 15. ASSIGNMENT. This Agreement shall not be assigned by the Presentor without the written consent of the Symphony. 16. CONSTRUCTION. This Agreement shall be construed, governed, and interpreted pursuant to the laws of the State of California, and is a California Contract. This Agreement represents the full understanding between the parties, and neither party shall be bound by any terms or undertakings other than those contained therein. IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED TH~S AGREEMENT THE DAY AND YEAR BELOW WRITTEN. SYMP C~S~'~~TRA 7 ~ 0 L/WESLEY O, TITLE "" PRESENTOR'~ ADDRESS WPC 1031 R ' -5- INDEMNIFICATION AGREEMENT The City of Chula Vista agrees to indemnify and hold harmless Rohr Industries from any liability arising from its use of property at the parking lot, leased by Rohr Industries, located at Tidelands Avenue and "G" Street, in order to allow parking for the August 28, 1988 San Diego Symphony Pops Concert. The City of Chula Vista also agrees to defend Rohr Industries in any litigation arising from this activity. Item 7 SUMMARY OF PROPOSED BUDGET i 1. Electrical Supplies/Services $1,000 2. Promotional Expenses 3,000 3. Police Services 800 4. Parks and Recreation Personnel 500 5. Fireworks Display 2,500 6. Portable Toilets 1,000 7. Shuttle Bus Service 500 8. Traffic Control Supplies 350 9. Public Works Personnel 100 lO. Miscellaneous Supplies 300 $10,050 WPC 1025R