Item 5 - Approval of a Three-Year Agreement with Fireworks America to Provide Annual July 4th FireworksYear Cost
1995-2017 $15,000
2018-2019 $18,000
2020-2021 $18,000 X 2
2022 $22,000 X 2
In 2020 during the height of the pandemic, the City added one additional fireworks show in the Poway
business park to provide an almost 360-degree opportunity for residents to watch the fireworks. This
allowed for a wider enjoyment in both the north and south Poway area while maintaining social
distancing. This additional show was well-received and became a new tradition.
In late October 2022, the City of San Marcos and the City of Vista reached out to the Community
Services Department to inquire about the City of Poway fireworks provider. Both cities had issued a
Request for Proposals (RFP) with no responses. To ensure the City of Poway did not face similar
challenges, Poway City staff immediately reached out to Fireworks America and in early February
secured a three-year contract quote. If accepted, the 2023 cost would remain the same as the 2022
show and years 2024 and 2025 would increase by $425 per show location.
Year Cost Total
2023 $22,000 X 2 $44,000
2024 $22,425 X 2 $44,850
2025 $22,425 X 2 $44,850
The City of Poway purchasing/procurement procedures require purchases or contract services over
$10,000 obtain proposals or quotes. After evaluation of current trends and pricing, staff determined
it is in the best interest of the City to waive the bidding requirement based on the following reasons:
1. The rising costs of goods. The year-over-year inflation rate in January 2023 for San Diego
was 6.4%. The largest increase in the fireworks contract occurred in 2022. Moving forward
with a three-year contract locks down the price and allows staff to budget appropriately.
2. The requirement to bid this purchase will not likely result in a lower price given the
research conducted with other cities and historical experience.
Based on the long-standing relationship with Fireworks America, the minimal price increases, and the
quality of the shows, staff recommends the three-year contract.
Environmental Review:
This action is not subject to review under the California Environmental Quality Act (CEQA).
Fiscal Impact:
There are sufficient funds in account 202020-41200 for the 2023 fireworks. Each year thereafter,
funds will be included in the proposed budget for the cost of the fireworks.
Public Notification:
None.
2 of 18 March 21, 2023, Item #5
In the event that City terminates this Agreement without cause, City shall pay
Contractor 35% of the total cost set forth in Attachment 2 of Exhibit "A," and all other costs incurred
by Contractor at the time of the of notice of termination that, in the aggregate, exceed the
termination fee of 35% of the total cost.
5. Confidential Relationship.
City may from time to time communicate to Contractor certain information to enable
Contractor to effectively perform the services . Contractor shall treat all such information as
confidential, whether or not so identified, and shall not disclose any part thereof without the prior
written consent of the City. Contractor shall limit the use and circulation of such information, even
within its own organization, to the extent necessary to perform the services. The foregoing
obligation of this Paragraph 5, however, shall not apply to any part of the information that (i) has
been disclosed in publicly available sources of information; (ii) is, through no fault of Contractor,
hereafter disclosed in publicly available sources of information; (iii) is now in the possession of
Contractor without any obligation of confidentiality; or (iv) has been or is hereafter rightfully
disclosed to Contractor by a third party, but only to the extent that the use or disclosure thereof
has been or is rightfully authorized by that third party.
Contractor shall not disclose any reports, recommendations, conclusions or other
results of the services or the existence of the subject matter of this contract without the prior
written consent of the City. In its performance hereunder, Contractor shall comply with all legal
obligations it may now or hereafter have respecting the information or other property of any other
person, firm or corporation.
6. Office Space and Clerical Support.
Contractor shall provide its own office space and clerical support at its sole cost
and expense.
7. Covenant Against Contingent Fees.
Contractor declares that it has not employed or retained any company or person,
other than a bona fide employee working for Contractor, to solicit or secure this Agreement, that
it has not paid or agreed to pay any company or person, other than a bona fide employee, any
fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or
resulting from the award or making of the Agreement. For breach of violation of this warranty,
City shall have the right to annul this Agreement without liability, or, at its sole discretion, to deduct
from the Agreement price or consideration, or otherwise recover the full amount of such fee,
commission, percentage, brokerage fee, gift or contingent fee.
8. Ownership of Documents.
All memoranda, reports, plans, specifications, maps and other documents
prepared or obtained under the terms of this Agreement shall be the property of City and shall be
delivered to City by Contractor upon demand.
9. Conflict of Interest and Political Reform Act Obligations.
During the term of this Agreement Contractor shall not act as contractor or perform
services of any kind for any person or entity whose interests conflict in any way with those of the
City of Poway. Contractor shall at all times comply with the terms of the Political Reform Act and
the local conflict of interest code. Contractor shall immediately disqualify itself and shall not use
5 of18 March 21, 2023, Item #5
its official position to influence in any way any matter coming before the City in which the
Contractor has a financial interest as defined in Government Code Section 87103. Contractor
represents that it has no knowledge of any financial interests which would require it to disqualify
itself from any matter on which it might perform services for the City.
"Contractor" means an individual who, pursuant to a contract with a state or local
agency:
(A) Makes a governmental decision whether to:
1. Approve a rate, rule or regulation;
2. Adopt or enforce a law;
3. Issue, deny, suspend, or revoke any permit, license, application,
certificate, approval, order, or similar authorization or entitlement;
4. Authorize the City to enter into, modify, or renew a contract provided
it is the type of contract that requires City approval;
5. Grant City approval to a contract that requires City approval and to
which the City is a party, or to the specifications for such a contract;
6. Grant City approval to a plan, design, report, study, or similar item;
7. Adopt, or grant City approval of, policies, standards, or guidelines
for the City, or for any subdivision thereof; or
(B) Serves in a staff capacity with the City and in that capacity participates in making
a governmental decision as defined in the Political Reform Act and/or
implementing regulations promulgated by the Fair Political Practices Commission,
or performs the same or substantially all the same duties for the City that would
otherwise be performed by an individual holding a position specified in the City's
Conflict of Interest Code.
DISCLOSURE DETERMINATION:
!ZI 1. Contractor will not be "making a government decision" or "serving in a staff
capacity" as defined in Sections A and B above.
No disclosure required.
D 2. Contractor will be "making a government decision" or "serving in a staff
capacity" as defined in Sections A and B above. As a result, Contractor shall be
required to file a Statement of Economic Interest with the City Clerk of the City of
Poway in a timely manner as required by law.
Department Director
10. No Assignments.
Neither any part nor all of this Agreement may be assigned or subcontracted,
except as otherwise specifically provided herein, or to which City, in its sole discretion, consents
to in advance thereof in writing. Any assignment or subcontracting in violation of this provision
shall be void.
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11. Maintenance of Records.
Contractor shall maintain all books, documents, papers, employee time sheets,
accounting records, and other evidence pertaining to costs incurred and shall make such
materials available at its office at all reasonable times during the contract period and for three (3)
years from the date of final payment under this Agreement, for inspection by City and copies
thereof shall be furnished, if requested.
12. Independent Contractor.
At all times during the term of this Agreement, Contractor shall be an independent
contractor and shall not be an employee of the City of Poway. City shall have the right to control
Contractor only insofar as the results of Contractor's services rendered pursuant to this
Agreement; however, City shall not have the right to control the means by which Contractor
accomplishes such services.
13. Licenses, Permits, Etc.
Contractor represents and declares to City that it has all licenses, permits,
qualifications, and approvals of whatever nature that are legally required to practice its profession.
Contractor represents and warrants to City that Contractor shall, at its sole cost and expense,
keep in effect at all times during the term of this Agreement, any license, permit, or approval which
is legally required for Contractor to practice its profession.
14. Contractor's Insurance.
Contractor shall provide insurance as set forth in Exhibit "A" entitled "Special
Provisions" attached hereto and made a part hereof.
15. Indemnification.
(a) For Claims (as defined herein) other than those alleged to arise from Contractor's
negligent performance of professional services, City and its respective elected and appointed
boards, officials, officers, agents, employees and volunteers (individually and collectively,
"lndemnitees") shall have no liability to Contractor or any other person for, and Contractor shall
indemnify, protect and hold harmless lndemnitees from and against, any and all liabilities, claims,
actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and
expenses, including reasonable attorneys' fees and disbursements (collectively "Claims"), which
lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or
arising out of any injury to or death of any person(s), damage to property, loss of use of property,
economic loss or otherwise occurring as a result of Contractor's negligent performance under this
Agreement, or by the negligent or willful acts or omissions of Contractor, its agents, officers,
directors, sub-contractors or employees.
(b) For Claims alleged to arise from Contractor's negligent performance of
professional services, lndemnitees shall have no liability to Contractor or any other person for,
and Contractor shall indemnify and hold harmless lndemnitees from and against, any and all
Claims that lndemnitees may suffer or incur or to which lndemnitees may become subject by
reason of or arising out of any injury to or death of any person(s), damage to property, loss of use
of property, economic loss or otherwise to the extent occurring as a result of Contractor's negligent
performance of any professional services under this Agreement, or by the negligent or willful acts
or omissions of Contractor, its agents, officers, directors, sub-contractors or employees,
committed in performing any of professional services under this Agreement. For Claims alleged
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to arise from Contractor's professional services, Contractor's defense obligation to lndemnitees
shall include only the reimbursement of reasonable defense costs and attorneys' fees to the
extent caused by Contractor's negligence.
( c) The foregoing obligations of Contractor shall not apply to the extent that the Claims
arise from the sole negligence or willful misconduct of City or its elected and appointed boards,
officials, officers, agents, employees and volunteers.
(d) In any and all Claims against City by any employees of the Contractor, anyone
directly or indirectly employed by it or anyone for whose acts it may be liable, the indemnification
obligation under this Section 15 shall not be limited in any way by any limitation on the amount or
type of damages, compensation or benefits payable by or for the Contractor under worker's
compensation acts, disability benefit acts or other employee benefit acts.
(e) Contractor shall, upon receipt of written notice of any Claim, promptly take all
action necessary to make a claim under any applicable insurance policy or policies Contractor is
carrying and maintaining; however, if Contractor fails to take such action as is necessary to make
a claim under any such insurance policy, Contractor shall reimburse City for any and all costs,
charges, expenses, damages and liabilities incurred by City in making any claim on behalf of
Contractor under any insurance policy or policies required pursuant to this Agreement.
(f) The obligations described in Section 15(a) through (e) above shall not be
construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which
would otherwise exist as to any party or person indemnified pursuant to this Section 15.
(g) The rights and obligations of the parties described in this Section 15 shall survive
the termination of this Agreement.
16. Assumption of Risk.
Except for injuries to persons caused by the willful misconduct of any lndemnitee and not
covered by insurance maintained, or required by this Agreement to be maintained, by Contractor:
(a) Contractor hereby assumes the risk of any and all injury and damage to the personnel
(including death) and property of Contractor that occurs in the course of, or in connection with,
the performance of Contractor's obligations under this Agreement, including but not limited to
Contractor's Scope of Services; and (b) it is hereby agreed that the lndemnitees are not to be
liable for injury or damage which may be sustained by the person, goods or property of Contractor
or its employees in connection with Contractor's performance its obligations under this
Agreement, including but not limited to Contractor's Scope of Services.
17. Contractor Not an Agent.
Except as City may specify in writing, Contractor shall have no authority,
expressed or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor
shall have no authority, expressed or implied, pursuant to this Agreement to bind City to any
obligation whatsoever.
18. Personnel.
Contractor shall assign qualified and certified personnel to perform requested
services. The City shall have the right to review and disapprove personnel for assignment to
Poway projects.
8 of18 March 21, 2023, Item #5
City shall have the unrestricted right to order the removal of any person(s)
assigned by Contractor by giving oral or written notice to Contractor to such effect.
Contractor's personnel shall at all times comply with City's drug and alcohol
policies then in effect.
19. Notices.
Notices shall be given as described on Exhibit "A" entitled "Special Provisions"
attached hereto and made a part hereof.
20. Governing Law, Forum Selection and Attorneys' Fees.
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of California. Each party to this Agreement consents to personal jurisdiction in San
Diego County, California, and hereby authorizes and accepts service of process sufficient for
personal jurisdiction by first class mail, registered or certified, postage prepaid, to its address for
giving notice as set forth in Exhibit "A" hereto. Any action to enforce or interpret the terms or
conditions of this Agreement shall be brought in the Superior Court in San Diego County, Central
Division, unless the parties mutually agree to submit their dispute to arbitration. Contractor hereby
waives any right to remove any such action from San Diego County as is otherwise permitted by
California Code of Civil Procedure section 394. The prevailing party in any such action or
proceeding shall be entitled to recover all of its reasonable litigation expenses, including its expert
fees, attorneys' fees, courts costs, arbitration costs, and any other fees. Notwithstanding the
foregoing, in the event that the subject of such an action is compensation claimed by Contractor
in the event of termination, Contractor's damages shall be limited to compensation for the 60-day
period for which Contractor would have been entitled to receive compensation if terminated
without cause, and neither party shall be entitled to recover their litigation expenses.
21. Gender.
Whether referred to in the masculine, feminine, or as "it," "Contractor" shall mean
the individual or corporate Contractor and any and all employees of contractor providing services
hereunder.
22. Counterparts.
This Agreement (and any amendments) may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which, together, shall constitute one and the
same instrument. Documents delivered by telephonic facsimile transmission shall be valid and
binding.
23. Entire Agreement.
This Agreement shall constitute the entire understanding between Contractor and
City relating to the terms and conditions of the services to be performed by Contractor. No
agreements, representations or promises made by either party, whether oral or in writing, shall
be of any force or effect unless it is in writing and executed by the party to be bound thereby.
9 of 18 March 21, 2023, Item #5
24. Certification and Indemnification Regarding Public Employees' Retirement
Law/Pension Reform Act of 2013.
Contractor hereby certifies that all persons providing services to City by Contractor
are not current members of the California Public Employees' Retirement System (Cal PERS) and
shall not become members of CalPERS while providing services to City.
Contractor further provides that in the event Contractor assigns a retired annuitant
receiving a pension benefit from CalPERS to perform services for City, the retired annuitant is in
full compliance with Government Code section 7522.56. A copy of Government Code section
7522.56 is attached hereto as Exhibit "B."
Further, Contractor hereby fully and unconditionally indemnifies City from all
penalties, fees, employer and employee contributions, or any other assessments imposed by
CalPERS in the event CalPERS determines the person assigned by Contractor to provide
services to City has been misclassified.
25. Severability.
If any provision of this Agreement is determined by any court of competent jurisdiction or
arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be
construed as though more narrowly drawn, if a narrower construction would avoid such invalidity,
illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such
invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this
Agreement shall remain in effect.
(Remainder of page intentionally left blank)
10 of 18 March 21, 2023, Item #5
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the
date first above written.
CITY OF POWAY
By:-----------
Chris Hazeltine, City Manager
Date: ___________ _
ATTEST:
Carrie Gallagher, CMC, City Clerk
APPROVED AS TO FORM:
By:-------------
Alan Fenstermacher, City Attorney
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FIREWORKS AMERICA
By: ___________ _
J. Scott Danielson, General Manager
Date: ___________ _
March 21, 2023, Item #5
A.
"SPECIAL PROVISIONS"
EXHIBIT "A"
Scope of Services.
Contractor agrees to furnish and perform services as required by City, which shall
consist of the July 4th fireworks/special effects services further described in the Scope of Services
submitted with the proposal, which is included in this document as Attachment 1, and incorporated
by reference, as if its contents were fully set forth herein. Contractor shall provide the necessary
qualified personnel to perform the services.
B. Compensation and Reimbursement.
City shall pay Contractor a fee in accordance with the Fee Proposal submitted with
the proposal, which is included in this document as Attachment 2. Total fee is not to exceed
$44,000 for 2023, $44,850 for 2024, and $44,850 for 2025. 50% deposit is due upon contract
execution for each year, with balance due 10 days after the display has fired. Contractor's fee
shall include and Contractor shall be responsible for the payment of all federal, state, and local
taxes of any kind which are attributable to the compensation received.
C. Term of Agreement.
This Agreement shall be effective from the period commencing the date of
execution and ending July 5, 2025, unless sooner terminated by City as provided in the section
of this Agreement entitled "Termination." Upon expiration or termination of this Agreement,
Contractor shall return to City any and all equipment, documents or materials and all copies made
thereof which Contractor received from City or produced for City for the purposes of this
Agreement.
D. Contractor's Insurance.
1. Coverages:
Contractor shall obtain and maintain during the life of this Agreement all of
the following insurance coverages:
(a) Comprehensive General Liability, including premises-operations,
products/completed, broad form property damage, and blanket contractual liability with the
following coverages: General Liability minimum of $5,000,000 Bodily Injury and Property Damage
combined each occurrence and $10,000,000 aggregate.
(b) Automobile Liability, including owned, hired, and non-owned
vehicles: $1,000,000 combined single limit.
(c) Workers' Compensation insurance in the amount of $1,000,000 per
statute. All of the endorsements which are required above shall be obtained for the policy of
Workers' Compensation insurance.
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2. Endorsements:
Endorsements shall be obtained so that each policy contains the following
three provisions:
(a) Additional Insured. (Not required for Professional Errors and
Omissions Liability Insurance or Workers' Compensation.)
"City of Poway and its elected and appointed boards, officers, agents, and
employees are additional insureds with respect to this subject project and contract with City."
(b) Notice.
"Said policy shall not terminate, nor shall it be canceled, until thirty (30)
days after written notice is given to City."
(c) Primary Coverage.
"The policy provides primary coverage to City and its elected and appointed
boards, officers, agents, and employees. It is not secondary or in any way subordinate to any
other insurance or coverage maintained by City."
3. Insurance Certificates:
Contractor shall provide City certificates of insurance showing the insurance
coverages described in the paragraphs above, in a form and content approved by City, prior to
beginning work under this Agreement.
E. Notices.
All notices, billings and payments hereunder shall be in writing and sent to the
following addresses:
To City:
To Contractor:
Attachments:
1. Fee Proposal
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City of Poway
P.O. Box 789
Poway, CA 92074
Fireworks America
P.O. Box 488
Lakeside, CA 92040
March 21, 2023, Item #5
EXHIBIT "B"
Cal Gov Code§ 7522.56
Deering's California Codes are current through all 1016 chapters of the 2018 Regular
Session and the November 6, 2018 Ballot Measures.
Deering's California Codes Annotated> GOVERNMENT CODE> Title 1 General> Division 7
Miscellaneous > Chapter 21 Public Pension and Retirement Plans > Article 4 California Public
Employees' Pension Reform Act o/2013
§ 7522.56. Provisions applicable to person receiving pension benefit from public
retirement system; Section supersedes conflicting provisions
(a)This section shall apply to any person who is receiving a pension benefit from a public
retirement system and shall supersede any other provision in conflict with this section.
(b) A retired person shall not serve, be employed by, or be employed through a contract
directly by, a public employer in the same public retirement system from which the retiree
receives the benefit without reinstatement from retirement, except as permitted by this
section.
(c) A person who retires from a public employer may serve without reinstatement from
retirement or loss or interruption of benefits provided by the retirement system upon
appointment by the appointing power of a public employer either during an emergency to
prevent stoppage of public business or because the retired person has skills needed to
perform work of limited duration.
(d)Appointments of the person authorized under this section shall not exceed a total for all
employers in that public retirement system of 960 hours or other equivalent limit, in a
calendar or fiscal year, depending on the administrator of the system. The rate of pay for the
employment shall not be less than the minimum, nor exceed the maximum, paid by the
employer to other employees performing comparable duties, divided by 173.333 to equal an
hourly rate. A retired person whose employment without reinstatement is authorized by this
section shall acquire no service credit or retirement rights under this section with respect to
the employment unless he or she reinstates from retirement.
(e)
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(l)Notwithstanding subdivision (c), any retired person shall not be eligible to serve
or be employed by a public employer if, during the 12-month period prior to an
appointment described in this section, the retired person received any unemployment
insurance compensation arising out of prior employment subject to this section with
March 21, 2023, Item #5
a public employer. A retiree shall certify in writing to the employer upon accepting
an offer of employment that he or she is in compliance with this requirement.
(2)A retired person who accepts an appointment after receiving unemployment
insurance compensation as described in this subdivision shall terminate that
employment on the last day of the current pay period and shall not be eligible for
reappointment subject to this section for a period of 12 months following the last day
of employment.
(f)A retired person shall not be eligible to be employed pursuant to this section for a period
of 180 days following the date of retirement unless he or she meets one of the following
conditions:
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(l)The employer certifies the nature of the employment and that the appointment is
necessary to fill a critically needed position before 180 days have passed and the
appointment has been approved by the governing body of the employer in a public
meeting. The appointment may not be placed on a consent calendar.
(2)
(A)Except as otherwise provided in this paragraph, for state employees, the state
employer certifies the nature of the employment and that the appointment is
necessary to fill a critically needed state employment position before 180 days
have passed and the appointment has been approved by the Department of
Human Resources. The department may establish a process to delegate
appointing authority to individual state agencies, but shall audit the process to
determine if abuses of the system occur. If necessary, the department may assume
an agency's appointing authority for retired workers and may charge the
department an appropriate amount for administering that authority.
(B)For legislative employees, the Senate Committee on Rules or the Assembly
Rules Committee certifies the nature of the employment and that the
appointment is necessary to fill a critically needed position before 180 days have
passed and approves the appointment in a public meeting. The appointment may
not be placed on a consent calendar.
(C)For employees of the California State University, the Trustees of the California
State University certifies the nature of the employment and that the appointment is
necessary to fill a critically needed position before 180 days have passed and
approves the appointment in a public meeting. The appointment may not be placed
on a consent calendar.
(3)The retiree is eligible to participate in the Faculty Early Retirement Program
pursuant to a collective bargaining agreement with the California State University
that existed prior to January 1, 2013, or has been included in subsequent agreements.
( 4)The retiree is a public safety officer or firefighter hired to perform a function or
functions regularly performed by a public safety officer or firefighter.
March 21, 2023, Item #5
(g)A retired person who accepted a retirement incentive upon retirement shall not be eligible
to be employed pursuant to this section for a period of 180 days following the date of
retirement and subdivision (f) shall not apply.
(h)This section shall not apply to a person who is retired from the State Teachers'
Retirement System, and who is subject to Section 24214, 24214.5 or 26812 of the
Education Code.
(i)This section shall not apply to ( 1) a subordinate judicial officer whose position, upon
retirement, is converted to a judgeship pursuant to Section 69615, and he or she returns to
work in the converted position, and the employer is a trial court, or (2) a retiree of the
Judges' Retirement System or the Judges' Retirement System II who is assigned to .serve in a
court pursuant to Section 68543.5.
History
Added Stats 2012 ch 296 § 15 (AB 340), effective January 1, 2013. Amended Stats 2013 ch 528
§ 11 (SB 13). effective October 4, 2013 (ch 528 prevails); ch 76 § 75 (AB 383), effective January
1, 2013; Stats 2014 ch 238 § 1 (AB 2476), effective January 1, 2015.
Annotations
Notes
Amendments:
Note-
Amendments:
2013 Amendment:
Substituted (I) "have passed" for "has passed" in the first sentence of subds (f)(l) and (f)(2); (2)
"or firefighter hired to perform a function or functions regularly performed by a public safety
officer or firefighter" for "of firefighter" in subd (f)( 4); and (3) "Judges' Retirement System" for
"Judges' Retirement System I" in subd (i).
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