HomeMy WebLinkAboutHBHS La Crosse Boosters - Huntington Beach High School La Crosse Boosters - 2012-06-01AGREEMENT BETWEEN
THE CITY OF HUNTINGTON BEACH AND
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FOR
FIREWORK SALES IN THE CITY OF HUNTINGTON BEACH
THIS AGREEMENT ("Agreement") is made and entered into by and between the City of
Huntington Beach a municipal corporation of the State of California, hereinafter called "City,"
and H g4 5 L W-W55��, a California Non Profit hereinafter referred to as "Contractor."
Recitals
A. The City/Preferred Applicant has retained all permits contemplated by the Huntington
Beach Municipal Code Chapter 5.90 and desires to retain a Non Profit organization as identified in
Huntington Beach Municipal Code (HBMC) Chapter 5.90 to sell fireworks products in the City of
Huntington Beach.
B. Contractor is a qualified applicant as that term is defined in HBMC 5.90 and has been
selected via lottery to sell fireworks in the City of Huntington Beach in July of 2012. Contractor
has submitted an application for permit as required by HBMC 5.90 and as a condition of this
agreement will comply with all of the permit requirements provided in Huntington Beach
Municipal Code 5.90.100.
C. Contractor represents that Contractor is able and willing to provide such services to the City.
D. In undertaking the performance of this Agreement, Contractor represents that it is
knowledgeable with regard to all City municipal law and administrative requirements for fireworks
sales and any services performed by Contractor under this Agreement will be performed in
compliance with the established standards.
NOW, THEREFORE, it is agreed by City and Contractor as follows:
1. Scope of Services
Contractor shall provide all services as described herein as well as all requirements of Chapter
5.90. of the Huntington Beach Municipal Code. In addition, Contractor expressly acknowledges
that the City has contracted with Phantom Fireworks/Big Bear Fireworks Inc., a California Corp.
("Phantom") to provide products and assistance to the Contractor and the City with regard to
fireworks product sales and distribution. As such Contractor will use only Phantom to assist in
providing the services and products contemplated by this Agreement. Failure to comply with
any provision of this Agreement or any permit requirements, is a material breach of this
agreement and the City may immediately terminate this Agreement and
Contractor shall comply with all requirement s of HBMC 5.90.110 regarding operation of the
fireworks booth.
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In addition, to the extent applicable, Contractor agrees to comply with the Minimum
Requirements for Fireworks Booths ("Exhibit A') attached hereto and incorporated herein.
Contractor will be responsible at sole cost for fireworks booth operators (age 18 and above) and
to provide security for the booth. There must be security 24 hours. Contractor must pay the
Wes tax to the Board of Equalization. Phantom will provide cash registers and credit card
machines. However, Contractor will be responsible for the credit card transaction fees. These
services shall sometimes hereinafter be referred to as the "Project".
Contractor hereby designates Ota2,cr_who shall represent it and be its
sole contact and agent in all consultations with City dur e performance of this Agreement.
2. City Staff Assistance
City shall assign a staff coordinator to work directly with Contractor in the performance of this
Agreement.
3. Compensation
Contractor agrees to provide to the City all fees set forth in the HBMC Chapter 5.90.120 in an
amount not to exceed 10% of the Contractors gross sales. As part of this Agreement Contractor
acknowledges that it is not a Preferred Applicant and that the fee structure created in HBMC
would not apply except for this Agreement. The City is using the HBMC fee structure as a basis
for determining compensation to the City as part of this Agreement. As such, the City Manager
may set fees lower amount based upon equitable cost sharing between all Contractors randomly
chosen to sell fireworks in Huntington Beach in 2012. .
4. Term
Time is of the essence of this Agreement. The services of Contractor are to commence as soon
as practicable after the execution of this Agreement by City (the "Commencement Date") and
terminate one year after execution, unless terminated earlier in accordance with the provisions of
this Agreement. All tasks specified herein shall be completed no later than September 1, 2012.
This schedule and Term may be amended to benefit the Project if mutually agreed to in writing
by City and Contractor.
In the event the Commencement Date precedes the Effective Date, Contractor shall be bound by
all terms and conditions as provided herein.
5. Hold Harmless
Contractor hereby agrees to protect, defend, indemnify and hold harmless City, its officers,
elected or appointed officials, employees, agents, and volunteers from and against any and all,
claims, damages, losses, expenses, judgments, demands and defense costs, and consequential
damage or liability of any kind or nature, however caused, including those resulting from death
or injury to Contractor's employees and damage to Contractor's property, arising directly or
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indirectly out of the obligations or operations herein undertaken by Contractor, caused in whole
or in part by any negligent act or omission of the Contractor, any subcontractors, anyone directly
or indirectly employed by any of them or anyone for whose acts any of them may be liable,
including but not limited to concurrent active or passive negligence, except where caused by the
active negligence, sole negligence, or willful misconduct of the City. Contractor will conduct all
defense at its sole cost and expense and City shall approve selection of Contractor's counsel.
This indemnity shall apply to all claims and liability regardless of whether any insurance policies
are applicable. The policy limits do not act as a limitation upon the amount of indemnification to
be provided by Contractor.
6. General Liability Insurance
In addition to Contractor's covenant to defend, hold harmless and indemnify City, Contractor
shall obtain or be added as part of Phantom Insurance and furnish to City, evidence of coverage
in a policy of general public liability insurance, including motor vehicle coverage covering the
Project/Service. This policy shall indemnify City, its officers, employees and agents while
acting within the scope of their duties, against any and all claims arising out or in connection
with the Project/Service, and shall provide coverage in not less than the following amount:
combined single limit bodily injury and property damage, including products/completed
operations liability and blanket contractual liability, of Five Million Dollars ($5,000,000) per
occurrence. If coverage is provided under a form which includes a designated general aggregate
limit, the aggregate limit must be no less than Five Million Dollars ($5,000,000) for this
Project/Service. This policy shall name City, its officers, elected or appointed officials,
employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any
other insurance coverage which may be applicable to the Project/Service shall be deemed excess
coverage and that Contractor's insurance shall be primary.
Under no circumstances shall said above -mentioned insurance contain a self -insured retention, or
a "deductible" or any other similar form of limitation on the required coverage.
7. Certificate of Insurance
Prior to commencing performance of the work hereunder, Contractor or Phantom shall furnish to
City a certificate of insurance subject to approval of the City Attorney evidencing the foregoing
insurance coverage as required by this Agreement; the certificate shall:
a. provide the name and policy number of each carrier and policy;
b. state that the policy is currently in force; and
c. promise that such policy shall not be suspended, voided or canceled by either party,
reduced in coverage or in limits except after thirty (30) days' prior written notice;
however, ten (10) days' prior written notice in the event of cancellation for
nonpayment of premium.
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Contractor shall maintain the foregoing insurance coverage in force until the work under this
Agreement is fully completed and accepted by City.
The requirement for carrying the foregoing insurance coverage shall not derogate from
Contractor's defense, hold harmless and indemnification obligations as set forth in this
Agreement. City or its representative shall at all times have the right to demand the original or a
copy of the policy of insurance. Contractor shall pay, in a prompt and timely manner, the
premiums on the insurance hereinabove required.
8. Independent Contractor
Contractor is, and shall be, acting at all times in the performance of this Agreement as an
independent contractor herein and not as an employee of City. Contractor shall secure at its own
cost and expense, and be responsible for any and all payment of all taxes, social security, state
disability insurance compensation, unemployment compensation and other payroll deductions for
Contractor and its officers, agents and employees and all business licenses, if any, in connection
with the Project and/or the services to be performed hereunder.
9. Conflict of Interest
Contractor covenants that it presently has no interests and shall not have interests, direct or
indirect, which would conflict in any manner with performance of services specified under this
Agreement.
10. Termination
This Agreement may be terminated by the City immediately Contractor violates any provisions
of this Agreement, the Huntington Beach Municipal Cod or any City regulations established
thereto. In the event the agreement is terminated after sales begin, Contractor will pay the City
as set forth in Section 3 for all sales that have taken place to the point of termination.
11. Exclusivity and Amendment
This Agreement represents the complete and exclusive statement between the City and
Contractor, and supersedes any and all other agreements, oral or written, between the parties.
This Agreement may not be modified except by written instrument signed by the City and by an
authorized representative of Contractor. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, orally or otherwise, have been made by
any party, or anyone acting on behalf of any party, which are not embodied herein.
12. Assignment
Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement
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shall be construed to limit the City's ability to have any of the services which are the subject to
this Agreement performed by City personnel or by other Contractors retained by City.
13. City Employees and Officials
Contractor shall employ no City official nor any regular City employee in the work performed
pursuant to this Agreement. No officer or employee of City shall have any financial interest in
this Agreement in violation of the applicable provisions of the California Government Code.
14. Notices
Any notices, certificates, or other communications hereunder shall be given either by personal
delivery to Contractor's agent (as designated in Section 1 hereinabove) or to City as the situation
shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the
same in the United States Postal Service, to the addresses below. City and Contractor may
designate different addresses to which subsequent notices, certificates or other communications
will be sent by notifying the other party via personal delivery, a reputable overnight carrier or
U.S. certified U.S. certified mail -return receipt requested:
To City: To Contractor:
City of Huntington Beach
Attn: Laurie Frymire y c O 1(4 G1 t Z 3ci
2000 Main Street
Huntington Beach, CA 92648
15. Modification
No waiver or modification of any language in this Agreement shall be valid unless in writing and
duly executed by both parties.
16. Interpretation of this AUeement
The language of all parts of this Agreement shall in all cases be construed as a whole, according
to its fair meaning, and not strictly for or against any of the parties. If any provision of this
Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void,
illegal or invalid, such holding shall not invalidate or affect the remaining covenants and
provisions of this Agreement. No covenant or provision shall be deemed dependent upon any
other unless so expressly provided here. Nothing contained herein shall be construed so as to
require the commission of any act contrary to law, and wherever there is any conflict between
any provision contained herein and any present or future statute, law, ordinance or regulation
contrary to which the parties have no right to contract, then the latter shall prevail, and the
provision of this Agreement which is hereby affected shall be curtailed and limited only to the
extent necessary to bring it within the requirements of the law.
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17. Duplicate Original
The original of this Agreement and one or more copies hereto have been prepared and signed in
counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its
execution and delivery, be deemed an original. Each duplicate original shall be deemed an
original instrument as against any party who has signed it.
18. Jurisdiction - Venue
This Agreement and all questions relating to its validity, interpretation, performance, and
enforcement shall be government and construed in accordance with the laws of the State of
California. This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of this Agreement
shall be determined and governed by the laws of the State of California. Both parties further
agree that Orange County, California, shall be the venue for any action or proceeding that may
be brought or arise out of, in connection with or by reason of this Agreement.
19. Permits
Contractor shall, throughout the term of this Agreement, maintain all necessary permits,
approvals, waivers, and exemptions necessary for the provision of the services hereunder and
required by the laws and regulations of the United States, the State of California, the City of
Huntington Beach and all other governmental agencies.
20. Attorney's Fees
In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or
provisions of this Agreement or to secure the performance hereof, each party shall bear its own
attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees
from the nonprevailing party.
21. Survival
Terms and conditions of this Agreement, which by their sense and context survive the
expiration or termination of this Agreement, shall so survive.
22. Signatories
Each undersigned represents and warrants that its signature hereinbelow has the power, authority
and right to bind their respective parties to each of the terms of this Agreement, and shall
indemnify City fully for any injuries or damages to City in the event that such authority or power
is not, in fact, held by the signatory or is withdrawn.
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REVIE ROVED:
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23. E—Ankfiffetv
The parties acknowledge and agree that they are entering into this Agreement freely and
voluntarily following extensive arm's length negotiation, and that each has had the opportunity
to consult with legal counsel prior to executing this Agreement. The parties also acknowledge
and agree that no representations, inducements, promises, agreements or warranties, oral or
otherwise, have been made by that party or anyone acting on that party's behalf, which are not
embodied in this Agreement, and that that party has not executed this Agreement in reliance on
any representation, inducement, promise, agreement warranty, fact or circumstance not expressly
set forth in this Agreement.
24. Effective Date
This Agreement shall be effective on �U J � , 20 l Z—and
shall expire when terminated as provided herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by and through their authorized officers.
CONTRACTOR CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of
By: t
tint name VV
ITS: (circle one) Chairman/President/Vice President
By: ►Z
ITS: Tccl—eTol)ecretary/ChiefFinancial
Officer/Asst. Secretary -Treasurer AppROVED AS TO FARM:
�CAttonaey
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Exhibit A e City of Huntington Beach
Minimum Requirements for Fireworks Booths
Retail sales of "Safe and Sane Fireworks" are permitted only from within a temporary fireworks stand. Retail
sales from any other building or structure are prohibited. Temporary stands shall be subject to the most current
edition of NFPA 1124 Code for the Manufacture, Transportation, Storage, and Retail Sales of Fireworks and
Pyrotechnic Articles, as well as the following requirements
Location and Approval
• Every booth is required to have the individual responsible for booth operations attend a Stand Operator
Safety Seminar conducted by the permitted fireworks wholesaler.
• A Temporary Activity Permit is required to be reviewed and approved by the following departments:
Planning and Building, Public Works, Police and Fire.
• An Operational Permit for Explosives must be obtained from the Fire Department.
• An Electrical Permit must be obtained from the Building Department for booths that have electrical service
and/or generators.
• A California Seller's Permit must be obtained or confirmed through the Business License Office.
• Ingress and egress to the site shall be reviewed by Public Works to ensure that no undue traffic safety
hazard will be created.
• The fireworks stand shall be located along an accessible path of travel. Cross slope not to exceed 2%.
(CBC 1114B.1.2)
• Temporary stands shall be located a minimum of 20 feet from any roadway/curb and 30 feet away from any
combustibles. Additionally, the stand shall be a minimum of 35 feet from any structures, recreational
vehicles or trailers.
• The sale or discharge of fireworks is not permitted within 100 feet of any flammable combustible liquid
storage, pump or dispensing device, or on any property where there are flammable liquids stored or
dispensed.
• A minimum of 10 off-street parking spaces shall be provided.
• Proof of property owner authorization must be provided before any permits will be issued.
Booth Requirements
• Electrical circuits, wiring, devices and lighting are prohibited in temporary stands unless such installation
has been made under a valid electrical permit obtained at the City of Huntington Beach Building
Department. No permit shall be required for battery -operated portable lighting devices.
• All electrical lighting and receptacles shall have GFCI protection. (CEC 590.6)
• All exposed lamps shall be protected from accidental contact or breakage by suitable guards. (CEC 590.4(F)
• All cables shall be identified for hard or extra -hard usage. (CEC 590.4)
• All wiring shall be in rigid conduit, flex conduit, or construction grade temporary cords and properly grounded.
• Electrical connections shall be at least 12 feet above ground, when subject to foot traffic, and at least 16
feet above ground when subject to automobile and truck traffic.
• All stands must be constructed of either wood or metal, studs of sufficient size to adequately support the
roof, and shall have an exterior of noncombustible material.
• Service openings will be a minimum of 40 inches from the ground level, with at least 12 inches of % inch
wire mesh at the bottom of such service openings.
• A minimum of 30 inch aisles shall be maintained and kept clear to all exits.
• Each stand erected will have not less than two (2) exits. Such exits shall be placed as to provide immediate
egress from either end of the stand. Exit doors will be installed in such a manner as to be readily operable
from the interior without special knowledge, effort or tools, including keys.
• Locking or latching devices are not permitted on the inside of stand doors.
• Slide bolts, hook/eye and other types of locks are not permitted, and must be removed.
Page 1 of 3
Exhibit A - City of Huntington Beach
Minimum Requirements for Fireworks Booths
• A locked padlock shall be placed through the latch of the stand's exterior locking device in the locked
position to prevent the door from being locked from the outside whenever the stand is occupied.
• The stand shall be equipped with suitable covers or shutters to completely seal off the service openings
during those hours the stand is not in operation.
• No fuel -powered generator or similar equipment shall be allowed within 50 feet of a fireworks stand.
Booth Operation
• Signs shall be posted on the interior and exterior of the stand stating that the minimum age to purchase
fireworks is 18 years of age.
• An informational flyer shall be posted on the outside of the stand that indicates the areas and times that the
fireworks may be discharged.
• The sale of fireworks is limited to the hours of 12:00 noon and 10:00 p.m. on July 1 st 2"d and 3rd, and between
10:00 a.m. and 8:00 p.m. on July 4tn
• No smoking is allowed within 30 feet of any temporary stand. All temporary stands are required to have "No
Smoking" signs posted both on the interior of the stand and outside near all exterior openings.
• There shall be no drinking or storage of alcoholic beverages in or around a temporary stand at any time.
® At minimum, a Class 2A fire extinguisher shall be placed and maintained in locations that are readily
accessible for use, and each person who intends to assist in the operation of a temporary stand will receive
instruction on their location and use.
• Whenever a temporary stand is being provided with electrical power from a gasoline -powered generator,
an additional 10BC, dry chemical, fire extinguisher shall be installed.
• No person under the age of 18 shall be allowed to sell or participate in the sales of fireworks nor be allowed
inside the stand at any time.
• No person other than the individuals who are members of the permittee and /or joint venture nonprofit
organizations(s) or the wives, husbands, parents or adult children of such members shall sell or otherwise
participate in the sale of "Safe and Sane fireworks" at such stand.
• No person shall be paid any consideration by the permittee nonprofit organization(s) or any wholesaler/
distributor of "Safe and Sane Fireworks for selling or otherwise participating in the sale of "Safe and Sane
Fireworks" at such stand. The only exceptions to this are for licensed security personnel, the property owner
of the stand location and members of the Fourth of July Executive Board.
• No person shall be permitted to remain inside a temporary stand during non -business hours, except for the
initial construction of the stand and for loading and unloading of merchandise.
• No person shall light or cause or permit to be lighted any match, fireworks, device or other combustible
article within a temporary stand or within 30 feet of a temporary stand.
• No electrical appliances of any description, except permanently installed lights or battery -operated devices,
are permitted within any temporary stand.
• An informational flyer shall be included with every sale that indicates the areas and times that the fireworks
may be discharged.
• The permittee shall maintain a 30 foot area in all directions around each temporary stand in a neat and
orderly manner, free from all weeds, trash, rubbish and other debris.
• Fireworks shall be stored or kept only inside the temporary stand. Fireworks shall not be stored in any
garage, home, automobile or other structure, unless expressly authorized on the Temporary Activity Permit.
• Each temporary stand will have one or more designated persons over the age of 21 who will act and serve
as a watchperson for the temporary stand during all hours when the stand is not in operation selling
fireworks. The designated person must be pre -approved by the Chief of Police or his/her designee, prior to
the installation of the temporary stand at the designated location. The designated watchperson will remain
outside but within eyesight of the temporary stand.
• The facility shall be removed and the premises cleared of all debris and restored to the condition prior to
the establishment within 10 calendar days of July 4tn
Page 2 of 3
Exhibit A - City of Huntington Beach
Minimum Requirements for Fireworks Booths
-Each application must be
accompanied by a fully dimensioned
site plan, drawn to scale, showing
the exact location of the proposed
fireworks stand. The plan must
include all structures and
improvements located within 35 feet
of the fireworks stand. When
preparing this plan, all stands must
be erected a minimum of 100 feet
from any gasoline service station.
Failure to submit required site plan
that meet these standards shall be
grounds for denial of the application.
-This diagram may be submitted on
the Temporary Activity Permit or on
a separate , attached page.
Businesses
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