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HomeMy WebLinkAboutPhantom Fireworks / Big Bear Fireworks, Inc. - 2012-04-06 SERVICE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND Phantom Fireworks/Big Rear Fireworks,Inc. FOR FIREWORK SAFES 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 Phantom Fireworks/Big Bear Fireworks Inc., a California Corp. hereinafter referred to as "Contractor." Recitals A. The City desires to retain a Contractor having special skill and knowledge in the field of distribution of fireworks products and leasing and constructing fireworks sales stands to sell fireworks in the City of Huntington Beach. B. Contractor represents that Contractor is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a comparable company in the field. Contractor has been selected to perform these services pursuant to Huntington Beach Municipal Code Chapter 3.02, NOW, THEREFORE, it is agreed by City and Contractor as follows: 1. Scope of Services Contractor shall provide all services as described in Exhibit"A," which is attached hereto and incorporated into this Agreement by this reference; the Request for Proposal and Chapter 5.90 of the Huntington Beach Municipal Code. These services shall sometimes hereinafter be referred to as the "Project." Contractor hereby designates Jeff Brandenburg.-. who shall represent it and be its sole contact and agent in all consultations with City during the performance of this Agreement. Page 1 of 10 12-3164.003/Revised Fireworks distributor agreement 3-15-2012 2. City Staff Assistance City shall assign a staff coordinator to work directly with Contractor in the performance of this Agreement. 3. Compensation a. Contractor agrees to accept as total payment for its services, the rates, charges, percentages and payment distribution method identified in Exhibit A. Payment need not be made by City or Non Profit groups for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 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 in Exhibit "A" shall be completed no later than September 1, 2012. The time for performance of the tasks identified in Exhibit"A" are generally to be shown in Exhibit "A." 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. Extra Work In the event City requires additional services not included in Exhibit "A" or changes in the scope of services described in Exhibit "A," Contractor will undertake such work only after receiving written authorization from City. Additional compensation for such extra work shall be allowed only if the prior written approval of City is obtained. 6. Disposition of Plans,Estimates and Other Documents Contractor agrees that title to all materials prepared hereunder, including, without limitation, all original drawings, designs, reports, both field and office notices, calculations computer code, language, data or programs, maps, memoranda, letters and other documents, shall belong to City, and Contractor shall turn these materials over to City upon expiration or termination of this Agreement or upon Project completion, whichever shall occur first. These materials may be used by City as it sees fit. 7. 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 Page 2 of 10 12-3164.003/Revised Fireworks distributor agreement 3-15-2012 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 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. 8. Workers Compensation Insurance Pursuant to California Labor Code Section 1861, Contractor acknowledges awareness of Section 3700 et seq. of this Code, which requires every employer to be insured against liability for workers' compensation; Contractor covenants that it will comply with such provisions prior to commencing performance of the work hereunder. Contractor shall obtain and furnish to City workers' compensation and employer's liability insurance in an amount of not less than the State statutory limits. Contractor shall require all subcontractors to provide such workers' compensation and employer's liability insurance for all of the subcontractors' employees. Contractor shall furnish to City a certificate of waiver of subrogation under the terms of the workers' compensation and employer's liability insurance and Contractor shall similarly require all subcontractors to waive subrogation. 9. General Liability Insurance In addition to the workers' compensation and employer's liability insurance and Contractor's covenant to defend, hold harmless and indemnify City, Contractor shall obtain and furnish to City, a policy of general public liability insurance, including motor vehicle coverage covering the Project/Service. This policy shall indemnify Contractor, 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. Page 3 of 10 12-3164.003/Revised Fireworks distributor agreement 3-15-2012 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. 10. Automobile Liability Insurance Contractor shall obtain and furnish to City an automotive liability insurance policy covering the work performed by it hereunder. This policy shall provide coverage for Contractor's automotive liability in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and a separate "Additional Insured Endorsement"page listing both the policy number and naming the "City of Huntington Beach, its officers, elected or appointed officials, employees, agents and volunteers" as additional insured on the endorsement. The above-mentioned insurance shall not contain a self-insured retention, "deductible" or any other similar form of limitation on the required coverage except with the express written consent of City. 11. Certificate of Insurance Prior to commencing performance of the work hereunder, Contractor 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. 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. 12. 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. Page 4 of 10 12-3164.003/Revised Fireworks distributor agreement 3-15-2012 13. 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. 14. Termination This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 15. ]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. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor or the City. 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. 16. Assiunment Inasmuch as this Agreement is intended to secure the specialized services of Contractor, 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 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. Page 5 of 10 12-3164.003/Revised Fireworks distributor agreement 3-15-2012 17. 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. 18. 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 Phantom Fireworks/Big Bear Fireworks, Attn: Laurie Frymire Inc.4740 Green River Road, Suite 218 2000 Main Street Corona CA 92880 Huntington Beach, CA 92648 19. Consent When City's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transactions or event. 20. Modification No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. 21. Section Headings The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. Page 6 of 10 12-3164.003/Revised Fireworks distributor agreement 3-15-2012 22. Interpretation of this Agreement 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. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. 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. 23. Duplicate ®riainal 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. 24. Immigration Contractor shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. 25. Legal Services Subcontracting Prohibited Contractor and City agree that City is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. Contractor understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for City; and City shall not be liable for payment of any legal services expenses incurred by Contractor. 26. Confidentiality Contractor recognizes that in the performance of its duties under this Agreement, it must conduct its activities in a manner designed to protect information of a sensitive nature from improper use or disclosure. Contractor warrants that it will use reasonable efforts consistent with practices customary in the facilities management industry in recruiting, training and supervising employees and in otherwise performing its duties hereunder in order to achieve this result. In the furtherance of this, Contractor agrees, at the request of the City, to require its employees to execute written undertakings to comply with the foregoing confidentiality provision. Page 7 of 10 12-3164.003/Revised Fireworks distributor agreement 3-15-2012 27. Discrimination Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 28. 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. 29. Professional Licenses Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, 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. Contractor shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 30. 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. 31. Survival Terms and conditions of this Agreement, which by their sense and context survive the expiration or termination of this Agreement, shall so survive. 32. Governing Law This Agreement shall be governed and construed in accordance with the laws of the State of California. Page 8of10 12-3164.003/Revised Fireworks distributor agreement 3-15-2012 33. SilInatories 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. 34. Entirety (a) 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. (b) All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 35. Effective Date -� This Agreement shall be effective on ti l L2 , 20_Lland 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. Page 9 of 10 12-3164.003/Revised Fireworks distributor agreement 3-15-2012 CONTRACTOR CITY OF HUNTINGTON BEACH, a Phantom Fireworks/Big Bear Fireworks, Inc. municipal corporation of the State of Californi By: > riot name Ci Manager lan icePre ITS: (circle one) Chaim /Presiden sident RE7-M70VED: B : / XL-11, y d Director/ G+tiG�rcq�w '4 , of�mc"'� Chief print name ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary-Treasurer APPROVED AS TO FORM: City Attorney Page 10 of 10 12-3164.003/Revised Fireworks distributor agreement 3-15-2012 EXHIBIT "A" A. STATEMENT OF WORK: (Narrative of work to be performed) Pursuant to the terms and conditions further defined below and in the Agreement, AT ITS SOLE COST AND EXPENSE, CONTRACTOR shall secure all permits, locate and secure lease locations for firework stands, prepare training material and conduct training for Non-Profit Groups (NPG) and volunteers, deliver the fireworks to predetermined locations as discussed with the NPG's, set up and tear down stands, market fireworks using local advertising, provide required insurance, provide consumer safety education material, provide credit card equipment to NPGs, work with City officials and assist in end of season analysis. B. CONTRACTOR'S DUTIES AND RESPONSIBILITIES: 1. Schedule "kick-off meeting with City Manager and Fourth of July Board to discuss implementation plan. The meeting will be held no later than March 31, 2012 unless a later date is agreed to at the sole discretion of the City Manager. 2. Schedule and meet with all non-profit organizers no later than April 30, 2012 3. Schedule meetings with City Department staff(Fire, Police, etc.) to discuss logistics, including but not limited to scheduling, stand locations, traffic, parking, etc. Meetings must begin no later than March 31, 2012 4. Negotiate and enter into lease for stand locations no later than April 16, 2012 5. Following City's lottery draw to pick the NPG's; secure contracts with the randomly chosen NPG"S and calendar training. 6. Acquire all permits and approvals in accordance with local ordinance and RFP prior to May 31, 2012. 7. Fifteen days following completion of permit acquisition, Contractor shall provide project information packets to the Fire Department and City oversight departments that include applications, licenses, insurance documents, site plans, etc. for review. 8. Fifteen days after review of project information packet, Contractor must obtain all City approvals. 9. Before May 31, 2012, conduct training course customized to the ten (10) identified non- profit groups. City staff, Police and Fire, etc. must be invited to attend any or all of the training. 10. Contractor to meet and review the training course materials with the Fire Department prior to the class date. 11. Coordinate stand placement prior to the last day of June. 12. Coordinate fireworks delivery dates with non-project groups prior to the end of June. 13. Contractor obtains all electrical permits before April 30, 2012 All electric equipment including generators must be properly grounded and approved by City Building Department. 14. Contractor will work with the City to identify advertisement locations and requirements and coordinate advertising placement prior to sales period. All advertising must comply with the City's Zoning and Subdivision requirements for signs/outdoor advertising. 15. Contractor will provide each non-profit group a "one stop" number to call for any issues that arise during the sales period. 16. Contractor will supply each stand with safety materials for distribution to customers. These materials will include approved places to use fireworks. 17. Contractor Account Manager will visit each stand at least once per day and be available 24 hours/day during the sales period. Surthet Exhibit A 18. Once the fireworks sales period has ended, Contractor will meet with and coordinate with each non-profit group regarding the inventory, return of unsold products and create a financial report to be submitted to the City. 19. As part of Contractors accounting duties pursuant to this agreement, the Contractor shall assure that each NPG properly accounts for at� the City the correct regulatory fee. 3 2p�1Z Additionally, Contractor will provide the following at its sole cost and expense; 1. Contractor will provide use of 32 foot, all metal fireworks stands, including delivery, set- up and removal at each location. 2. Contractor will assist in identifying prime locations (as required) and determine best placement of stands for customer safety, delivery, and operational performance. 3. Contractor will provide wireless credit card terminals for each location. 4. Contractor will provide a return center for all damaged and undamaged merchandise. 5. Contractor will provide sales flyers and product bags at each location. 6. Contractor will provide a "Sales Aid Kit"to each location. 7. Contractor will provide fire extinguishers preapproved by the City Fire Department to each location. 8. Contractor will provide cash registers at each location. 9. Contractor will provide storage containers at each location. 10. Contractor will provide product use safety flyers at each location. 11. Contractor will provide "pre-sales" materials at each location. 12. Contractor will "take back" all unsold products whether damaged or undamaged. 13. Contractor will provide daily customer service assistance to each location. 14. Contractor will be responsible for trash removal at all stand locations. 15. Contractor will set up and take down all booths and return leased property back to its preleased conditions (unless otherwise agreed in the land use agreement). C. CITY'S DUTIES AND RESPONSIBILITIES: 1. Approve all firework stand locations prior to operation. 2. Select NPG's per City Ordinance and require agreements with each NPG and Contractor assuring the terms and conditions contained herein are complied with. 3. Assist Contractor in obtaining City permits Contractor EXPRESSLY AGREES that the City will provide independent financial analysis of the entire fireworks sales operation as it pertains to the terms and conditions of this agreement and that of the Contractor and the NPG's. Contractor will provide all financial data requested by the City as it pertains to this agreement and that of the Contractor and the NPG's 4. Pursuant to Huntington Beach Municipal Code section 5.90.120, the City will charge each NPG a regulatory fee not to exceed 10% of gross sales of fireworks. As part of Contractors accounting duties pursuant to this agreement, the Contractor shall assure that each NPG properly accounts for the correct regulatory fee payable to the City. Surf let Exhibit A D. WORK PROGRAM/PROJECT SCHEDULE: 1. Schedule "kick-off meeting with City Manager and Fourth of July Board to discuss implementation plan. Schedule meeting before end of March. 2. Prepare and meet with non-profit organizers. Will begin once Non-Profits have been selected. 3. Initiate meetings with City Department staff(Fire, Police, etc.) to discuss logistics, including but not limited to; scheduling, stand locations, traffic, parking, etc. Schedule early April. 4. Negotiate lease terms for stand locations. March 2012 5. Following lottery draw; determine non-profit groups, secure contracts and calendar training. Schedule meeting week of April 16. 6. Initiate permit acquisition in accordance with local ordinance and RFP. Week of April 16. 7. Following completion of permit acquisition, Phantom shall provide City of Huntington Beach Application to Sell Fireworks to the Fire Department and City oversight departments that include applications, licenses, insurance documents, site plans, etc. for review. Early May. 8. Receive Fire Department approval after review of the City of Huntington Beach Application to Sell Fireworks. Early May. 9. Conduct training course customized to the ten (10) identified non-profit groups, including invitation to City staff, Police and Fire, etc. Mid May. Course content to be reviewed with the Fire Department prior to course delivery. 10. Coordinate stand placement in late June. 11. Coordinate fireworks delivery dates with non-profit groups. Late June, 12. Phantom will ensure all electrical permits are obtained, generators properly grounded and approved by City Building Department. Before filing Part B. 13. Phantom will identify advertisement location and requirements and coordinate advertising placement prior to sales period. Early May. 14. Phantom will provide each non-profit group a 'one stop" number to call for any issues that arise during the sales period. Week of April 16. 15. Phantom will supply each stand with safety materials for distribution to customers. These materials will include approved places to use fireworks. 16. Phantom Account Manager will visit each stand at least once per day and be available 24 hours day during the sales period. 17. Once the sales period has ended, Phantom will coordinate with each non-profit group regarding the inventory and return of unsold product. Night of July 4. 18. Phantom will then meet with each non-profit to review the financial report and submit same to City. End of July. Surfnet Exhibit A Payment Terms and Schedule All Fireworks Stands shall be provided the following based upon indentified cost : 1. 32 Foot All Metal Fireworks Stand (Value $400.00) No Charge 2. Property Location. (Value Approx. $4,000.00) No Charge 3. Insurance. (Value Approx. $1,500.00) No Charge 4. If a fireworks stand location is secured at no cost Contractor will donate$2,000.00 to the July 4th committee. 5. Pay for all Fees, Permits and Licenses (Value Approx. $500.00) No Charge 6. Provide Wireless Credit Card Terminal (Value $325.00) No Charge 7. Provide Merchandise Del. & Return Center(Value $650.00) No Charge 8. Provide Contractor Flyers and Bags (Value $150.00) No Charge 9. Provide Sales Aid Kit (1) (Value$25.00) No Charge 10. Provide Fire Extinguishers (2) (Value $50.00) No Charge 11. Provide Cash Registers (Value$100.00) No Charge 12. Provide Storage Container(1) (Value $300.00) No Charge 13. Provide Safety Flyers No Charge 14. Provide Presale Materials (Value 25.00) No Charge 15. Contractor will take back all unsold product (damaged or undamaged after sale) 16. Contractor Fireworks Professional 24/17 Customer Service (during the sales period) Total uncharged costs = $8,025.00 per Stand @ 10 Stands E. PAYMENT TERMS 1. . Contractor will pay to the City an amount not to exceed $40,000.00 for July 4th fireworks show. 2. Contractor will deliver each stand an initial order of$50,000.00 of randomly chosen products (or as specifically required products identified by the City) at retail cost of the fireworks . The NPG's will only be required to pay 50% of the suggested retail price back to the Contractor after sales period (as discussed, the Contractor will also be required to take back all unsold merchandise at retail cost i.e. no cost to the NPG's). 3. City will require each NPG will pay a fee of$1,500.00 in addition to credit card processing fees to Contractor. No other fee or expenses will be charged. 4. The Pricing herein is contingent upon the Contractor servicing ten (10) licensed approved nonprofit groups for the 2012 fireworks season. The 10 licensed NPG's selected per Huntington Beach Municipal Code 5.90. 5. Contract with each NPG. Attached hereto this Exhibit A is attachment 1 which is incorporated herein by reference and contains Contractors pricing sheet. Surfnet Exhibit A Attachment 1 ,1740 Grcce 16-- r Road,Sn4c z10 *[tvwia.C k 92980 •lbil I-rev; (800)597.4955 + 01n(951)549-7979 • Fax- (951)549 79197 FEES oftoss BET INWR'1 MPR TPTAL SALES SALES RQnit�:atrmcnl to iPi►anlront � i F50t1,01) C:rodi7 Card F'ves Sates $ 60,000.00 S 25,00100 S S 25,0D0,00 Gross SMfos $ 2u100.00 $ ;50,000.00 $ 26,000,00 $ - $ 25,000.00 Not&alas S 26,000.90 Fin $ 2,100.00 T-o1at 77,100.00 Iresuraneo S . TOTAL ME $ 27,100.00 Credit Gard Pont S check pmt $ BALANCE DUE $ 27,100.00 FEES BREAKDOWN R,eIribuirsonlent to Ptmntow Credit Card]Fees S 6tIfl,�D Rf000rly fl4ht S State Fire Fatafshall Permit 5 - Crtrdit carol Beat S Fire Pcfmh. S City Fea $ S 4 V10 Rvikk 5 Sales Aid Kit $ - F11fQ ExIf1Iq tltSttQr A6dvaritsFnO $ - fliscaliawcus charge 5 Initt:1I Dolivar7 Cloarqu 5 TOTAL FFEGS S 2,1K0=0 NET PROFIT FOR GROUPS $ 22,100.00 Surfnet Exhibit A CERTIFICATE F LIABILITY INSURANCE DAT2/29/2012 Y, ®r/ ov29/ o12 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: MCGRIFF,SEIBELS&WILLIAMS,INC. FA P.O.Box 10265 NCNN FAX o Ext:800-476-2211 A/C No: Birmingham,AL 35202 E-MAIL ADDRESS: INSURER(S)AFFORDING COVERAGE NAIC# INSURER A:Liberty Surplus Insurance Corporation 10725 INSURED INSURER B:Ironshore Specialty Insurance Company 25445 B J Alan Company Big Bear Fireworks,Inc. INSURER C:United States Fire Insurance Company 21113 Phantom Fireworks,Inc. 555 Martin Luther King,Jr.Blvd INSURER D: Youngstown,OH 44502 INSURER E: INSURER F: .COVERAGES CERTIFICATE NUMBER:4F63CXGY REVISION NUMBER: THIS IS TO CERTIFYTHAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUEDTO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL UB POLICY EFF POLICY EXP LIMITS LTR IN WVD POLICY NUMBER MM/DD/YYYY MM/DD/YYY A GENERAL LIABILITY EGLB01888933 10/30/2011 10/30/2012 EACH OCCURRENCE $ 1,000,000 DAMAGE TOR N ED 50,000 X COMMERCIAL GENERAL LIABILITY APPROVED A8 TO FORM PREMISS urrence) $ CLAIMS-MADE FK OCCUR JENNIFER McGRATH City Att MED EXP(Any one person) $ 10,000 f ? //,/� PERSONAL&ADV INJURY $ 1,000,000 -' � � �r1" GENERAL AGGREGATE $ 2,000,000 Pain 13;Liaa� 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: �f PRODUCTS-COMP/OP AGG $ PRO- Assistant City Attorney A $ POLICY JECT X LOC C AUTOMOBILE LIABILITY 1337315472 10/30/2011 10/30/2012 CEa accidOMBINED SINGLE LIMIT ent) $ 1,000,000 _ X ANY AUTO BODILY INJURY(Per person)- $ ALL OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS NON OWNED PROPERTY DAMAGE $ TOS X HIREDAUTOS Ix AUTOS Per accident Comp.$1000 deductible Coll.$1000 deductible B UMBRELLA LIAR X OCCUR 000770202 10/30/2011 10/30/2012 EACH OCCURRENCE $ 9,000,000 X EXCESS LIAB CLAIMS-MADE AGGREGATE $ 9,000,000 DED I I RETENTION$ $ C WORKERS COMPENSATION 4087031796 10/30/2011 10/30/2012 X WC STATU- OTH- AND EMPLOYERS'LIABILITY Y/N (Stop-Gap Empl.Liab) T RY LIMITS R ANY PROPRIETOR/PARTNER/EXECUTIVE ❑ Incl for Monpolistic States E.L.EACH ACCIDENT $ 1,OOQ000 OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under 1,000,000 DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(Attach ACORD 101,Additional Remarks Schedule,if more space is required) The City of Huntington Beach,Its officers,agents,officials,employees,and volunteers;when acting in their official capacity as such are named as Additional Insured with respect to General Liability as required by written contract. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OFTHE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATETHEREOF,NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. The City of Huntington Beach AUTHORIZED REPRESENTATIVE 2000 Main Street Huntington Beach,CA 92648 t Page 1 of 3 01988-2010 ACORD CORPORATION. All rights reserved. ACORD 25(2010/05) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: LOC#: ADDITIONAL REMARKS SCHEDULE Page 2 of 3 PRODUCER INSURED MCGRIFF,SEIBELS&WILLIAMS,INC. B J Alan Company Big Bear Fireworks,Inc. POLICY NUMBER Phantom Fireworks,Inc. CARRIER NAIC CODE ISSUE DATE: 02/29/2012 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: FORM TITLE: Policy Number: EGLB01888933 Commercial General Liability THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY, ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Additional Insured Person(s) or Organization(s) "Any Person or organization when required by written contract" Who Is An Insured is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you. Liberty Surplus Insurance Corp CGL 1001 0103 Equivalent to ISO Form CG 20 26 ACORD 101 (2008/01) ©2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD CERTIFICATE NUMBER: 4F63CXGY AGENCY CUSTOMER ID: LOC#: ACCW?" ADDITIONAL REMARKS SCHEDULE Page 3 of 3 PRODUCER INSURED MCGRIFF,SEIBELS&WILLIAMS,INC. B J Alan Company Big Bear Fireworks,Inc. POLICY NUMBER Phantom Fireworks,Inc. CARRIER NAIC CODE ISSUE DATE: 02/29/2012 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: FORM TITLE: POLICY NUMBER: EGLB01888933 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: "As Required by written Contract" Locations And Description of Completed Operations: "As Required by written contract" (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement) Section II - who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location designated and described in the schedule of this endorsement performed for that additional insured and included in the "products-completed operations hazard". This endorsement forms a part of the policy. It is subject to the same inception date, unless otherwise stated. This endorsement expires concurrently with the policy. CG 20 37 07 04 Liberty Surplus Insurance Corp. ACORD 101 (2008/01) ©2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD CERTIFICATE NUMBER: 4F63CXGY