04-18-2016 2016 Fireworks Production ContractWESTERN ENTERPRISES AND TOWN OF AVON
2016 FIREWORKS PRODUCTION CONTRACT
This Contract is entered into 2016 by and between WESTERN ENTERPRISES, INC., designated herein as the
"SELLER ", and TOWN OF VON, a Colorado home rule municipality, designated herein as the "PURCHASER" for a
fireworks production to be held on JULY 3, 2016.
1. SELLER will secure, prepare and deliver said fireworks as outlined, or will make the necessary substitutions of equal or
greater value. SELLER will include the services of a Pyrotechnic Operator to take charge of the set-up of all equipment,
fire/discharge the display, and removal of all equipment, along with such help as the Pyrotechnic Operator deems necessary to
perform the fireworks display safely, and in accordance with such Federal, State or Local laws that might be applicable.
2. PREMISES & RIGHTS OF USE - This Contract grants SELLER the right, and imposes the duty, to use the PREMISES as
defined in this contract for the purpose of producing the fireworks production on July 3, 2016, subject to compliance with the
terms and conditions of this Contract.
3. PURCHASER and SELLER agree the site of the firework production on July 3, 2016, shall occur at Discharge Site Premises,
Display Site Lower Premises and Display Site Upper Premises (herein referred to as "All Premises ") and, as depicted on
Attachment "A ".
4. SELLER is granted an exclusive right of use of the Discharge Site Premises and Display Site Lower Premises from July 1,
2016, at 8:00 a.m., through 11:00 p.m. on July 3, 2016, for the purpose of fireworks set -up, discharge and tear down.
SELLER shall also have non - exclusive rights to access Display Site Upper Premises on July 3, 2016, from 4:00 p.m. through
11:00 p.m. for the purpose of ensuring fireworks discharge safety for the general public by the Pyrotechnic Operator(s) and
pyrotechnic crew.
5. PURCHASER and SELLER agree to all terms and conditions stated in Attachment "B" attached hereto and made part of this
Contract.
6. PURCHASER 'will furnish a secured area with minimum safety distances established by the SELLER after an on -site
inspection of the proposed firing location to take place not later than May 2, 2016.
7. No Purchaser Liability. In carrying out any of the provisions of this Contract or in exercising any power or authority thereby,
there shall be no personal liability of the PURCHASER, its officers, staff, consultants, officials, attorneys, representatives,
agents, or employees.
8. Indemnification. The SELLER agrees to indemnify and hold harmless the PURCHASER and its officers, attorneys, agents,
employees, representatives, insurers, and self-insurance pool from and against all liability, claims, and demands on account of
injury, personal injury, sickness, disease, death, property loss, or damage, or any other loss of any kind whatsoever which
arises out of or is in any manner connected with this Contract or the work, if such injury, loss, or damage is caused in whole or
in part by the act, omission, error, professional error, mistake, negligence, or other fault of the SELLER, any subcontractor of
the SELLER, or which arises out of any workers' compensation claim of any employee of the SELLER or of any employee of
any subcontractor of the SELLER. The SELLER agrees to investigate, handle, respond to, and to provide defense for and
defend against any such liability, claims, or demands at the expense of the SELLER The SELLER also agrees to bear all
other costs and expenses related thereto, including court costs and attorneys' fees, whether or not any such liability, claims, or
demands alleged are groundless, false, or fraudulent.
9. Insurance. The SELLER shall not commence work under this Contract until it has obtained all insurance required herein and
such insurance has been approved by the PURCHASER The SELLER shall not allow any subcontractor to commence work
on this project until all similar insurance required of the subcontractor has been obtained and approved. For the duration of
this Contract, the SELLER must maintain the insurance coverage required in this section.
9.1. The SELLER agrees to procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against
all liability, claims, demands, and other obligations assumed by the SELLER pursuant to this Contract. Such insurance
shall be in addition to any other insurance requirements imposed by this Contract or by law. The SELLER shall not be
relieved of any liability, claims, demands, or other obligations assumed by this Contract by reason of its failure to procure
or maintain insurance, or by reason of its Mure to procure or maintain insurance in sufficient amounts, duration, or types.
Western Enterprises and Town of Avon 2016 Contract Page 1
9.2. SELLER shall procure and maintain, and shall cause each subcontractor of the SELLER to procure and maintain, the
minimum insurance coverage listed below. Such coverage shall be procured and maintained with forms and insurers
acceptable to the PURCHASER All coverage shall be continuously maintained to cover all liability, claims, demands,
and other obligations assumed by the SELLER herein. In the case of any claims -made policy, the necessary retroactive
dates and extended reporting periods shall be procured to maintain such continuous coverage.
9.2.1. Workers' compensation insurance to cover obligation imposed by applicable laws for any employee engaged in
the performance of work under this Contract, and employers liability insurance with minimum limits of FIVE
HUNDRED THOUSAND DOLLARS ($500,000) disease policy limit, and FIVE HUNDRED THOUSAND
DOLLARS ($500,000) disease - each employee. Evidence of qualified self-insured status may be substituted for
the workers' compensation requirements of this paragraph.
9.2.2. General liability insurance with minimum, combined single limits of FIVE MILLION DOLLARS ($5,000,000)
each occurrence and FIVE MILLION DOLLARS ($5,000,000) aggregate. The policy shall be applicable to all
operations, timelines and All Premises as depicted in Attachment "A ". The policy shall include coverage for
bodily injury, broad form property damage, personal injury (including coverage for contractual and employee
acts), blanket contractual, independent contractors, products, and completed operations. The policy shall also
include coverage for explosion and shall contain a severability of interest's provision.
9.2.3. Comprehensive automobile liability insurance with minimum combined single limits for bodily injury and
property damage of not less than ONE MILLION DOLLARS ($1,000,000) each occurrence and ONE MILLION
DOLLARS ($1,000,000) aggregate with respect to each of SELLER'S owned, hired, or non -owned vehicles
assigned to or used in performance of the services. The policy shall contain a severability of interest's provision.
9.3. The policy required by paragraph 9.2.2 above and by paragraph 92.2 above shall be endorsed to include the
PURCHASER and its officers, agents, officials, and employees as additional insured. Every policy required above shall
be primary insurance, and any insurance carried by the PURCHASER, its officers, or its employees, or carried by or
provided through any insurance pool of the PURCHASER shall be excess and not contributory insurance to that
provided by SELLER. No additional insured endorsement to the policy required by paragraph 9.2.1 above shall contain
any exclusion for bodily injury or property damage arising from completed operations. The SELLER shall be solely
responsible for any deductible losses under any policy required by the PURCHASER
9.4. The Certificate of Insurance provided to the PURCHASER shall be completed by the SELLER'S insurance agent as
evidence that policies providing the required coverage, conditions, and minimum limits are in full force and effect, and
shall be reviewed and approved by the PURCHASER prior to commencement of the Contract. No other form of
certificate shall be used. The Certificate of Insurance shall identify this Contract and shall provide that the coverage
afforded under the policies. The completed Certificate of Insurance shall be submitted to the PURCHASER'S Town
Manager or designee. SELLER shall submit any notice of cancellation or termination of any insurance required in this
Paragraph 7 to PURCHASER within two (2) business days of receipt of such notice.
9.5. Failure on the party of the SELLER to procure or maintain policies providing the required coverage, conditions, and
minimum limits shall constitute a material breach of contract upon which the PURCHASER may immediately terminate
this Contract, or at its discretion, the PURCHASER may procure or renew any such policy or any extended reporting
period thereto and may pay any and all premiums in connection therewith as a cost of this project. All monies so paid by
the PURCHASER shall be repaid by SELLER to the PURCHASER upon demand, or the PURCHASER may offset the
cost of the premiums against any monies due to SELLER from the PURCHASER.
9.6. The PURCHASER reserves the right to request and receive a certified copy of any policy and any endorsement thereto.
10. No Waiver of Governmental Immunity. Nothing in this Agreement shall be construed to waive, limit or otherwise modify
any governmental immunity that may be available by law to the Town, its officials, employees, contractors, or agents, or any
other person acting on behalf of the Town and, in particular, governmental immunity afforded or available pursuant to the
Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes.
11. Affirmative Action. Contractor will not discriminate against any employee or applicant for employment because of race,
color, religion, sex or national origin. Contractor will take affirmative action to ensure applicants are employed, and
employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall
include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment
Western Enterprises and Town of Avon 2016 Contract Page 2
advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship.
12. Article X. Section 20/TABOR: The Parties understand and acknowledge that the Town is subject to Article X, § 20 of the
Colorado Constitution ( "TABOR "). The Parties do not intend to violate the terms and requirements of •TABOR by the
execution of this Agreement. It is understood and agreed that this Agreement does not create a multi -fiscal year direct or
indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the
contrary, all payment obligations of the Town are expressly dependent and conditioned upon the continuing availability of
funds beyond the term of the Town's current fiscal period ending upon the next succeeding December 31. Financial
obligations of the Town payable after the current fiscal year are contingent upon funds for that purpose being appropriated,
budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of the Town, and other
applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated.
13. Employment of or Contracts with Illegal Aliens. Contractor shall not knowingly employ or contract with an illegal alien to
perform work under this Agreement. Contractor shall not contract with a subcontractor that fEdIs to certify that the
subcontractor does not knowingly employ or contract with any illegal aliens. By entering into this Agreement, Contractor
certifies as of the date of this Agreement it does not knowingly employ or contract with an illegal alien who will perform work
under the public contract for services and that the Contractor will participate in the e- verify program or department program in
order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under the
public contract for services. The Contractor is prohibited from using either the e- verify program or the department program
procedures to undertake pre - employment screening of job applicants while this Agreement is being performed. If the
Contractor obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or
contracts with an illegal alien, the Contractor shall be required to notify the subcontractor and the Town within three (3) days
that the Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien. The
Contractor shall terminate the subcontract if the subcontractor does not stop employing or contracting with the illegal alien
within three (3) days of receiving the notice regarding Contractor's actual knowledge. The Contractor shall not terminate the
subcontract ii:, during such three days, the subcontractor provides information to establish that the subcontractor has not
knowingly employed or contracted with an illegal alien. The Contractor is required to comply with any reasonable request
made by the Department of Labor and Employment made in the course of an investigation undertaken to determine
compliance with this provision and applicable state law. If the Contractor violates this provision, the Town may terminate this
Agreement, and the Contractor may be liable for actual and/or consequential damages incurred by the Town, notwithstanding
any limitation on such damages provided by such Agreement.
14. Ownership of Documents. Any work product, materials, and documents produced by the Contractor pursuant to this
Agreement shall become property of the Town upon delivery and shall not be made subject to any copyright unless authorized
by the Town. Other materials, methodology and proprietary work used or provided by the Contractor to the Town not
specifically created and delivered pursuant to the Services outlined in this Agreement may be protected by a copyright held by
the Contractor and the Contractor reserves all rights granted to it by any copyright. The Town shall not reproduce, sell, or
otherwise make copies of any copyrighted material, subject to the following exceptions: (1) for exclusive use internally by
Town staff and/or employees; or (2) pursuant to a request under the Colorado Open Records Act, § 24 -72 -203, CKS., to the
extent that such statute applies; or (3) pursuant to law, regulation, or court order. The Contractor waives any right to prevent
its name from being used in connection with the Services.
15. No Waiver of Rights. A waiver by any Party to this Agreement of the breach of any term or provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach by either Party. The Town's approval or acceptance of, or
payment for, services shall not be construed to operate as a waiver of any rights or benefits to be provided under this
Agreement. No covenant or term of this Agreement shall be deemed to be waived by the Town except in writing signed by
the Town Council or by a person expressly authorized to sign such waiver by resolution of the Town Council of the Town of
Avon, and any written waiver of a right shall not be construed to be a waiver of any other right or to be a continuing waiver
unless specifically stated.
16. Binding Effect. The Parties agree that this Agreement, by its terms, shall be binding upon the successors, heirs, legal
representatives, and assigns.
17. Limitation of Damages. The Parties agree that Contractor's remedies for any claims asserted against the Town shall be
limited to proven direct damages in an amount to exceed amounts due under the Agreement and that Town shall not be liable
for indirect, incidental, special or consequential damages, including but not limited to lost profits.
18. No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall create a contractual relationship
with, cause of action in favor of, or claim for relief for, any third party, including any agent, sub - consultant or sub - contractor
Western Enterprises and Town of Avon 2016 Contract Page 3
of Contractor. Absolutely no third party beneficiaries arc intended by this Agreement. Any third -party receiving a benefit
from this Agreement is an incidental and unintended beneficiary only.
19. Govemine Law. Venue. and Enforcement. This Agreement shall be governed by and interpreted according to the law of the
State of Colorado. Venue for any action arising under this Agreement shall be in the appropriate court for Eagle County,
Colorado. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this Agreement, die Parties
hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement
of this Agreement. The Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party
shall not apply to the interpretation of this Agreement. If there is any conflict between the language of this Agreement and
any exhibit or attachment, the language of this Agreement shall govern.
20. Survival of Terms and Conditions. The Parties understand and agree that all terms and conditions of the Agreement that
require continued performance, compliance, or effect beyond the termination date of the Agreement shall survive such
termination date and shall be enforceable in the event of a failure to perform or comply.
21. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Agreement
shall not be assigned by Contractor without the express written consent of the Town Council for the Town of Avon. Any
written assignment shall expressly refer to this Agreement, specify the particular rights, duties, obligations, responsibilities, or
benefits so assigned, and shall not be effective unless approved by resolution or motion of the Town Council for the Town of
Avon. No assignment shall release the Applicant from performance of any duty, obligation, or responsibility unless such
release is clearly expressed in such written document of assignment.
22. Severability. Invalidation of any of the provisions of this Agreement or any paragraph sentence, clause, phrase, or word
herein or the application thereof in any given circumstance shall not affect the validity of any other provision of this
Agreement.
23. It is agreed and understood that the PURCHASER will pay to the SELLER (tic sum ofTWIF.NTY -TWO TT{OUSAND FIVE
HUNDRED DOLLARS & NO 1100 (522,500.00) to be paid within fifteen (15) days after the date of the display,
PURCIIASER may request reimbursement for the chain link fence required in Attachment B, Section 9, and Western
Responsibilities. Unpaid accounts are subject to one percent (1 %) interest charge per month after fifteen days.
24. In the event of inclement weather or other adverse conditions, so as to cause postponement of the display, it is agreed and
understood that PURCHASER will notify SELLER regarding the postponement date, normally the following night, or at some
future date through April 20, 2017. If the PURCHASER will not re- schedule the display by April 20, 2017, or completely
cancels the display, the PURCHASER agrees to pay to the SELLER thirty percent (30 %) of the cost of the display
(56,750.00).
25. Exhibit A, Exhibit B, Attachment A and Attachment B, all attached to this Contract, are made a part of this Contract.
WESTERN ENTERPRISES INC.
SELLER
BY:
James m ,President
DATE:
TOWN OF AVON
PURCHASER
BY:
Virginia C. E • • TownManagers
DATE: ' /3. 16
TOWN OF AVON
Attorn w
BY
Eric He Attorney
DATE: �� /8 —< ;
Western Enterprises and Town of Avon 2016 Contract Page 4
Attachment B
Western Enterprises and Town of Avon
2016 Fireworks Production Contract
The items contained herein provide for additional responsibilities or provisions that are to be adhered to by either the
PURCHASER ( "Westem") or the SELLER ( "Town of Avon ").
The Discharge Site Premises is herein defined as the immediate area from where the fireworks equipment and
fireworks are located and/or discharged.
The Display Site Lower Premises is herein defined as not only including the Discharge Site Premises, but also the
entire required security safety perimeter outside the Discharge Site Premises as prescribed by the Eagle River Fire
Protection District ( ERFPD) and Western.
The Displa Site ite Upper Premises is herein defined as not only including the Discharge Site Premises, but also the
entire required security perimeter outside the Discharge Site Premises as prescribed by the Town of Avon.
The Pyrotechnic Protocol is herein defined as that information prepared and delivered by the Town of Avon to
Western which provides details to include, but not limited to: all security requirements and logistics for the
fireworks set -up, discharge and tear -down.
Western Responsibilities:
1. Prior to delivery of fireworks to the Town of Avon, Western will notify the ERFPD of the approximate delivery
date and time. Once the fireworks arrive, Western shall confirm delivery, safe and proper storage with the
ERFPD and the Town of Avon.
2. Western, at its sole expense, will create specific credentials for all pyrotechnic crew members, including
Pyrotechnic Operators. These credentials will have photo identification for each pyrotechnic crew member. A
list of those pyrotechnic crew members who have received photo credentials will be provided to the Town of
Avon and ERFPD no later than June 13, 2016.
3. Western designates Mr. Paul Zoch as the primary Pyrotechnic Operator in Charge of the Discharge Site
Premises, Display Site Lower Premises and fining of the fireworks display. Western shall have an additional
Pyrotechnic Operator who will be on site to help facilitate the proper communication among the Town of Avon,
the on -site and/or in studio engineer for the radio sponsor, and Mr. Paul Zoch. This includes a coordinated
"fights -out" countdown with all parties.
4. Western pyrotechnic crew members will begin load -in of racks and tube containment systems at the Discharge
Site Premises beginning at approximately 8:00 am. on July 1, 2016. Western pyrotechnic crew members will
begin load -in of mortars and shells at approximately 8:00 a.m. on July 2, 2016.
5. Only pyrotechnic crew members with the proper credential will be allowed into the Discharge Site Premises and
Display Site Lower Premises starting July 2, 2016 at 8:00 a.m. through July 3, 2016, at 11:00 p.m.
6. All Premises security requirements shall include the number of, location of, and days and hours of security
personnel as well as scope of duties shall be detailed in the Pyrotechnic Protocol to be delivered to Western by
Avon no later than June 1, 2016, and, to be mutually agreed upon in writing by both parties.
7. Western pyrotechnic crew members will park only in designated areas located in the Display Site Lower
Premises as determined by the Town of Avon and/or ERFPD. The designated parking area will be monitored
by hired security as described in the Pyrotechnic Protocol. Each person in the vehicle(s) to be parked in the
designated area must have the proper pyrotechnic credentials.
8. Western pyrotechnic crew members shall do an immediate after -show "sweep" of the Discharge Site Premises
and Display Site Lower Premises to identify and remove any unexploded pyrotechnic devices or other material
that might not have ignited. Any such material found by any person other than the pyrotechnic crew members
shall be turned over to a pyrotechnic crew member, or the proper authority having jurisdiction, for safe handling
Attachment B: Western Enterprises and Town of Avon 2016 Contract Page 1
or disposal of said material. Only credentialed pyrotechnic operators shall be allowed in the Discharge Site
Premises and/or Display Site Lower Premises and perimeter areas until the sweep is complete. This "sweep" is
allocated to last approximately 25 minutes.
9. Western will work directly with ERFPD officials for the permitting of the fireworks display, paying the
appropriate permitting fees; and, to ensure the fireworks equipment (racks and tube containment systems) and
fireworks display (shells and mortars) are conducted in accordance with safety regulations established to NFPA
1123 (Code of Regulations for conducting outdoor fireworks displays). The safety regulations in NFPA 1123
may be increased by the ERFPD to ensure the safety of everyone.
The ERFPD is recommending (Exhibit A) and the Town of Avon is requiring the following modifications
to further ensure All Premise safety and general public safety:
a. The maximum shell/mortar size will be four inches (4 ");
b. The fallout zone shall be one hundred feet (100') per inch of maximum shell size;
c. Modified rack design. The rack design will follow NFPA 1123 2016 version. The racks will have
separation between them equal to the size of the mortar. The racks will be secured as identified in
Exhibit B; and,
d. Six foot (6') chain link fencing shall be installed at the Discharge Site Premises surrounding the north,
south and east sides of the launch area. The west side of the launch area shall be free of chain link
fencing to provide an emergency escape route for technicians.
10. Designated pyrotechnic crew members shall be responsible as "spotters ". The spotters are strategically
positioned around the Discharge Site Premises to watch all pyrotechnics during the firing of the display. The
number of and location of designated spotters will be approved by ERFPD during the Discharge Site Premises
Inspection by not later than July 2, 2016 at 12:00 p.m.
Town of Avon Responsibilities:
I. Town of Avon will provide for an adequate security fence for both All Premises to maintain proper firing
distances as established by Western.
2. Town of Avon, through the ERFPD, agrees to have fire truck within a reasonable distance from All Premises
during the display.
3. The Town of Avon will deliver the Pyrotechnic Protocol detailing all security requirements to include number
of location of and days and hours of security personnel as well as scope of duties by not later than June 1,
2016.
4. Town of Avon shall be responsible for coordinating/contracting with its designated radio sponsor. The radio
sponsor will provide a specific on -site and/or in studio engineer to coordinate the simulcast of pre- recorded
music with Western.
5. Town of Avon shall provide equipment for radio communication to be used between the Police Department,
Fire Department, and radio sponsor Engineer, Pyrotechnic Operator in Charge, and a designated individual for
Town of Avon coordinating the event. The Town of Avon shall provide a dedicated/exclusive radio channel for
this communication ("simulcast channel").
WEST RP S, INC.
James Burdett, President
thorized agent
TOWN OF AVON
BY: Virgini Egger, Town M ager
Authorized a)geht
Attachment 8: Western Enterprises and Town of Avon 2016 Contract Page 2