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04-18-2007 WESTERN ENTERPRISES CONTRACT FOR THE FIREWORKS DISPLAY ON JULY 3, 2007MEMORANDUM To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Danita Chirichillo - Special Events Coordinator Meryl Jacobs - Director of Recreation and Cultural Services Date: April 18, 2007 Re: Western Enterprises, Inc. Contract Summary: Attached for signature is the contract with Western Enterprises to facilitate the 2007 Salute to the USA fireworks display scheduled for Tuesday, July 3. Financial Implications: The contract price for 2007 is the same as in 2006, which is $53,700. We may exercise a discount of $2,685 if we pay by April 30. We may choose not to exercise the discount option and use this money to supplement our display with additional fireworks. Town Manager Comments: PLEASE SIGN, DATE A PIREWORKS PRODUCTION CONTRACT RETURN HIS COPY 1 of3 1. This Contract is entered into this day of , 20 by and between WESTERN ENTERPRISES, INC., designated herein as the "SELLER", and TOWN OF AVON, designated herein as the "PURCHASER" for a fireworks production to be held on JULY 3, 2007. 2. SELLER will secure, prepare and deliver said fireworks as outlined, or will make necessary substitutions of equal or greater value. SELLER will include the services of a Pyrotechnic Operator to take charge of, set up and fire the display, along with such help as he deems necessary to perform the fireworks display safely, and in accordance with such Federal, State or Local laws that might be applicable. 3. SELLER agrees that the Operator and Assistant(s) are to check the display area after the presentation of the fireworks display for any "duds" or other material that might not have ignited. Any such material found by any person other than the Operator shall be turned over to the Operator, or the proper authority having jurisdiction, for safe handling or disposal of said material. 4. PURCHASER will furnish a secured area with minimum safety distances established by the SELLER after an on-site inspection of the proposed firing location. PURCHASER will provide adequate police protection and/or other adequate security to maintain these distances. PURCHASER also agrees to have a fire truck available on location during the display. 5. 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. 6. 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 in or 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. 7. Insurance. a. General. 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. b. Insurance. (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 it failure to procure or maintain insurance in sufficient amounts, duration, or types. FIREWORKS DISPLAY CONTRACT 2 of 3 (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. (a) 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. (b) 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 premises and operations. 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 interests provision. (c) 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 interests provision. (3) The policy required by paragraph (2) (b) above and by paragraph (2) (c) 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 (2) (a) 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. (4) The Certificate of Insurance provided to the PURCHASER shall be completed by the Contractor'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 shall not be canceled, terminated, or materially changed until at least 30 days' prior written notice has been given to the PURCHASER. The completed Certificate of Insurance shall be submitted to the PURCHASER'S Recreation Director. (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. (6) The PURCHASER reserves the right to request and receive a certified copy of any policy and any endorsement thereto. FIREWORKS PRODUCTION CONTRACT 3 of 3 (7) The parties hereto understand and agree that the PURCHASER is relying on, and does not waive or intend to waive by any provision of this Contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, 24-10-101 at sea., 10 C.R.S., as from time to time amended, or otherwise available to the Purchaser, its officers, or employees. 8. It is agreed and understood that the PURCHASER will pay to the SELLER the sum of FIFTY THREE THOUSAND SEVEN HUNDRED DOLLARS & NO1100 ($53,700.00) to be paid within fifteen (15) days after the date of the display. HOWEVER, if payment is made in full by April 30, 2007, a five percent (5%) discount will apply. That discount can either be deducted from the total contract price, or the PURCHASER may elect to receive that amount of extra pyrotechnic product in lieu of the discount. Unpaid accounts are subject to one percent (1%) interest charge per month after fifteen days. 9. 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 within the calendar year. If the PURCHASER will not re-schedule the display within the calendar year, or completely cancels the display, the PURCHASER agrees to pay to the SELLER Thirty percent (30%) of the cost of the display ($16,110.00). If prepayment option has been exercised, SELLER will refund to PURCHASER the total amount paid, less the 30% mentioned above. 10. Witness whereof, we have caused our signatures to be affixed to this Document, on this day of .20 WESTERN ENTERPRISES. INC. SELLER TOWN OF AVON PURCHA BY- authorized agent authorized BY: authorized agent