04-19-2011 FIREWORKS PRODUCTION CONTRACT WESTERN ENTERPRISESMEMO
To:
Thru:
Legal Review:
Approved By:
From:
Date:
Re:
Honorable Mayor and Town Council
Larry Brooks, Town Manager
Eric Heil, Town Attorney
Meryl Jacobs, Director of Recreation and Cultural Services
Danita Chirichillo — Special Events Supervisor
April 19, 2011
Fireworks Production Contract between Town of Avon and Western
Enterprises
Summary:
Attached for signature is the contract with Western Enterprises to facilitate the 2011 Westin
Riverfront Resort & Spa Salute to the USA fireworks display scheduled for Sunday, July 3.
Last year, staff worked with Western Enterprises and the fire department to create an
"Attachment A" which helped to clarify the operational procedures for perimeter security,
discharge /display sites and responsibilities of each party. The "Attachment A" is being
utilized again for the 2011 Salute to the USA event.
In addition, the contract includes an "Addendum No. 1" as recommended by the Town
Attorney which contains standard municipal protection provisions.
Financial Implications:
The contract price for 2011 is $51,000. The Town will receive a discount of $2,550 if the
invoice is paid by May 10th.
Recommended Action:
Authorize the Mayor to sign the attached contract between the Town of Avon and
Western Enterprises for the purchase and production of the fireworks display for the 2011
Westin Riverfront Resort & Spa Salute to the USA.
Town Manager Comments:
Attachments: Production Contract, Attachment A, Addendum No. 1
FIREWORKS PRODUCTION CONTR.AC1'
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1. This Contract is entered into this 26- day of GAA
_ , _0 k( by ;rid bet%cccn WESTERN ENTERPRISES,
INC.. desionat d herein as ilia "SELLER ", and TOWN Of' AVON. desiL n;ncd herein ;rs the "PURCH %tiER" for ;t fireworks
production to be held on JULY 3, 2011.
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 serviccs of a Pyrotechnic Operator to take charge ol; 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 ater 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.
G. 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, dearth, 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.
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 vtd 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 failure to procure or maintain insurance in sufficient amounts, duration, or types.
HRENVORKS DISPLAY CONTRACT
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(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 CONTra1e shrill be procured and I.nainlained with liirnts and inswers
acceptable to the PURCHASER. All co%cra-,e shall be cantinuousl� maintained to cover all liability, claims, demands, and other
obligations assumed by the SELLER herein. In the ca >c of any claims -made policy, [he uecess ;try retroactive dates and extended
reportin periods shall be procured to maintain such continuous covcrauc.
(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 (5500,000) disease policy limit, and
FIVE HUNDRED THOUSAND DOLLARS (5500,000) 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 (S5,000,000) each occurrence and FIVE MILLION DOLLARS (55,000,000) aggregate. The
policy shall be applicable to all premises and operations. The policy shall include coverage for bodily
injury, broad form property damage, personal iniury (including coverage for contractual and employee
acts), blanket contractual, independent contractors, products. and corpleted operations. The policy shall
also include coverage for explosion and shall contain a severability of interest's provision.
(c) Comprehensive automobile liability insurance with minimum combined single limits for
bodily injury and property damage of riot less than ONE MILLION DOLLARS (51,000,000) cacli
occurrence and ONE MILLION DOLLARS (S1,000,000) aggregate with respect to each of SELLER'S
owned, hired, or non -owned vehicles assigned to or used in perltn•m ;trice of the services. The policy shall
contain a severability of interest's provision.
(3) The policy required by paragraph (2) (b) above and by paragraph (2) (c) above shall be endorsed to include
the PURCHASER [rid 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 officer,,, 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. T)te SF..LLF..R shall be solely responsible for any deductible losses under
any policy required by the PURCHASE 11.
(d) The Certificate of lnsurance 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 ;is 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 front the PURCHASER.
(G) The PURCHASER reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
FIREWORKS PRODUCTION CONTRACT
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(7) N'a►�er c11Co1c�n�e�t1 Ittlnjunit�� \bthine in this Agreement shall be construed to +ai%e, limit or
othcr%%ise modify any gorernmentdl immunit% that ma) be mailable b) laa to the To%%n, its officials, emploNees, contractors, or
agents. or an) other person acting on behalf of the Torn and. in particular, go%ernmental intmunit% afforded or available pursuant
to the Colorado Goventmental Immunity Act. Title 24. Article 10, Part 1 of the Colorado Re%iced Statute%.
8. It is agreed and understood that the PURCHASER Mill pay to the SELLER the sum of FIFTY ONE THOUSAND
DOLLARS St NO1100 (S51,000.00) to be paid within fifteen (15) days after the date of the display. HOWEVER, if payment is
made in full by April 20, 2011, a fife percent (S °o) discount %%ill 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 06) intere.t 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 gill notih. SELLER reprdi» g the postponement date, normally the following night, or at some
future date through January 2. 2012. If the PURCHASER will not re- schedule the display within the calendar )ear, or
completely cancels the display, the PURCHASER agrees to pa) to the SELLER Thirty percent (30 %) of the cost of the display
(S1S.300.00} If prepayment option has been exercised. SELLER will rctund to PURCHASER the total amount paid, less the
300;'o mentioned above.
`6"
10. Witness tthereof, tie have caused our sisnaturcs to he affixed to this Document. on this ZL' day of
20 —L.
WESTERN ENTERPRISES, INC.
SELLER
BY:
TOWN OF AVON
PURCHASER
F IRE'WORKS PRODUCTION CONTRACT
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('7) No Waiver of Governmenial_Imntmtity._ Nothing in this :Agreement shall be construed to waivc, limit or
otherwise modify any governmental inttnunity that may he ;tvailablc by law to the Town, its officials, emplo\er�, contractors, or
agents, or any other person acting on behalf'of the Town and, in particular, .�ovcrnnlental immunity afforded or available pursuant
to the Colorado Governmental Immunity Act. Title 24, Article 10, Part 1 ofthe Colorado Revised Statutes.
8. It is agreed and understood that the PURCHASER will pay to the SELLER the stint of FIFTY ONE THOUSAND
DOLLARS & NO 1100 (S51,000.00) to be paid within fifteen (15) days after the date of the display. 1•I0WEVER, if payment is
made in full by April 20, 2011, a five percent 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 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 through January 2, 2012. If the PURCHASER will not reschedule the display within the calendar year, or
completely cancels the display, the PURCHASER agrees to pay to the SELLER Thirty percent (30 1/1a) of the cost of the display
(S15,300.00). if prepayment option Iris been exercised. SELLER will refund to PURCHASER the total amount paid, less the
30'.',i, mentioned above.
10. Witness whereof, we have caused our
natures to be affixed to this Document, on this 2� � day of aP�i
20 \\ .
WESTERN ENTERPRISES, INC. TOWN OF AVON
SELLER PURCHASFR
BY:
authorized aLent
66Attachment A"
The items contained herein provide for additional responsibilities or provisions that are to be
adhered to by either the PURCHASER ( "Western ") or the SELLER ( "Town of Avon ").
The Discharge Site is herein defined as the immediate area from where the fireworks equipment
and fireworks are located and /or discharged. The Display Site is herein defined as not only
including the Discharge Site, but also the entire required security safety perimeter outside the
Discharge Site as prescribed by the Eagle River Fire Protection District and "Western ".
Additional Responsibilities for Western Enterprises, Inc. (hereinafter noted as "Western ")
1. Prior to delivery of fireworks to the Town of Avon, "Western" will notify the Eagle River
Fire Protection District of the approximate delivery date and time. Once the fireworks
arrive, "Western" will confirm delivery with the above mentioned parties.
2. "Western" will create specific credentials for all pyrotechnic crew members. These
credentials will have photo identification for each crew member. A list of the pyrotechnic
crew members will be provided to the Town of Avon prior to the display for verification.
Only crew members with proper credential will be allowed into the Discharge Site.
3. Pyrotechnic crew members will begin load -in at Discharge Site beginning at approximately
8:OOam on July 2, 2011. The Pyrotechnic crew members will be responsible for security of
the Discharge Site upon arrival for load -in, and until the Town of Avon security team
arrives at approximately 6:30 pm.
4. Pyrotechnic crew members will park only in designated area, as determined by the Town of
Avon and /or Eagle River Fire Protection District.
5. "Western" designates Mr. Paul Zoch as the primary operator in charge of the firing of the
fireworks display. "Western" will have an additional Pyrotechnic Operator that will be on
site to help facilitate the proper communication between the Town of Avon, the studio
engineer for the Radio Sponsor and also Mr. Paul Zoch. "Western ". This includes a
coordinated "lights -out" countdown with all parties.
6. "Western" crew members will do an immediate after -show "sweep" of the safety perimeter
within the (Discharge Site and Display Site) to pick up any unexploded pyrotechnic devices.
No spectators can be allowed into these perimeter areas until the sweep is complete. This
"sweep" is allocated to last approximately 25 minutes.
7. "Western" will work directly with Eagle River Fire Protection District officials for
permitting fireworks display. "Western" will work directly with Eagle River Fire Protection
District to ensure that fireworks equipment and fireworks display will be conducted in
accordance to safety regulations established to NFPA 1123 (Code of Regulations for
conducting outdoor fireworks displays). The safety regulations in this document may be
increased to ensure the safety of everyone.
8. Designated pyrotechnic crew members will be responsible as "spotters ". These individuals
are strategically positioned around the discharge site to watch all pyrotechnics during the
firing of the display.
9. There will be designated "runners for food and beverages" for the pyrotechnic crew
members. These designated individuals can be pyrotechnic crew members, but if they do
not have the proper credentials with photo identification, they will not be allowed into the
discharge site.
"Attachment A" (Page 2)
Additional Responsibilities for Town of Avon
1. Town of Avon will be responsible for providing security personnel on July 2, 2011 at
approximately 6:00 p.m. until 8:00 a.m. on July 3, 2011 at which time they pyrotechnic crew
arrives.
2. Town of Avon will provide for a security fence for both the Discharge site and Display Site.
3. Town of Avon will provide security personnel prior to, during and after the firing of the
display on July 3rd. These individuals will be posted at designated locations. Immediately
after the display, for approximately 25 minutes, these security personnel will not allow any
spectators into the secured Display Site.
4. Town of Avon will be responsible for coordinating /contracting with their designated Radio
Sponsor. (Due to problems in 2009, it is necessary to have a specific studio engineer to
coordinate with both Paul Zoch.)
5. Town of Avon will provide equipment for radio communication that will be used between
Fire Department, Studio Engineer, Pyrotechnic crew and a designated individual for Town
of Avon coordinating the event. The Town of Avon agrees to have discussions regarding a
dedicated /exclusive radio channel for this communication.
ADDENDUM NO. 1: MUNICIPAL PROVISIONS
In the event the terms and conditions of this Addendum No. 1 conflict in whole or in part with the
terms and conditions of the Fireworks Production Contract dated April 26th, 2011 agreement the
terms and conditions of this Addendum No. 1 shall control.
A.1. 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.
A.2. 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 advertising; layoff or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship.
A.3. 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 Town of Avon, and
other applicable law. Upon the failure to appropriate such funds, this Agreement shall be
terminated.
A.4. 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 fails 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.
Addendum No. 1: Town of Avon
Page 1 of 3
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 if, 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.
A.S. Ownership of Documents: Any work product, materials, and documents produced by the
Contractor pursuant to this Agreement shall become property of the Town of Avon 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, C.R.S., 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.
A.6. 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.
A.7. Binding Effect: The Parties agree that this Agreement, by its terms, shall be binding upon
the successors, heirs, legal representatives, and assigns.
A.B. 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
A.9. 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 of Contractor. Absolutely
no third party beneficiaries are intended by this Agreement. Any third -party receiving a
benefit from this Agreement is an incidental and unintended beneficiary only.
Addendum No. 1: Town of Avon
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