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07-03-2017 Fireworks Production Contract - Western EnterprisesTHREE-YEAR FIREWORKS PRODUCTION CONTRACT Western Enterprises and Town of Avon 1. This Contract is entered into this 29`" day of March, 2017 by and between WESTERN ENTERPRISES, INC., designated herein as the "SELLER", and TOWN OF AVON, designated herein as the "PURCHASER" for fireworks productions to be held on JULY 3, 2017, JULY 3, 2018 and JULY 3, 2019. 2. PREMISES are detailed in Attachment A — All Premises Map. 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 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. Western Enterprises and Town of Avon 2017 — 2019 Contract Page 1 THREE-YEAR FIREWORKS PRODUCTION CONTRACT Western Enterprises and Town of Avon 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 its failure to procure or maintain insurance in sufficient amounts, duration, or types. (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 employer's 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 interest's provision. Western Enterprises and Town of Avon 2017 — 2019 Contract Page 2 THREE-YEAR FIREWORKS PRODUCTION CONTRACT Western Enterprises and Town of Avon (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 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 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 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 Special Events Manager. PURCHASER will receive notice no less than thirty (30) days prior to any cancellation, termination or material change in such policy. (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. (7) 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 Western Enterprises and Town of Avon 2017 — 2019 Contract Page 3 THREE-YEAR FIREWORKS PRODUCTION CONTRACT Western Enterprises and Town of Avon the Colorado Governmental Immunity Act, Title 24, Article 10, Part I of the Colorado Revised Statutes. 8. It is agreed and understood that the PURCHASER will pay to the SELLER the sum of FORTY-FIVE THOUSAND DOLLARS & NO/100 ($45,000.00) for 2017; FORTY-FIVE THOUSAND DOLLARS & NO/100 ($45,000.00) for 2018, subject to Town of Avon annual budget appropriation; and, FORTY-FIVE THOUSAND DOLLARS & NO/100 ($45,000.00) for 2019, subject to Town of Avon annual budget appropriation. The contract amount will be paid within fifteen (15) days after the date of the display. 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 any of these displays, it is agreed and understood that PURCHASER will notify SELLER regarding the postponement date, normally the following night, or at some future date through February 24th of the following calendar year (2018, 2019 or 2020). If the PURCHASER will not re -schedule the display by February 24th of the following calendar year, or completely cancels the display, the PURCHASER agrees to pay to the SELLER thirty percent (30%) of the cost of the display ($13,500.00). 10. This Contract is also subject to the terms and conditions of Attachment B, attached hereto, and made part of this Contract. WEST RN ENTE, RISES, INC i r r 3y. ' j 10TeSi Jxt-' uthorize Agent sair a-k�e�-NVQ TOWN OF AVON BY: Virginia C.��JTown Manager Authorized Age Western Enterprises and Town of Avon 2017 — 2019 Contract Page 4 LM' Attachment B Western Enterprises and Town of Avon 2017 — 2019 Fireworks Production Contract 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 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 Display Site 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: 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. 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, 2017. Western designates Mr. Paul Zoch as the primary Pyrotechnic Operator in Charge of the Discharge Site Premises, Display Site Lower Premises and firing 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 "lights -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 a.m. on July 1, 2017. Western pyrotechnic crew members will begin load -in of mortars and shells at approximately 8:00 a.m. on July 2, 2017. 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, 2017 at 8:00 a.m. through July 3, 2017, at 11:00 p.m. Attachment B: Western Enterprises and Town of Avon 2017 - 2019 Contract Page 1 Attachment B Western Enterprises and Town of Avon 2017 — 2019 Fireworks Production Contract 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, 2017; 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 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, 2017 at 12:00 p.m. Attachment B: Western Enterprises and Town of Avon 2017 - 2019 Contract Page 2 Attachment B Western Enterprises and Town of Avon 2017 — 2019 Fireworks Production Contract Town of Avon Responsibilities: 1. 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, 2017. 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"). WESTERN ENTER,P. SES, INC. f B residrrrt- nriz Agent Ste, Pte, 0? TOWN OF AVON BY: Virginigger, Town Manager Authorized -It Attachment B. Western Enterprises and Town of Avon 2017 - 2019 Contract Page 3 April 4, 2016 Danita Dempsey Town of Avon EXHIBIT A Re: Fourth of July Fireworks Dear Ms, Dempsey, Eagle River Fire Protection District's (ERFPD) top priority is the safety of the public that we serve. The unfortunate incident at the Town of Avon 2015 Salute to the USA firework exhibition led ERFPD to issue the recommendation that the Town of Avon retain an engineer to assess and certify the safety of this year's fireworks show. We understand that the Town of Avon has reasonably attempted to find an engineer that can certify the safety of a firework display and found that this type of professional is unavailable. Without such an engineer, we have worked with you, the Town of Avon, along with several professional pyro technicians to develop a safer system for the fireworks launch site. Last week, at the interview with Western Enterprises, we discussed several changes that could be made that would increase the safety of the Town's fireworks display. Since that meeting, I spent some time working through the code book and discussing possible changes with professional pyro technicians. From those discussions, the following recommendations were developed to increase the safety of future fireworks displays: • Reduce the shell size. This year, the fireworks contractor will use shells that are four -inch or smaller. This will decrease the height and distance that the shells will fly. • Increase the size of the fallout zone. The size of the fallout zone will increase from seventy (70) feet per inch of maximum shell size to one hundred (100) feet per inch of maximum shell size. • Modify the 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 designed by Western Enterprises in their proposal. (Exhibit B) • Install fencing. The launch area will be barricaded by a six foot high chain-link fence. The fencing will surround the north, south and east sides of the launch area, leaving the west side (Avon Elementary) as an escape route for technicians. With these changes in place, ERFPD can recommend that the Town of Avon Salute to the USA move forward in 2016. ERFPD will also be on site for final approval, which will take into account the prevailing weather situation, per the guidelines of NFPA 1123. 1 would like to acknowledge the individuals that helped with this process: James Burnett, Ronald Bumett, and Paul Zoch, whose knowledge and experience continue to make the Avon celebration world-class. Thank you for your tireless work to mak re that the Salute to the USA firework exhibition will continue in the Town of Avon. We look fo d to th cele ation this 4`h of July weekend. r ck oodworth re Marshal, Eagle River Fire (970) 736-5064 / (970) 471-6346 Cell mwoodworth(74eagleriverfire.ora POST OFFICE Box 7980.0351 BENCHMARK ROAD. AVON, COLORADO 81620-7980 PHONE: 970-748-9665 - FAX: 970-949-7965• EMAIL: INFOQERfPD.QRG Exhibit B Western Enterprises and Town of Avon 2017 Fireworks Production Contract Western Enterprises Rack Design Approved by Eagle River Fire Protection District Exhibit B to Attachment B: Western Enterprises and Town of Avon 2017 - 2019 Contract