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03-18-2009 Fireworks Production ContractT a To: Honorable Mayor & Town Council Thru: Larry Brooks /Town Manager From: Meryl Jacobs /Director of Recreation & Cultural Services ' Date: March 18, 2009 Re: Fireworks Production Contract Summary: Attached for the Mayor's signature is the contract between the Town of Avon and Western Enterprise for the production of fireworks at the Westin Riverfront Resort and Spa Salute to the USA. This event will be held in Harry A. Nottingham Park on Friday, July 3, 2009. This contract has had legal review. Financial Implications: The cost of the fireworks production is $61,000.00 with a 5% discount applicable if paid in full by April 30, 2009. The cost of the fireworks display is a budgeted 2009 expense. Town Manager Corn ents: FIREWORKS PRODUCTION CONTRACT 1 of 3 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, 2009. 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 by the PURCHASER. 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 ofSELLER'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 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 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) 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. 8. It is agreed and understood that the PURCHASER will pay to the SELLER the sum of SIXTY ONE THOUSAND DOLLARS & NO 1100 ($61,000.00) to be paid within fifteen (15) days after the date of the display. HOWEVER, if payment is made in full by April 30, 2009, 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 through January 2, 2010. 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 ($18,300.00). 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 �4 day of — M-IkCVl ,20 . WESTERN ENTERPRISES INC TOWN OF AVON SELLER PT TR f N A CTR^. authorized agent authorized agent ,ice' ADDENDUM NO. 1: MUNICIPAL PROVISIONS In the event the terms and conditions of this Addendum conflict in whole or in part with the terms and conditions of a third party contract, the terms and conditions of this Addendum shall control. 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. 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. 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. 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. 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. Compliance with Article XXVIII of the Colorado Constitution If and only to the extent this Agreement constitutes a "sole source government contract" within the meaning of Article XXVIII of the Colorado Constitution ( "Article XXVIII "), then the provisions of Sections 15 through 17 of Article XXVIII ( "Amendment 54 ") are hereby incorporated into this Agreement and the parties hereto shall comply with the provisions of Amendment 54. In such a case, for purposes of this Agreement, the Contractor shall constitute a "contract holder" for purposes of Amendment 54, as shall any additional persons, officers, directors or trustees related to the Contractor who qualify as "contract holders" pursuant to the definition set forth in Article XXVIII. In addition, if and only to the extent this Agreement constitutes a "sole source government contract," the Contractor hereby certifies that it is not ineligible to hold any "sole source government contract" pursuant to Amendment 54 or any contract thereunder, and the Contractor hereby agrees to notify the Town immediately if, at any point during the term of this Agreement, the Contractor shall become ineligible to hold any "sole source government contract" pursuant to Amendment 54 or any contract thereunder. If any provision or provisions of Amendment 54 are held to be unconstitutional or otherwise invalid by a court of competent jurisdiction in a non - appealable action, have been repealed retroactively or otherwise do not apply to this Agreement, such provision or provisions shall no longer be incorporated into this Agreement and the Parties shall have no obligations under such provision or provisions. 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. Binding Effect The Parties agree that this Agreement, by its terms, shall be binding upon the successors, heirs, legal representatives, and assigns. 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. Governing 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, the 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. 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. 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. 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.