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03-09-2010 Fireworks Production Contract TOA and Western Enterprises3U MI To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager e Legal Review: Approved By: Eric Heil, Town Attorney ltdw Meryl Jacobs, Director Recreation Cultural Services of and From: Danita Chirichillo — Special Events Supervisor Date: March 4, 2010 Re: Fireworks Production Contract between Town of Avon and Western Enterprises Summary: Attached for signature is the contract with Western Enterprises to facilitate the 2010 Westin Riverfront Resort & Spa Salute to the USA fireworks display scheduled for Saturday, July 3. Staff has worked with Western Enterprises and the fire department to create an "Attachment A" which helps to clarify the operational procedures for perimeter security, discharge /display sites and responsibilities of each party. The Town Attorney has recommended the addition of "Addendum No. 1" which contains standard municipal protection provisions. Financial Implications: The contract price for 2010 is the same as in 2009, which is $61,000. The Town will receive a discount of $3,050 if the invoice is paid by April 30. 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 2010 Westin Riverfront Resort & Spa Salute to the USA. Town Manager Comments: Attachments: Production Contract, Attachment A, Addendum No. 1 FIREWORKS PRODUCTION CONTRACT 1 of 3 L This Contract is entered into this 9 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, 2010. 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 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 Iaws 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. S. 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. 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. 2of3 (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 Iiability, 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 Iimits 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 Iimits 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. 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 I 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 20, 2010, 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, 2011. 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 day of M a r-C& , 20 WESTERN ENTERPRISES INC SELLER TOWN OF AVON PURCHAS authorized E i M: authorized agent "Attachment A" The items contained herein provide for additional responsibilities or provisions that are to be adhered to by either the PURCHASER or the SELLER. NOTE Perimeter #1 is the same as Discharge Site. Perimeter #2 is the same as Display Site. Additional Responsibilities for Western Enterprises, Inc. 1. Once the fireworks arrive in the Town of Avon, Western Enterprises, Inc. will notify the Avon Fire Department. 2. Western Enterprises, Inc. 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. Onky crew members with proper credential will be allowed into Perimeter #I/Discharge Site 3. Pyrotechnic crew members will begin load -in at Discharge Site beginning at 8:00am on July 2, 2010. The Pyrotechnic crew members will be responsible for security of the Discharge Site whenever they arrive at this site. 4. Pyrotechnic crew members will park only in designated area, as determined by the Town of Avon and/or Avon Fire Department. 5. Western Enterprises, Inc. designates Mr. Paul Zoch 'as the primary operator in charge of the firing of the fireworks display. Western Enterprises, Inc. will have an additional Pyrotechnic Operator (Mr. Patrick Nickson) 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 Enterprises, Inc. This includes a coordinated "lights -out" countdown with all parties. 6. Western Enterprises, Inc. crew members will do an immediate after - show "sweep" of the safety perimeter #1 & #2 to pick up any unexploded pyrotechnic devices. No spectators can be allowed into these perimeter area until the sweep is complete. This "sweep" is allocated to last approximately 25 minutes. 7. Western Enterprises, Inc. will work directly with Town of Avon Fire Department officials for permitting fireworks display. Western Enterprises, Inc. will work directly with Town of Avon Fire Department 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. 10. Other? "Attachment A" (Page 2) Additional Responsibilities for Town of Avon 1. Town of Avon will be responsible for providing security personnel whenever pyrotechnic crew members are not on site. This site security will begin on July 2, 2010 at approximately 6:30pm. 2. Town of Avon will provide for a security fence for both Perimeter #1 and Perimeter #2. 3. Town of Avon will provide security personnel prior to, during and after the firing of the display on July 3 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 Perimeter #2. 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 on site to coordinate with both Paul Zoch and Patrick Nickson) 5. Town of Avon will provide equipment for communication (dedicated channel) that will be used exclusively between Fire Department, Studio Engineer, Pyrotechnic crew and a designated individual (Rob Janus ?) for Town of Avon coordinating the event. 6. Other? 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 [reference the title and date of the agreement to which this is attached] 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 201TABOR 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. 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. A.9. 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 Addendum No. 1: Town of Avon Page 2 of 3 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. A.10. 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. A.11. AssiQnment and Release benefits set forth in this express written consent assignment shall express . obligations, responsibilitie approved by resolution c assignment shall release responsibility unless sucl assignment. All or part of the rights, duties, obligations, responsibilities, or Agreement shall not be assigned by Contractor without the of the Town Council for the Town of Avon. Any written 1 refer to this Agreement, specify the particular rights, duties, or benefits so assigned, and shall not be effective unless r motion of the Town Council for the Town of Avon. No the Applicant from performance of any duty, obligation, or release is clearly expressed in such written document of A.12. 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. Addendum No. 1: Town of Avon Page 3 of 3 9700000000 ' FIREWORKS PRODUC'T'ION CONTRACT 3 of (7) No Waiver of Governmental I munit . 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 outer person acting on behalf of the Town and, in particular, governmental immunity afforded or available pursuant to the Colorado Govemmental 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 SIXTY ONE THOUSAND DOLLARS & NO1100 (561,000.00) to be paid within fifteen (15) days after the date of the display. HOWEVER, if payment is made in full by April 20, 2010, a five percent (S° /n) 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 ° /a) 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, 2011. If the PURCHASER will not re- schedule the display percent within the of the calendar ost year, the completely cancels the display, the PURCHASER agrees to pay to the SELLER Thirty p display (SIS,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 q day of 00 rC. TOWN OF AVON PURCHAS BY: authM