21.05.01 PSA Tetra Tech, Inc. A
AV on P SA'1E1RA TECH
BASIN 4 DESIGN
COLORADO
Project/Services Name:
THIS PROFESSIONAL SERVICES AGREEIVENT(`Agreement")dated as ofMAY01,2021 is entered into
by and between TETRATECH,INC.,a CORPORATION of the State ofCOLORADO,whose business
address is 3801 AUTOMATION WAY,SUITE 100,FORT COLLINS,CO 80525(`Contractor)and the
Town ofAvon,Colorado,a home rule municipality of the State of Colorado("Town"and,together with
the Contractor,`Parties').
RECITALS AND REPRESENTATIONS
WHEREAS, the Town desires to have performed certain professional services as described in this
Agreement;and
WHEREAS,the Contractor represents that the Contractor has the skill,ability, and expertise to perform the
services described in this Agreement and within the deadlines provided by the Agreement;and
WHEREAS,the Town desires to engage the Contractor to provide the services described in this Agreement
subject to the terms and conditions ofthe Agreement
NOW,THEREFORE,in consideration ofthe benefits and obligations ofthis Agreement,the Parties mutually
agree as follows:
1.0 SERVICES AND CONTRACTOR PERFORMANCE
1.1 Services and Work Product. As directed by and under the supervision ofthe Town Manager for
the Town ofAvon,the Contractor shall provide the Town with the services described in Exhibit A,attached
hereto and incorporated herein (`Services'). For purposes of this Agreement, 'Work Product"shall
consist of deliverables and/or product to be created, provided or otherwise tendered to the Town as
described in the Services.
1.2 Changes to Services. At any time the Town may request a change or changes in the Services.
Any changes that are mutually agreed upon between the Town and the Contractor s hall be made in writing
and upon execution by both Parties shall become an amendment to the Services described in this
Agreement To be e fiective,any written change must be signed by the Contractor and by the Avon Town
Council("Town Council').
1.3 Independent Contractor. The Contractor shall perform the Services as an independent contractor
and shall not be deemed by virtue ofthis Agreement to have entered into any partnership,joint venture,
employer/employee or other relationship with the Town other than as a contracting party and independent
contractor. The Town shall not be obligated to secure,and shall not provide,any insurance coverage or
employment benefits of any kind or type to or for the Contractor or the Contractor's employees, sub-
consultants, contractors, agents, or representatives,including coverage or benefits related but not limited
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to: local,state,or federal income or other tax contributions;insurance contributions (e.g.,FICA);workers'
compensation;disability,injury,or health;professional liability insurance,errors and omissions insurance;
or retirement account contributions.
1.4 Standard of Performance. In performing the Services,the Contractor shalluse that degree ofcare,
skill, and professionalism ordinarily exercised under similar circumstances by members of the same
profession practicing in the State of Colorado. Contractor represents to the Town that the Contractor is,
and its employees performing such Services are,properly licensed and/or registered within the State of
Colorado for the performance ofthe Services (iflicensure and/or registration is required by applicable law)
and that the Contractor and employees possess the skills,knowledge,and abilities to competently,timely,
and professionally perform the Services in accordance with this Agreement
1.5 Patent Indemnification. Contractor shall indemnify,defend and hold Town harmless from any and
all claims,demands,and causes ofaction(including reasonable attorneys'fees and costs ofsuit)for actual
or asserted infringement or actual or asserted appropriation or use by Town oftrade secrets,proprietary
information, know-how, copyright rights, or patented inventions included in any design or specification
furnished by Contractor or arising from the use or sale of materials, equipment, methods, processes,
designs and information,furnished by Contractor in connection with the Services. Contractor shall include
the foregoing indemnification provision as a term of each agreement utilized by it in the performance of its
work which shall extend expressly from the vendor or subcontractor to Town.
1.6 Safety. When and to the extent that Contractor or any of its employees,agents or subcontractors
are working under the terns ofthis Agreement,Contractor will comply,and cause all its employees,agents
and subcontractors to comply,with applicable safety rules and security requirements.
1.7 Qualified Personnel. Contractor will make available all qualified Contractors, drafters, technical
and clerical personnel necessary to fulfill its obligations under this Agreement Prior to commencement of
work,Contractor will provide Town with the names ofall Contractor personnel and their then current hourly
rates, if applicable,whose services are to be employed in performance of the Services. Removal or re-
assignment ofpers onne l by Contractor will only be done with prior written approval of Town.
1.8 Removal of Personnel by Town. Town may, in its discretion,require Contractor to dismiss from
performance of the Services any personnel of Contractor or any subcontractor for any reason, effective
upon written notice from Town of such dismissaL Town will not be required to pay salary, or any other
costs associated with dismissed personnel effective upon Contractor's receipt of notice to dismiss from
Town.
1.9 Representations and Warranties. Contractor represents and warrants that the Services will be
performed in a manner consistent with other reasonable professionals providing similar services under
similar circumstances. Contractor will complete the Services in accordance with the Agreement and
applicable United States laws,regulations,ordinances,and codes in existence at the time the Agreement
is executed.
1.10 Miintenance of and Access to Records. Contractor will maintain detailed records of all matters
relating to the Services during the term of the Agreement and for a period after its cancellation or
termination ofnot less than five(5)years. Town will have the right to copy and audit during regular bus ire s s
hours all records of any kind which in any way relate to the Services, whether created before, during or
after the termination of this Agreement Access to such records will be provided to Town at no cost
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1.11 Colorado Open Records Act. The parties understand that all material provided or produced under
this Agreement maybe subject to the Colorado Open Records Act, § 24-72-201, et seq., C.R.S. In the
event ofthe filing of a lawsuit to compel such disclosure,the Town shall inform the Contract and will tender
all such material to the court for judicial determination ofthe issue of disclosure and the Contractor agrees
to intervene in such lawsuit to protect and assert its claims of privilege and against disclosure of such
material or waive the same
1.12 Disclosure of Adverse Information. Contractor will promptly disclose to Town any and all
information which Contractor may learn,or which may have a material adverse impact on the Services or
the Work Product or Town's ability to utilize the Work Product in the manner and for the purpose for which
the Work Product is intended.
2.0 CONPENSATTON
2.1 Commencement of and Compensation for Services. Following execution ofthis Agreement by
the Town,the Contractor shall be authorized to commence performance ofthe Services as described in
Exhibit subject to the requirements and limitations on compensation as provided by this Section
2.0 CONPENSATION and its Sub-Sections.
A. Time and Materials Contract—Not to Exceed Amount. The Contractor shall perform the
Services and shall invoice the Town for mark performed based on the rates and/or compensation
methodology described in Exhibit A. Total compensation (including all reimbursable expenses) shall
not exceed THRTYTHOUSAND EIGHT HUNDRED THIRTYDollars ($30,830.00).
B. Reimbursable Expenses. The fallowing shall be considered `1•eimbuisable expenses"for
purposes of this Agreement and may be billed to the Town without administrative mark-up but which
must be accounted for by the Contractor and proof ofpayment shall be provided by the Contractor with
the Contractor's monthly invoices:
• Vehicle Mle age (billed at not more than the prevailing per mile charge permitted by the Internal
Revenue Service as a deductible business expense)
• Printing and Photocopying Related to the Services
• Charges incidental to securing needed infoiirration(e.g., charges imposed to obtain recorded
documents)
• Postage and Delivery Services
• Lodging and Nbals (only with prior written approval of the Town as to dates and maximum
amount permitted)
C. Non-reimbursable Costs, Charges, Fees, or Other Expenses. Any fee, cost, charge, fee, or
expense incurred by the Contractor not otherwise specifically authorized by this Agreement shall be
deemed a non-reimbursable cost and shall be borne by the Contractor and shall not be billed or invoiced
to the Town and shall not be paid by the Town.
D. Increases in Compensation or Reimbursable Expenses. Any increases or modification of
compensation or reimbursable expenses shall be subject to the approval ofthe Town and shall be made
only by written amendment ofthis Agreement executed by both Parties.
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2.2 Payment Processing. The Contractor shall submit invoices and requests for payment in a form
acceptable to the Town. Invoices shallnotbe submitted more often than once eachmonthunless otherwise
approved by this Agreement or in writing by the Town. Unless otherwise directed or accepted by the Town,
all invoices shall contain sufficient information to account for all Contractor time (or other appropriate
measure(s) of work effort) and all authorized reimbursable expenses for the Services during the stated
period of the invoice. Following receipt of a Contractor's invoice, the Town shall promptly review the
Contractor's invoice.
2.3 Town Dispute of Invoice or Invoiced Item(s). The Town may dispute any Contractor time,
reimbursable expense, and/or compensation requested by the Contractor described in any invoice and
may request additional information from the Contractor substantiating any and all compensation sought by
the Contractor before accepting the invoice. When additional information is requested by the Town,the
Town shall advise the Contractor in writing, identifying the specific item(s)that are in dispute and giving
specific reasons for any request for information. The Town shall pay the Contractor within forty-five (45)
days ofthe receipt ofan invoice for any undisputed charges or,ithe Town disputes an item or invoice and
additional information is requested,within thirty(30)days of acceptance ofthe item or invoice by the Town
Mowing receipt of the information requested and resolution of the dispute. To the extent possible,
undisputed charges within the same invoice as disputed charges shall be timely paid in accordance with
this Agreement Payment by the Town shall be deemed made and completed upon hand delivery to the
Contractor or designee of the Contractor or upon deposit of such payment or notice in the U.S. Mail,
postage pre-paid.,addressed to the Contractor.
3.0 CONTRACTOR'S GENERAL RESPONSIBILITIES
3.1 The Contractor shall become folly acquainted with the available infix-motion related to the Services.
The Contractor is obligated to affirmatively request from the Town such information that the Contractor,
based on the Contractor's professional experience,should reasonably expect is available and which would
be relevant to the performance ofthe Services.
3.2 The Contractor shall perform the Services in accordance with this Agreement and shall promptly
inform the Town concerning ambiguities and uncertainties related to the Contractor's performance that are
not addressed by the Agreement
3.3 The Contractor shall provide all the Services in a timely and professional manner.
3.4 The Contractor shall promptly comply with any written Town request from the Town or any of the
Town's duly authorized representatives to reasonably access and review any books,documents,papers,
and records ofthe Contractor that are pertinent to the Contractor's performance under this Agreement for
the purpose ofthe Town pertaining an audit,examination,or other review ofthe Services.
3.5 The Contractor shall comply with all applicable federal, state and local laws, ordinances,
regulations,and resolutions.
3.6 The Contractor shall be responsible at the Contractor's expense for obtaining,and maintaining in
a valid and effective status,all licenses and permits necessary to perform the Services unless specifically
stated otherwise in this Agreement
3.7 In performing the Services, Contractor shall be entitled to rely upon any information, data and
documentation concerning the Project provided to it by Town or other parties or that is generally available,
as well as any statements and representations made by Town concerning the Project or the Services. In
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relying on such information,Contractor shall have no obligation to investigate or independently verify the
accuracy or completeness of such information.
4.0 TERMAND TERMINATION
4.1 Term. The provision of services under this Agreement shall commence on 5/01/2021 and will
terminate on 12/31/2021; provided,however,under no circumstances will the Term exceed the end ofthe
current Town Fiscal year(January 1 —December 31). The Contractor understands and agrees that the
Town has no obligation to extend this Agreement's term,or contract for the provision ofany future services,
and makes no warranties or representations otherwise. Notwithstanding the foregoing,;the Parties may
mutually agree in writing to the monthly extension of this Agreement for up to twelve (12) consecutive
calendar months ifsuch extension is approved by the Town Council and the Contractor and such extension
does not alter or amend any of the terms or provisions of this Agreement. Contractor shall not be
responsible for any delays resulting from Town or third-party actions or inactions.
4.2 Continuing Services Required. The Contractor shall perform the Services in accordance with
this Agreement commencing on the Effective Date until such Services are terminated or suspended in
accordance with this Agreement The Contractor shall not temporarily delay, postpone, or suspend the
performance ofthe Services without the written consent ofthe Town Council.
4.3 Town Unilateral Termination. This Agreement may be terminated by the Town for any or no
reason upon written notice delivered to the Contractor at least ten(10) days prior to termination. In the
event ofthe Town's exercise ofthe right ofunilateral termination as provided by this paragraph:
A. Unless otherwise provided in any notice of termination,the Contractor shall provide no further
services in connection with this Agreement after receipt ofa notice ofterm,ivation;and
B. All finished or unfinished documents, data, studies and reports prepared by the Contractor
pursuant to this Agreement shall be delivered by the Contractor to the Town and shall become the
property ofthe Town;and
C. The Contractor shall submit to the Town a final accounting and final invoice of charges for all
outstanding and unpaid Services and reimbursable expenses performed prior to the Contractor's receipt
of notice of termination and for any services authorized to be performed by the notice of termination as
provided by Sub-Section 4.3(A)above. Such final accounting and final invoice shall be delivered to the
Town within thirty(30)days of the date of termination;thereafter,no other invoice,bill,or other form of
statement of charges owing to the Contractor shall be submitted to or accepted by the Town.
4.4 Termination for Non-Performance. Should a party to this Agreement fall to materially perform
in accordance with the terms and conditions ofthis Agreement,this Agreement may be terminated by the
performing party ifthe performing party first provides written notice to the non-performing party which notice
shall specify the non-performance,provide both a demand to cure the non-performance and reasonable
time to cure the non-performance,and state a date upon which the Agreement shall be terminated ifthere
is a failure to timely cure the non-performance. For purpose ofthis Sub-Section 4.4, `seasonable time"
shallbe not less than five(5)business days. In the event ofa failure to timely cure a non-performance and
upon the date of the resulting termination for non-performance,the Contractor prepare a final accounting
and final invoice ofcharges for all performed but unpaid Services and authorized reimbursable expenses.
Such final accounting and final invoice shall be delivered to the Town within fifteen(15)days ofthe date of
termination;thereafter,no other invoice,bill,or other form of statement ofcharges owing to the Contractor
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shall be submitted to or accepted by the Town. Provided that notice of non-performance is provided in
accordance with this Sub-Section 4.4,nothing in this Sub-Section 4.4 shallprevent,preclude,or limit any
claim or action for default or breach ofcontract resulting from non perforillnce by a Party.
4.5 Unilateral Suspension of Services. The Town may suspend the Contractor's performance of
the Services at the Town's discretion and for any reason by delivery ofwritten notice of suspension to the
Contractor which notice shall state a specific date of suspension. Upon receipt of such notice of
suspension,the Contractor shall immediately cease performance ofthe Services on the date ofsuspension
except: (1) as may be specifically authorized by the notice of suspension(e.g.,to secure the work area
from damage due to weather or to complete a specific report or study);(2) for the submission ofan invoice
for Services performed prior to the date ofsuspension in accordance with this Agreement or(3)as required
by law.
4.6 Reinstatement of Services Following Town's Unilateral Suspension. The Town may at its
discretion direct the Contractor to continue performance of the Services following suspension. If such
direction by the Town is made within thirty (30) days of the date of suspension, the Contractor shall
recommence performance of the Services in accordance with this Agreement If such direction to
recommence suspended Services is made more than thirty-one(31)days following the date ofsuspension,
the Contractor may elect to: (1)provide written notice to the Town that such suspension is considered a
unilateral termination of this Agreement pursuant to Sub-Section 4.3;or(2)recommence performance in
accordance with this Agreement;or(3)if suspension exceeded sixty(60)consecutive days,request from
the Town an equitable adjustment in compensation or a reasonable re-start fee and, if such request is
rejected by the Town,to provide written notice to the Town that such suspension and rejection ofadditional
compensation is considered a unilateral termination of this Agreement pursuant to Sub-Section 4.3.
Nothing in this Agreement shall preclude the Parties from executing a written amendment or agreement to
suspend the Services upon terms and conditions mutually acceptable to the Parties for any period oftime.
4.7 Delivery ofNotice of Termination. Any notice ofterminationper mittedbythis Section 4.0 TERM
AND TERMINATION and its subsections shall be addressed to the persons identified in Section 9.17
herein and at the addresses provided therein or such other address as either party may notify the other of
and shall be deemed given upon delivery ifpersonally delivered, or forty-eight(48)hours after deposited
in the United States marl,postage prepaid,registered or certified mail,return receipt requested.
5.0 INSURANCE
5.1 Insurance Generally. The Contractor shall obtain and shall continuously maintain during the term
of this Agreement insurance of the kind and in the minimum amounts specified in this Sub-Section 5.1.
The Required Insurance shall be procured and maintained with insurers with an A- or better rating as
determined byBest's Key Rating Guide. All Required Insurance shall be continuously maintained to cover
all liability,claims,demands,and other obligations assumed by the Contractor.
The Contactor shall secure and maintain the following(`Required Insurance'):
A. Worker's Compensation Insurance in the minimum amount required by applicable law for all
employees and other persons as may be required by law. Such policy of insurance, if any, shall be
endorsed to include the Town as a Certificate Holder.
B. Comprehensive General Liability insurance with minimum combined single limits of One Million
Dollars ($1,000,000.00)Dollars each occurrence and ofTwo Million Dollars ($2,000,000.00)aggregate.
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The policy shall be applicable to all premises and all operations ofthe Contractor. The policy shall include
coverage for bodily injury,broad formproperty damage(including completed operations),personal injury
(including coverage for contractual and employee acts), blanket contractual, independent contractors,
products, and completed operations. The policy shall contain a severability of interests provision.
Coverage shall be provided on an `bccurrence"basis as opposed to a `Maims made"basis. Such
insurance shallbe endorsed to name the Town as Certificate Holder and name the Town,and its elected
officials,officers,employees and agents as additional insured parties.
C. Comprehensive Automobile Liability insurance with minimum combined single limits for bodily
injury ofnot less than of One Hundred Thousand Dollars ($100,000.00)each person and each accident
and for property damage ofnot less than Filly Thousand Dollars ($50,000.00)each accident with respect
to each ofthe Contractor's owned,hired and non-owned vehicles assigned to or used in performance of
the Services. The policy shall contain a severability of interests provision. Such insurance coverage
must extend to all levels of subcontractors. Such coverage must include all automotive equipment used
in the performance of the Agreement, both on the work site and off the work site, and such coverage
shall include non-ownership and hired cars coverage. Such insurance shall be endorsed to name the
Town as Certificate Holder and name the Town,and its elected officials,officers,employees and agents
as additional insured parties.
D. Professional Liability(errors and omissions)Insurance with a minimum limit ofcoverage ofOne
Million Dollars ($1,000,000.00) per claim and annual aggregate. Such policy of insurance shall be
obtained and maintained for one (1) year following completion of all Services under this Agreement.
Such policy ofinsurance shall be endorsed to include the Town as a Certificate Holder.
5.2 Additional Requirements for All Policies. In addition to specific requirements imposed on
insurance by this Section 5.0 INSURANCE and its subsections, insurance shall conform to all of the
following:
A. For Required Insurance and any other insurance carried by Contractor (`Contractor
Insurance'),allpolicies ofinsurance shallbe primary insurance,and any insurance caniedbythe Town,
its officers, or its employees shall be excess and not contributory insurance to that provided by the
Contractor;provided,however,that the Town shall not be obligated to obtain or maintain any insurance
whatsoever for any claim,damage,or purpose arising from or related to this Agreement and the Services.
The Contractor shall not be an insured party for any Town-obtained insurance policy or coverage.
B. For both Required Insurance and Contractor Insurance, the Contractor shall be solely
responsible for any deductible losses.
C. For Required Insurance, no policy of insurance shall contain any exclusion for bodily injury or
property damage arising from completed operations.
D. For Required Insurance,every policy ofinsurance s hall provide that the Town will receive notice
no less than thirty(30)days prior to any cancellation,termination,or a material change in such policy.
5.3 Failure to Obtain or Maintain Insurance. The Contractor's failure to obtain and continuously
maintain policies ofinsurance in accordance with this Section 5.0 INSURANCE and its subsections shall
not limit, prevent, preclude, excuse, or modify any liability, claims, demands, or other obligations of the
Contractor arising from performance or non-performance of this Agreement Failure on the part of the
Contractor to obtain and to continuously maintain policies providing the required coverage, conditions,
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restrictions,notices,and minimum limits shall constitute a material breach of this Agreement upon which
the Town may immediately terminate this Agreement,or,at its discretion,the Town may procure or renew
any such policy or any extended reporting period thereto and may pay any and all premiums in connection
therewith,and all monies so paid by the Town shall be repaid by Contractor to the Town immediately upon
demand by the Town, or at the Town's sole discretion, the Town may offiset the cost of the premiums
against any monies due to the Contractor from the Town pursuant to this Agreement.
5.4 Insurance Certificates. Prior to commencement ofthe Services,the Contractor shall submit to
the Town applicable certificates of insurance for all Required Insurance. Insurance limits, temi of
insurance,insured parties,and other information sufficient to demonstrate conformance with this Section
5.0 INSURANCE and its subsections shall be indicated on each certificate of insurance. Certificates of
insurance shall reference the`ProjectName"as identified on the first page ofthis Agreement. The Town
may request, and the Contractor shall provide within three (3)business days of such request a current
certified copy of any policy of Required Insurance and any endorsement of such policy. The Town may,at
its election,withhold payment for Services until the requested insurance policies are received and found to
be in accordance with the Agreement.
6.0 OWNERSHIP OF DOCUMENTS
6.1 Work Product is Property of Town. Upon complete payment for services rendered, the Work
Product, as defined in Sub-Section 1.1, shall be deemed work made for hire and made in the course of
Services performed under this Agreement and will be the exclusive property of Town. Town will have
unlimited right to make,have made,use,reconstruct,repair,modify,reproduce,publish,distribute and sell
the Work Product,in whole or in part,or combine the Work Product with other matter,or not use the Work
Product at all,as it sees fit Anyreuse ofthe Work Product produced under this Agreement for any purpos e
not directly related to this Agreement will be at the sole risk of Town.
6.2 Obligations of Contractor's Personnel and Subcontractors. Contractor warrants it has
enforceable written agreements with all of its personnel and subcontractors to be involved in performing
the Services that:
A assign to Contractor ownership of all patents,copyrights and other proprietary rights created in
the course oftheir employment or engagement;and
B. obligate such personnel or subcontractors, as the case may be,upon terms and conditions no
less restrictive than are contained in this Section 6.0 OWNERSHIP OF DOCUMENTS, not to use or
disclose any proprietary rights or information learned or acquired during the course of such employment
or engagement including, without limitation, any Work Product, all Contractor property and any other
information pursuant to this Section 6.0 OWNERSHIP OF DOCUMENTS.
6.3 Assignment of Proprietary Rights. To the extent that any title to any Work Product may not,by
operation of law, vest in Town, or such Work Product may not be considered to be work made for hire,
Contractor hereby irrevocably transfers and assigns to Town in perpetuity all worldwide right, title and
interest in and to the patent rights,copyrights,trade secrets and other proprietary rights in and ownership
of the Work Product.
6.4 Town Furnished Information. Title to all materials and all documentation famished by the Town
to Contractor will remain in the Town. Contractor will deliver to the Town any all Work Product and property,
including copies thereofon whatever media rendered,upon the fast to occur of
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A the Town's written request;or
B. completion ofthe Services under this Agreement;or
C. termination ofthis Agreement.
6.5 The Contractor waives any right to prevent its name from being used in connection with the
Services.
7.0 CONFLICT OF INTEREST
The Contractor shall refrain from providing services to other persons, firms,or entities that would create a
conflict of interest for the Contractor with regard to providing the Services pursuant to this Agreement The
Contractor shall not offer or provide anything ofbene fit to any Town official or employee that would place the
official or employee in a position ofviolating the public trust as provided by C.RS. §24-18-109,as amended,
the Avon Town Code ofEthics,as amended or the Town's ethical principles.
8.0 REMEDIES
In addition to any other remedies provided for in this Agreement,and without limiting its remedies available
at law,the Town may exercise the following remedial actions if the Contractor substantially fails to perform
the duties and obligations ofthis Agreement Substantial failure to perform the duties and obligations ofthis
Agreement shallmean a significant,insufficient,incorrect,or improper performance,activities or inactions by
the Contractor. The remedial actions include:
8.1 Suspend the Contractor's performance pending necessary corrective action as specified by the
Townwithoutthe Contractor's entitlement to an adjustment in any charge,fee,rate,price,cost,or schedule;
and/or
8.2 Withhold payment to the Contractor until the necessary services or corrections in performance are
satisfactorily completed;and/or
8.3 Deny payment for those services which have not been satisfactory performed,and which,due to
circumstances caused by the Contractor,cannot be performed,or ifperfomied would be ofno value to the
Town;and/or
8.4 Terminate this Agreement in accordance with this Agreement
The foregoing remedies are cumulative and the Town,it its sole discretion,may exercise any or all of the
remedies individually or simultaneously.
9.0 MSCELLANEOUS PROMS IONS
9.1 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 ofthe Town Council of the Town of
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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.
9.2 No Waiver of Governmental Immunity. Nothing in this Agreement shall be construed to waive,
limit,or otherwise modify any governmental immunity that maybe 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 ofthe Colorado Revised Statutes.
9.3 Affirmative Action. Contractor will not discriminate against any employee or applicant for
employment because ofrace,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;layoffor termination;
rates ofpay or other forms of compensation;and selection for training,including apprenticeship.
9.4 Binding Effect. The Parties agree that this Agreement,by its terms, shall be binding upon the
successors, heirs, legal representatives, and assigns;provided that this Section 9.4 shall not authorize
as s ignment
9.5 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.
9.6 Article X Section 20/TABOR The Parties understand and acknowledge that the Town is subject
to Article X, § 20 ofthe 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
ofthe Town are expressly dependent and conditioned upon the continuing availability offunds 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 the Town, and other applicable law. Upon the failure to appropriate such funds, this
Agreement shall be terminated.
9.7 Governing Law,Venue,and Enforcement.This Agreement shall be governed by and interpreted
according to the law ofthe State ofColorado. Venue for any action arising under this Agreement shallbe
in the appropriate court for Eagle County,Colorado and the parties consent and agree to the jurisdiction of
such courts. To reduce the cost of dispute resolution and to expedite the resolution ofdisputes 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 the rule providing
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 ofthis Agreement shall govern.
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9.8 Survival of Terms and Conditions. The Parties understand and agree that all terms and
conditions of the Agreement that require continued performance, compliance, or e$ect beyond the
termination date ofthe Agreement shall survive such termination date and shall be enforceable in the event
ofa failure to perform or comply.
9.9 Assignment and Release. All orpartofthe rights,duties,obligations,responsibilities,or benefits
set forth in this Agreement shall not be assigned by Contractor without the express written consent ofthe
Town Council. Any written assignment shall expres sly 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 ofthe Town Council. 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
9.10 Paragraph Captions. The captions ofthe paragraphs are set forth only for the convenience and
reference ofthe Parties and are not intended in any way to define,limit or describe the scope or intent of
this Agreement
9.11 Integration and Amendment. This Agreement represents the entire and integrated agreement
between the Town and the Contractor and supersedes all prior negotiations, representations, or
agreements, either written or oral. Any amendments to this must be in writing and be signed by both the
Town and the Contractor.
9.12 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 a$ect the
validity of any other provision ofthis Agreement
9.13 Incorporation of Exhibits. Unless otherwise stated in this Agreement,exhibits, applications,or
documents referenced in this Agreement shall be incorporated into this Agreement for all purposes. In the
event ofa conflict between any incorporated exhibit and this Agreement,the provisions ofthis Agreement
shall govern and control.
9.14 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 ofthe date ofthis 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 programprocedures to undertake pre-employment screening ofjob applicants while this
Agreement is being performed. Ifthe Contractor obtains actual knowledge thata 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 ifthe subcontractor does not stop employing or contracting with the illegal alien
within three(3)days ofreceiving the notice regarding Contractor's actualknowledge. 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
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required to comply with any reasonable request made by the Department oflabor 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
9.15 Non-Liability of Town for Indirect or Consequential Damages or Lost Profits. Parties agree
that the Town shall not be liable for indirect or consequential damages,including lost profits that result from
the Town's declaration that the Contractor is in default ofthe Agreement,so long as the Town acts in good
faith.Without limiting Contractor's indemnity obligations contained herein,Contractor shall not be liable for
indirect or consequential damages, including lost profits that result from the Contractor's declaration that
the Town is in default ofthe Agreement,so long as the Contractor acts in good faith
9.16 Indemnity. To the fullest extent permitted by law,Contractor shall indemnify and defend the Town,
its members, affiliates, officers,directors,partners,employees, and agents (collectively referred to as the
'Town"for the purposes ofthis Section 9.16)from and against all claims,damages,losses and expenses,
including but not limited to reasonable attomey's fees (collectively referred to`Loss es'),arising out ofthe
performance ofthe Services,provided that(a)any such claim,damage,loss or expense is caused by any
negligent act or omission of®Contractor, (ii)anyone directly or indirectly employed by Contractor or(iii)
anyone for whose acts Contractor may be liable;and(b)such indemnification shall not apply to the extent
that such Losses are caused by the negligence of the Town or other party indemnified hereunder. If
Contractor is providing architectural, engineering, or surveying services; design; construction; alteration;
repair;or maintenance ofany building,structure,highway,bridge,viaduct,water,sewer,or gas distribution
system,or other works dealing with construction,or any moving,demolition,or excavation connected with
such construction,the extent of Contractor's obligation to indemnify and defend the Town is enforceable
only to the extent and for an amount represented by the degree or percentage of negligence or fault
attributable to the Contractor or the Contractor's agents,representatives, subcontractors,or suppliers. If
the Contractor is a person or entity providing architectural,engineering,surveying,or other design services,
then the extent of Contractor's obligation to indemnify and defend the Town maybe determined only ailer
the Contractor's liability or fault has been determined by adjudication, alternative dispute resolution, or
otherwise resolved by mutual agreement between the Contractor and Town. The indemnification in this
Section 9.16 shall be construed to comply with C.RS. § 13-50.5-102(8)et.seq.
9.17 Notices. Unless otherwise specifically required by a provision of this Agreement any notice
requited or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently
given for all purposes if sent by certified mail or registered mail,postage and fees prepaid,addressed to
the Party to whom such notice is to be given at the address set forth below or at such other address as has
been previously furnished in writing,to the other Party. Such notice shall be deemed to have been given
when deposited in the United States Mail properly addressed to the intended recipient Written notice may
also be provided by electronic mail which shall be deemed delivered when receipt is acknowledged by
reply ofthe recipient
Ifto the Town: Ifto the Contractor:
Eric Heil,Town Manager Attention:
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Page 12 of 15
Town ofAvon
100 Mkaela Way ,
P.O. Box 975
Avon,Colorado 81620
eheil@avon.org
With Copy to:
Town Attorney
100 Mkaela Way
P.O.Box 975
Avon,Colorado 81620
townattorney@avon.org
JUSTINUIWRETH,PE
TOWN ENGINEER
100 Mkaela Way
P.O.Box 975
Avon,Colorado 81620
JBILDRETH@AWIN ORG
10.0 AUTHORITY
The individuals executing this Agreement represent that they are expressly authorized to enter into this
Agreement on behalf of Town ofAvon and the Contractor and bind their respective entities.
[REMAINDER OF TUIS PAGE INTENTIONALLYLEFT BLANK-SIGNATURE PAGE FOLLOWS]
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Page 13 of 15
THIS AGREEMENT is executed and made effective as provided above.
TOWN OF AVON,COLORADO
Digitally signed by Eric Heil pIN ttallyBigned by Brenda Torres
Eric DN:cn=Ericou=TownManager,Heil,o=Town of Avon, p reaea mr,ea,o=T
C Heil i a ,'o�=s
1�rONulrvlorrL `mnr mewuer''
email=eric@avon.org,c=US u=bmrrea@avnn.org,c=us
By: Date:2021.05.2408:45:06-06'00' A H HEST: Dare:zon oszaoeszaz-ooaa
1"'1 Li�J 1
Eric Heil,Town Manager Brenda Torres,Town Clerk
CONTRACTOR:
BY: 4(14( A
Name: Susan Cundiff
Position:Project Manager,Hydraulic Engineer
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EXHIBIT A
Project/Services Name: BASIN 4 DESIGN
PSA TETRA TECH,BASIN 4 DESIGN
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