21.10.03 PSA Stolfus & Associates, Inc.A
Avon
C 0 L 0 R A D 0
Project/Services Name: Traffic Engineering Services
2021 Professional
Service Agreement
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") dated as of a , 2021 is
entered into by and between Stolfus & Associates, Inc., a company of the State of Colorado, whose
business address is 5690 DTC Boulevard, Suite 330W, Greenwood Village, CO 80111, ("CONTRACTOR")
and the Town of Avon, 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 of the Agreement.
NOW, THEREFORE, in consideration of the benefits and obligations of this 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 of the Town Manager for
the Town of Avon, 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 products 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 shall be made in
writing and upon execution by both Parties shall become an amendment to the Services described in this
Agreement. To be effective, 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 of this Agreement to have entered into any partnership, joint
venture, employer/employee, or other relationship with the TOWN other than as a contracting party and
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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-CONTRACTORs, CONTRACTOR's agents, or representatives, including coverage or
benefits related but not limited 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 shall use that degree
of care, 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 of the Services (if licensure 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 Safety. When and to the extent that CONTRACTOR or any of its employees, agents, or
subcontractors are working under the terms of this Agreement, CONTRACTOR will comply, and cause all
its employees, agents, and subcontractors to comply, with applicable safety rules and security
requirements.
1.6 Qualified Personnel. CONTRACTOR will make available all qualified personnel necessary to fulfill
its obligations under this Agreement. Upon request and prior to the commencement of work, the
CONTRACTOR will provide TOWN with the names of all contractor personnel and their then -current hourly
rates, if applicable, whose services are to be employed in the performance of the Services. Removal or
re -assignment of personnel by CONTRACTOR will only be done with prior written approval of TOWN.
1.7 Removal of Personnel by TOWN. TOWN may, in its discretion, require CONTRACTOR to dismiss
from the 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.
1.8 Representations and WaRantmes. 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.
1.9 Maintenance 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 of not less than five (5) years. TOWN will have the right to copy and audit during regular
business hours all records of any kind which in any way related 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.
1.10 Colorado Open Records Act. The parties understand that all material provided or produced under
this Agreement may be subject to the Colorado Open Records Act, § 24-72-201, et seq., C.R.S. In the
event of the filing of a lawsuit to compel such disclosure, the TOWN shall inform the CONTRACTOR and
will tender all such material to the court for judicial determination of the issue of disclosure and the
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CONTRACTOR agrees to intervene in such lawsuit to protect and assert CONTRACTOR's claims of
privilege and against disclosure of such material or waive the same.
1.11 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 COMPENSATION
2.1 Commencement of and Compensation for Services. Following the execution of this Agreement
by the Parties, the CONTRACTOR shall be authorized to commence performance of the Services as
described in Exhibit A and B subject to the requirements and limitations on compensation as provided by
this Section 2.0 COMPENSATION and its Sub -Sections.
A. For Lump sum Task Orders. The CONTRACTOR shall perform Services as a Task Order
described in Exhibit B and shall invoice the TOWN for work performed based on percent complete the
specific task.
B. For Time and Materials Task Orders. The CONTRACTOR shall perform the Services and
shall invoice the TOWN for work performed based on the rates described in Exhibit C.
C. Reimbursable Expenses. The following shall be considered "reimbursable 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 of payment shall be provided by the
CONTRACTOR with the CONTRACTOR's monthly invoices:
• Vehicle Mileage (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 information (e.g., charges imposed to obtain recorded
documents)
• Postage and Delivery Services
• Lodging and Meals (off with prior written approval of the TOWN as to dates and maximum
amount permitted)
D. 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.
E. Increases in Compensation or Reimbursable Expenses. Any increases or modification of
compensation or reimbursable expenses shall be subject to the approval of the TOWN and shall be made
only by written amendment of this Agreement executed by both Parties.
2.2 Payment Processing. The CONTRACTOR shall submit invoices and requests for payment in a
form acceptable to the TOWN. Invoices shall not be submitted more often than once each month unless
otherwise approved by this Agreement or in writing by the TOWN. Unless otherwise directed or accepted
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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 of the receipt of an invoice for any undisputed charges
or, if the TOWN disputes an item or invoice and additional information is requested, within thirty (30) days
of acceptance of the item or invoice by the TOWN following 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 prepaid, addressed to the CONTRACTOR.
3.0 CONTRACTOR'S GENERAL RESPONSIBILITIES
3.1 The CONTRACTOR shall become fully acquainted with the available information 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 of the 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 of the CONTRACTOR that are pertinent to the CONTRACTOR's performance under
this Agreement for the purpose of the TOWN performing an audit, examination, or other review of the
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.
4.0 TERM AND TERMINATION
4.1 Term. The provision of services under this Agreement shall commence on 8/20/2021; provided,
however, under no circumstances will the Term exceed the end of the current TOWN Fiscal year (January
1 — December 31). The CONTRACTOR understands and agrees that the TOWN has no obligation to
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extend this Agreement's term or contract for the provision of any future services, and makes no warranties
or representations otherwise, Notwithstanding the foregoing, the Parties may mutually agree in writing to
the yearly extension of this Agreement for up to three (3) consecutive calendar years if such extension is
approved by the Town Council and the CONTRACTOR and such extension do not alter or amend any of
the terms or provisions of this Agreement.
4.2 Continuinq 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 of the Services without the written consent of the 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 of the TOWN's exercise of the right of unilateral 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 of a notice of termination; 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 of the 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 fail to materially perform
in accordance with the terms and conditions of this Agreement, this Agreement may be terminated by the
performing party if the 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 if there
is a failure to timely cure the non-performance. For purpose of this Sub -Section 4.4, "reasonable time"
shall be not less than five (5) business days. In the event of a failure to timely cure a non-performance and
upon the date of the resulting termination for non-performance, the CONTRACTOR prepares a final
accounting and final invoice of charges 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
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. Provided that notice of non-
performance is provided in accordance with this Sub -Section 4.4, nothing in this Sub -Section 4.4 shall
prevent, preclude, or limit any claim or action for default or breach of contract resulting from non-
performance 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 of written notice of
suspension to the CONTRACTOR which notice shall state a specific date of suspension. Upon receipt of
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such notice of suspension, the CONTRACTOR shall immediately cease performance of the Services on
the date of suspension 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 of an invoice for Services performed prior to the date of suspension 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 of suspension,
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
of additional 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 of time.
4.7 Delivery of Notice of Termination. Any notice of termination permitted by this 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 if personally delivered, or forty-eight (48) hours after deposited
in the United States mail, 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 by Best'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 Contractor 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 of Two Million Dollars ($2,000,000.00) aggregate.
The policy shall be applicable to all premises and all operations of the CONTRACTOR. The policy shall
include coverage for bodily injury, broad form property 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 "occurrence" basis as opposed to a "claims made" basis.
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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.
C. Comprehensive Automobile Liability insurance with minimum combined single limits for bodily
injury of not less than One Hundred Thousand Dollars ($100,000.00) each person and each accident
and for property damage of not less than Fifty Thousand Dollars ($50,000.00) each accident with respect
to each of the 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 worksite and off the
worksite, 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 of coverage of One
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 of insurance 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"), all policies of insurance shall be primary insurance, and any insurance carried by the
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 of insurance shall 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 of insurance 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, 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
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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 offset 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 of the Services, the CONTRACTOR shall submit
to the TOWN applicable certificates of insurance for all Required Insurance. Insurance limits, term 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 "Project Name" as identified on the first page of this 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. Any reuse of the Work Product produced under this Agreement for any purpose
not directly related to this Agreement will be at the sole risk of TOWN.
6.2 Obligations of CONTRACTOR's Personnel and Subcontractors. CONTRACTOR represents
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 of their 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 TOWN Furnished Information. Title to all materials and all documentation furnished by the
TOWN to CONTRACTOR will remain in the TOWN. CONTRACTOR will deliver to the TOWN any aWork
Product and property, including copies thereof on whatever media rendered, upon the first to occur of:
A. the TOWN's written request; or
B. completion of the Services under this Agreement; or
C. termination of this Agreement.
6.4 The CONTRACTOR waives any right to prevent its name from being used in connection with the
Services.
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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 of benefit to any TOWN official or employee that
would place the official or employee in a position of violating the public trust as provided by C.R.S. §24-18-
109, as amended, the Avon TOWN Code of Ethics, 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 of this Agreement. Substantial failure to perform the duties and obligations
of this Agreement shall mean 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 TOWN without the 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 satisfactorily performed, and which, due to
circumstances caused by the CONTRACTOR, cannot be performed, or if performed would be of no value
to the TOWN; and/or
8.4 Terminate this Agreement in accordance with this Agreement.
The foregoing remedies are cumulative and the TOWN, at its sole discretion, may exercise any or all of the
remedies individually or simultaneously,
9.0 MISCELLANEOUS PROVISIONS
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 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.
9.2 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.
9.3 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
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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.
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
assignment.
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, subcontractor, or subcontractor 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 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 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 of the State of Colorado. Venue for any action arising under this Agreement shall be
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 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 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 of this Agreement shall govern.
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 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.
9.9 Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits
set forth in this Agreement shall not be assigned by the CONTRACTOR without the express written consent
of the Town Council. 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. No assignment shall release the Applicant from the
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performance of any duty, obligation, or responsibility unless such release is clearly expressed in such a
written document of assignment.
9.10 Paragraph Captions. The captions of the paragraphs are set forth only for the convenience and
reference of the 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 affect the
validity of any other provision of this 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 of a conflict between any incorporated exhibit and this Agreement, the provisions of this 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 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 the 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.
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
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from the TOWN's declaration that the CONTRACTOR is in default of the Agreement, so long as the TOWN
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 of this Section 9.16) from and against all claims, damages, losses, and
expenses, including but not limited to reasonable attorney's fees (collectively referred to "Losses"), arising
out of the performance of the Services, provided that (a) any such claim, damage, loss or expense is
caused by any negligent act or omission of (i) 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 of any 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 may be determined only after 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.R.S. § 13-50.5-102(8) et. seq.
9.17 Notices. Unless otherwise specifically required by a provision of this Agreement any notice
required 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 of the recipient.
If to the TOWN: If to the CONTRACTOR:
Eric Heil, TOWN Manager
Attention: Elizabeth Stolfus
TOWN of Avon
100 Mikaela Way
Stolfus & Associates
P.O. Box 975
5690 DTC Boulevard, Suite 330W
Avon, Colorado 81620
Greenwood Village, CO 80111
eheil(@avon.org
elizabeth cDstolfusandassociates.com
With Copy to:
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TOWN Attorney
100 Mikaela Way
P.O. Box 975
Avon, Colorado 81620
TOWN attorne avon.or
Eva Wilson, Mobility Director
100 Mikaela Way
P.O. Box 975
Avon, Colorado 81620
ewilson avon.or
10.0 AUTHORITY
The individuals executing this Agreement represent that they are expressly authorized to enter into this
Agreement on behalf of TOWN of Avon and the CONTRACTOR and bind their respective entities.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK -SIGNATURE PAGE FOLLOWS]
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THIS AGREEMENT is executed and made effective as provided above.
TOWN OF AVON, COLORADO
O �-
By: ATTEST: ? d4f EA
anager BrenAa Torres, TOWN Clerk
CONTRACTOR:
By: EewtLao� (4-4h
Elizabeth golfus
Stolfus and Associates, President
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EXHIBIT A
Services
1. SCOPE OF SERVICES: The Scope of Services will vary as need arises and will be at the discretion of
the TOWN. Provide Traffic Engineering services for various projects at the request of TOWN staff. The
request for services may include:
• Conduct or review traffic engineering, traffic analysis, and transportation planning studies or project
specific traffic related issues analysis;
• Provide comprehensive analyses of existing and projected traffic conditions; roundabout analysis and
design, intersection design, speed humps, and traffic data collection services:
• Provide electronic traffic control device studies and design (signs, signals, pavement markings, and
school zone flashers);
• Perform pedestrian and bicycle studies including those to provide safe routes to school;
• Review subdivision or new development projects involving traffic impact analyses, transportation
modeling, and area -wide transportation studies;
• Design including plans, specifications, engineer's cost estimate and contract bid documents (for
projects that are bid);
• Speed data analysis, intersection control studies including multi way stop control and traffic signal or
alternatives, safety studies, and miscellaneous traffic engineering services.
• Transportation, roadway, and Complete Streets design including construction drawings or plans,
specifications, engineer's cost estimate and contract bid documents.
• Construction management and inspection support for roadway improvement and transportation
projects.
• Assist and provide technical assistance in identification and preparation of various traffic and roadway
improvement grant opportunities and applications.
2. WORK REQUESTS: Work requested by the TOWN shall be issued in writing as Task Orders as
described in Exhibit B. The request by the TOWN should include the following information, which may be
furnished in coordination with the CONTRACTOR:
1. Task Order title (project name)
2. Technical approach to the task (if necessary)
3. Specific deliverables
4. Schedule with milestones and deliverables
5. Cost/hour estimate
6. Due date of work
All of the above items may be brief but will be sufficiently detailed to understand the work being authorized
and the amount it will cost. Written Task Orders (see Exhibit B) and Notice To Proceed may be issued as
e-mail documents.
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3. COMPENSATION. This Agreement does not guarantee any amount of work for the CONTRACTOR.
Task Orders will be developed as determined by the TOWN and provided for in this Agreement.
The CONTRACTOR shall be paid by the TOWN for completed services rendered under each approved
individual Task Order. Such payment shall be full compensation for work performed or services rendered
and for all labor, materials, supplies, equipment, and incidentals necessary to complete the work.
The CONTRACTOR shall be paid by the TOWN based upon the negotiated cost for each individual
approved Task Order. This amount will be a "not to exceed" figure based on the Fee Schedule outlined in
Exhibit C for work performed under this Agreement. Exhibit B is attached hereto and by this reference
made part of this Agreement.
All charges must be reasonable and necessary for the services provided under the Agreement. In the event
services are required beyond those specified in the Scope of Work, and not included in the compensation
listed in this Agreement, a written contract modification shall be negotiated and approved by the TOWN
prior to any effort being expended on such services.
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EXHIBIT B
On -Call Agreement for Professional Services
TASK ORDER ##
This Task Order pertains to the On -Call Agreement by and between the Town of Avon
("TOWN"), and Stolfus and Associates ("CONTRACTOR"), dated On -Call Contract Execution
Date ("the Agreement"). Task Order ## is generally described as:
1. Sub -task 1.
2. Sub -task 2.
3. Sub -task 3, etc.
CONTRACTOR shall perform services on the project described below as provided herein and
in the Agreement. This Task Order shall not be binding until it has been properly signed by
both parties. Upon execution, this Task Order shall supplement the Agreement as it pertains
to the project described below.
TASK ORDER NUMBER: ##
PROJECT NAME: Project Name
Budget/Proposal: $ Amount - numbers
Scope: See attached.
This Task Order is executed this
Town of Avon
Recommended:
Stolfus and Associates
Approved:
Town of Avon
Approved:
Name
Name
Name
day of . YEAR.
Title
Title
Title
Date:
Date:
Date:
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EXHIBIT C
Fee Schedule
Professional Services
Principal -President $1901hr
Professional Engineer 5
$170/hr
Professional Engineer 4
$160/hr
Professional Engineer 3
$150/hr
Professional Engineer 2
$140/hr
Professional Engineer 1
$120/hr
Engineering Intern 3
$100/hr
Engineering Intern 2
$1001hr
Engineering Intern 'I
$100/hr
Engineering Student Intern
$ 601hr
Office Manager
$ 701hr
Administrative Assistant 1
$ 601hr
Expert Witness Services'
Expert Witness (Principal -President)
$400/hr
Expert Witness (PE-5)
$350/hr
'includes deposition testimony, courtroom appearances, transcript review, etc.
outside Consultants
Other Direct Costs
Mileage
Outside reproduction
Other expenses
at cost
at Standard Federal Rate
at cost
at cost
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