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ICA - Independent Conttractor Agreement2024 FORM: ICA –Blue Monster LLC, May 1, 2024 Page 1 of 7 2024 Independent Contractor Service Agreement For Contracted Services (Portalet Services) This Independent Contractor Service Agreement (“Agreement”) dated as of May 1, 2024, is between the Town of Avon, a Colorado home rule community (“Town”), and December 31, 2024, a contractor of the State of Colorado whose business address is PO Box 407, Gypsum, CO 81637 (“Contractor” and, together with the Town, “Parties”). 1. Services: Contractor agrees to provide services (“Services”) as described in the proposal (“Proposal”) attached hereto and incorporated herein as Exhibit A. To the extent the provisions of this Agreement conflict with the Proposal, the terms of this Agreement shall control. Contractor shall provide and complete the Services in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances in Colorado . Contractor hereby warrants that it has the workforce, training, experience , and ability necessary to properly complete the Services in a safe and timely fashion. Contractor will comply and cause all of its employees, agents, and subcontractors to comply, with applicable safety rules and security requirements while performing the Services. 2. Independent Contractor: The Contractor shall perform the Services as an independent contractor and shall not be deemed by virtue of this Agreement, or any other document attached or referenced herein, 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 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. 3. Insurance: 3.1. Minimum Amounts. The Contractor shall obtain and shall continuously maintain during the Term (as defined herein) of this Agreement insurance of the kind and in the minimum amounts specified in this Section 3.1. The Required Insurance (defined below) 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”): DocuSign Envelope ID: FCA4CA31-5319-4D89-BD09-4CFEE2273F5A 2024 FORM: ICA –Blue Monster LLC, May 1, 2024 Page 2 of 7 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) for each occurrence and of One Million Dollars ($1,000,000.00) 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. 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. 3.2. Additional Requirements for All Policies. In addition to specific requirements imposed on insurance by this Section 3. INSURANCE and its subsections, insurance shall conform to all of the following: A. For Required Insurance and 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 Contractor Insurance and Required 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. 3.3. Failure to Obtain or Maintain Insurance. The Contractor’s failure to obtain and continuously maintain policies of insurance in accordance with this Section 3. 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 DocuSign Envelope ID: FCA4CA31-5319-4D89-BD09-4CFEE2273F5A 2024 FORM: ICA –Blue Monster LLC, May 1, 2024 Page 3 of 7 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 offset the cost of the premiums against any monies due to the Contractor from the Town pursuant to this Agreement. 3.4. 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, terms of insurance, insured parties, and other information sufficient to demonstrate conformance with this Section 3. 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. 4. Payment: Payment for Services shall be due only after the Services are completed to the Town’s satisfaction, which satisfaction shall be determined by the Town in its sole and reasonable discretion, and after Contractor has submitted an invoice for the amount due complete with the Contractor’s taxpayer identification number or social security number. Town shall pay Contractor within thirty (30) days after an invoice in proper form is submitted to Town. 5. Town Unilateral Termination: Town may terminate this Agreement without cause upon delivery of written notice to the Contractor at least ten (10) days prior to the effective date of termination or may terminate this Agreement immediately upon delivery of written notice if Contractor fails to provide the Services in accordance with the terms of this Agreement. 6. 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. 7. Affirmative Action: Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. Contractor will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 8. 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. Limitation of Damages: The Parties agree that Contractor’s remedies for any claims asserted against the Town shall be limited to proven direct damages in an amount not to exceed payment amounts DocuSign Envelope ID: FCA4CA31-5319-4D89-BD09-4CFEE2273F5A 2024 FORM: ICA –Blue Monster LLC, May 1, 2024 Page 4 of 7 for Services due under the Agreement and that the Town shall not be liable for indirect, incidental, special, consequential or punitive damages, including but not limited to lost profits. 10. Indemnity: To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless Town, its members, affiliates, officers, directors, partners, employees, and agents from and against all claims, damages, losses, and expenses, including but not limited to reasonable attorney’s fees, arising out of the performance of the Services, provided that any such claim, damage, loss or expense is caused by any negligent act or omission of Contractor, anyone directly or indir ectly employed by Contractor or anyone for whose acts Contractor may be liable, except to the extent any portion is caused in part by a party indemnified hereunder. 11. Governing Law, Venue, and Enforcement: This Agreement shall be governed by and interpreted according to the law of the State of Colorado. Venue for any action arising under this Agreement shall be in the appropriate court for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this Agreement, the Parties hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement of this Agreement. The Parties agree 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. 12. Term. The provision of Services under this Agreement shall commence on May 1, 2024 (the “Effective Date”) and will terminate on December 31, 2024 (cumulatively, the “Term”); 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 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 monthly extension of this Agreement for up to twelve (12) consecutive calendar months 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. 13. Article X, Section 20/TABOR. The Parties understand and acknowledge that the Town is subject to Article X, § 20 of the Colorado Constitution (“TABOR”). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligation s of the Town are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Town’s current fiscal period ending upon the next succeeding December 31. Financial obligations of the Town payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of Town of Avon, and other applicable laws. Upon the failure to appropriate such funds, this Agreement shall be terminated. 14. Background Check. A background check of Contractor and any Contractor’s employees or subcontractors may be required by the Town. Contractor can provide proof of a CBI check within the past six (6) months and shall provide a copy prior to the commencement of any Services (this can be acquired DocuSign Envelope ID: FCA4CA31-5319-4D89-BD09-4CFEE2273F5A 2024 FORM: ICA –Blue Monster LLC, May 1, 2024 Page 5 of 7 online by going to www.colorado.gov) or the Town will conduct the background check and provide a submission form to be completed by the Contractor. 15. Assignability. The Contractor shall not assign this Agreement without the Town’s prior written consent. 16. Survival Clause. The “Indemnification” provision set forth in this Agreement shall survive the completion of the Services and the satisfaction, expiration, or termination of this Agreement. 17. Severability. In the event a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, such holding shall not invalidate or render unenforceable any other provision of this Agreement. 18. Attorney’s Fees. Should this Agreement become the subject of litigation between the Town and Contractor, the prevailing party shall be entitled to recovery of all actual costs in connection therewith, including but not limited to recovery of all actual costs in connection therewith, including but not limited to attorneys’ fees and expert witness fees. All rights concerning remedies and/or attorneys’ fees shall survive any termination of this Agreement. DocuSign Envelope ID: FCA4CA31-5319-4D89-BD09-4CFEE2273F5A 2024 FORM: ICA –Blue Monster LLC, May 1, 2024 Page 6 of 7 AGREEMENT READ, UNDERSTOOD, AND APPROVED: TOWN OF AVON CONTRACTOR By: Eva Wilson By: Jose Gonzales Name: __________________________________ Name: __________________________________ Title: Public Works Director Title: Owner/Manager APPROVED AS TO FORM: ______________________________________ Nina P. Williams, Town Attorney DocuSign Envelope ID: FCA4CA31-5319-4D89-BD09-4CFEE2273F5A 2/27/2024 2/27/2024 2/29/2024 2024 FORM: ICA –Blue Monster LLC, May 1, 2024 Page 7 of 7 EXHIBIT A (“Proposal”) DocuSign Envelope ID: FCA4CA31-5319-4D89-BD09-4CFEE2273F5A