24.06.20 ICA Service Agreement for Avon Elementary School Mural2024 FORM: ICA – Divine Styles, LLC - June 20, 2024
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2024 Independent Contractor
Service Agreement
For Avon Elementary School Mural
(“AES Mural Project”)
This Independent Contractor Service Agreement (“Agreement”) dated as of June 20, 2024, is between the
Town of Avon, a Colorado home rule community (“Town”), and Divine Styles, LLC of the State of Colorado
whose business address is 540 Arnold Avenue, Rifle, Colorado, 81650 (“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”):
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.
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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 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.
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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.
A. 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.
B. Town shall pay Contractor Twelve Thousand Dollars ($12,000.00) according to the following
installment schedule:
i. Twenty-five percent (25%) on the first day of mural installation;
ii. Twenty-five percent (25%) upon delivery of final art design agreed to by all parties;
and
iii. Fifty percent (50%) on the final day of mural installation;
C. The Town shall remit payment to the Contractor within thirty (30) days after the completion of
each milestone referenced in paragraphs 3.4(B)(i)-(iii) above.
4. Warranties:
4.1 With respect to the final product produced by the Services (the “Artwork”), the Contractor and Town
both intend that the Artwork is and shall remain unique to the Town. Contractor represents and
warrants to the Town that:
A. The Artwork is solely the result of Contractor's artistic efforts;
B. The Artwork is unique and original does not infringe upon any copyright or the rights of any
person;
C. The Artwork has not been sold, assigned, transferred to a third party, licensed, granted,
encumbered, or accepted for sale elsewhere;
D. The Artwork shall not be reproduced in the future for display elsewhere;
E. The Artwork is free and clear of liens from any source whatsoever; and
F. Contractor has not utilized the Artwork or any element thereof or any copyright related thereto
which may affect or impair this Agreement or infringe upon or violate the rights of any third party.
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4.2 Contractor further represents and warrants to the Town that:
A. All materials used in creating the Artwork and made a part of the Artwork shall be new and of
good quality, free of defects including, but not limited to, qualities that cause or accelerate
deterioration of the Artwork.
B. The Artwork and any materials used in creating the Artwork, made a part of the Artwork, or
placed permanently in the Artwork are not currently known to be harmful to public health and
safety.
C. The Artwork will not fall below an acceptable standard of public display or experience irreparable
conditions beyond general wear and tear including, but not limited to, mold, rust, fracturing,
staining, chipping, tearing, abrading, and peeling for a period of three (3) years from the date of
final acceptance of the Artwork by the Town.
D. Contractor agrees to repair, cure, restore, or replace, at its own expense and under the direction
of the Town, any portion of the Artwork which fails or is defective, unsound, and/or unsatisfactory
because of materials or workmanship, or which is not in conformity with the provisions of this
Agreement, for a period of three (3) years from the date of final acceptance of the Artwork by the
Town. Should Contractor fail to perform any such work after a request by the Town, the Town
may seek the services of qualified personnel to perform such work, and Contractor shall
reimburse the Town for all associated costs.
5. Ownership and Intellectual Property Rights. The Artwork shall be exclusively owned by the Town.
Contractor expressly acknowledges and agrees that the Artwork constitutes a "work made for hire." To
the extent, if at all, it shall be determined that the Artwork does not constitute a "work made for hire,"
Contractor hereby transfers, sells, and assigns to the Town all of its worldwide right, title, and interest in
and to the Artwork including, without limitation, all rights of copyright, patent, trade secret, trademark,
service mark, trade dress, artistic and moral rights, mask rights, character rights, publicity rights, and any
and all other proprietary rights of any kind whatsoever relating to the Artwork together with any and all
applications, registrations, renewal and extension rights, and rights to sue for any past, present, or future
infringement (collectively, the "Rights").
5.1 Contractor shall execute such documents and take such actions as may be requested by the Town
which may, in the sole discretion of the Town, be required to perfect, protect, enforce, register, or
transfer the Town's interest in the Artwork and the Rights. Contractor hereby irrevocably authorizes
and empowers the Town to make, constitute, and appoint, in its sole discretion, any officer or agent
of the Town as Contractor's true and lawful attorney-in-fact with the power to endorse Contractor's
name on, and file of record, all documents, instruments, and agreements of any kind whatsoever
which the Town may, in its sole discretion, require for the Town or its transferees, successors, or
assigns to perfect, protect, enforce, register, or transfer its interest in the Artwork and the Rights.
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5.2 The Town may, with respect to all or any portion of the Artwork, use, publish, display, reproduce,
distribute, destroy, alter, retouch, modify, adapt, translate, use in a performance, or change the
Artwork without providing notice to or receiving consent from Contractor. Contractor expressly
waives any and all artistic and moral rights associated with the Artwork.
5.3 Contractor may use the Artwork for Contractor's portfolio purposes and in Contractor's marketing
materials so long as Contractor includes the following attribution with any such use : "Commissioned
and owned by the Town of Avon, Colorado.”
5.4 The Town is not responsible for any third-party copyright infringement or for protecting the intellectual
property rights of the Contractor. Contractor holds the Town and its officers, employees,
representatives, and agents harmless from any claim of copyright infringement pertaining to the
Artwork.
6. Town Unilateral Termination: The 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.
7. No Waiver of Governmental Immunity: Nothing in this Agreement shall be construed to waive, limit, or
otherwise modify any governmental immunity that may be available by law to the Town, its officials,
employees, contractors, or agents, or any other person acting on behalf of the Town and, in particular,
governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title
24, Article 10, Part 1 of the Colorado Revised Statutes.
8. 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.
9. 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.
10. 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 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.
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11. 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 indirectly 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.
12. 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.
13. Term: The provision of Services under this Agreement shall commence on June 25, 2024 (the “Effective
Date”) and will terminate on August 15, 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.
14. Article X, Section 20/TABOR: The Parties understand and acknowledge that the Town is subject to
Article X, § 20 of the Colorado Constitution (“TABOR”). The Parties do not intend to violate the terms
and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this
Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of
TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment
obligations of the Town are expressly dependent and conditioned upon the continuing availability of funds
beyond the term of the Town’s current fiscal period ending upon the next succeeding December 31.
Financial obligations of the Town payable after the current fiscal year are contingent upon funds for that
purpose being appropriated, budgeted, and otherwise made available in accordance with the rules,
regulations, and resolutions of Town of Avon, and other applicable laws. Upon the failure to appropriate
such funds, this Agreement shall be terminated.
15. 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
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.
16. Assignability: The Contractor shall not assign this Agreement without the Town’s prior written consent.
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17. 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.
18. 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.
19. 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.
AGREEMENT READ, UNDERSTOOD, AND APPROVED:
TOWN OF AVON CONTRACTOR
By: ____________________________________ By: _____________________________________
Name: __________________________________ Name: __________________________________
Title: ___________________________________ Title: ___________________________________
APPROVED AS TO FORM:
______________________________________
Nina P. Williams, Town Attorney
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Jeremy Velasquez
owner/ceoCASE Manager
Danita Dempsey
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EXHIBIT A
Scope of Work
1. Full design and implementation of the Avon Elementary School Mural Project as identified in the Site
Description below:
A. Site Description: East facing exterior Stucco wall(s) of Avon Elementary School located at 850
W. Beaver Creek Blvd., Avon, Colorado 80620. The site is high visibility (general park and sport
court users, pedestrians, cyclists, surrounding homes) and has unique characteristics. Directly
adjacent to the wall is a playground and athletic field and directly to the south are newly refurbished
pickleball and basketball courts.
B. The Town will provide and install barricade fencing to separate the Contractor’s work area from
the rest of the playground. Danita Dempsey (970-471-9137; ddempsey@avon.org) will contact the
Contractor when his access schedule needs to be changed in order to accommodate intermittent
use of the playground by kids’ summer camp programs or other activities.
C. Avon Elementary School’s wall(s) have several Stucco Control & Expansion Joints that were
installed to reduce the risk of cracking and damage to the wall(s). These joints are less than ½ inch
in depth and should be considered in the artist’s proposed design and shall not be filled in with
caulk, grout, or silicone.
D. The wall on which the subject mural will be painted also has 20 windows of equal size that are
arranged in 5 separate clusters with 4 windows per cluster. Each window is 20” x 20” or 2.78 ft².
See Attachment A.
i. Approx. Wall Portion A Measurements: 31' 4” Tall x 83’ Wide | Sq. Footage = 2,600.67 ft²
ii. Approx. Wall Portion B Measurements: 15' Tall x 20’ Wide | Sq. Footage = 300 ft²
iii. Approximate Total Combined Sq. Ft. = 2,900.67 ft².
E. Contractor and the Town must agree on any material used by the Contractor that will cover the
windows prior to the Contractor using and/or covering the same.
2. Revisions to design concepts and/or elements shall include multiple digital and/or otherwise drawn
renderings that are approved by the Town prior to the time in which the Contractor implements the same.
3. Contractor is responsible for coordinating, paying, and insuring all labor deemed necessary to assist him
in executing, installing, operating equipment during execution of, and/or repairing the approved design.
4. Contractor is responsible for obtaining all artistic materials utilized during the execution of this contract
such as brushes, aerosol cans, drop clothes, etc. and for payment of the same.
5. The Town will coordinate and remit payment for the lease or purchase of the following items to be used
during the execution of this contract when requested by the Contractor: boom lifts, scissor lifts, block
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fillers, and graffiti guards.
6. If requested, Contractor shall re-design the final approved concept and provide final art for the Town’s
“reusable bag program.”
7. Contractor must provide the Town with drone imagery, a time lapse video, and final editing of the
installation for use on the Town’s social media platforms, print, website, or other marketing media by no
later than August 15, 2024.
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