24.09.25 ICA Green Flush Technologies, LLC2024 FORM: ICA – Green Flush Technologies, LLC – September 25, 2024
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2024 Independent Contractor Service
Agreement For Prefabricated Modular
Restroom at Nottingham Park
(“Project Name”)
This Independent Contractor Service Agreement (“Agreement”) dated September 25, 2024, is between the
Town of Avon, a Colorado home rule community (“Town”), and Green Flush Technologies, LLC, a limited
liability company in the State of Colorado whose business address is 1420 N. Columbia Ridge Way,
Washougal, WA 98671 (“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 worker’s compensation policy must
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contain a Notice of Cancellation endorsement. Contractor shall provide the Town with proof of
worker’s compensation insurance no later than 48 hours after executing this Agreement.
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
later than twenty-four (24) hours after Contractor receives notice of 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.
4. Project Warranties. Contractor’s warranties in respect of the Work (“Project Warranties”) are as
follows:
4.1 Contractor warrants to the Town that the work shall be free from defects and that all work shall meet
all requirements of this Contract. Work not conforming to the Project Warranties shall be considered
defective.
4.2 The Contractor shall make reasonable accommodation to the Town to have access to the Restroom
Buildings either in person or through electronic media to inspect the Restroom Buildings before
shipment. Costs incurred by said accommodation(s) shall be borne by the Town.
4.3 Contractor will deliver the Restroom Buildings to the Town’s specified location. Contractor shall be
responsible for repairs due to any shipment, transport, or building placement damage to the
Restroom Buildings. Contractor shall not be responsible for any damage to the buildings that occurs
on-site as a result of Town’s onsite improvements. Delivery to the installation site and Building
Placement at the installation site shall be made by the Contractor. Town shall be responsible for
preparing the site for installation including but not limited to foundation preparation. Town shall also
be responsible for all contracted on-site utility connections, backfilling, final grading, landscaping,
hardscaping, walkways, and site cleanup.
4.4 Contractor shall comply with the standard of care for similar professionals undertaking similar work
in the same geographic area.
4.5 Contractor shall promptly correct Work rejected by the Town for failing to conform to the Project
Warranties. Contractor shall bear all costs of correcting such rejected Work and compensating the
Town for expenses made necessary thereby.
4.6 Project Warranties shall commence on the date the restroom buildings are installed and accepted
on site. Notwithstanding the foregoing provisions of this section, if this Contract is terminated prior to
completion of the Work, Project Warranties in respect of all Work performed under this Contract by
the Contractor prior to such termination shall be deemed to commence on the date immediately
preceding the effective date of such termination.
4.7 If at any time within two years after the date on which the Project Warranties commenced, any portion
of the Work is found to be not in accordance with the Project Warranties, the Contractor shall correct
it promptly after receipt of written notice from the Town to do so.
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5. Payment: Payment for services shall be in accordance with the Payment Terms specified in Exhibit
A, attached.
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. The
Town shall pay Contractor for costs associated with satisfactorily completed work up to and including the
date of the termination without cause. The Town may also 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.
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
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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 September 25, 2024 (the
“Effective Date”) and will terminate on August 25, 2025 (cumulatively, the “Term”); provided, however, under
no circumstances will the Term exceed the end of the 2025 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 does 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.
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.
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AGREEMENT READ, UNDERSTOOD, AND APPROVED:
TOWN OF AVON GREEN FLUSH TECHNOLOGIES, LLC (DBA
GREEN FLUSH RESTROOMS)
By: ____________________________________ By: _____________________________________
Name: Amy Phillips Name: Kyle Earlywine
Title: Mayor Title: Co-owner
APPROVED AS TO FORM:
______________________________________
Nina P. Williams, Town Attorney
Nina P. Williams (Sep 26, 2024 18:39 MDT)
Nina P. Williams
Amy Phillips, Mayor Avon (Oct 1, 2024 13:08 MDT)
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EXHIBIT A
(“Proposal”)
Quote #NP02
Town of Avon, CO
Prefabricated Restroom
for Harry A. Nottingham
Park
09/23/2024
Quote
Description
Per Quote #0924-250 R7 by Whitley Evergreen
Green Flush will deliver a restroom to Avon, CO that will come as two
wood-frame constructed buildings. The building with the women's
room will be 13'10" wide and building with the men's room will be 12'
wide. The siding will be applied by others to the restroom after
delivery. Interior cabin walls are finished with FRP. Also includes a flat
roof with TPO membrane, epoxy floors in cabins, and interior and
exterior lights. Refer to factory specifications on pages 5 through 9 for
a full list of restroom specifications.
Green Flush will send a staff member to provide technical support during the installation.
Item Price
Restroom as described $928,162.00
Crane rental for setting the restroom buildings
This rental is for one day. Additional days will be change order to the Town of Avon.
$17,129.00
Total $945,291.00
Site work and sales tax are not included.
Pricing is guaranteed through 10/23/2024.
Price includes all required modular building permits, but not site specific permits such as a building permit.
This quote is based on using the payment terms listed on page 10.
Pricing is based upon current Statewide codes. Exceptions or additions to the State Codes by any local
jurisdiction are not addressed in the pricing. Any code revisions to the current Statewide codes or adoption of
new code standards that may necessitate changes to the specifications or drawings may be the subject of a
change order and price change.
2
Delivery
The restroom will be delivered on a semi-truck to the installation
site or as close as the semi-truck can get to the installation site.
Green Flush Restrooms purchases carbon offsets for all travel,
shipping, and office energy.
Installation Site
Harry A. Nottingham Park
1 Lake Street
Avon, CO 81620
Google Maps Coordinates
39.635684, -106.528740
Crane Rental
This quote is based on the crane having a 65' reach (center to center). There cannot be
any hanging electrical wiring near the crane. Any trees or other obstructions will need to
be addressed before the crane arrives on site. Any cost increases to Green Flush due to
needing a longer than 65’ reach or obstructions will be passed on to the customer
through a change order.
Warranty
Project Warranties are set forth in Paragraph 4 of the 2024 Independent Contractor
Service Agreement.
Customer Milestones
Due to the recent pandemic, natural disasters, and steel tariffs; material costs will need to
be reviewed if the customer misses approval milestone dates agreed upon in a
published schedule. Green Flush Restrooms reserves the right to revise and pass along
price increases due to missed milestones.
3
Restroom Floor Plan
The women's room will be 13'10" wide instead of the 12' wdith shown in this plan.
4
Restroom Specifications
5
6
7
8
9
Payment Terms
▪ 1st payment, 10% - Before the start of engineered drawings and calculations for the Product, the
Buyer shall pay the Seller a deposit of 10% to cover the Seller’s costs for the preparation and
approval of engineered drawings and calculations including the costs of plan review and
approval by the State Modular Building Office.
▪ 2nd payment, 10% - Seller shall begin manufacturing the Product after receiving the approval of
the plans and specifications by the local building department and upon receipt of payment
equal to an additional 10% of the Purchase Price.
▪ 3rd payment, 70% - Prior to shipment of the finished Product from the factory, the Buyer shall
pay the Seller a sum equal to the balance owing on the Product minus 10%. The Seller shall not
be required to ship the Product until this payment has been received, or other arrangements
have been mutually agreed to.
▪ 4th payment, 10% or remaining balance. Within 30 calendar days of the delivery date, the Buyer
shall pay the Seller the full remaining unpaid balance of the Purchase Price. However, at that
time, should the Buyer wish to retain monies from the unpaid balance of the Purchase Price due
to warranty concerns for which the Seller is liable, the Buyer shall not be required to pay Seller
said retained monies until such time as the warrantee work is completed. Monies held for
warrantee work shall not be in excess of the actual cost of the warrantee work. The purchase
and payment terms herein shall be controlling over any other document.
City Testimonial
City of Pacific Grove CA, Butterfly Sanctuary Restroom
"Green Flush provided the City of Pacific Grove with a restroom for our
Monarch Sanctuary, a location where constructing a restroom would
have been difficult. The restroom that we purchased suits our needs.
The restroom is constructed with precise carpentry, looks great and
functions perfectly as designed. Their staff is pleasant to work with,
they are very responsive to questions and providing assistance
during installation. I highly recommend Green Flush and will use
them again in the future for our prefabricated restroom needs."
- Daniel Gho, City of Pacific Grove Public Works Director
10
Thank You
11
E Nottingham Park Improvements Project -
Prefab Modular Purchase
Final Audit Report 2024-10-01
Created:2024-09-25
By:Nicole Mosby (nmosby@avon.org)
Status:Signed
Transaction ID:CBJCHBCAABAA9qdlbZWLg92CT2wCK7j2XUPYji2x6fvg
"E Nottingham Park Improvements Project - Prefab Modular Pur
chase" History
Document created by Nicole Mosby (nmosby@avon.org)
2024-09-25 - 11:13:26 PM GMT
Document emailed to Kyle Earlywine (kyle@greenflushrestrooms.com) for signature
2024-09-25 - 11:14:32 PM GMT
Email viewed by Kyle Earlywine (kyle@greenflushrestrooms.com)
2024-09-25 - 11:24:01 PM GMT
Document e-signed by Kyle Earlywine (kyle@greenflushrestrooms.com)
Signature Date: 2024-09-26 - 9:02:09 PM GMT - Time Source: server
Document emailed to nina@wwfdlaw.com for signature
2024-09-26 - 9:02:11 PM GMT
Email viewed by nina@wwfdlaw.com
2024-09-26 - 10:43:37 PM GMT
Signer nina@wwfdlaw.com entered name at signing as Nina P. Williams
2024-09-27 - 0:39:15 AM GMT
Document e-signed by Nina P. Williams (nina@wwfdlaw.com)
Signature Date: 2024-09-27 - 0:39:17 AM GMT - Time Source: server
Document emailed to aphillips@avon.org for signature
2024-09-27 - 0:39:19 AM GMT
Email viewed by aphillips@avon.org
2024-10-01 - 7:07:56 PM GMT
Signer aphillips@avon.org entered name at signing as Amy Phillips, Mayor Avon
2024-10-01 - 7:08:33 PM GMT
Document e-signed by Amy Phillips, Mayor Avon (aphillips@avon.org)
Signature Date: 2024-10-01 - 7:08:35 PM GMT - Time Source: server
Agreement completed.
2024-10-01 - 7:08:35 PM GMT