09-01-2010 Valuation ConsultantsTOWN OF AVON
PROFESSIONAL SERVICES AGREEMENT
Independent Contractor
Fixed Price - Not to Exceed
Town Manager Approval
Project/Services Name:
2010 Avon Water Treatment Plant Property Appraisal
THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is entered into by and between
Valuation Consultants, LLC, a Limited Liability Company of the State of Colorado, whose
business address is P.O. Box 361, Avon, CO 81260 ( "Contractor ") and the Town of Avon,
COLORADO ( "Town "), a Home Rule municipality of the State of Colorado. The Town and
the Contractor may be collectively referred to as the "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. The Contractor shall provide the Town with the services described in
Exhibit A and the services more particularly described in this Section 11
( "Services "). The Services shall include providing an appraisal of the value of a
part of Tract P, Benchmark at Beaver Creek Subdivision, Amendment Number 4,
Town of Avon, as such area is currently defined and bounded by the existing chain
link fence and provide an appraisal of value for the additional area to the east of
the chain link as depicted in Exhibit B. The appraisal of value shall consider the
existing lease between the Town of Avon and the Upper Eagle River Water
Authority and shall consider all other easements, encumbrances which may affect
the valuation of the subject property. Also, the appraisal report shall be
confidential and shall not constitute a public record unless otherwise determined
by the Town of Avon in the Town of Avon's sole discretion. Contractor agrees that
the appraisal report and any information prepared or disseminated in the
Town of Avon - Valuation Consultant, LLC Professional Service Agreement
2010 Avon Water Treatment Plant Property Appraisal
September 15, 2010 - version 2
performance of this Agreement shall be provided exclusively to Eric Heil, as the
Town Attorney of the Town of Avon.
1.2 Changes to Services. 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 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 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.
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 Patent Indemnification. Contractor shall indemnify, defend and hold Town
harmless from any and all claims, demands, and causes of action (including
reasonable attorneys' fees and costs of suit) for actual or asserted infringement or
actual or asserted appropriation or use by Town of trade secrets, proprietary
information, know -how, copyright rights, or patented inventions included in any
design or specification furnished by Contractor or arising from the use or sale of
materials, equipment, methods, processes, designs and information, furnished by
Contractor in connection with the Services. Contractor shall include the foregoing
indemnification provision as a term of each agreement utilized by it in the
performance of its work which shall extend expressly from the vendor or
subcontractor to Town.
1.6 Safety. When and to the extent that Contractor or any of its employees, agents or
subcontractors are working under the terms of this Agreement, Contractor will
comply, and cause all of its employees, agents and subcontractors to comply, with
applicable safety rules and security requirements.
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1.7 Qualified Personnel. Contractor will make available all qualified contractors,
drafters, technical and clerical personnel necessary to fulfill its obligations under
this Agreement. Prior to commencement of work, Contractor will provide Town
with the names of all Contractor personnel and their then current hourly rates, if
applicable, whose services are to be employed in performance of the Services.
Removal or re- assignment of personnel by Contractor will only be done with prior
written approval of Town.
1.8 Removal of Personnel by Town. Town may, in its discretion, require Contractor to
dismiss from performance of the Services any personnel of Contractor or any
subcontractor for any reason, effective upon written notice from Town of such
dismissal. Town will not be required to
with dismissed personnel effective upon
from Town.
pay salary or any other costs associated
Contractor's receipt of notice to dismiss
1.9 Representations and Warranties. Contractor represents and warrants that the
Services will be performed in a manner consistent with other reasonable
professionals providing similar services under similar circumstances. Contractor
will complete the Services in accordance with the Agreement and applicable
United States laws, regulations, ordinances, and codes in existence at the time
the Agreement is executed.
110 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 relate to the Services, whether created before, during or
after the termination of this Agreement. Access to such records will be provided
to Town at no cost.
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 execution of this
Agreement by the Town, the Contractor shall be authorized to commence
performance of the Services as described in Exhibit A subject to the requirements
and limitations on compensation as provided by this Section 2.0 and its
subsections.
A. Guaranteed Maximum Price. The Contractor shall perform the Services and
shall invoice the Town for work performed based on the rates and /or
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compensation methodology described in Exhibit A. Total compensation
(including all reimbursable expenses) shall not exceed Seven Thousand Five
Hundred Dollars ($7,500.00). This Guaranteed Maximum Price shall not
include any time or costs incurred for Additional Services as stated in sub-
paragraph E. below.
B. Reimbursable Expenses. There shall be no reimbursable expenses added to
the Guaranteed Maximum Price.
C. Non - reimbursable Costs, Charges. Fees, or Other Expenses. Any fee, cost,
charge, fee, or expense incurred by the Contractor not otherwise specifically
authorized by this Agreement shall be deemed a non - reimbursable cost and
shall be borne by the Contractor and shall not be billed or invoiced to the Town
and shall not be paid by the Town.
D. Increases in Compensation or Reimbursable Expenses. Any increases or
modification of compensation or reimbursable expenses shall be subject to
the approval of the Town and shall be made only by written amendment of this
Agreement executed by both Parties.
E. Additional Services. Additional consultation, deposition, testimony,
appearance or other administrative or court related time required in this
matter, if any, will be billed separately at the rate of $250 per hour plus actual
expenses, if any. Town shall reimburse Contractor for incidental reasonable
costs related to the additional services including travel, meals, parking,
lodging, copying, delivery and telephone.
2.2 Payment Processin>;. 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 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
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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 pre -paid,
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 of the Services in a timely and professional
manner.
3.4 The Contractor shall promptly comply with any written Town request for the Town
or any of its 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. This Agreement shall be effective on September 15, 2010 at 12:01 a.m.,
( "Effective Date ") and shall terminate on at 11:59 p.m. on October 31, 2010 or on
a prior date of completion of the Services or termination as may be permitted by
this Agreement.
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4.2 Continuing Services Required. The Contractor shall perform the Services in
accordance with this Agreement commencing on the Effective Date until such
Services are terminated or suspended in accordance with this Agreement. The
Contractor shall not temporarily delay, postpone, or suspend the performance of
the Services without the written consent of the Town.
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 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 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 prepare 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 Section 4.4, nothing in this 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.
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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 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); or (2) for the submission of an invoice for
Services performed prior to the date of suspension in accordance with this
Agreement.
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 (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 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 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 and its subsections shall be addressed to the person signing this
Agreement on behalf of either Town or Contractor at the address shown below 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 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
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cover all liability, claims, demands, and other obligations assumed by the
Contractor.
The Contactor shall secure and maintain the following ( "Required Insurance "):
A. Comprehensive Automobile Liability insurance with minimum combined single
limits for bodily injury of not less than of 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 work site and off the work
site, and such coverage shall include non - ownership and hired cars coverage.
Such insurance shall be endorsed to name the Town as Certificate Holder and
name the Town, and its elected officials, officers, employees and agents as
additional insured parties.
B. Professional Liability (errors and omissions) Insurance with a minimum limit of
coverage of One Hundred Thousand Dollars ($100,000.00) per claim and
Three Hundred Thousand Dollars ($300,000.00) 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 and its subsections, insurance shall
conform to all of the following:
A. For both Contractor Insurance and Required 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 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.
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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
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.
5.4 Insurance Certificates. Prior to commencement of the Services, the Contractor
shall submit to the Town 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 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 Section 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.
6.2 Obligations of Contractor's Personnel and Subcontractors. Contractor warrants it
has enforceable written agreements with all of its personnel and subcontractors
to be involved in performing the Services that:
A. assign to Contractor ownership of all patents, copyrights and other proprietary
rights created in the course 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 Section 6, not to use or
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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
Section 6.
6.3 Assignment of Proprietary Rights. To the extent that any title to any Work Product
may not, by operation of law, vest in Town, or such Work Product may not be
considered to be work made for hire, Contractor hereby irrevocably transfers and
assigns to Town in perpetuity all worldwide right, title and interest in and to the
patent rights, copyrights, trade secrets and other proprietary rights in and
ownership of, the Work Product.
6.4 Town Furnished Information. Title to all materials and all documentation
furnished by Town to Contractor will remain in Town. Contractor will deliver to
Town and any all Work Product and property, including copies thereof on whatever
media rendered, upon the first to occur of:
A. Town's written request; or
B. completion of the Services under this Agreement; or
C. termination of this Agreement.
6.5 The Contractor waives any right to prevent its name from being used in connection
with the Services.
7.0 CONFLICT OF INTEREST
The Contractor shall refrain from providing services to other persons, firms, or entities that
would create a conflict of interest for the Contractor with regard to providing the Services
pursuant to this Agreement. The Contractor shall not offer or provide anything 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. §2418 -109, as amended, or any Town -
adopted Code of Conduct or 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:
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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, it 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 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.
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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, sub - consultant or sub-contractor
of Contractor. Absolutely no third party beneficiaries are intended by this
Agreement. Any third -party receiving a benefit from this Agreement is an
incidental and unintended beneficiary only.
9.6 Article X. Section 20/TABOR. The Parties understand and acknowledge that the
Town is subject to Article X, § 20 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 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. 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 that the rule that
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
Contractor without the express written consent of the Town Council for Town of
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Avon. 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
for the Town of Avon. No assignment shall release the Applicant from
performance of any duty, obligation, or responsibility unless such release is clearly
expressed in such written document of assignment.
9.10 Paragraph Captions. The captions 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
Page 13 of 16
Town of Avon - Valuation Consultant, LLC Professional Service Agreement
2010 Avon Water Treatment Plant Property Appraisal
September 15, 2010 - version 2
regarding 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 from the Town's declaration that the
Contractor is in default of the Agreement, so long as the Town acts in good faith.
9.161ndemnity. 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.
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.
If to the Town: If to the Contractor:
Larry Brooks, Town Manager
Valuation Consultants, LLC
Town of Avon
P.O. Box 361
P.O. Box 975
Avon, CO 81620
1 Lake Street
Avon, Colorado 81620
With Copy to:
Eric Heil, Town Attorney
Heil Law & Planning, LLC
1499 Blake Street, Unit 1 -G
Denver, CO 80202
Page 14 of U
Town of Avon - Valuation Consultant, LLC Professional Service Agreement
2010 Avon Water Treatment Plant Property Appraisal
September 15, 2010 - version 2
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]
Page 15 of 16
Town of Avon - Valuation Consultant, LLC Professional Service Agreement
2010 Avon Water Treatment Plant Property Appraisal
September i6, 2010 - version 2
THIS AGREEMENT is executed and made effective as provided above.
TOWN OF AVON, COLORADO
CONTRACTOR:
By:
Jeffrey P. Maddox,
Valuation Consultants, LLC
Page 16 of 16
EXHIBIT A
VALUATION CONSULTANTS, LLC
Real Estate Appraisers -Consultants
P.O. Box 361
Avon, Colorado 81620
(970) 949 -4898 fax (970) 449 -0770
August 30, 2010
Mr. Eric Heil, Esq.
Town of Avon
Box 5270
Avon, CO 81620
ericheillaw @gmail.com
RE: Appraisal of:
A part of Tract P, Benchmark at Beaver Creek Subdivision, Amendment Number 4,
Town of Avon, Eagle County, Colorado, excluding improvements.
Dear Eric,
Per our meeting of last week and & follow -up e-mail correspondence, please let this letter serve
as my proposal regarding the appraisal of the above - referenced property. It is my understanding
that the appraisal will be prepared for use by the Town toward decisions and /or negotiations
regarding potential sale of the property to the Eagle River Water & Sanitation District.
Accordingly, the intended users of the report are limited to you and associated Town staff, Town
Council members, and/or consultants involved in the matter. I understand that all or portions of
the appraisal may at your discretion be disseminated to the District, and that all or portions of the
report may also be made public record by the Town. The appraisal is intended for no other users
or purposes whatsoever.
I will submit my value opinions and conclusions to you in the form of a summary appraisal report
which will be prepared utilizing accepted appraisal techniques and methodology, in conformance
with the Standards and Code of Professional Ethics of the Appraisal Institute and the
requirements of the Uniform Standards of Professional Appraisal Practice ( "USPAP ").
Fees:
My fee for preparing and submitting this analysis to you in summary format will be $7,500.
Timing:
It is my anticipation that approx. 45 days from an authorization to proceed will be required to
complete and submit the report. I understand that time is of the essence, and I will make a good
faith effort to expedite the matter, if possible.
Delivery:
The report will be e- mailed on completion in a PDF format with secure digital signatures to your
EXHIBIT A
e -mail address as indicated above.
Please acknowledge by an authorized signature below that the report will be completed in
accordance with the following:
The appraisal assignment will not be based upon a requested minimum
valuation or specific valuation. Neither employment nor compensation are
contingent upon the reporting of a pre- determined value, a direction of the
value that favors the cause of the client, the amount of the value estimate, the
attainment of a stipulated result, or the occurrence of a subsequent event.
Payment of Fee:
If this proposal meets with your approval, please provide an authorized signature below and
return a copy of this letter along with a retainer in the amount of the one -half of the above - quoted
fee, ($3,750), which together will serve as my authorization to proceed. The balance of the
appraisal fee will be due and payable in full upon delivery of the report to you.
Additional Fees:
Additional consultation, deposition, testimony, appearance or other administrative or court-
related time required in this matter, if any, will be billed separately at the rate of $250 per hour
plus actual expenses, if any.
If this proposal meets with your approval, please provide an authorized signature and return a
copy of this letter which will serve as my authorization to proceed.
We appreciate the opportunity to submit our proposal, and look forward to working with the
Town once again. Please feel free to contact my office with any questions you may have.
Very truly yours,
VALUATION CONSULTANTS, LLC
Jeffrey P. Maddox
Jeffrey P. Maddox, SRA
Certifies ! .., --I A
accepte
date:
TOA proposal - Tract P, August 30, 2010 page 2
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Rice Insurance Services Company
CERTIFICATE OF COVERAGE
REAL ESTATE LICENSEE'S ERRORS & OMISSIONS INSURANCE
JEFFREY P MADDOX
P.O. BOX 361
AVON, CO 81620
I hereby certify that the Named Licensee listed below is insured as follows:
Insured: JEFFREY P MADDOX
License# : E140009305
Policy Number: 10 EO 0007CO
Individual Policy Period: 01/01/2010 TO 01/01/2011
Policy Limits: $100,000 PER CLAIM / $300,000 ANNUAL AGGREGATE
Deductible:
Damages: $1,000 EACH CLAIM
Claims Expenses: $0 EACH CLAIM
Insurance Company: Continental Casualty Company
The policy referenced above is a CLAIMS MADE AND REPORTED POLICY. A Claim must be reported in writing to the
Company as soon as possible after the Claim is first made but in no event more than ninety (90) days after the insured
became aware of such Claim. The Claim must be made and reported during the policy period or during an Extended
Reporting Period in order to qualify for coverage. A Claim is written demand for money or services received by the
insured or service of lawsuit or institution of arbitration or mediation proceedings against the Insured. seeking Damages
and alleging a negligent act, error or omission in the performance of Professional Services. It is essential, to protect the
Insured's interests and to assure that coverage conditions are not violated, that Claims be properly reported. Immediate
action is required by the real estate licensee and /or broker.
To report a Claim, visit our website www.dsceo.com or call our Claims Examiner at our administrative office at ('800)
637 -7319 for a Notice of Claim form. Complete and submit the Notice of Claim form and other pertinent documents to
the Company.
All terms, conditions, deductibles and exclusions are addressed in the policy.
Authorized Representative: _
ENDORSEMENTS: Appraisal Endorsementr[�rr.�+�
Date:
Agency:
Address,
Phone:
Fax:
12/15/2009 03:11'05 PM
Rice Insurance Services Company, LLC
4211 Norbourne Blvd., Louisville KY 40207
(800) 637.7319 or (502) 897 -1876
(502) 897 -7174
Rice Insurance Services Company Certificate of Coverage. Page 1 of 4