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05-29-2014 VAg, Inc Design/Bid Services for Nottingham Park PavilionTOWN OF AVON PROFESSIONAL SERVICES AGREEMENT Independent Contractor Design /Bid Services for Nottingham Park Pavilion THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is entered into by and between VAg Inc., a Corporation of the State of Colorado, whose business address is Post Office Box 1734, in Avon, CO, 81620 (the "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. As directed by and under the supervision of the Town Manager or his /her designee for the Town of Avon, the Contractor shall provide the Town with the services described in Exhibit A (the "Services "). It is expressly understood and agreed that the terms of Professional Services Agreement shall control over the VAg Standard Terms and Conditions where inconsistent. 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, the Town Manager, or by a person expressly authorized in writing to sign on behalf of the Town. 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 VAG -NOTTINGHAM PARK PAVILION 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 Project Budget Estimate. Exhibit B summarizes the planned budget which should be adhered to during the design, bid and construction phases unless the Avon Town Council approves additional funding. 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. Performance Fee Agreement. The Contractor shall perform the Services and shall invoice the Town for work performed based on the rates and /or compensation methodology described in Exhibit A. B. Reimbursable Expenses. The Contractor shall invoice the Town for Reimbursable Expenses incurred based on the rates described in Exhibit A. 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. 2.3 Payment Processing. The Contractor shall submit invoices and requests for payment in a form acceptable to the Town. Invoices shall not be submitted more often than once each month unless otherwise approved by this Agreement or in writing by the Town. Unless otherwise directed or accepted by the Town, all VAG - NOTTINGHAM PARK PAVILION 2 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. 2.4 Town Dispute of Invoice or Invoiced Item(s). The Town may dispute any Contractor time, reimbursable expense, and /or compensation requested by the Contractor described in any invoice and may request additional information from the Contractor substantiating any and all compensation sought by the Contractor before accepting the invoice. When additional information is requested by the Town, the Town shall advise the Contractor in writing, identifying the specific item(s) that are in dispute and giving specific reasons for any request for information. The Town shall pay the Contractor within forty -five (45) days of the receipt of an invoice for any undisputed charges or, if the Town disputes an item or invoice and additional information is requested, within thirty (30) days of acceptance of the item or invoice by the Town following receipt of the information requested and resolution of the dispute. To the extent possible, undisputed charges within the same invoice as disputed charges shall be timely paid in accordance with this Agreement. Payment by the Town shall be deemed made and completed upon hand delivery to the Contractor or designee of the Contractor or upon deposit of such payment or notice in the U.S. Mail, postage 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. VAG - NOTTINGHAM PARK PAVILION 3 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 the 12th day of May, 2014, (the "Effective Date ") and shall terminate on the 15th of June, 2015, or on a prior date of completion of the Services or termination as may be permitted by this Agreement; provided, however, that the Parties may mutually agree in writing to the monthly extension of this Agreement for up to three (3) consecutive calendar months if such extension is approved by the Town Manager and such extension does not alter or amend any of the terms or provisions of this Agreement. 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 purposefully delay, postpone, or suspend the performance of the Services without the written consent of the Town Manager. 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, and for the direct costs associated with performing 4.3 (B and C). 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 VAG- NOTTINGHAM PARK PAVILION 4 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 4.3, nothing in this Section 4.3 shall prevent, preclude, or limit any claim or action for default or breach of contract resulting from non - performance by a Party. 4.5 Unilateral Suspension of Services. The Town may suspend the Contractor's performance of the Services at the Town's discretion and for any reason by delivery of written notice of suspension to the Contractor which notice shall state a specific date of suspension. Upon receipt of 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 VAG - NOTTINGHAM PARK PAVILION 5 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 as follows: The Contactor 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 shall be endorsed to include the Town as a Certificate Holder. B. Comprehensive General Liability insurance with minimum combined single limits of One Million Dollars ($1,000,000.00) Dollars each occurrence and of 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. C. 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. D. Professional Liability (errors and omissions) Insurance with a minimum limit of coverage of One Million Dollars ($1,000,000.00) per claim and annual aggregate. Such policy of insurance shall be obtained and maintained for one (1) year following completion of all Services under this Agreement. Such policy of insurance shall be endorsed to include the Town as a Certificate Holder. 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 VAG - NOTTINGHAM PARK PAVILION 6 Insurance shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor. 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. 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 VAG - NOTTINGHAM PARK PAVILION 7 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 Any work product, materials, and documents produced by the Contractor pursuant to this Agreement shall become property of the Town of Avon upon delivery and shall not be made subject to any copyright unless authorized by the Town. Other materials, methodology and proprietary work used or provided by the Contractor to the Town not specifically created and delivered pursuant to the Services outlined in this Agreement may be protected by a copyright held by the Contractor and the Contractor reserves all rights granted to it by any copyright. The Town shall not reproduce, sell, or otherwise make copies of any copyrighted material, subject to the following exceptions: (1) for exclusive use internally by Town staff and /or employees; or (2) pursuant to a request under the Colorado Open Records Act, § 24 -72 -203, C.R.S., to the extent that such statute applies; or (3) pursuant to law, regulation, or court order. 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. § 24 -18 -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: A. 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 B. Withhold payment to the Contractor until the necessary services or corrections in performance are satisfactorily completed; and /or C. Deny payment for those services which have not been satisfactorily performed, and which, due to circumstances caused by the Contractor, can not be performed, or if performed would be of no value to the Town; and /or D. Terminate this Agreement in accordance with this Agreement. VAG - NOTTINGHAM PARK PAVILION 8 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. 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 VAG - NOTTINGHAM PARK PAVILION 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 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. VAG - NOTTINGHAM PARK PAVILION 10 9.13 Incorporation of Exhibits: Unless otherwise stated in this Agreement, exhibits, applications, or documents referenced in this Agreement shall be incorporated into this Agreement for all purposes. In the event of a conflict between any incorporated exhibit and this Agreement, the provisions of this Agreement shall govern and control. 9.14 Employment of or Contracts with Illegal Aliens: Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Contractor shall not contract with a subcontractor that fails to certify that the subcontractor does not knowingly employ or contract with any illegal aliens. By entering into this Agreement, Contractor certifies as of the date of this Agreement it does not knowingly employ or contract with an illegal alien who will perform work under the public contract for services and that the contractor will participate in the e- verify program or department program in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services. The Contractor is prohibited from using either the e- verify program or the department program procedures to undertake pre - employment screening of job applicants while this Agreement is being performed. If the Contractor obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, the Contractor shall be required to notify the subcontractor and the Town within three (3) days that the Contractor has actual knowledge that a subcontractor is employing or contracting with an illegal alien. The Contractor shall terminate the subcontract if the subcontractor does not stop employing or contracting with the illegal alien within three (3) days of receiving the notice regarding 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 Compliance with Article XXVIII of the Colorado Constitution: If and only to the extent this Agreement constitutes a "sole source government contract" within the meaning of Article XXVIII of the Colorado Constitution ( "Article XXVIII"), then the provisions of Sections 15 through 17 of Article XXVIII ( "Amendment 54 ") are hereby incorporated into this Agreement and the parties hereto shall comply with the provisions of Amendment 54. In such a case, for purposes of this Agreement, the Contractor shall constitute a "contract holder" for purposes of Amendment 54, as shall any additional persons, officers, directors or trustees related to the Contractor who qualify as "contract holders" pursuant to the definition set forth in Article XXVIII. In addition, if and only to the extent this Agreement constitutes a "sole source government contract," the Contractor hereby certifies that it is not ineligible to hold any "sole source government contract" pursuant to Amendment 54 or any contract thereunder, and the Contractor hereby agrees to notify the Town immediately if, at any point during the term of this Agreement, the Contractor shall become ineligible to hold any VAG - NOTTINGHAM PARK PAVILION 11 "sole source government contract" pursuant to Amendment 54 or any contract thereunder. If any provision or provisions of Amendment 54 are held to be unconstitutional or otherwise invalid by a court of competent jurisdiction in a non - appealable action, have been repealed retroactively or otherwise do not apply to this Agreement, such provision or provisions shall no longer be incorporated into this Agreement and the Parties shall have no obligations under such provision or provisions. 9.16 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. 9.17 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: Town of Avon VAg, Inc. Attn: Virginia Egger Attn: Brian Judge Town Manager P.O. Box 1734 P.O. Box 975 Vail, Colorado 81658 Avon, Colorado 81620 With Copy to: Eric J. Heil, Town Attorney Intentionally Left Blank Post Office Box 975 Avon, Colorado 81620 VAG - NOTTINGHAM PARK PAVILION 12 11.0 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. THIS AGREEMENT is executed and made effective as provided above. TOWN OF AVON, COLORADO By: C� Town Manager Virgini er ATTEST: APPROVED AS TO FORM: r Aevaa' Town Clerk Town Attorney Eric Heil CONTRACTORL-,YA,g, Inc. architects and planners By: VAG - NOTTINGHAM PARK PAVILION Name Title: 5 -207 -I 13 11.0 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. THIS AGREEMENT is executed and made effective as provided above. TOWN OF AVON, COLORADO By: Town Manager Virginia Egger ATTEST: APPROVED AS TO FORM: Town Clerk Town Atto Eric Heil CONTRACTOR: VAg, Inc. architects and planners By: Name: Brian Judge Title: President VAG -NOTTINGHAM PARK PAVILION 13 Exhibit A T, � VAg, Inc. Architects & Planners May 21, 2014 Virginia Egger Avon Town Manager 1 Lake Street P.O. Box 975 Avon, CO 81620 Office: 970.748.4452 Email: vegger @avon.org RE: Harry A. Nottingham Park Performance Pavilion, Harry A. Nottingham Park, Avon, Colorado 81620 Professional Service Proposal Project No. 1402.01 Dear Ms. Egger: Thank you for the opportunity to submit this Proposal for Services for the aforementioned project. This proposal is based upon a fixed fee as described herein. Upon your review and acceptance of these proposed services, this contract will become an attachment to the Town of Avon PSA - Professional Services Agreement Independent Contractor. I. SCOPE OF SERVICES The Scope of Services for this project is to provide building design services, construction drawings and construction administration with a degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances for a project of this kind. The work shall be performed under the direct supervision of a Licensed State of Colorado Architect. The documents will conform to all known applicable codes and laws. The project consists of the design and construction documentation of a new performance pavilion including remodel of an existing pump house as described below. The project will be designed at the location within H.A. Nottingham Park as approved by the Avon Town Council at the April 22, 2014 Avon Town Council meeting. This contract is not assignable to other parties and is binding between the Owner and Architect as signed below. H. PROFESSIONAL SERVICES General Services will be as outlined below and in accordance with design requirements to receive Design approvals from the Town of Avon, Colorado. Services will be provided through final approval of the Avon Planning & Zoning Commission and the required governing agencies and until receipt of a Certificate of Occupancy. We will provide a set of schematic design, design development and construction documents and construction administration for the project as outlined below. We will coordinate the services of all consultants hired through our office, including, and limited to, mechanical, electrical and structural engineers and landscape architect and the following Owner consultant's, Town of Avon, H.A. Nottingham Park Performance Pavilion Proposal for Professional Services: 1402.01 Page 2: May 12, 2014 including, and limited to, geotechnical, civil, technology. Consultant services are estimated following our professional fee outline below. Actual consultant contract amounts are not included in this proposal. Specific The specific services to be supplied, listed in order of phases, will be as follows: A. Schematic Design: 1. Provide schematic design drawings based upon the approved site evaluation plan, floor plans and elevations based on topographic survey and the soils report provided by the Owner. 2. Provide two rounds of changes, additions or deletions to conceptual design through conversations with Avon Town Staff. 3. Incorporate changes discussed in the two review meetings into the design. 4. Prepare required graphic drawings for submittal to the Avon Planning and Zoning Commission. All written documentation and meeting presentation work will be created by the Town staff. If a study model or perspective rendering is required they will be prepared as an additional service. 5. Send files to surveyor on behalf of the Owner for preliminary staking of project for initial walk - through with Avon Planning and Zoning Commission. 5. Attend one meeting and present the application and submittal to the Avon Planning and Zoning Commission. 6. Upon approval update the Consultant Proposals for Services. Select consultants as approved by Owner. 7. Update the estimated time schedules for completion of documents. 8. Update minor revisions from the Avon P&Z into the Schematic Design B. Design Development: 1. Coordinate two meetings with the Town, Town and Architect Consultants and requested others to review project and to incorporate into the program additional requirements. 2. Incorporate as directed the Owner items and budget concerns into the design development. 3. Incorporate twice the changes, additions or deletions to schematic design drawings as directed by Avon Town Staff and Avon Planning and Zoning Commission into the design development drawings. 4. Provide design development drawings consisting of a site plan, floor plans, sections and elevations for Owner review. 5. Prepare design development drawings for submittal to Avon Planning & Zoning Commission if required. All written documentation and meeting presentation work will be created by the Town staff. Modifications to study model or perspective rendering to be provided as an additional service. 6. Attend one meeting and present Planning & Zoning Commission submittal if required. C. Construction Documents —for the purpose of generating qualified bids will consisting of the following: Site Plan including the pathway plan, site walls, stone walls and coordination with the Geotechnical Engineer for erosion control and drainage requirements (by Landscape Architect and Civil Engineer). Demolition floor plans and elevations for pump house renovation. Foundation Plan and details (by Structural Engineer). Floor Plans indicating locations of. walls, doors, glazing, stairs, mechanical and electrical equipment, & fixtures. Building Elevations indicating all materials used. Building and Wall Section (s). Roof Plan. Framing Plans (as required by the design and by Structural Engineer). Town of Avon, H.A. Nottingham Park Performance Pavilion Proposal for Professional Services: 1402.01 Page 3: May 12, 2014 9. Roof Framing Plan (by Structural Engineer). 10. Specify doors and windows, including sizes and types for submittal to window manufacturers. 11. Landscaping Plan (by Landscape Architect). 12. Structural framing details (by Structural Engineer). 13. Specify all exterior colors and finishes for all exterior surfaces. 14. Wall assembly details and specifications. 15. Reflected Ceiling Plan with conceptual general lighting layout. Multi- media, specialty and stage lighting is not included. 16. Base Schematic Power Plans locating the electrical panel, equipment, and convenience outlet layout and circuiting, Selection of lighting fixtures and fittings is included. (Extensive power and lighting plans, if required, to be by Lighting Consultant by Owner, VAg will coordinate). 17. Electrical service sizing and electrical service one -line distribution diagram. 18. Power for Owner- provided equipment (information must be received at start of design development phase). 19. Water Entry and Plumbing Design for hose bibs (by Mechanical Engineer). 20. Limited Reconfiguration of existing mechanical systems in pump house building. 21. Up to two Progress submissions to Owner and General Contractor. 22. Review Owner provided Division 1 and performance specification. CONSTRUCTION DOCUMENTS DELIVERABLES A0.0 Cover Sheet A0.1 General Information Sheet Ll.1 Landscape Grading Plan L2.1 Landscape Planting Plan D2.1 Pump House Demolition Plan and Demolition Roof Plan D3.1 Pump House Demolition Elevations Al.1 Architectural Site Plan A2.1 Floor Plan A2.2 Roof Plan A3.1 Exterior Elevations A3.2 Exterior Elevations A4.1 Building Sections / Wall Sections A5.1 Assembly Type Details A6.1 Reflected Ceiling Plan A9.1 Architectural Details A9.2 Architectural Details S 1.0 Structural General Information Sheet with specifications 52.1 Structural Foundation Plan 52.3 Structural Framing Plan 53.1 Typical Structural Foundation Details 53.2 Typical Structural Framing Details M1.0 Mechanical General Information, Diagrams and Schematics E1.0 Electrical General Information and Specifications E2.1 Power Plans E3.1 Schematics and Diagrams Services not Included, unless as additional services: • Value Engineering documents after the start of the Bid Construction Documents. • Written performance or material specifications (By Professional Specification Writer). • Through no fault of the Architect, additional submittals to the Avon Town Council, Town of Avon Planning & Zoning Commission, Town of Avon Building Department, State and Local Health Departments, utility providers, and Federal Authorities, State Authorities, and Local Water authorities. Town of Avon, H.A. Nottingham Park Performance Pavilion Proposal for Professional Services: 1402.01 Page 4: May 12, 2014 • Documents as required for a Guaranteed Maximum Bid set of Documents (specifically a written specification) • Marketing -sales or rendering packages • Amended final plats, property modifications, etc. • Construction Management. D. Bidding and Negotiation Phase: 1. Create bidding Document packages VAg will post the documents to the Town FTP site for bidding purposes. Completion of Phase 1. Services: The intent of the Bid documents will be to solicit bids and create a GMP for construction. It is assumed this process will require revision and completion of the Construction Documents prior to issuance for Construction. VAg will provide those services as Additional Service. Upon the acceptance of a general contractor the Architect will finalize the Construction Documents with information gained from the bidding process. The modifications to the documents including value engineering changes accepted during bidding will be completed as an Additional Service. A firm bid cam be provided once the scope if fully realized. Phase 2. Post selection of a General Contractor: E. Checking and Revisions Phase: Perform technical review of Construction Documents for general coordination and constructability (this effort is for reduction, not total elimination of errors and omissions). Issue a 95% complete Construction Documents set to Owner for review and comment. Incorporate Planning/Building Department and Agency Plan Check comments into the Construction Documents. Incorporate General Contractor and Town directed value engineering into the Construction Documents as Directed. F. Bidding and Negotiation Phase: 1. Create revised and final bidding and "for construction" Document packages Services not included, unless selected as additional services: • Assistance with Owner for evaluation of bids and contracts. • Pre- or Post- Bid meeting with sub - contractors. • Value engineering revisions. Extensive as used above and below refers to services commonly referred to as Construction Management. These services are not included in this fee. Such services would include the management of the Owners Construction Budget, the direct interaction with the Sub Contractors, the negotiation of bids with the General Contractor, the Management of the Schedule for Construction, the daily management required for the coordination of incomplete details provided by others, or the required daily service for a fast tracked project of construction. This contract is intended to provide the "standard" services as outlined in the AIA B -141 for construction Administration including all management of ASI, CO, RFI, etc. Town of Avon, H.A. Nottingham Park Performance Pavilion Proposal for Professional Services: 1402.01 Page 5: May 12, 2014 G. Construction Administration: 1. Provide review for each shop drawing submittal. 2. Provide architectural non - exhaustive site visits - project observations. 3. Prepare addenda, ASI, etc. in response to General Contractor's questions on 2% construction documents ambiguities. 4. Prepare change order or Value engineering documents 5. Punch Lists 6. Review of Pay Request Applications. 7. Provide Field Observation Reports Services not included, unless selected as additional services: • Meeting minutes to be provided by the General Contractor. III. OWNER'S REQUIREMENTS: A. Furnish and render decisions on information and services as expeditiously as necessary for progress of the work. B. Provide soils test analysis performed by a registered geotechnical engineer within the last year indicating soil suitability, recommended bearing pressure and Proctor density for foundation requirements including details indicating recommended foundation drain installation. C. Provide a stamped and signed topographical survey performed by a registered surveyor at a minimum of one - foot contours. Survey should indicate all significant geological features, existing tree line and individual trees of substantial size or quality, utility lines and pedestal, transformer or stub out locations, view cone, adjacent roads and properties, legal description including acreage, liens and encumbrances and a vicinity map, D. Provide adequate notice to Architect prior to required site visits for scheduling purposes. E. Permit and Agency review fees for submittal. F. Owner shall carry a contingency of five percent (5 %) of the overall construction cost for errors and omissions of Architect related items. IV. AVAILABLE MISCELLANEOUS SERVICES - as requested. V. ESTIMATED SCHEDULE: To Be Determined and Based upon September 2, 2014 Construction Start Phase 1 Schedule: 5.12.14 - 5.13.14 Design Contract Preparation and Execution 5.12.14 — 5.14.14 Kickoff Meeting Preparation 5.15.14 Kickoff Meeting 5.16.14 — 6.10 -14 Conceptual / Schematic Design Phase I 5.29.14 Meet with Town Staff and Design Consultant Team 5.30.14 - 6.2.14 Conceptual / Schematic Design Phase I 6.9.14 Meet with Town Staff for Final Approval to Submit 6.10.14 Submit to Town of Avon Planning & Zoning 6.11.14- 7.14.14 Begin Design Development Phase I and Early CD 6.17.14 Meeting Date for Town of Avon Planning & Zoning 7.15.14 — 8.1.14 Begin Construction Documents for Bid Set 6.25.14 Meet with Town Staff and Consultants 7.9.14 Meet with Town Staff and Consultants 7.15.14 Meeting Date for Town of Avon Planning & Zoning 8.01.14 Issue Construction Documents for Bid Set 8.01.14 Town of Avon Issue for General Contractor Bid 8.1.14 — 8.13.14 Contractor Bid Period Town of Avon, H.A. Nottingham Park Performance Pavilion Proposal for Professional Services: 1402.01 Page 6: May 12, 2014 8.13.14 Receipt of General Contractor Bids 8.14.14 Meet with Town Staff to review bids 8.14.14 — 8.18.14 Bid Review Period 8.19.14 Attend Avon Town Council Meeting, Award Construction Contract End of Phase I Services. 8.20.14 — 9.12.14 Checking and Revision Phase / Meet with Town Staff 8.20.14 Issue Bid set as is for Building Permit (Revision anticipated) 9.1.14 Town of Avon Issue Building Permit 9.2.14 Phase I Construction Start 9.15.14 VAg, Inc. Issue 98% CD's for Construction 9.2.14 - 11.26.14 Construction of Building Structure and Rough Site Grading 11.26.14 Phase I Construction Complete 11.26.14— 5.14.15 Construction Break per Town of Avon requirements 5.15.15 Phase II Construction Start 5.15.15 - 6.5.15 Construction of Site, Landscape and Hardscape 6.15.15 Phase II Construction Complete VI. TERMS OF PAYMENT Professional Fees for Services A through D above: 1. Schematic Design 15% 2. Design Development 20% 3. Construction Documents for "Bid" purposes 65% 4. Revised and VE corrected and "For Construction Document" Hourly (or bid per request) 4. Bidding & Negotiation Hourly 5. Construction Admin. Hourly ESTIMATED FEES: Not to Exceed $54,000 + Hourly as Directed Not to Exceed Consultant Fees for Services A through D above: (If used, these fees are in addition to the architectural fee.) 1. Structural Engineer $ 8,000 2. M/E Engineer $ 5,500 3. Landscape Architect $ 2,500 4. Material Scientist TBD, if any 5. Specification Writer TBD, if required 6. Geotechnical Survey By Owner 7. Topographical Survey By Owner 8. Civil Engineer By Owner 9. General Lighting By Owner, VAg will coordinate 10. Multi -media Lighting By Owner, VAg will coordinate 11. Audio- Visual/Technology By Owner, VAg will coordinate 12. Acoustic Engineer By Owner, VAg will coordinate 13. Rendering Additional Service TBD, if needed 14. Model Maker Additional Service TBD, if needed 15. Fire protection Design Build only 16. Specialty items TBD, if any 17. Reimbursable (Estimate Only) $5,000 See "Project Rates and Reimbursable" Sheet Attachment Town of Avon, H.A. Nottingham Park Performance Pavilion Proposal for Professional Services: 1402.01 Page 7: May 12, 2014 VII. STANDARD TERMS AND CONDITIONS —see ATTACHMENT "A" Sincerely, VAg, Inc. Architects & Planners Brian T. Judge, Principal .A, VAg, Inc. Architects & Planners ATTACHMENT "A" STANDARD TERMS AND CONDITIONS January 1, 2014 through December 315`, 2014 OWNER'S REQUIREMENTS: Furnish and render decisions and provide information on all Owner requirements as necessary and as expeditiously as necessary for orderly progress of the work. Provide soils test analysis performed by a registered geotechnical engineer within the last year indicating soil suitability, recommended bearing pressure and Proctor density for foundation requirements including details indicating recommended foundation drain installation. Provide a stamped and signed topographical survey performed by a registered surveyor in the last 12 months at a minimum of two -foot contours. Survey should indicate all significant geological features, existing tree line and individual trees of substantial size or quality, utility lines and pedestal, transformer or stub out locations, view cone, adjacent roads and properties, legal description including acreage, liens and encumbrances, easements and a vicinity map. Provide adequate (24hr min.) notice to Architect prior to required meetings for scheduling purposes. Provide invoice payments, permit and DRB fees in a timely manner. The Client recognizes that although the Consultant will perform its services under this Agreement in a manner consistent with the applicable standard of care, the Consultant's instruments of service may contain design refinements, ambiguities, conflicts, errors, omissions and/or other imperfections. The Client recognizes and expects that certain increased costs and changes may be required because of these imperfections in the Consultant's instruments of service and, therefore, that the final construction cost of the Project may exceed the estimated construction costs. Accordingly, the Client agrees to set aside a reserve in the amount of five percent (5 %) of the Project construction costs as a contingency to be used, as required, to pay for any such increased costs and changes. The Client further agrees not to make any claim directly or indirectly against the Consultant on the basis of professional negligence, breach of contract, or otherwise with respect to the increased costs and changes unless the total of such increased costs and changes exceeds five percent (5 %) of the final construction cost of the Project, and then only for an amount in excess of such percentage. Any responsibility of the Consultant for the increased costs and changes in excess of such percentage will be determined on the basis of applicable contractual obligations and professional liability standards. For purposes of this provision, the increased costs and changes will not include any costs that the Client would have incurred if the Consultant's instruments of service had not originally contained such design refinements, ambiguities, conflicts, errors, omissions and other imperfections. Nothing in this provision creates a presumption that, or changes the professional liability standard for determining if, the Consultant is liable for any increased costs and changes in excess of the percentage of final construction cost of the Project stated above. Physical Address: 105 Edwards Village Blvd., Suite G -104 Edwards, CO 81632 (970) 949 -7034 e -mail: general @vagarchitects.com Mailing Address P.O. Box 1734 Vail, CO 81658 -1734 II. TERMS OF PAYMENT It is the professional opinion of this firm that the amounts included in the proposal/contract for third party services should cover the proposed design, however the Architect at the Owner's request will provide up to (3) three Third Party Contracts for comparison and review of service and fee for their approval. Work not herein described as fixed fee or services listed under available miscellaneous services, additional services or services listed as Hourly will be billed at an hourly rate of $205.00 for Principal, $130.00 for Sr. Project Architect/Sr. Project Manager /Sr. Landscape Architect/Sr. Land Planner responsibilities, $115.00 for Project Architect/ Project Manager/Project Planner /Land Planner/Landscape Architect responsibilities, $100.00 for Project Architect Jr. /Land Planner. /Jr. Landscape Architect responsibilities, $80 for Information and Technology Manager /CAD Manager /GIS responsibilities, $70.00 for Project Manager Jr. /Landscape Architect II /Land Planner II responsibilities, $55.00 for Support /Drafting/Landscape Architect /Land Planner responsibilities, $45 University Intern responsibilities and $65.00 for Clerical duties and will increase the fixed fee accordingly. Rates are reviewed annually on or around April 151 and mayaffect billing. VFrri rworkrequestiparagraph below land/or for s e y the Owner. In such an event it is the sole o tion mutually deleted additional 50% per hourly rate above to Computer charges may be incurred for specific GIS work required and /or requested for the project. This time will be billed as a reimbursable cost and tracked hourly specific to task required /requested. Fees indicated for the project are determined based on continuation of the project as scheduled under same Ownership of the project. If the project is delayed and/or Ownership of the Project changes, work will continue as additional services and will be billed as an increase to the stipulated fee. Construction administration is based upon a certain number of hours per week for a certain number of months. It is the professional opinion that the time outlined is sufficient for the typical services outlined in the proposal/contract for service. If additional time is being requested or required and/or construction goes beyond the construction time allotted then services will continue as additional services and will be billed as an increase to the stipulated fee. A change in Scope of Services will require a change in the fee stated in the proposal/contract for service. A Change in Scope is defined as any Owner directed modification. Scope of Service changes will continue as additional services and will be billed as an increase to the stipulated fee. If the mutually established budget and/or overall project square footage and/or estimated construction costs (including all unfinished areas and all construction soft costs) for this project is exceeded by 10% then the Architect's fee will be increased by either or both of the full percentage of such increase (i.e.: if the budgets and or sf is increased by 16% then the architects fee increases 16 %, 0% to 9.9% increase will not alter the architects budget) it is the architect's sole choice as to which method to select based upon the type of contract presented. All fees and expenses, including those for consultants, plotting, printer plotting, blueprints, telephone calls, faxes, postage, mileage, messengers, legal fees, reasonable attorney collection fees, travel, travel time above 8 hours per day, etc. are to be reimbursed at 115% of the direct cost. Current internal office supplies, printing, plotting, mileage, etc. costs are available on request per separate attachment. No back -up data or copies will be provided for reimbursable expenses invoiced under this agreement. Should back -up data be requested, it will be provided for an administrative fee of $75 per hour. Invoices will be prepared monthly and payment due within 30 days of invoice date. Late payments will be subject to 1.5% interest per month, compounded monthly. If VAg, Inc. is delayed in the performance of the work for any reason beyond its control, and without fault or negligence, including delays caused in whole or in part by the Owner, General Contractor, or any other entities or Physical Address: (970) 949 -7034 Mailing Address 105 Edwards Village Blvd., Suite G -104 P.O. Box 1734 Edwards, CO 81632 e-mail: general @vagarchitects.com Vail, CO 81658 -1734 events, VAg, Inc. shall be entitled to additional costs incurred as a result of such delay, and to an extension of time in which to complete its work. III. ARCHITECT PERFORMANCE The Architect and its employees will exercise that degree of skill and care of a reasonably architect in the Eagle Valley area. The contracting party and the Architect recognize and agree that there will be errors and omissions in the instruments of service and therefore the Owner has established a contingency within the total project budget to cover the costs of any error or omission. No other warranties, expressed or implied are made with respect to the Architects performance unless agreed to in writing by both parties. The Architect does not guarantee the success of the project to which its services are rendered, the Architect is not responsible for the cost estimating, project profitability, cost overruns, acts or errors of the owner or other contractors or consultants. The Architect will rely upon information available and obtained from other reputable sources without verification. There are no third party beneficiaries of this Agreement and any contractor, subcontractor, supplier, consultant or other third party shall not have any claim against the Architect a result of its service. IV. COPYRIGHT The drawings, specifications, electronic media, rendering, models and other documents prepared by the Architect (VAg, Inc. Architects & Planners) for this Project are instruments of the Architect's service for use solely with respect to this Project. No person, whether having come rightly into possession hereof or otherwise, shall employ these documents on any other project, nor for additions to this Project nor for the completion of this Project by others, unless with the prior express written consent of the Architect and upon appropriate compensation to the Architect in an amount and kind satisfactory to the Architect. These materials may not be copied, modified, nor employed in any way without the specific prior written consent and permission of the Architect. © VAg, Inc. 2014 All rights reserved. The documents are for the sole use in respect to this project and the location for which they are designed. The contracting party may have the use of reproducible copies of the contract documents (not including electronic media) for use on this property only. The documents can be transferred with the property. The Architect assumes no liability whatsoever for the completeness or accuracy of the documents no matter what the use, this includes square footage estimates and renovations and additions. The Owner may obtain printed reproducible copies of the documents in accordance with the Additional Services and reimbursable expenses clauses. Physical Address: 105 Edwards Village Blvd., Suite G -104 Edwards, CO 81632 (970) 949 -7034 e -mail: general @vagarchitects.com Mailing Address P.O. Box 1734 Vail, CO 81658 -1734 V. MEDIATION In an effort to resolve any conflicts that arise during the design and construction of the Project or following completion of the Project, the Owner and VAg, Inc. agree that all disputes between them arising out of or relating to this Agreement or the Project shall be submitted to binding mediation unless the parties mutually agree otherwise. Fees incurred by each party arising out of this conflict will be paid by each party independently and will not be included in the binding mediation calculations. The Owner and VAg, Inc. further agree to attempt to include a similar mediation provision in all agreements with contractors and consultants retained for the Project. VI. SUBPOENAS, COURT ORDERS, EXPERT WITNESS The client/owner is responsible for payments of the Architect's time, attorney fees and all other expenses resulting from orders issued or requests obtained for the Architect's work not involving a specific legal action against the Architect. The fees will be billed at the then current billing rates. VII. STOP WORK VAg, Inc. may in the event of default by Owner, cease performance under this agreement until the default is cured, and, if the default is not cured within ten (10) days, this agreement may be terminated at the option of VAg, Inc. In the event of non payment, VAg, Inc. has the right to stop work. VAg, Inc. shall have no liability to the Owner and the Owner agrees to make no claim for any delay or damage as a result of such suspension caused by a breach of this agreement by the Owner. Upon receipt of payment in full of all outstanding sums due from the Owner, VAg, Inc. shall resume services and there shall be an equitable adjustment to the remaining project schedule and fees as a result of the suspension combined with a project restart fee. VII. PROJECT RESTART FEE: Because of substantial costs incurred by VAg, Inc. to stop and restart a project once it is under way, should this project's progress be halted at any time for 30 or more days by the Owner or for any reason including the sole decision of the Architect to suspend work due to payments or information not received, a project restart fee of $1,500 or 10% of the total fee earned to date, whichever, is greater, will be due and payable immediately. In addition, VAg, Inc.'s, schedule and fees for the remainder of the project shall be equitably adjusted. The Architect will have no liability to the client for the delay or damages caused by such delay or suspension of services. IX. JOBSITE SAFETY: Neither the professional activities of VAg, Inc., nor the presence of VAg, Inc.'s personnel and consultants at a construction site, shall relieve the Owner or General Contractor and any other entity of their obligations, duties and responsibilities including, but not limited to, construction means, methods, sequence, techniques or procedures necessary for performing, superintending or coordinating all portions of the work of construction in accordance with the contract documents and any health or safety precautions required by any regulatory agencies. VAg, Inc.'s personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions. The Owner agrees that the General Contractor is solely responsibility for j obsite safety, and warrants that this intent shall be made evident in the Owner's agreement with the General Contractor. X. PROJECT SIGN: VAg, Inc. Architects & Planners; logo, name and address with telephone number shall be included on the project sign. Physical Address: (970) 949 -7034 Mailing Address 105 Edwards Village Blvd., Suite G -104 P.O. Box 1734 Edwards, CO 81632 e-mail: general @vagarchitects.com Vail, CO 81658 -1734 XI. PHOTOGRAPHY AND PUBLICATION: Owner gives VAg, Inc. Architects & PIanners permission to photograph their project and use these photographs in VAg Inc.'s portfolio, brochure, and advertisements, as long as the owner of the property, the construction costs and the specific address of the property are not disclosed without prior consent from the Owner. Owner will include appropriate credits for the Architect for publications of which they are aware. XII. TERMINATION In the event of termination of this Agreement by either party, the Owner shall within fifteen (15) calendar days of termination pay the Architect for all services rendered and all reimbursable costs incurred by the Consultant up to the date of termination, in accordance with the payment provisions of this Agreement. The Owner may terminate this Agreement for the Owner's convenience and without cause upon giving the Architect not less than thirty (30) calendar days' written notice. Either party may terminate this Agreement for cause upon giving the other party not less than thirty (30) calendar days' written notice. In the event of any termination that is not the fault of the Architect, the Owner shall pay the Architect, in addition to payment for services rendered and reimbursable costs incurred, for all expenses reasonably incurred by the Architect in connection with the orderly termination of this Agreement, including but not limited to demobilization, reassignment of personnel, associated overhead costs and all other expenses directly resulting from the termination. This contract/proposal is not assignable to other parties without prior written and mutual consent and is binding between the Owner and Architect. In the event that this document is in conflict with any other signed agreement: the more restrictive condition shall apply. END OF DOCUMENT Physical Address: 105 Edwards Village Blvd., Suite G -104 Edwards, CO 8 163 2 (970) 949 -7034 e -mail: general @vagarchitects.com Mailing Address P.O. Box 1734 Vail, CO 81658 -1734 EXHIBIT B TOWN OF AVON PROFESSIONAL SERVICES AGREEMENT Design /Bid Services for Nottingham Park Pavilion TOTAL PROJECT BUDGET ESTIMATE Cost of Construction $850,000 15% Design & Engineering* $150,000 TOTAL BUDGET $1,000,000 *Design & Engineering Budget $150,000 Committed VAg + Other May 12, 2014 Agreement NOT TO EXCEED $70,000 Balance Available $80,000 .A, lLtsw VAg, Inc. Architects & Planners PROJECT RATES AND REIMBURSABLE: Hourly Rate Schedule January 1s1, 2014- December 3151, 2014 (Subject to annual review, revision and project specific) Principal $205.00 Sr. Project Architect/Sr. Project Manager /Sr. Landscape Architect $130.00 Project Architect/Project Manager /Land Planner /Landscape Architect $115.00 Project Architect Jr. /Land Planner /Jr. Landscape Architect $100.00 Information Technology Manager /CAD Manager/ GIS Specialist $80.00 Project Manager Jr. /Landscape Architect or Planner II $70.00 Project Manager Jr. $65.00 Support Staff/Drafting $55.00 Student/Intern $45.00 Clerical $65.00 Reimbursable Schedule Accounting Blueprints (in- house) Blueprints (out of house) Sheet printing (paper) Plotting/Scans Fax Xerox Presentation 4 -color plots (glossy) Postage Zip Disk CD /DVD Digital Camera work Color Prints (photo quality) Mileage GIS computer charge $65.00 per hour 24x36 =$1.50 30x42= $2.00 36x48= $2.50 Cost plus 15% $0.25 per sheet $2.00 per square foot /$6.00 per square foot $1.00 per sheet $0.25 per sheet $10.00 per square foot Cost plus 15% $10.00 each $5.00 each $75.00 per hour $3.00 each Subject to the approved Federal Rate @ 1.15% $25.00 hour - END OF RATES AND REIMBURSABLES - EXHIBIT F RATES AND REIMBURSABLES Page 1 of 1