04-03-2017 Pop-Up Concerts AgreementPROFESSIONAL SERVICES
AGREEMENT
For: Pop -Up Concerts
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") dated as of April 3, 2017, is entered into
by and between A -Music Plus Entertainment a corporation of the State of Colorado, whose business
address is at 6810 Broadway, Suite I, Denver, Colorado, 80221 ("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:
1.1 SERVICES AND CONTRACTOR PERFORMANCE
1.2 Services and Work Product. As directed by and under the supervision of the Town Manager for
the Town of Avon, the Contractor shall provide the Town with the services described in Exhibit A
("Services"). "Work Product" shall consist of deliverables and/or product to be created, provided or
otherwise tendered to the Town as described in the Services.
1.3 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.
1.4 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.
2017 FORM: Avon Professional Service Agreement: Pop Up Concerts: A -Music Plus Entertainment — April 8, 2017
Page 1 of 15
1.5 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.
1.6 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.
1.7 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.
1.8 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.
1.9 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 pay salary or any other
costs associated with dismissed personnel effective upon Contractor's receipt of notice to dismiss from
Town,
1.10 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.
1.11 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.
1.12 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.
2017 FORM: Avon Professional Service Agreement: Pop Up Concerts: A -Music Plus Entertainment — April 8, 2017
Page 2 of 15
2.1 COMPENSATION
2.2 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 COMPENSATION and its Sub-Sections.
2.2 2.0 COMPENSATION and its Sub-Sections.
A. Time and Materials Contract — Not to Exceed Amount. 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. Total compensation (including all reimbursable expenses) shall not
exceed Sixty-Six Hundred Dollars ($6600.00).
B. 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.
C. 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.
2.2 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 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. 50% shall be invoiced/paid upon signature of this contract and 50% at
the completion of July 15th performance/event.
2.3 TownDispute 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.
3.1 CONTRACTOR'S GENERAL RESPONSIBILITIES
3.2 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
2017 FORM: Avon Professional Service Agreement: Pop Up Concerts: A-Music Plus Entertainment — April 8, 2017
Page 3 of 15
Contractor, based on the Contractor's professional experience, should reasonably expect is available and
which would be relevant to the performance of the Services.
3.3 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.
3.4 The Contractor shall provide all of the Services in a timely and professional manner,
3.5 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.
3.6 The Contractor shall comply with all applicable federal, state and local laws, ordinances,
regulations, and resolutions,
3.7 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.
4.1 TERM AND TERMINATION
4.2 Term. This Agreement shall be effective on the 3rd day of July, 2017, at 12:01 a.m., ("Effective
Date") and shall terminate at 11:59 p.m. on August 12, 2017, 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 twelve
(12) consecutive calendar months if such extension is approved by the Town Council and the Contractor
and such extension does not alter or amend any of the terms or provisions of this Agreement.
4.3 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 Council.
4.4 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 Sub -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.
2017 FORM: Avon Professional Service Agreement: Pop Up Concerts: A -Music Plus Entertainment — April 8, 2017
Page 4 of 15
4.5 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 Sub -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 Sub -Section 4.4, nothing in this Sub -
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.
4.6 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.
4.7 Reinstatement of Services Following Town's unilateral[ SuspensionThe 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 Sub -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 Sub -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.
4.8 Delivery of Notice of Termination. Any notice of termination permitted by this Section 4.0
TERM AND TERMINATION 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.
2017 FORM. Avon Professional Service Agreement: Pop Up Concerts: A -Music Plus Entertainment — April 8, 2017
Page 5 of 15
5.1 INSURANCE
5.2 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 Sub -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
cover all liability, claims, demands, and other obligations assumed by the Contractor.
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 (Exhibit B) 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.
5.3 Additional Requirements for All Policies. In addition to specific requirements imposed on
insurance by this Section 5.0 INSURANCE 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.
2017 FORM. Avon Professional Service Agreement: Pop Up Concerts: A -Music Plus Entertainment — April 8, 2017
Page 6 of 15
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.
5.4 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 INSURANCE and its subsections shall
not limit, prevent, preclude, excuse, or modify any liability, claims, demands, or other obligations of the
Contractor arising from performance or non-performance of this Agreement. Failure on the part of the
Contractor to obtain and to continuously maintain policies providing the required coverage, conditions,
restrictions, notices, and minimum limits shall constitute a material breach of this Agreement upon which
the Town may immediately terminate this Agreement, or, at its discretion, the Town may procure or
renew any such policy or any extended reporting period thereto and may pay any and all premiums in
connection therewith, and all monies so paid by the Town shall be repaid by Contractor to the Town
immediately upon demand by the Town, or at the Town's sole discretion, the Town may offset the cost of
the premiums against any monies due to the Contractor from the Town pursuant to this Agreement.
5.5 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 INSURANCE
and its subsections shall be indicated on each certificate of insurance. Certificates of insurance shall
reference the Project Name as identified on the first page of this Agreement. The Town may request and
the Contractor shall provide within three (3) business days of such request a current certified copy of any
policy of Required Insurance and any endorsement of such policy. The Town may, at its election,
withhold payment for Services until the requested insurance policies are received and found to be in
accordance with the Agreement.
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 Sub -Section 1.1, 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. Town will have
unlimited right to make, have made, use, reconstruct, repair, modify, reproduce, publish, distribute and
sell the Work Product, in whole or in part, or combine the Work Product with other matter, or not use the
Work Product at all, as it sees fit. Any reuse of the Work Product produced under this Agreement for any
purpose not directly related to this Agreement will be at the sole risk 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 this Section 6.0 OWNERSHIP OF DOCUMENTS, not to use or
2017 FORM. Avon Professional Service Agreement: Pop Up Concerts: A -Music Plus Entertainment — April 8, 2017
Page 7 of 15
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 this Section 6.0 OWNERSHIP OF DOCUMENTS.
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. §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:
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.
2017 FORM. Avon Professional Service Agreement: Pop Up Concerts: A -Music Plus Entertainment—April 8, 2017
Page 8 of 15
9.1 MISCELLANEOUS PROVISIONS
9.2 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.
9.3 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.
9.4 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.
9.5 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.
9.6 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.
9.7 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.
9.8 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
2017 FORM: Avon Professional Service Agreement: Pop Up Concerts: A -Music Plus Entertainment — April 8, 2017
Page 9 of 15
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.
9.9 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.
9.10 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.
9.11 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.
9.12 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.
9.13 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.
9.14 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.
9.15 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
2017 FORM: Avon Professional Service Agreement: Pop Up Concerts: A-Music Plus Entertainment — April 8, 2017
Page 10 of 15
(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.
9.16 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 Indemnity. To the fullest extent permitted by law, Contractor shall indemnify and defend the
Town, its members, affiliates, officers, directors, partners, employees, and agents (collectively referred to
as the "Town" for the purposes of this Section 9.16) from and against all claims, damages, losses and
expenses, including but not limited to reasonable attorney's fees (collectively referred to "Losses"),
arising out of the performance of the Services, provided that (a) any such claim, damage, loss or expense
is caused by any negligent act or omission of (i) Contractor, (ii) anyone directly or indirectly employed by
Contractor or (iii) anyone for whose acts Contractor may be liable; and (b) such indemnification shall not
apply to the extent that such Losses are caused by the negligence of the Town or other party indemnified
hereunder. If Contractor is providing architectural, engineering, or surveying services; design;
construction; alteration; repair; or maintenance of any building, structure, highway, bridge, viaduct, water,
sewer, or gas distribution system, or other works dealing with construction, or any moving, demolition, or
excavation connected with such construction, the extent of Contractor's obligation to indemnify and
defend the Town is enforceable only to the extent and for an amount represented by the degree or
percentage of negligence or fault attributable to the Contractor or the Contractor's agents, representatives,
subcontractors, or suppliers. If the Contractor is a person or entity providing architectural, engineering,
surveying, or other design services, then the extent of Contractor's obligation to indemnify and defend
the Town may be determined only after the Contractor's liability or fault has been determined by
adjudication, alternative dispute resolution, or otherwise resolved by mutual agreement between the
Contractor and Town. The indemnification in this Section 9.16 shall be construed to comply with C.R.S. §
13-50.5-102(8) et. seq.
9.18 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, Written
notice may also be provided by electronic mail which shall be deemed delivered when receipt is
acknowledged by reply of the recipient.
2017 FORM: Avon Professional Service Agreement: Pop Up Concerts: A -Music Plus Entertainment — April 8, 2017
Page 11 of 15
If to the Town: If to the Contractor:
Virginia Egger, Town Manager
Pat Bruno
Casey Willis, Special Events Manager
A Music Plus Entertainment
Town of Avon
6810 Broadway, Suite I, Denver,
P.O. Box 457
Colorado, 80221
1 Lake Street
path amusicplus.com
Avon, Colorado 81620
vegger(o)avon.orq
cwillis(a,avon.org
With Copy to:
Town Attorney
P.O. Box 457
1 Lake Street
Avon, Colorado 81620
eheil @avon.orq
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]
2017 FORM: Avon Professional Service Agreement: Pop Up Concerts: A -Music Plus Entertainment—April 8, 2017
Page 12 of 15
THIS AGREEMENT is executed and made effective as provided above.
TOWN OF AVON, COLORADO
By: _7�-� ' —ATTEST:
(400—
Virginia C. Egger
Town Manager
Debbie Hoppe, Town Clerk
CONTRACTOR:
By:
"W
Name: Pat Bruno
Title: President, A Music Plus, Inc.
2017 FORM: Avon Professional Service Agreement: Pop Up Concerts: A -Music Plus Entertainment — April 8, 2017
Page 13 of 15
EXHIBIT A
Pop -Up Concerts
SERVICES
A -Music Entertainment will provide the following services, staffing and artist management for the "Pop -Up Concerts"
events on Friday, July 7, July 14, July 21, July 28, August 4, and August 11 on the Main Street Mall:
• The Performance will be held on the Main Street Mall in the Lettuce Shed Lane (Venue A) or the Possibility
Plaza (Venue B)
• The Performance will be not less than 90 -minutes in length and will start not later than 5:15 p.m. MST
• Performing Artists: Four (4) String Quartets, One (1) Spanish guitars, and One (1) Mixed Trio
• The programs performed, except for the Spanish guitars, shall feature well known classical composers, but
may include some contemporary pieces during the performance
• The Spanish guitar production shall be lively and feature traditional music
• All instruments, stands, mics, speakers and wind controls needed in support of the performing artists for the
Performance
• Any and all necessary travel arrangements for the Performing Artists
COMPENSATION
A -Music shall be compensated based upon the following Budget:
2017 BUDGET
Expenses - A Music Plus Entertainment
Total
Talent/ Sound & Light Production/ Artist Management
Fee
Performers (musicians, instruments, stands)
$5,700
A Music Plus Fee, Artist Management, Travel, Production
(Artist contracting, production, meetings, logistics, etc.)
$900
A Music Plus Expense Total
$6,600
• A 90% deposit, in the amount of $5,940.00, shall be paid within ten (10) business days of full execution of
this Professional Services Agreement.
• A 10% final payment, in the amount $660.00, shall be paid within ten (10) business days of August 11, 2017,
if all terms of this Professional Services Agreement have been satisfactorily fulfilled.
• Payments, in the form of a check, shall be paid to A Music Plus, Inc.
EXHIBIT B
PREMISE